NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5722-12T2
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
February 26, 2014 v. APPELLATE DIVISION RAMIER A. DUNBAR,
Defendant-Respondent.
Argued telephonically December 5, 2013 – Decided February 26, 2014
Before Judges Reisner, Alvarez and Carroll.1
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-01-0079.
Seth P. Galkin, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Galkin, on the brief).
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief).
The opinion of the court was delivered by
ALVAREZ, J.A.D.
1 Judge Carroll did not participate in oral argument. He joins the opinion with counsel's consent. R. 2:13-2(b). During the early morning hours of August 19, 2012, two
Jersey City uniformed officers were dispatched in a marked
patrol car in response to a report of "shots fired." They
arrived within seconds of the transmission, basically turning a
corner. They encountered a group of approximately thirty
persons who were "yelling" and "screaming," and immediately
dispersed upon the officers' arrival. As the officers scanned
the sidewalk, they noticed one individual, later identified as
defendant, Ramier Dunbar, who appeared nervous. He disappeared
into an adjoining alley while turning his head to watch the
marked patrol car. Moments later, defendant came back out of
the alley and began to walk away from the intersection. The
patrol car followed him, and Officer Jose Perez asked defendant
if he had heard shots in the area. Defendant appeared even more
nervous, did not respond but continued moving away from the
patrol car, looking back over his shoulder.
Perez exited his vehicle and asked defendant to stop. At
that point, defendant began running, Perez behind him.
Defendant reached into his waistband and threw a handgun onto
the ground. Perez stopped to retrieve the weapon and continued
after defendant, who was soon apprehended. The ensuing search
revealed a bag of marijuana.
2 A-5722-12T2 Defendant was indicted for second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count two); fourth-degree possession of a prohibited
device — a hollow-point bullet, N.J.S.A. 2C:39-3(f) (count
three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)
(count four); and fourth-degree obstruction of the
administration of law, N.J.S.A. 2C:29-1 (count five).
Based on the facts we have recounted above, drawn from
Perez's testimony at the suppression hearing, the trial judge
granted defendant's motion and suppressed all evidence seized as
a result of his arrest. The State appeals, and we now reverse.
In reaching his decision, the trial judge principally
relied upon State v. Williams, 410 N.J. Super. 549 (App. Div.
2009), certif. denied, 201 N.J. 440 (2010). In that case,
police were patrolling a housing complex, hoping to deter a
possible retaliatory shooting. Id. at 552. Upon observing
police officers in the area in front of an apartment building,
the defendant commenced to pedal away on his bicycle, placing
his right hand in his pants pocket, ignoring the officers'
command that he stop. Id. at 553. The arresting officers gave
chase and pulled the defendant off his bicycle. Ibid. As the
3 A-5722-12T2 officers "grabbed" the defendant, he discarded contraband.
Ibid.
Since there was "nothing intrinsically suspicious about a
person riding a bicycle in a housing complex courtyard," or even
the ensuing flight, we affirmed suppression of the evidence.
Id. at 556, 564. Other than defendant's attempt to pedal away
while placing his hand in his pocket, no circumstance explained
the officers' attention nor established any reasonable or
articulable suspicion for the investigatory stop. Id. at 556-
57. The information about the potential of a retaliatory
shooting was vague, and non-specific in terms of where and when
the retaliation might occur; there was no evidence that the
source was reliable or the information just rumor; and there was
no reason to believe the defendant might be involved. Id. at
556-58.
The State contends on appeal that the trial court erred
because, in this case, the stop of defendant was a proper field
inquiry. The State further claims that the officers had
sufficient reasonable suspicion to make an investigatory
detention, the gun was abandoned property and therefore lawfully
recovered, and the drugs properly seized incident to arrest.
We review the trial court's findings of fact on a motion to
suppress deferentially, affirming whenever they are supported by
4 A-5722-12T2 sufficient credible evidence in the record. State v. Elders,
192 N.J. 224, 243 (2007). We particularly defer to those
findings that flow from the trial court's opportunity to see and
hear the witnesses, an opportunity not enjoyed by a reviewing
court. State v. Johnson, 42 N.J. 146, 161 (1964); see also
State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). No such
deference is accorded to the court's conclusions of law; such
issues are addressed de novo. State v. Gandhi, 201 N.J. 161,
176 (2010).
It is the State's burden to establish by a preponderance of
the evidence that the challenged stop and seizure falls within
an exception to the Fourth Amendment's warrant requirement.
Elders, supra, 192 N.J. at 246. One such exception is the
investigatory or Terry2-type stop, in which specific and
articulable facts, along with rational inferences, give rise to
a reasonable and articulable suspicion of criminal activity.
State v. Pineiro, 181 N.J. 13, 20 (2004). The test is
objective, the question being whether at the moment of seizure,
the officer had at his command sufficient facts supporting a
person of reasonable caution in the belief that seizure was
appropriate. Id. at 21-22. The analysis must be fact-
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
5 A-5722-12T2 sensitive, each case must be carefully reviewed, and an
individual determination made. Id. at 22. The totality of the
circumstances must satisfy the reasonable and articulable
standard. Elders, supra, 192 N.J. at 247.
