STATE OF NEW JERSEY VS. JEFFREY P. THOMAS (15-12-1374, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3627-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY P. THOMAS, a/k/a RAY
FREDDIE and THOMAS P. JEFFERY,
Defendant-Appellant.
_________________________________
Submitted March 7, 2018 – Decided July 24, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
15-12-1374.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Sarah E. Ross, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant, Jeffrey P. Thomas, lost his motion to suppress a
handgun and heroin police had seized from him during a street
encounter. He later pled guilty to second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b). For that crime, a
judge sentenced him to serve a five-year prison term with three
and one-half years of parole ineligibility. Defendant appeals.
He argues:
POINT I
THE COURT ERRED IN DENYING THE MOTION TO
SUPPRESS BECAUSE THE TIP FROM THE CONFIDENTIAL
INFORMANT THAT PROMPTED THE INVESTIGATORY STOP
CONSISTED ALMOST ENTIRELY OF INNOCENT
IDENTIFYING DETAILS AND THE POLICE FAILED TO
CORROBORATE THE NOTION THAT THOMAS WAS ENGAGED
IN CRIMINAL ACTIVITY BEFORE STOPPING HIM.
POINT II
THE COURT ERRED IN FAILING TO AWARD GAP-TIME
CREDIT FOR TIME THE DEFENDANT SERVED ON A
MUNICIPAL SENTENCE. (Not Raised Below).
We affirm the conviction and sentence but remand for the
trial court to compute gap time credits.
A Mercer County grand jury charged defendant in a five-count
indictment with second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b), third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a)(1), fourth-degree
obstructing administration of law, N.J.S.A. 2C:29-1(b), third-
degree escape, N.J.S.A. 2C:29-5(a), and third-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(3)(a). Following the indictment,
defendant filed a suppression motion. The trial court denied it.
2 A-3627-16T1
Defendant later pled guilty to the weapons offense, the trial
court sentenced him, and he appealed.
The sole witness at the suppression hearing was Detective
Sergeant Ricardo Diaz, an eleven-year veteran with the New Jersey
State Police. He testified as follows. On May 14, 2015, he was
assigned to the Trenton Crime Suppression Central Unit, which was
established to "help suppress violent crimes in the most
problematic areas in the City of Trenton." Shortly before 8:00
p.m., the unit received a telephone call from a confidential source
who stated "a black male in the area of New Willow Street and
Beakes Street in Trenton [was] in possession of a handgun."
Detective Diaz did not speak with the informant. The informant
spoke to the detective's partner, Detective Blair Astbury, and
Astbury told Diaz what the informant said.
Astbury told Diaz the informant had previously provided
information resulting in approximately six or more arrests and "at
least one or more" convictions. Diaz acknowledged the informant
received either credit against a sentence or money for providing
the police with information.
The informant told Detective Astbury the person in possession
of the handgun was "an older black male approximately [fifty]
years old, approximately six feet tall with gray hair." The
suspect "was wearing a red collared shirt, black shorts, white
3 A-3627-16T1
sneakers, and also had an Ace tan bandage wrapped around his right
wrist and arm." The informant said the male was "in the company
of an older black female wearing a black shirt and blue jeans."
Detective Diaz gave conflicting answers when cross-examined
about whether the informant explained how he knew the person had
a handgun. In response to defense counsel's question, "[n]ow,
when you received that information . . . were you provided with
any information as to how he knew that the individual had a
handgun," the detective replied, "[n]o ma'am." Counsel persisted:
"He didn't say that he had observed him with it, nothing whatsoever
as to how he knew?" Detective Diaz responded, "I believe the
confidential source observed [defendant] in possession of the
handgun, which is when . . . he or she called Detective Astbury."
Pressed further by defense counsel, Detective Diaz said the
confidential source contacted Detective Astbury and stated that
he or she observed defendant in possession of a handgun. According
to Diaz, that was what Detective Astbury told him.
Detective Diaz and seven other unit members donned tactical
vests – bullet proof vests placed on the outside of one's clothing
and containing police identifiers – and drove unmarked vehicles
to the corner of New Willow Street and Beakes Street. The officers
parked the vehicles along the curb line of either Beakes Street
or Willow Street, or perhaps both. The intersection was located
4 A-3627-16T1
in a high crime area. Nearby was a housing project where police
had made numerous arrests for controlled dangerous substance
offenses and gun possessions. There had also been documented
shootings and homicides in that area.
