STATE OF NEW JERSEY VS. KENNETH E. BURRELL (13-06-1106, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5364-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH E. BURRELL a/k/a
KENNETH BURRELL, KEVIN BOOKER,
KEVIN BURRELL and KEITH BURRELL,
Defendant-Appellant.
___________________________________
Submitted March 8, 2017 – Decided September 11, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 13-06-1106.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sara M. Quigley,
Deputy Attorney General, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Kenneth Burrell appeals from a July 2, 2015 judgment
of conviction for second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1). Defendant moved to suppress the
handgun seized without a warrant, which formed the evidential
basis for the charge. When his motion was denied, defendant
entered a negotiated guilty plea and was sentenced to a seven-year
term of imprisonment, with a five-year period of parole
ineligibility, in accordance with the Graves Act, N.J.S.A. 2C:43-
6(c).1 On appeal, defendant challenges the denial of his
suppression motion as permitted under Rule 3:5-7(d). We affirm.
At a suppression hearing conducted on June 26 and August 20,
2014, the following facts were adduced. Officers assigned to the
Asbury Park Police Department's Street Crimes Unit (SCU) patrolled
an area of the city known for drug trafficking, shootings, and
gang related activities. Gang members reportedly used their
girlfriends as gun couriers, believing that they were less likely
to be searched. SCU officers wore special uniforms consisting of
sweatshirts with "Police" printed in large gold letters across the
front and back and badges suspended around their necks. They
1
Defendant also pled guilty and was sentenced to a concurrent
three-year term on an unrelated drug possession charge. Defendant
does not challenge that conviction in this appeal.
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drove unmarked police vehicles equipped with lights inside the
windshield, on the visor, on the front grille, and on the back.
On December 14, 2012, at about 9:00 p.m., SCU Officer Lorenzo
Pettway and his partners, Sergeants John Crescio and Michael
Barnes, were travelling east on the 1400 block of Summerfield
Avenue, an area that had nightly shootings and two prior homicides.
It was a clear, cold night and the area was lit with street lights
every couple hundred feet. On the sidewalk on the opposite side
of the roadway, Pettway observed a man, he later recognized as
defendant, and a woman, later identified as Christine Labord,
walking side by side and talking. When defendant observed the
police car, he pulled his hood tightly so that it covered part of
his face, slowed his gait, and dropped back as Labord continued
walking, creating a distance between them of a few feet.
Acknowledging that defendant's actions appeared suspicious,
Pettway pulled alongside the couple to stop and talk to them. As
Pettway pulled over, the couple stopped and looked in his
direction.2 Pettway exited his vehicle, approached defendant and
asked how he was doing and whether he could speak to him for a
2
Defendant called as a witness an optometrist who examined him
about a year later, to establish that over the past few months,
defendant developed a detached retina, resulting in loss of vision
in his right eye and, if left uncorrected, reduced vision in his
left eye.
3 A-5364-14T1
minute. Pettway then approached Labord while his partners remained
with defendant. According to Pettway, as he approached, Labord
appeared nervous and clutched her large purse tightly against her
body. In a casual, conversational tone, Pettway identified himself
and asked Labord her name, how she was doing, where she was going,
and where she was coming from. Labord was cooperative and
responded to Pettway's questions. She explained they had just
come from her house and were going across town to a friend's house.
While she spoke, she continued to clutch her purse and appeared
nervous. Pettway then asked Labord what she had in the purse. At
that point, Labord "immediately took her purse off her shoulder[],"
opened it up and said "[h]e made me carry it, it [isn't] mine"
"it's his gun[.]" With his flashlight, Pettway observed the handle
of a gun in Labord's purse.
Labord immediately seized the gun, which he described as a
Tec-9 sub-machine gun that "qualifies as an assault firearm[.]"
Labord passed the gun to Crescio who cleared it and recovered
twenty-four rounds of ammunition from it. As Pettway placed Labord
under arrest, defendant repeatedly admitted to Pettway that it was
his gun and asked Pettway not to arrest her. At that point,
defendant was also placed under arrest. Both defendant and Labord
were placed in a marked police vehicle that was summoned to the
scene. While in the police vehicle, Pettway read defendant and
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Labord their Miranda3 rights, which they acknowledged
understanding. Defendant continued insisting that it was his gun.
At police headquarters, during custodial interrogations, both
defendant and Labord gave incriminating statements after being
advised of their Miranda rights a second time.
In an August 25, 2014 written statement of reasons, the motion
judge upheld the seizure. The judge found Officer Pettway, the
sole State witness, to be "a credible and uncontradicted witness"
and made factual findings consistent with Pettway's testimony.
The judge determined that the street encounter was "a lawful field
inquiry" during which Labord voluntarily showed police the gun,
leading to the lawful seizure and spontaneous admissions. The
court noted:
The police acknowledge that they saw no
criminal activity . . . , they did not block
the defendants from walking away and, if the
defendants had chosen to walk away the police
would have allowed them to do so. Officer
Pettway, in a voice that was calm, regular and
casual, asked defendant Labord if he could
talk with her. Defendant Labord, appearing
nervous, clutched her purse close to herself,
and Officer Pettway asked defendant Labord
what was in the purse. Given these
circumstances, this was a field inquiry.
Defendant Labord voluntarily opened her purse,
showed Officer Pettway the gun, and stated
that defendant Burrell made her carry it.
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5 A-5364-14T1
Defendant Burrell then voluntarily stated that
it was his gun. All of this took only seconds.
