STATE OF NEW JERSEY VS. JAMES A. BAILEYÂ (13-10-1303, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-4998-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES A. BAILEY,
Defendant-Appellant.
____________________________
Argued March 23, 2017 – Decided May 12, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
13-10-1303.
Peter T. Blum, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Blum, of counsel and on the briefs).
Narline Casimir, Assistant Prosecutor, argued
the cause for respondent (Angelo J. Onofri,
Mercer County Prosecutor, attorney; Ms.
Casimir, of counsel and on the brief).
PER CURIAM
Defendant James Bailey appeals from a May 1, 2015 judgment
of conviction after the entry of a guilty plea. We affirm.
The State presented the following facts at the suppression
hearing. On July 22, 2013, Detective Scott Peterson and his
partner, Detective Gregory Hollo, of the Trenton Police
Department, were assigned to a crime suppression task force in
Trenton. The detectives were in an unmarked police car. At around
6:18 p.m., a radio dispatch reported a man with a gun, described
as a bald black man wearing a white t-shirt and blue jeans and
walking with a pit bull. The detectives responded to the area.
Peterson described the area as a "high crime" where "several"
homicides and "several shootings" have occurred. Peterson
testified he and his partner arrived within seconds but did not
see anyone fitting the description of the man with the firearm.
The detectives began canvassing the area in their vehicle, and
after about thirty seconds, observed defendant, who matched the
description, standing in front of a corner bodega, with four to
six individuals.
Peterson pulled the car in front of the bodega. As his
vehicle approached the corner, Peterson made eye contact with
defendant who appeared startled. Peterson put the vehicle in
park, and he and Hollo exited the vehicle with their firearms
drawn in a ready position. The detectives were wearing polo shirts
with their patch on it along with ballistic vests, identifying
them as police. As they walked towards the group, Peterson told
2 A-4998-14T3
somebody to grab the pit bull, as he was unsure if it would attack.
As the detectives approached the individuals, defendant began
walking towards a bicycle on the sidewalk while Hollo yelled
"Trenton police, stop, stop right there."
Hollo grabbed defendant by his waistband with his left hand,
with his firearm at his side, as defendant approached the bicycle.
Peterson described Hollo as "slowly pulling [defendant] back
towards . . . our vehicle." Defendant then reached into his
waistband with his right hand, retrieved a firearm, and handed it
to Peterson. The detectives arrested defendant. According to
Peterson, the time lapse was approximately four minutes from the
time of the radio broadcast to the recovery of the firearm.
A Mercer County grand jury returned an indictment charging
defendant with second-degree unlawful possession of a handgun,
contrary to N.J.S.A. 2C:39-5(b); third-degree resisting arrest,
contrary to N.J.S.A. 2C:29-2(a)(3); and second-degree certain
persons not to possess a firearm, contrary to N.J.S.A. 2C:39-7(b).
Defendant moved to suppress the gun, arguing the police lacked
sufficient reasonable suspicion to conduct an investigatory stop
and lacked probable cause to arrest. The trial judge denied
defendant's motion, finding under the totality of the
circumstances the detectives were justified in the investigatory
detention of defendant. Specifically, the judge noted "the nature
3 A-4998-14T3
of the area and . . . defendant's reaction to seeing the police
arrive corroborate a particularized suspicion," and "the serious
and specific type of crime infecting the area . . . corroborates
the reliability of the [9-1-1] call." The judge also noted the
9-1-1 call's description of defendant with a pit bull and the
quick reaction time of the detectives arriving on the scene "weighs
in favor of the reliability of that evidence."
Defendant pled guilty on March 9, 2015, to second-degree
certain persons not to possess a firearm. During defendant's plea
colloquy, he admitted he was in possession of a firearm on the day
he was arrested and knew he was not permitted to carry a firearm
because of a previous conviction for aggravated assault. In
exchange for dismissal of the remaining charges, the State agreed
to recommend a five-year term of imprisonment with a mandatory
five-year period of parole ineligibility. Defendant preserved his
right to appeal the motion to suppress.
The trial judge sentenced defendant on April 21, 2015, to a
five-year prison term with a five-year period of parole
ineligibility. This appeal followed.