Upon arriving, Detective Diaz observed defendant, who matched
the description given by the confidential source. Defendant was
walking with a black female. Detective Diaz and three other
officers made the initial "approach" toward defendant. Detective
Diaz was closest to defendant, but the other three officers were
behind the detective. When Detective Diaz first started speaking
with defendant, the other detectives were standing either to his
left or to his right. They were close enough to reach defendant
if he attempted to flee. Defendant stopped, Detective Diaz
identified himself as "State Police," and the two men engaged in
a conversation.
Detective Diaz began what he characterized as "a field
inquiry." His intention was to talk to defendant and ask him
routine questions, such as his name, where he was from, and
questions of that nature. Detective Diaz estimated he and
defendant were approximately five to ten feet apart. Defendant
appeared to be intoxicated or perhaps under the influence of some
type of controlled dangerous substance. Defendant smelled of
5 A-3627-16T1
alcohol, his clothes were soiled, and his eyes were bloodshot and
watery.
As they spoke, defendant "began to blade . . . the right side
of his body from [the officer]." By "blade," the detective meant
that when he first approached defendant, he could see both
defendant's hands and his whole body. As the two men began to
speak, however, defendant "began turning his body, blading himself
where [the detective] couldn't see [the defendant's] right
shoulder, his right shoulder all the way down." The detective
could only see the left side of defendant's body.
Defendant "bladed" away from the detective twice. Detective
Diaz testified: "The first time when he bladed away from me and
attempted to put his right hand in his pocket I asked him to stop
immediately, and I wanted to see both his hands. And for officer
safety I said, put your hands on top of your head." Defendant
"did comply and put both his hands on his head for a couple
seconds, and then immediately dropped his hands again, and
attempted to place it in his right pocket again."
Concerned defendant had a gun, the detective frisked him for
weapons. Detective Diaz felt the barrel of a weapon in defendant's
right pants pocket. The detective retrieved a silver Derringer.
Asked why he felt the need to frisk defendant for his safety,
Detective Diaz replied:
6 A-3627-16T1
Based on the description given by the
confidential source, [defendant] matched all
the identifiers the source gave us, where we
were, it's a high crime area. The fact that
the confidential source said that he was in
possession of a handgun, the way he was
blading his body away from me and attempting
to put his right hand in his pocket, at that
time I felt threatened as if he may have had
a weapon on him.
Asked if defendant was free to leave after the conversation
commenced, Detective Diaz replied:
I would say based on how the conversation
was going he could have been free to leave if
what happened - - if what I didn't see, and
if he didn't blade his body in that manner.
Like I said, just the totality of the
circumstances. I just - - if the conversation
would have been different, if he didn't do
some of the things he did, he probably would
have been free to go. Because I approached
him like I would approach anyone else.
After seizing the Derringer, Detective Diaz placed defendant
under arrest, handcuffed him, and searched him incident to the
arrest. The detective found two bags of heroin and a glass smoking
pipe in defendant's other pocket.
Based on Detective Diaz's testimony, the trial court denied
defendant's suppression motion. The court found Detective Diaz
to be "a highly credible witness who testified in a persuasive
manner."
After recounting the confidential source's description of the
suspect and his companion, the court noted: "Det. Sgt. Diaz
7 A-3627-16T1
conceded that the [confidential source] did not provide a name for
the individual whom he said had the gun, nor did he explain how
or why he knew this individual had a gun." Nonetheless, the court
determined the police had reasonable suspicion to conduct an
investigative detention. The court relied upon "[Detective
Diaz's] experience and expertise in evaluating the veracity and
reliability of the [confidential source's] information" as well
as what the court concluded was "sufficient corroboration" of the
informant's tip, "particularly in light of the totality of the
circumstances." The court explained:
That evening, a reliable informant, whose
previous information had led to "at least six"
prior arrests, relayed information to Det.
Astbury that an older black male in a certain
location was in possession of a gun. Because
the source of the information was a known
informant – compared to an anonymous 9-1-1
caller, for example – his "reputation [could]
be assessed and [he could] be held responsible
if [his] allegations" of criminal activity
turned out "to be fabricated." FL v. J.L.,
529 U.S. [266,] 270 [(2000)]. The court finds
that under these circumstances, there seemed
[to be] no incentive for the [confidential
source] to lie about the defendant's alleged
criminal activity. Additionally, the veracity
of the [confidential source's] tip can be
established by the [confidential source's]
past reliability. State v. Keyes, 184 N.J.
