STATE OF NEW JERSEY v. TYRAY R. BROWN (19-03-0498, CAMDEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3423-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRAY R. BROWN, a/k/a
TYRAY BROWN, TYRELL
BROWN, TYRE BROWN and
RYRAY R,
Defendant-Appellant.
_____________________________
Submitted November 15, 2021 – Decided January 4, 2022
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 19-03-0498.
Joseph E. Karkora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the brief).
Grace C. MacAulay, Camden County Acting
Prosecutor, attorney for respondent (Rachel M. Lamb,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
On a sixty-degree December evening, Camden County police responded
to an emergency call about an unconscious man, later identified as defendant,
laying semi-conscious appearing to be under the influence of drugs in front of a
Camden residence. Concerned about his well-being, the officers checked on his
vital signs while waiting for emergency medical services (EMS) to arrive. When
Sergeant Angel Nieves grabbed defendant to wake him up, he felt something
hard in defendant's waistband, which turned out to be a handgun. Defendant
was subsequently charged with second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b)(1), and second-degree certain persons not to possess any
weapons, N.J.S.A. 2C:39-7(b)(1). After his motion to suppress the handgun was
denied by Judge Francisco Dominguez, defendant pled guilty to second-degree
unlawful possession of a weapon and was sentenced to five years in prison with
a one-year period of parole ineligibility.
In a one-point argument, defendant appeals arguing:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS BECAUSE
THE POLICE DID NOT HAVE THE REQUISITE
REASONABLE SUSPICION TO FRISK []
DEFENDANT.
We are unpersuaded and affirm.
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At the suppression hearing, the State had the burden to prove that the
search of defendant's person and seizure of the handgun was not violative of our
state and federal constitutions. The State presented one witness, Nieves,1 while
defendant did not testify or produce any witnesses. At the hearing's conclusion,
Judge Dominguez issued an oral decision, finding Nieves's testimony credible,
and determining that his search and seizure of the handgun was permissible
under the community-caretaker exception and the Terry doctrine.2 Relying upon
State v. Diloreto, 180 N.J. 264 (2004), the judge found:
[Nieves] was not acting in an investigatory manner of a
criminal matter, but rather . . . all of these events acting
in concert gave rise to the officer's community[-
]caretaking role. Additionally, . . . the officer did not
perform this function as a pretext for a criminal
investigation. . . . [T]he officer in this case acted out of
concern for . . . defendant's safety while [he]
acknowledged that . . . he took steps to protect his
safety, in addition to . . . defendant's. . . . [T]he police
need not abandon their own safety while reasonably
engaged in . . . community[-]caretaking activity.
Regarding the application of Terry, the judge reasoned Nieves and other
officers at the scene "had authority to conduct the search because under the
1
At the time of his testimony, Nieves had been promoted to the position of
lieutenant.
2
Terry v. Ohio, 392 U.S. 1 (1968).
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circumstances . . . a reasonably prudent man . . . would be warranted in the belief
that his safety or that of others may be in danger." More specifically, the judge
found that based on the totality of the circumstances, since the officers were
unaware of the intoxicant defendant consumed; any objects he may have
possession, "such as hypodermic needles or other objects[] that could potentially
harm" someone when attempting to render aid to him; and "the unusual amount
of clothing . . . [he] was wearing that could conceal a weapon," the officers were
reasonable in their belief that their safety, and the safety of others, was in danger.
The judge stressed that when Nieves initially touched defendant to wake him
up, it was not for the purpose of a criminal investigation but was part of his
community-caretaking function. Thus, the judge ruled that "[i]t was within the
course of conducting that community-caretaking function that [Nieves] first felt
an object that he . . . believed may have been a weapon." 3
To adjudicate this appeal, we are guided by the following well-known
principles. Under the Fourth Amendment of the United States Constitution and
3
The State also argued that even if the search and seizure of the gun was not
justified under the community-caretaking exception, the handgun should be
found admissible under the inevitable discovery doctrine when defendant would
have been searched before being transported to the hospital. Because the judge
found that the community-caretaking exception applied, he did not address the
inevitable discovery argument.
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Article I, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is
presumed invalid unless it falls within one of the recognized exceptions to the
warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v.
Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of
a person or property. Terry, 392 U.S. at 19-21 (seizure of a person); State v.
Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property). In Terry, the
United States Supreme Court held that a police officer is authorized to detain an
individual for a brief period, and to pat him down for the officer's safety, if that
detention is "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. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry,
392 U.S. at 21).
The community-caretaking doctrine, first enunciated by the Supreme
Court in Cady v. Dombrowski, 413 U.S. 433 (1973), is an exception to the
warrant requirement based on the awareness that police officers "often are called
on to perform dual roles." State v. Diloreto, 180 N.J. 264, 276 (2004). "The . . .
doctrine recognizes that police officers provide a wide range of social services
outside of their traditional law enforcement and criminal investigatory roles."