Defendant raises the following argument on appeal:
SUPPRESSION OF EVIDENCE IS REQUIRED BECAUSE
[DEFENDANT] WAS ILLEGALLY SEIZED BASED UPON
AN UNEXPLAINED AND UNCORROBORATED ANONYMOUS
TIP TELEPHONED TO THE POLICE. U.S. CONST.
AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
4 A-4998-14T3
When reviewing a motion to suppress, we "must uphold the
factual findings underlying the trial court's decision so long as
those findings are supported by sufficient credible evidence on
the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting
State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant
particular deference when they are 'substantially influenced by
[the trial judge's] opportunity to hear and see the witnesses and
to have the "feel" of the case, which the reviewing court cannot
enjoy.'" Ibid. (quoting Robinson, supra, 200 N.J. at 15). "To
the extent that the trial court's determination rests upon a legal
conclusion, we conduct a de novo, plenary review." Ibid. (citing
State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J.
161, 176 (2010)).
Both the United States and New Jersey Constitutions protect
individuals against unreasonable searches and seizures. U.S.
Const. amend IV; N.J. Const. art. I, ¶ 7. Because the search at
issue was executed without a warrant, it is presumed facially
invalid; to overcome this presumption, the State must show that
the search falls within one of the well-recognized exceptions to
the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S.
218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973). The
State bears the burden of demonstrating that the seizure was legal.
State v. Valencia, 93 N.J. 126, 133 (1983).
5 A-4998-14T3
An investigative stop, or a Terry1 stop, allows police to
"detain an individual temporarily for questioning." State v.
Maryland, 167 N.J. 471, 486 (2001) (citing Terry, supra, 392 U.S.
at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). To justify an
investigative stop, the police must have "a 'particularized
suspicion' based upon an objective observation that the person
stopped has been or is about to engage in criminal wrongdoing."
State v. Davis, 104 N.J. 490, 504 (1986). Additionally, "[t]he
'articulable reasons' or 'particularized suspicion' of criminal
activity must be based upon the law enforcement officer's
assessment of the totality of circumstances . . . ." Ibid.
"Reasonable suspicion necessary to justify an investigatory stop
is a lower standard than the probable cause necessary to sustain
an arrest." State v. Stovall, 170 N.J. 346, 356 (2002) (citing
State v. Citarella, 154 N.J. 272, 279 (1998)).
Defendant in the present case was seized when the detectives
exited their vehicle with their guns drawn. Our inquiry therefore
rests on whether the officers had a "reasonable suspicion" to
justify the investigatory stop and search of defendant.
We consider the "totality of the circumstances surrounding
the police-citizen encounter" when determining the reasonableness
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889,
(1968).
6 A-4998-14T3
of the stop. State v. Privott, 203 N.J. 16, 25-26 (2010) (quoting
Davis, supra, 104 N.J. at 504). We consider "a police officer's
'common and specialized experience,' and evidence concerning the
high-crime reputation of an area." State v. Moore, 181 N.J. 40,
46 (2004) (citations omitted). While a high crime area alone is
not a sufficient basis to justify the stop, "the location of the
investigatory stop can reasonably elevate a police officer's
suspicion that a suspect is armed." State v. Valentine, 134 N.J.
536, 547 (1994).
An informant's tip may also provide an officer with reasonable
suspicion to stop a person. State v. Amelio, 197 N.J. 207, 212
(2008). However, "[a]n anonymous tip, standing alone, is rarely
sufficient to establish a reasonable articulable suspicion of
criminal activity." State v. Rodriguez, 172 N.J. 117, 127 (2002)
(citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412,
2415, 110 L. Ed. 2d 301, 308 (1990)). We look to an informant's
"veracity," "reliability" and "basis of knowledge" when
determining the sufficiency of the tip. Ibid. (quoting White,
supra, 496 U.S. at 328, 110 S. Ct. at 2415, 110 L. Ed. 2d at 308).