541, 555 (2005). This [confidential source]
had previously provided reliable information
which had led to arrests; the officers could
not let a credible tip about a weapon go
uninvestigated.
8 A-3627-16T1
Although not relevant to this appeal, the trial court also
determined Detective Diaz lawfully seized the heroin and pipe from
defendant's person during the search incident to defendant's
arrest.
On appeal, defendant argues that his street encounter with
police, from its inception, was an investigatory stop unsupported
by a reasonable and articulable suspicion defendant had or was
about to engage in criminal activity. Defendant contends the
State failed to establish the reliability of the informant's tip
because Detective Diaz had no personal knowledge of the informant's
previous involvement with police, and the State produced no
evidence as to how the informant acquired knowledge that defendant
possessed a gun.
The State contends the street encounter began as a field
inquiry and escalated into an investigative detention only after
defendant "bladed" the right side of his body, reached toward his
pocket, and refused to keep his hands visible. The State argues
these circumstances, considered in the setting of a high crime
area and in light of the confidential informant's tip, provided a
reasonable and articulable suspicion to support Detective Diaz's
pat down of defendant for a weapon.
When reviewing a trial court's order granting or denying a
defendant's suppression motion, "an appellate tribunal must defer
9 A-3627-16T1
to the factual findings of the trial court when that court has
made its findings based on the testimonial and documentary evidence
presented at an evidentiary hearing or trial." State v. Hubbard,
222 N.J. 249, 269 (2015). Likewise, an appellate court generally
must defer to a trial court's credibility findings. Ibid. The
reason for the deference is that factual findings and credibility
determinations "are substantially influenced by [an] opportunity
to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." Id. at 262 (alteration in
original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). An
appellate court owes no special deference, however, to either a
trial court's legal conclusions or "the consequences that flow
from established facts." Id. at 263 (citing State v. Gandhi, 201
N.J. 161, 176 (2010)).
The warrantless search here took place during a street
encounter between police and defendant. Warrantless searches and
seizures presumably violate the constitutional "right of the
people to be secure in their persons, houses, papers, and effects."
U.S. Const. amend. IV; N.J. Const. art. I, ¶7. But "[n]ot all
police-citizen encounters constitute searches or seizures for
purposes of the warrant requirement." State v Rodriguez, 172 N.J.
117, 125-26 (2002) (citing State v. Maryland, 167 N.J. 471, 483
(2001)).
10 A-3627-16T1
Courts have recognized three types of encounters between
police and citizens. The first is a field inquiry. Officers are
permitted to make field inquiries "without grounds for suspicion."
Maryland, 167 N.J. at 483 (quoting State v. Contreras, 326 N.J.
Super. 528, 538 (App. Div. 1999)). If an officer initiates a
field inquiry with an individual, "[t]he individual does not even
have to listen to the officer's questions and may simply proceed
on her own way." State v. Rosario, 229 N.J. 263, 271 (2017)
(citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)). "Because
a field inquiry is voluntary and does not effect a seizure in
constitutional terms, no particular suspicion of criminal activity
is necessary on the part of an officer conducting such an inquiry."
Id. at 272 (citing State v. Elders, 192 N.J. 224, 246 (2007)).
The second, more intrusive police-citizen encounter is an
investigative detention, sometimes called an investigatory stop
or a Terry1 stop. An investigative detention is a seizure in
constitutional terms. Rosario, 229 N.J. at 272; State v. Stovall,
170 N.J. 346, 356 (2002). "A police officer may conduct an
investigatory stop if, based on the totality of the circumstances,
the officer had a reasonable and particularized suspicion to
believe that an individual has just engaged in, or was about to
1
Terry v. Ohio, 399 U.S. 1 (1968).
11 A-3627-16T1
engage in, criminal activity." Stovall, 170 N.J. at 356 (citing
Terry, 392 U.S. at 21).
The third and most intrusive police-citizen encounter is an
arrest. An arrest "requires probable cause and generally is
supported by an arrest warrant or by demonstration of grounds that
would have justified one." Rosario, 229 N.J. at 272 (citing State
v. Brown, 205 N.J. 133, 144 (2011)).
In the case before us, defendant argues that his encounter
with police was from its outset an investigatory stop. The State
disagrees, contending the encounter began as a field inquiry. The
trial court agreed with defendant. The court's decision is amply
supported by the record.
