STATE OF NEW JERSEY VS. JAMES L. BELLAMY (15-08-0935, MERCER COUNTY AND STAEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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-2978-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES L. BELLAMY,
Defendant-Appellant.
Submitted March 13, 2018 – Decided June 12, 2018
Before Judges Carroll and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
15-08-0935.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Sarah Lichter, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant appeals a trial court order denying his motion to
suppress a gun found in his possession during a warrantless arrest.
We affirm.
I.
The following facts were adduced at the suppression hearing.
On May 7, 2014, at around 11:40 p.m., Trenton Police Department
Detective Jeffrey Donaire, an eight-year veteran, and his partner
were notified by dispatch that the ShotSpotter gunshot detection
system had detected a single gunshot in the area of 413 Walnut
Avenue. That location is a high-crime area where numerous
shootings and homicides occur each year. Detective Donaire has
been involved in approximately 50 arrests, 100 investigations, and
50 firearms incidents in the area. The detective is familiar with
the ShotSpotter system, and has never known it to falsely indicate
that a gunshot had been fired.
The officers, dressed in full uniforms, including vests
marked "Police" on front and back, arrived at the address in an
unmarked police car within one or two minutes.1 They observed
only one person, later identified as defendant, in the area. As
they drove slowly toward him, defendant was walking away at a
quick pace, crossing the street, and "looking in every direction
in a nervous manner." The officers decided to stop defendant to
determine if he witnessed or was involved in the shooting, as he
was the only person in the vicinity of the reported gunshot.
1
The trial court found the officers' unmarked car would have
been readily recognizable as a police vehicle because it had un-
tinted windows, a cage separating the front and back seats, and
visible police lights affixed to the front grill and bumper.
2 A-2978-16T2
When Detective Donaire was within 10 feet of defendant, he
turned, looked directly at the officer, and ducked down between
two parked cars. The detective shined a flashlight on defendant
and saw him grasp an object in the middle of his waistband, which
he moved to the right, and shoved further into his pants. Based
on his training and experience, and the high-crime area, the
detective believed defendant was securing a weapon in his
waistband. The detective exited the vehicle, and ordered defendant
to stop and approach him. In response, defendant turned, looked
up and down the street, and ran away. Detective Donaire ordered
defendant to stop. When he failed to comply, the officers began
a foot pursuit.
Defendant ran into a nearby home. The detective caught up
with defendant, and again ordered him to stop. When defendant
failed to comply, the officers entered the home, and tackled
defendant in the hallway. The force of the tackle caused an orange
and black flare gun, fitted with a pipe, and loaded with a .410mm
shotgun shell, to fall from defendant's waistband. Detective
Donaire arrested defendant. The owner of the home later told
police that defendant did not live at the residence, and did not
have permission to enter the house.
On August 6, 2015, a Mercer County grand jury indicted
defendant, charging him with: (1) second-degree burglary, N.J.S.A.
3 A-2978-16T2
2C:18-2a(1); (2) second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5b; (3) fourth-degree resisting arrest, N.J.S.A.
2C:29-2a(2); and (4) second-degree certain persons not to possess
a firearm, N.J.S.A. 2C:39-7b.
Defendant moved to supress the weapon. The trial court denied
the motion. The judge, having found Detective Donaire's testimony
to be credible, concluded that the officers had "reasonable and
particularlized suspicion to initiate an investigative detention"
based on defendant's
nervous manner, his crouching between cars
upon seeing the police in what Donaire
believed to be an attempt to hide, [his]
shifting an object in his waistband, and being
the only person in the high crime area which
was the location of a shots fired call
received just minutes earlier . . . .
Following the denial of his motion, defendant entered a guilty
plea to second-degree unlawful possession of a handgun in exchange
for dismissal of the remaining counts. The trial court sentenced
defendant to five years of imprisonment with a three-and-a-half-
year period of parole ineligibility under the Graves Act, N.J.S.A.
2C:43-6c.
This appeal followed. Defendant raises one point for our
consideration:
THE GUN SHOULD BE SUPPRESSED BECAUSE THE
STATE'S FAILURE TO PRODUCE ANY EVIDENCE ON THE
RELIABILITY OF THE SHOTSPOTTER GUNSHOT
4 A-2978-16T2
DETECTION SYSTEM PRECLUDES A FINDING THAT
DEFENDANT WAS LAWFULLY SEIZED. MOREOVER, THE
STATE FAILED TO ESTABLISH A SIGNIFICANT
ATTENUATION BETWEEN THE UNCONSTITUTIONAL STOP
OF DEFENDANT AND THE SEIZURE OF THE GUN HE
DISCARDED FOLLOWING THAT STOP. STATE V.
WILLIAMS, 410 N.J. SUPER. 540 (APP. DIV.
2009).
II.
The Fourth Amendment of the United States Constitution, and
Article I, Paragraph 7 of the New Jersey Constitution, both protect
"[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures
. . ." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Under
our constitutional jurisprudence, when it is practicable to do so,
the police are generally required to secure a warrant before
conducting a search . . . ." State v. Hathaway, 222 N.J. 453, 468
(2015) (citations omitted).
It is well settled that police officers may lawfully detain
someone to conduct an investigatory stop without a warrant and on
less than probable cause. Terry v. Ohio, 392 U.S. 1, 22 (1968);
State v. Stovall, 170 N.J. 346, 356 (2002). An investigatory stop
allows an officer to detain an individual temporarily for
questioning if the officer can articulate "some minimum level of
objective justification" based on "something more" than an
"inchoate and unparticularized suspicion or hunch" of wrongdoing.