The police should also conduct "some independent corroborative
effort" in order to verify the reliability of the tip. Ibid. Our
Court has held a call placed to 9-1-1 "carries a fair degree of
reliability" as it is a crime to make a false report to the 9-1-1
7 A-4998-14T3
telephone system. State v. Golotta, 178 N.J. 205, 219 (2003); see
also N.J.S.A. 2C:33-3(e). Even an anonymous tip, when placed
through the 9-1-1 call system and "contains sufficient information
to trigger public safety concerns and . . . provide[s] an ability
to identify the person," can be sufficient to establish reasonable
suspicion for an investigatory stop of that person. State v.
Gamble, 218 N.J. 412, 429 (2014).
In Golotta, the Court provided a three-prong test police must
satisfy to justify an investigative detention based on a 9-1-1
caller's tip. 178 N.J. at 221-22. The State must show (1) "[t]he
information must convey an unmistakable sense that the caller has
witnessed an ongoing offense that implicates a risk of imminent
death or serious injury to a particular person"; (2) "[t]he caller
also must place the call close in time to his first-hand
observations"; and (3) "the 9-1-1 caller must provide a sufficient
quantity of information, such as an adequate description of the
[individual], its location and bearing, or 'similar innocent
details, so that the officer, and the court, may be certain that
the [individual] is the same as the one identified by the caller.'"
Golatta, supra, 178 N.J. at 221-22 (quoting United States v. Wheat,
278 F.3d 722, 731 (8th Cir. 2001).
We begin by noting the detectives were conducting an
investigatory stop when they approached defendant. The act of an
8 A-4998-14T3
officer exiting his vehicle with a firearm drawn does not
automatically constitute an arrest. Baker v. Monroe Twp., 50 F.3d
1186, 1193 (3rd Cir. 1995) ("There is no per se rule that pointing
guns at people, or handcuffing them, constitutes an arrest.")
Under the circumstances, it was reasonable for the detectives to
draw their firearms when approaching an individual who matched the
description of a man who would be armed and dangerous. The
detectives were "authorized to take such steps as were reasonably
necessary to protect [their] personal safety and to maintain the
status quo during the course of the stop." United States v.
Hensley, 469 U.S. 221, 235, 105 S. Ct. 675, 683-84, L. Ed. 2d 604,
616 (1985). In Hensley, the United States Supreme Court held that
an officer's conduct in approaching with gun drawn in a Terry stop
"was well within the permissible range in the context of suspects
who are reported to be armed and dangerous." Id. at 223-24, 235,
105 S. Ct. at 677-78, 684, 83 L. Ed. 2d at 608-09, 616. Therefore,
when the detectives exited their vehicle with their firearms drawn
defendant was not yet under arrest.
The trial judge correctly found the totality of the
circumstances supported a finding of reasonable suspicion to
justify the investigative stop. The caller's tip demonstrated
defendant posed a threat to the public by walking in a high-crime
area with a firearm. The caller's description of defendant as
9 A-4998-14T3
bald black male, wearing a white shirt and blue jeans, and walking
with a pit bull was also sufficiently detailed to satisfy the
third prong in Golatta. In addition to the caller's tip, the
high-crime nature of the area and the detectives' quick response
to the area following the radio dispatch corroborate the call to
find reasonable suspicion. The detectives also canvased the area
before finding defendant matching the description provided by the
caller, thereby corroborating the tip prior to the stop.
Defendant's startled reaction to the detectives arriving, as well
as his walking away from the scene as Detective Hollo yelled for
him to stop, contribute to the totality of the circumstances to
justify the investigative stop. Based upon these circumstances,
the trial court correctly found there existed reasonable suspicion
for the detectives to stop and search defendant.
Defendant argues his case is similar to Florida v. J.L.,
where the Supreme Court found an anonymous caller reporting a
"young black male standing at a particular bus stop and wearing a
plaid shirt" carrying a firearm lacked sufficient credibility to
justify the stop. 529 U.S. 266, 274, 120 S. Ct. 1375, 1380, 146
L. Ed. 2d 254, 262 (2000). We are not persuaded. The caller
here, while not identified by name, is not anonymous because
Trenton Police had the caller's phone number and address.
Additionally, defendant's startled behavior, his disobedience to
10 A-4998-14T3
the detectives' commands, his location in a high-crime area, and
the caller's description of defendant with a firearm, supported a
finding of reasonable suspicion to justify the investigative stop
of defendant.
Affirmed.
11 A-4998-14T3