State v. Bard

136 A.3d 938, 445 N.J. Super. 145, 2016 N.J. Super. LEXIS 55
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 29, 2016
StatusPublished
Cited by18 cases

This text of 136 A.3d 938 (State v. Bard) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bard, 136 A.3d 938, 445 N.J. Super. 145, 2016 N.J. Super. LEXIS 55 (N.J. Ct. App. 2016).

Opinion

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Defendant Richard Bard appeals from a September 9, 2014 judgment of conviction, following his conditional guilty plea to the amended disorderly person’s offense of possession of marijuana, N.J.S.A. 2C:35-10(a)(4). He was sentenced to a 180-day county jail term and a 180-day period of parole disqualification.

[151]*151Defendant entered his plea following the denial of his motion to suppress. In a single point on appeal, he argues:

DEFENDANT’S UNWILLINGNESS TO TALK TO THE POLICE DURING THE FIELD INQUIRY COUPLED WITH HIS PUTTING HIS HAND IN HIS BACK POCKET DID NOT PROVIDE REASONABLE SUSPICION TO SEIZE AND FRISK HIM.

Following our review of the arguments, in light of the facts and applicable law, we conclude the totality of circumstances satisfied the State’s burden to show the State Troopers had a reasonable articulable suspicion defendant was armed, necessitating a stop and frisk. Accordingly, we affirm.

These facts are taken from the suppression hearing record.1 New Jersey State Trooper Chris Paligmo, one of two arresting officers, was the sole testifying witness.2

On July 29, 2013, Trooper Paligmo and his partner, Trooper Silipino, were assigned to perform “community policing,” in full uniform, at Tips Trailer Park. While assigned to the Bridgeton Barracks, Trooper Paligmo had numerous personal experiences with the area as a high-crime location, testifying he was involved in arrests for multiple homicides, open-air narcotics distribution, burglaries, assaults, weapons offenses, and gang activity. He further noted, “[w]e have the highest call volume in the state” and, in the months preceding defendant’s arrest, the Cumberland County Prosecutor’s Office transmitted to the barracks “safety alerts with threats ... saying they were going to harm troopers — • that patrolled the area.”

As the two troopers patrolled the neighborhood on foot, at 1:30 a.m., they walked along a partially paved path in an area that was not well-lit. The troopers observed defendant walking toward them, approximately thirty-three feet away. Trooper Paligmo [152]*152attempted to engage defendant, saying: “Hey, bud, what’s going on? How you doing?” Defendant displayed no reaction, did not make eye contact and “acted as though he didn’t hear us. Head dropped, appeared to be nervous. And tried to ... walk by us, without acknowledging.”

While walking toward the officers, when defendant was approximately ten to fifteen feet away, his hand, which had been at his side, moved to his back pocket. The troopers then asked him to “show his hands.” Defendant did not comply and continued to close the distance between him and the troopers with his hand behind him. At that point, Trooper Silipino “secured” defendant by making “sure he had control of his hand that was out of view.” He “pulled” defendant’s hand from his pocket and held it while Trooper Paligmo frisked the area of defendant’s pocket with his palm. Trooper Paligmo felt a hard bulge that was “quite large,” roughly five to six inches in diameter. The trooper also felt the texture of the object and heard a crinkle sound, concluding it was marijuana. He removed it from defendant’s pocket, finding a tightly packed bundle containing “a large plastic bag filled with marijuana buds, and also individual[ly] packaged marijuana.” Defendant was subsequently arrested.

When asked why he frisked defendant, Trooper Paligmo testified: “I believed he had a weapon. His behavior was very alarming to me; and, being with another trooper, I felt both of our safeties [sic] may have been at risk.” He explained his belief in light of his training, stating:

the hands are described as always the most threatening and dangerous part of our job, in terms of when you can’t see them. That hand could always possess any sort of weapon. Even including a needle. You are told to — at any point of a stop, or a contact, a pedestrian contact, more or less, that you need to see their hands, because hands pose the most threat.
To deal with that, you ask to see them. You ask a reasonable amount of time, or a reason about a number of times to ask to see those hands[] that you feel comfortable with. After that, then you’re teamed to see those hands through physical means.
[153]*153[W]e’re trained that 21 feet is the ... distance where you can be affected by somebody just weaving with a knife. They pull a knife, you’ve got within 21 feet, a matter of seconds, they can be on you without a reaction. So always, we’re taught, action is quicker than reaction. And, in this case, that’s what’s going through our heads; that’s going through my head. And, therefore, I thought it was handled the best we could handle it at the time.

On cross-examination, Trooper Paligmo acknowledged when defendant was first observed he was not engaged in criminal activity. He also admitted the fact defendant would not respond to his greeting or that he dropped his head was not necessarily dangerous. However, he stated “hands, that’s ... my primary concern. If I can’t see his hands, that makes me nervous. It makes any other trooper nervous.” He added, “there are certain people who want to hurt the police or harm the police. And, I’m here to tell you, they’re going to harm the police.”

The judge issued a comprehensive written opinion. He found Trooper Paligmo’s testimony credible and analyzed the police-citizen encounter step by step. He noted when defendant did not respond to the officer’s greeting, he was not ordered to stop and his movements were not impeded.

When the defendant did not respond and placed his hand behind his back and into his real- pocket, he was still free to leave. The [tjroopers did not order him to stop, but simply asked him to show his hand. He did not. There is no evidence before the [ejourt that had the [djefendant complied with such a request that anything further would have happened. However, in that brief moment of non-compliance with a reasonable request, the police encounter escalated and involved the detention of the defendant such that his freedom of movement was hampered.

Analyzing the police conduct in detaining defendant and engaging in a Terry frisk,3 the judge found the reasonable inferences, drawn from the totality of the circumstances, warranted the trooper’s belief he and his partner’s protection and safety were at risk, justifying the limited frisk for weapons.

Defendant’s motion to suppress was denied. Following entry of his conditional guilty plea and sentence, he appealed.

[154]*154The Supreme Court has explained the standard of review applicable to our consideration of a trial judge’s fact-finding on a motion to suppress.

We are bound to uphold a trial court’s factual findings in a motion to suppress provided those “findings are ‘supported by sufficient credible evidence in the record.’ ” State v. Elders, 192 N.J. 224, 243-44 [927 A.2d 1250] (2007) (quoting State v. Elders, 386 N.J.Super. 208, 228 [899 A.2d 1037] (App.Div.2006)). Deference to those findings is particularly appropriate when the trial court has the “ ‘opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.’ ”

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Cite This Page — Counsel Stack

Bluebook (online)
136 A.3d 938, 445 N.J. Super. 145, 2016 N.J. Super. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bard-njsuperctappdiv-2016.