5 A-2978-16T2
United States v. Sokolow, 490 U.S. 1, 7 (1989) (citations and
internal quotations omitted); accord State v. Nishina, 175 N.J.
502, 511 (2003).
A warrantless investigative stop is valid when an "officer
observes unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be afoot
. . . ." Terry, 392 U.S. at 30 (Harlan, J., concurring). The
stop must be "'based on specific and articulable facts which,
taken together with rational inferences from those facts, give
rise to a reasonable suspicion of criminal activity.'" State v.
Pineiro, 181 N.J. 13, 20 (2004) (quoting Nishina, 175 N.J. at 511(citation and internal quotation marks omitted)). Reasonable
suspicion "involves a significantly lower degree of objective
evidentiary justification than does the probable cause test
. . . ." State v. Davis, 104 N.J. 490, 501 (1986).
A reviewing court "must look at the 'totality of the
circumstances' of each case to see whether the detaining officer
has a 'particularized and objective basis' for suspecting legal
wrongdoing" by the detained individual. United States v. Arvizu,
534 U.S. 266, 273 (2002). "In evaluating the facts giving rise
to the officer's suspicion of criminal activity, courts are to
give weight to 'the officer's knowledge and experience' as well
as 'rational inferences that could be drawn from the facts
6 A-2978-16T2
objectively and reasonably viewed in light of the officer's
expertise.'" State v. Richards, 351 N.J. Super. 289, 299 (App.
Div. 2002) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
In addition, we "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. Elders, 192
N.J. 224, 243 (2007) (quotations omitted). This is especially
true when the trial court findings are "substantially influenced
by [its] opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy." Id.
at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The
trial court's legal conclusions are entitled to no special
deference, and are reviewed de novo. State v. Gandhi, 201 N.J.
161, 176 (2010).
We are satisfied that the trial court's findings of fact are
supported by sufficient credible evidence and its denial of
defendant's suppression motion was sound. The officers were
lawfully in the area where a few minutes earlier an electronic
detection system identified a gunshot. Defendant was the only
person in the vicinity of the reported gunfire. "Although a stop
in a high-crime area does not by itself justify a Terry frisk
. . . the location of the investigatory stop can reasonably elevate
a police officer's suspicion that a suspect is armed." State v.
7 A-2978-16T2
Valentine, 134 N.J. 536, 547 (1994) (citing Maryland v. Buie, 494
U.S. 325, 334-35 n. 2 (1990)).
Furthermore, on seeing the officers, defendant crouched
between two parked cars in an attempt to avoid detection.
Detective Donaire observed defendant grab an object in his
waistband, and force that object further into his pants. At that
point, in light of the report of gunfire, the high-crime location,
the furtive acts of defendant, and the observation of an object
in defendant's waistband, Detective Donaire had a reasonable
suspicion of criminal activity based on specific and articulable
facts. The attempt to detain defendant for an investigatory stop
was lawful.2
The detective's level of suspicion was objectively heightened
when defendant fled from the officers. "Headlong flight – wherever
it occurs – is the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such."
Illinois v. Wardlow, 528 U.S. 119, 124 (1999); Pineiro, 181 N.J.
at 26. "[W]hen a police officer is acting in good faith and under
color of his authority, a person must obey the officer's order to
stop and may not take flight without violating N.J.S.A. 2C:29-1
2
Because we hold that the officers' investigative stop of
defendant was constitutionally sound, we need not reach
defendant's attenuation argument.
8 A-2978-16T2
[obstructing administration of law or other governmental
function]." State v. Crawley, 187 N.J. 440, 451-52 (2006); accord
State v. Williams, 192 N.J. 1 (2007). Defendant's flight, after
his attempt to avoid detection, and his secreting of an object in
the waistband of his pants, was sufficient to justify the officers'
pursuit of defendant, and his ultimate arrest. A lawful arrest
automatically justifies a warrantless search of the arrestee and
the area within the arrestee's reach. Chimel v. California, 395
U.S. 752 (1969); see also United States v. Edwards, 415 U.S. 800(1974). Seizure of the gun in defendant's possession at the time
of his arrest was, therefore, also lawful.
We are not persuaded by defendant's argument that a lack of
expert testimony regarding the reliability of the ShotSpotter
technology renders the detective's reliance on the system's report
of a gunshot unreasonable. Detective Donaire was familiar with
the ShotSpotter system. He explained that it "identifies and
pinpoints gunfire in the city, and then . . . the dispatchers
monitor this and they put it out for patrol units to respond to
the area." He has never responded to a ShotSpotter report of
gunfire that was proven inaccurate. The system is, in effect, the
equivalent of a reliable informant, and, as the trial court pointed
out, is objectively more reliable than an anonymous report of
gunfire. At any rate, it was not the ShotSpotter report alone
9 A-2978-16T2
that formed the basis of the officers' decision to stop defendant.
As explained above, defendant's suspicious behavior in a high-
crime area contributed to the officers' decision to conduct an
investigative stop.3
Affirmed.
3
We do not agree with defendant's argument that Detective
Donaire's testimony about the ShotSpotter system was inadmissible
expert testimony. The detective provided factual testimony with
respect to his understanding of the purpose of the system and his
experience with responding to reports of gunfire detected by the
system. At most, the detective provided lay opinion testimony
with respect to the reliability of the ShotSpotter system.
N.J.R.E. 701.
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