Unlike the facts in Williams, the circumstances of this
case gave rise to a reasonable and articulable suspicion that
defendant had committed a crime or was in the process of
committing one. In the aggregate, they support the conclusion
that the officers had a reasonable basis for suspicion that
defendant was engaged in criminal activity. See State v.
Stovall, 170 N.J. 346, 368 (2002). "Even if all of the factors
were susceptible of purely innocent explanations, a group of
innocent circumstances in the aggregate can support a finding of
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5722-12T2
STATE OF NEW JERSEY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
February 26, 2014 v. APPELLATE DIVISION RAMIER A. DUNBAR,
Defendant-Respondent.
Argued telephonically December 5, 2013 – Decided February 26, 2014
Before Judges Reisner, Alvarez and Carroll.1
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-01-0079.
Seth P. Galkin, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Galkin, on the brief).
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief).
The opinion of the court was delivered by
ALVAREZ, J.A.D.
1 Judge Carroll did not participate in oral argument. He joins the opinion with counsel's consent. R. 2:13-2(b). During the early morning hours of August 19, 2012, two
Jersey City uniformed officers were dispatched in a marked
patrol car in response to a report of "shots fired." They
arrived within seconds of the transmission, basically turning a
corner. They encountered a group of approximately thirty
persons who were "yelling" and "screaming," and immediately
dispersed upon the officers' arrival. As the officers scanned
the sidewalk, they noticed one individual, later identified as
defendant, Ramier Dunbar, who appeared nervous. He disappeared
into an adjoining alley while turning his head to watch the
marked patrol car. Moments later, defendant came back out of
the alley and began to walk away from the intersection. The
patrol car followed him, and Officer Jose Perez asked defendant
if he had heard shots in the area. Defendant appeared even more
nervous, did not respond but continued moving away from the
patrol car, looking back over his shoulder.
Perez exited his vehicle and asked defendant to stop. At
that point, defendant began running, Perez behind him.
Defendant reached into his waistband and threw a handgun onto
the ground. Perez stopped to retrieve the weapon and continued
after defendant, who was soon apprehended. The ensuing search
revealed a bag of marijuana.
2 A-5722-12T2 Defendant was indicted for second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count two); fourth-degree possession of a prohibited
device — a hollow-point bullet, N.J.S.A. 2C:39-3(f) (count
three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)
(count four); and fourth-degree obstruction of the
administration of law, N.J.S.A. 2C:29-1 (count five).
Based on the facts we have recounted above, drawn from
Perez's testimony at the suppression hearing, the trial judge
granted defendant's motion and suppressed all evidence seized as
a result of his arrest. The State appeals, and we now reverse.
In reaching his decision, the trial judge principally
relied upon State v. Williams, 410 N.J. Super. 549 (App. Div.
2009), certif. denied, 201 N.J. 440 (2010). In that case,
police were patrolling a housing complex, hoping to deter a
possible retaliatory shooting. Id. at 552. Upon observing
police officers in the area in front of an apartment building,
the defendant commenced to pedal away on his bicycle, placing
his right hand in his pants pocket, ignoring the officers'
command that he stop. Id. at 553. The arresting officers gave
chase and pulled the defendant off his bicycle. Ibid. As the
3 A-5722-12T2 officers "grabbed" the defendant, he discarded contraband.
Ibid.
Since there was "nothing intrinsically suspicious about a
person riding a bicycle in a housing complex courtyard," or even
the ensuing flight, we affirmed suppression of the evidence.
Id. at 556, 564. Other than defendant's attempt to pedal away
while placing his hand in his pocket, no circumstance explained
the officers' attention nor established any reasonable or
articulable suspicion for the investigatory stop. Id. at 556-
57. The information about the potential of a retaliatory
shooting was vague, and non-specific in terms of where and when
the retaliation might occur; there was no evidence that the
source was reliable or the information just rumor; and there was
no reason to believe the defendant might be involved. Id. at
556-58.
The State contends on appeal that the trial court erred
because, in this case, the stop of defendant was a proper field
inquiry. The State further claims that the officers had
sufficient reasonable suspicion to make an investigatory
detention, the gun was abandoned property and therefore lawfully
recovered, and the drugs properly seized incident to arrest.
We review the trial court's findings of fact on a motion to
suppress deferentially, affirming whenever they are supported by
4 A-5722-12T2 sufficient credible evidence in the record. State v. Elders,
192 N.J. 224, 243 (2007). We particularly defer to those
findings that flow from the trial court's opportunity to see and
hear the witnesses, an opportunity not enjoyed by a reviewing
court. State v. Johnson, 42 N.J. 146, 161 (1964); see also
State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). No such
deference is accorded to the court's conclusions of law; such
issues are addressed de novo. State v. Gandhi, 201 N.J. 161,
176 (2010).