The judge determined that Pettway was then justified in
seizing the gun under the plain view exception to the warrant
requirement. Further, the judge found that in addition to
defendant's "spontaneous and unsolicited pre-Miranda
statements[,]" they gave recorded statements at police
headquarters after being notified of their Miranda rights and
"knowingly, intelligently, and voluntarily waiv[ing] those
rights[.]" The judge entered a memorializing order on the same
date and this appeal followed.
On appeal, in his counseled brief, defendant makes the
following argument:
WHEN THE POLICE OFFICER ASKED CO-DEFENDANT
LABORD WHAT SHE HAD IN HER PURSE, THE FIELD
INQUIRY BECAME AN INVESTIGATORY STOP WHICH WAS
INVALID BECAUSE THE OFFICER CANDIDLY
ACKNOWLEDGED THAT HIS INQUIRY WAS PROMPTED BY
A MERE HUNCH.
In his pro-se supplemental brief, defendant makes the following
argument:
TRIAL COURT ERRED IN DENYING DEFENDANT-
APPELLANT NOTICE OF MOTION TO SUPPRESS THE
EVIDENCE[].
We review a motion judge's factual findings in a suppression
hearing with great deference. State v. Gonzales, 227 N.J. 77, 101
(2016). In our review of a "grant or denial of a motion to
6 A-5364-14T1
suppress [we] must uphold the factual findings underlying the
trial court's decision so long as those findings are supported by
sufficient credible evidence in the record." State v. Gamble, 218
N.J. 412, 424 (2014). We defer "to those findings of the trial
judge which are substantially influenced by his opportunity to
hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). We owe no deference, however, to the trial court's legal
conclusions or interpretation of the legal consequences that flow
from established facts. Our review in that regard is de novo.
State v. Watts, 223 N.J. 503, 516 (2015).
Defendant argues "the police engaged in an investigatory
stop, without the requisite reasonable and articulable suspicion"
that defendant and his companion "were engaged in criminal
activity[.]" Accordingly, defendant contends that "the search was
invalid and any statements that followed were inadmissible as the
fruit of the poisonous tree." We disagree and affirm substantially
for the reasons expressed by the motion judge. We add the
following comments.
The constitutional requirements for a field inquiry and an
investigatory stop are different. "A field inquiry is essentially
a voluntary encounter between the police and a member of the public
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in which the police ask questions and do not compel an individual
to answer." State v. Rosario, 229 N.J. 263, 271 (2017). Except
for impermissible reasons such as race, a field inquiry "may be
conducted without grounds for suspicion." State v. Daniels, 393
N.J. Super. 476, 484 (App. Div. 2007) (citation omitted). A field
inquiry is the least "intrusive[] . . . encounter[] with police[.]"
Rosario, supra, 229 N.J. at 271. Indeed, "[t]he individual does
not even have to listen to the officer's questions and may simply
proceed on [his or] her own way." Rosario, supra, 229 N.J. at
271.
"The test of a field inquiry is 'whether [a] defendant, under
all of the attendant circumstances, reasonably believed he [or
she] could walk away without answering any of [the officer's]
questions." Id. at 271-72 (quoting State v. Md., 167 N.J. 471,
483 (2001)). So long as the officers "questions were put in a
conversational manner, if he [or she] did not make demands or
issue orders, and if his [or her] questions were not overbearing
or harassing in nature[,]" the encounter "could be treated as [a]
field inquiry." Id. at 274 (citations omitted).
Unlike a field inquiry, an investigatory stop, also referred
to as a Terry4 stop, is characterized by a detention in which "'an
4
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
8 A-5364-14T1
objectively reasonable person' would feel 'that his or her right
to move has been restricted[,]'" even though the encounter falls
short of a formal arrest. Id. at 272 (quoting State v. Rodriguez,
172 N.J. 117, 126 (2002)). An investigatory stop "is a temporary
seizure that restricts a person's movement[.]" Ibid. Accordingly,
"it must be based on an officer's 'reasonable and particularized
suspicion . . . that an individual has just engaged in, or was
about to engage in, criminal activity.'" Ibid. (quoting State v.
Stovall, 170 N.J. 346, 356 (2002)). "During such a stop, if the
police officer believes that the suspect 'may be armed and
presently dangerous,' then he may conduct a pat down" for the
officer's safety. State v. Williams, 192 N.J. 1, 9 (2007) (quoting
Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20 L. Ed. 2d at
911)).
Applying these principles, we agree that defendant's street
encounter with Pettway amounted to no more than a field inquiry
for the reasons expressed by the motion judge. Specifically, the
motion judge found defendant's and Labord's interactions with the
police officers did not unreasonably restrict their freedom of
movement. The officers' demeanor was not confrontational and
their questions sought only the type of general information
associated with a field inquiry. We thus find no merit to
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defendant's contentions that Pettway conducted an investigatory
stop by asking Labord what was in her purse.
The record shows that Labord voluntarily revealed that she
was carrying the firearm in her purse. Defendant thereafter
voluntarily admitted that he was the actual owner of the weapon.
Stated differently, defendant made this self-incriminating
statement spontaneously, not in response to a police officer's
question. Under these circumstances, unsolicited statements made
by a defendant are admissible "because they were not the product
of police interrogation or its functional equivalent." State v.
Cryan, 363 N.J. Super. 442, 454 (App. Div. 2003).
Affirmed.
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