"Whether a detention has occurred is measured from the
citizen's perspective." Maryland, 167 N.J. at 483 (citing State
v. Tucker, 136 N.J. 158, 165-66 (1994)). For that reason, an
officer's conclusory statements that he merely intended to conduct
a field inquiry or that a citizen was free to leave are "not
probative." Ibid. Rather, whether a street encounter between an
officer and a citizen is a field inquiry or an investigative
detention "always comes down to whether an objectively reasonable
person would have felt free to leave or to terminate the encounter
with police." Rosario, 229 N.J. at 273.
12 A-3627-16T1
Here, seven officers in several vehicles stopped along a curb
near or adjacent to the sidewalk where defendant was walking. At
least four officers wearing bullet proof vests marked with indicia
that they were police exited the vehicles and approached defendant,
upon whom they focused. Indeed, other than defendant's companion,
there is no evidence that other civilians were in the immediate
vicinity. In addition, Detective Diaz and the other officers
stood close enough to defendant so they could reach him if he
attempted to flee in any direction.
The totality of these circumstances supported the trial
court's conclusion this encounter was an investigatory stop. A
person lawfully walking down the street who suddenly finds himself
the focus of multiple law enforcement officers wearing bullet
proof vests, who have just arrived in several vehicles, stopped,
approached him, and positioned themselves so that he could be
detained if he attempted to leave, would not reasonably feel free
to leave. We find no error in the trial court's conclusion that,
from the outset, the encounter was an investigatory stop.
The question thus presented is whether the law enforcement
officers had a "reasonable and particularized suspicion that
[defendant had] just engaged in, or was about to engage in,
criminal activity." Rosario, 229 N.J. at 272 (alteration in
original) (quoting Stovall, 170 N.J. at 356). The officers based
13 A-3627-16T1
their suspicion of defendant's criminal activity on a tip received
from a police informant.
Courts analyze the reliability of a confidential informant's
tip under a "totality of the circumstances test." State v. Smith,
155 N.J. 83, 92 (1998). "An informant's 'veracity' and 'basis of
knowledge' are two highly relevant factors under the totality of
the circumstances. State v. Zutic, 155 N.J. 103, 110 (1998)
(citing Smith, 155 N.J. at 93). Neither factor, in and of itself,
is indispensable to a finding of reliability. "A deficiency in
one of those factors 'may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the other,
or by some other indicia of reliability.'" Id. at 110-11 (quoting
Illinois v. Gates, 462 U.S. 213, 233 (1983)).
An informant's veracity can be supported by his or her past
reliability. Id. at 111. "[I]f the informant does not identify
the basis of knowledge, a reliable basis of knowledge may
nonetheless be inferred from the level of detail and amount of
hard-to-know information disclosed in the tip." Ibid. (citing
Smith, 155 N.J. at 95). "[T]he nature and details revealed in the
tip may imply that the informant's knowledge of the alleged
criminal activity is derived from a trustworthy source." Smith,
155 N.J. at 94; accord, State v. Novembrino, 105 N.J. 95, 113
(1987) (quoting Spinelli v. U.S., 393 U.S. 410, 416 (1969)). An
14 A-3627-16T1
informant's knowledge can also be inferred from the informant's
prediction of "hard-to-know future events." Smith, 155 N.J. at
95.
In the case before us, Detective Diaz's reasonable suspicion
was based upon information provided by a reliable informant. The
informant gave a detailed description of defendant and his
companion, information officers corroborated immediately when they
arrived at the location the informant had described, a location
known to police as a site of criminality and violence. The
informant's proven record of reliability, the accuracy of his
description of defendant, the character of the neighborhood known
to police, and the detective's experience combined to establish a
reasonable suspicion to justify Detective Diaz in performing a
Terry stop and frisk. See Zutic, 155 N.J. at 113 ("If the police
also had reasonable articulable suspicion that defendant was armed
and dangerous, that . . . could support a protective search"
(citing State v. Arthur, 149 N.J. 1, 12 (1997))). Defendant
"blading" his right side, disregarding an order from Detective
Diaz, and reaching toward his pocket virtually compelled the
officer to conduct a protective pat down for his safety and that
of his fellow officers. We find no reason to disturb either the
trial court's findings or its legal conclusions.
15 A-3627-16T1
In his second argument, defendant contends he was not
awarded proper gap-time credits. The State does not oppose a
remand for the purpose of computing those credits. Hence, we
remand the case for that purpose.
Remanded for the determination of gap-time credits.
Defendant's conviction and sentence are affirmed in all other
respects.
16 A-3627-16T1