It is the State's burden to establish by a preponderance of
the evidence that the challenged stop and seizure falls within
an exception to the Fourth Amendment's warrant requirement.
Elders, supra, 192 N.J. at 246. One such exception is the
investigatory or Terry2-type stop, in which specific and
articulable facts, along with rational inferences, give rise to
a reasonable and articulable suspicion of criminal activity.
State v. Pineiro, 181 N.J. 13, 20 (2004). The test is
objective, the question being whether at the moment of seizure,
the officer had at his command sufficient facts supporting a
person of reasonable caution in the belief that seizure was
appropriate. Id. at 21-22. The analysis must be fact-
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
5 A-5722-12T2 sensitive, each case must be carefully reviewed, and an
individual determination made. Id. at 22. The totality of the
circumstances must satisfy the reasonable and articulable
standard. Elders, supra, 192 N.J. at 247.
Unlike the facts in Williams, the circumstances of this
case gave rise to a reasonable and articulable suspicion that
defendant had committed a crime or was in the process of
committing one. In the aggregate, they support the conclusion
that the officers had a reasonable basis for suspicion that
defendant was engaged in criminal activity. See State v.
Stovall, 170 N.J. 346, 368 (2002). "Even if all of the factors
were susceptible of purely innocent explanations, a group of
innocent circumstances in the aggregate can support a finding of
reasonable suspicion." Ibid. (internal quotation marks
omitted).
The officers arrived within moments of the report of shots
being fired, and were faced with a chaotic scene. This alone is
an important difference from Williams, where nothing untoward
had occurred and it was uncertain whether it would. Although
the crowd began to disperse upon their arrival, only defendant
appeared nervous, drawing attention to himself by continuously
looking back towards the officers. Rather than simply leaving,
as the others were doing, he briefly ducked into an alley. When
6 A-5722-12T2 he walked away, and saw that the officers were following him,
his nervousness only increased. When Perez attempted to speak
to him, defendant began to run. Thus defendant's conduct, all
told, did much more to arouse reasonable suspicion than the
bicycle-rider's mere departure from the scene in Williams.
Defendant's nervousness alone would not have been
sufficient to justify the investigatory stop, as opposed to a
field inquiry, that resulted when Perez instructed defendant to
halt. See State v. De Lorenzo, 166 N.J. Super. 483, 488 (App.
Div. 1979) (explaining that an investigatory stop, as opposed to
a field inquiry, was not reasonable where the only factor was
defendant's nervousness). On the other hand, nervousness and
furtive movements may be considered in conjunction with other
factors to establish reasonable and articulable suspicion. See,
e.g., Elders, supra, 192 N.J. at 250 ("To be sure, nervousness
and conflicting statements, along with indicia of wrongdoing,
can be cumulative factors in a totality of circumstances
analysis that leads to a finding of reasonable and articulable
suspicion of ongoing criminality."); State v. Valentine, 134
N.J. 536, 553-54 (1994); State v. Todd, 355 N.J. Super. 132, 138
(App. Div. 2002) (finding reasonable and articulable suspicion
where defendant was "the only person then walking on [the]
street" near where a crime was committed and was "sweating and
7 A-5722-12T2 appeared nervous"). This defendant walked in and out of an
alley, keeping the officers in his line of vision. He continued
walking away while looking over his shoulder at the marked
police car. Defendant did not respond when Perez spoke to him.
And the observations must be placed in the context of the
report, made moments prior to the police arrival at the scene,
of a shooting. Thus, in the aggregate, defendant's conduct
supported a finding of reasonable suspicion. See State v.
Nishina, 175 N.J. 502, 512-13 (2003).
Another significant difference between this case and
Williams is that defendant discarded the contraband, not as he
was being physically restrained, but as he ignored the police
directive to stop and was attempting to flee the scene. Here,
"defendant's headlong flight" resulted in the very type of
potentially dangerous situation that the statutory scheme
requiring citizens to comply with police orders was intended to
prevent. See State v. Crawley, 187 N.J. 440, 451, cert. denied,
549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).
In similar fashion to the scenario in Crawley, these
officers had reason to fear that the suspect might be armed.
This street encounter occurred within moments of a dispatch that
shots had been fired.
8 A-5722-12T2 Therefore, the facts fit precisely into the language of
Terry which defines when an investigative stop is lawful. Such
street detentions are warranted "where a police officer observes
unusual conduct which leads him reasonably to conclude in light
of his experience that criminal activity may be afoot and that
the persons with whom he is dealing may be armed and presently
dangerous." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20
L. Ed. 2d at 911. Perez reasonably concluded, while
investigating a reported shooting, that defendant's conduct
meant "criminal activity may be afoot." Ibid. The totality of
the circumstances combined to create reasonable and articulable
suspicion justifying the investigatory stop of defendant, making
seizure of the handgun, and defendant's eventual arrest, lawful.
Reversed and remanded.
9 A-5722-12T2