State v. Scriven, 226 N.J. 20, 38 (2016) (internal quotation marks and citations
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omitted). The doctrine provides an independent justification for intrusions into
a citizen's liberty that would otherwise require a showing of probable cause or
reasonable and articulable suspicion of criminal behavior. Diloreto, 180 N.J. at
276. Our Supreme Court has found that the community-caretaker role permits
officers to "check on the welfare or safety of a citizen who appears in need of
help on the roadway without securing a warrant or offending the Constitution."
Scriven, 226 N.J. at 38.
The doctrine entails a fact-sensitive, two-part inquiry. First, a court must
ask whether the officer has reacted to an objectively reasonable community -
concern. Id. at 39 (stating that officers must have an "objectively reasonable
basis" to stop a vehicle to provide aid or check a motorist's welfare). That
concern must serve as a distinct motivation for the officer's conduct, divorced
from any desire to further a criminal investigation. In other words, community-
caretaking may not serve as a pretext for a warrantless intrusion into a citizen's
liberty that does not satisfy another warrant exception. State v. Bogan, 200 N.J.
61, 77 (2009). However, the "divorce" between the two police functions "need
only relate to a sound and independent basis for each role, and not to any
requirement for exclusivity in terms of time or space." Ibid. (citation omitted).
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Second, the court must discern whether the actions taken by the officer
pursuant to his community-caretaking remained within the limited scope
justified by that function. As with all police stops, the officer's conduct must be
"reasonably related in scope to the circumstances which justified the
interference in the first place." State v. Dickey, 152 N.J. 468, 476 (1998)
(quoting Terry, 392 U.S. at 20). Moreover, an officer's "community[-
]caretaking inquiry must not be 'overbearing or harassing in nature.'" State v.
Drummond, 305 N.J. Super. 84, 89 (App. Div. 1997) (quoting State v. Davis,
104 N.J. 490, 503 (1986)).
While there are similarities between the emergency aid and
community-caretaking exceptions, they are doctrinally separate and distinct.
State v. Witczak, 421 N.J. Super. 180, 192 (App. Div. 2011). "The
community[-]caretaker exception asks whether the police are 'engaged in
"functions, [which are] totally divorced from detection, investigation, or
acquisition of evidence relating to the violation of a statute."'" Ibid. (quoting
State v. Cassidy, 179 N.J. 150, 161 (2004)) (second alteration in original). The
emergency aid exception focuses on an objectively reasonable belief an
emergency exists and that there is a reasonable nexus between the emergency
and the area to be searched. State v. Hathaway, 222 N.J. 453, 470 (2015).
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Having reviewed the record on appeal, we discern no basis to reject the
Judge Dominguez's findings of fact given they were supported by sufficient
credible evidence in the record and based on his opportunity to hear and see
Nieves's testimony. See State v. Lamb, 218 N.J. 300, 313 (2014) (quoting State
v. Elders, 192 N.J. 224, 244 (2007)) (recognizing that appellate review
ordinarily defers to the trial judge's factual findings because they "are
substantially influenced by [the judge's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy"). And under our de novo review, we conclude the judge made sound
legal conclusions that Nieves's search and seizure did not violate our state and
federal constitutions. See State v. Rockford, 213 N.J. 424, 440 (2013) (stating
when a trial judge's decision is based upon a legal conclusion, "we conduct a de
novo, plenary review").
Defendant concedes the police officers were initially acting as
community-caretakers, but, citing Diloreto, he contends the frisk and search of
his person was "investigatory" and "not justified under the community-
caretaking exception to the warrant requirement." We disagree.
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Upon arriving at the scene, Nieves's concern was about defendant's
welfare.4 He observed defendant lying on his side on the ground, "appear[ing]
to be out of it, kind of semi-conscious." Believing he was under the influence
of drugs, Nieves checked to see if he was breathing or had a pulse. Once he
determined defendant had a pulse, he started shaking him and calling out to him,
saying "Hey, Papi." Defendant did not verbally respond but merely looked up
towards Nieves and smiled. While shaking him, Nieves "brushed up against
something hard and . . . conducted a pat down of his waist area[,] and [having]
felt something . . . lifted up his shirt and saw the butt of a handgun."
Nieves also testified he was concerned about the safety of arriving EMS
personnel, himself, and the other officer present, because he had experienced
situations where individuals under the influence have "snapp[ed] out of it,
whatever condition it is" and "attack EMS or . . . attack officers." His concern
was further heightened by the fact that defendant was overdressed for the
approximately sixty-degree weather, wearing "long johns," "a thick sweatshirt,"
and "[a] face mask." His training and experience suggested defendant was
clothed that way to conceal a weapon. Taking from the Court's ruling in
4
During the suppression hearing, a video taken from the body camera worn by
Nieves was shown. However, neither party included it with the record on
appeal.
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Diloreto, Nieves's actions "reflected the essence of the community[-]caretaker
function, revealing no motive other than an honest desire to verify defendant's"
safety and well-being. 180 N.J. at 280. Accordingly, we uphold the judge's
order denying defendant's motion for suppression.
Affirmed.
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