STATE OF NEW JERSEY v. JEFFREY VAN QUEEN (17-01-0004, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0458-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY VAN QUEEN,
a/k/a RILEY FRANKLIN,
Defendant-Appellant.
________________________
Submitted November 4, 2021 – Decided February 7, 2022
Before Judges Fuentes and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 17-01-0004.
Joseph E. Krakora, Public Defender, attorney for
appellant (Margaret McLane, Assistant Deputy Public
Defender, of counsel and on the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
After a judge denied his motion to suppress evidence seized during a
warrantless motor-vehicle search and another judge declared a mistrial after a
jury failed to reach a verdict, defendant pleaded guilty to one charge of second-
degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f), and was
sentenced to a seven-year prison term. Because the undisputed facts do not
establish a reasonable articulable suspicion defendant was involved in criminal
activity, the investigatory stop of defendant's vehicle was not justified, and the
evidence obtained in the subsequent warrantless and unlawful motor-vehicle
search should have been suppressed. Accordingly, we reverse defendant's
conviction, vacate his sentence, and remand for further proceedings.
I.
We glean the following facts from the record developed during the
suppression hearing.
A.
On February 20, 2016, New Jersey State Police Detective Sergeant James
Sansone and Detective Kartik Birudaraju were conducting surveillance around
Perry Street and North Warren Street in Trenton after receiving reports of drug
activity in the vicinity. Sansone saw a man, later identified as defendant, twice
"poke his head out of a residence" on North Warren Street and "look[] both ways
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. . . in . . . a nervous manner." Sansone thought looking both ways was
"suspicious" because North Warren Street is a one-way street and yet defendant
was "looking . . . as if a vehicle would be coming . . . down the wrong way."
Defendant was "carrying a large, green style . . . Army style, duffel bag and was
holding it with two hands . . . under an arm." The duffel bag completely
concealed its contents. Defendant walked out of the residence with the duffel
bag and placed it in the rear compartment of an SUV parked very close to the
residence on the same side of the street. Defendant then walked to the front of
the SUV, "looking in all directions," and returned to the porch of the residence.
After spending a "couple" minutes standing on the porch, defendant went back
to the SUV, entered it on the driver's side, sat in it "for a couple of minutes,"
and drove off.
Seeing how defendant was holding the duffle bag, Sansone "immediately
determined . . . based on [his] training and experience" it contained "a weapon."
Sansone used a similar bag to transport his rifle when he was assigned to carry
a rifle for work. The duffle bag, coupled with defendant "acting in a suspicious
manner," caused Sansone to "automatically believe[]" defendant was carrying a
weapon.
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Birudaraju also saw defendant "exit from one of the residences, . . . look[]
back and forth up and down the street quickly in almost like a nervous, panicky
manner, and reenter that residence and then moments later do the same thing
and then exit from that residence." Birudaraju saw defendant carrying "a green
duffel bag," "holding it with two hands . . . underneath his arm, trying to hold
the weight of the item in the bag up." According to Birudaraju, "after the second
time he looked, . . . [defendant] . . . quickly maneuvered [the duffle bag] out of
the residence to a black SUV," placing it in the "rear compartment." Based on
his "training and experience," Birudaraju believed the duffle bag contained "a
long gun . . . [by] the way [defendant] was handling it. . . ."
After observing defendant place the duffle bag in the SUV, Sansone and
Birudaraju radioed other members of their surveillance detail, stating they had
seen "a black male coming out of a residence who appeared . . . to have a rifle
in his possession." Sansone and Birudaraju communicated that defendant had
"appeared to be nervous, he was looking up and down the street, and just the
way he was holding the bag, it appeared like he had a long gun or a rifle of a
sort." Detective Carlos Estevez, who was also performing surveillance nearby,
made an "operational decision" to follow defendant's SUV. Estevez testified
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that based on the information provided by Sansone and Birudaraju, he decided
he would attempt to instigate an investigatory stop.
As Sansone and Birudaraju described the direction in which the man they
had observed was driving, Estevez "observed the vehicle at the intersection there
of North Warren and Perry." Following defendant's vehicle, Estevez observed
defendant fail to come to a complete stop at a red light. Estevez pulled
defendant's vehicle over. Estevez testified defendant's "car was getting stopped
whether there was a motor vehicle violation or not." With other members of his
unit, Estevez approached defendant's SUV. He saw a "scope lens cover" in the
center console and smelled "a strong odor of burnt marijuana emanating from
inside the vehicle. . . ." Estevez ordered defendant out of the vehicle for two
reasons:
First, we received information during surveillance that
members of the unit observed what appeared to be a
possible rifle being placed in the rear compartment of
the vehicle. So for officer safety in the case that there
was a firearm in the vehicle we removed him from the
vehicle. [Second,] we had the odor of burnt marijuana
coming from inside the vehicle.
Although Estevez testified on direct examination that the burnt-marijuana odor
was one of the two reasons police had ordered defendant to exit the vehicle, on
cross-examination Estevez stated he smelled the burnt-marijuana odor after
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defendant had exited the vehicle. After being told police had detected the odor
of burnt marijuana coming from inside the SUV, defendant admitted he "had
smoked weed prior inside the vehicle."
The police then conducted "a probable cause search" of the SUV. When
he was in the "passenger area of the rear seat," Estevez saw "in the rear
compartment of the vehicle a duffel bag . . . with the stock of what appeared to
be a rifle sticking out of the rear of it." He described the duffle bag as looking
"almost like a military backpack." The police searched the duffel bag and found
an assault rifle, two magazines, and bullets. They ultimately did not find any
marijuana or marijuana paraphernalia in defendant's vehicle or on his person.
They arrested defendant and brought him to the station.
B.
A grand jury indicted defendant and charged him with second-degree
unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f); fourth-degree
unlawful possession of a large capacity magazine, N.J.S.A. 2C:39-3(j); third-
degree receiving stolen property, N.J.S.A. 2C:20-7(a) and -2(b) and second-
degree being a certain person not permitted to possess weapons, N.J.S.A. 2C:39-
7(b).
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Defendant moved to suppress the evidence seized during the warrantless
search conducted after the February 20, 2016 vehicle stop. The motion judge
conducted a one-day evidentiary hearing, during which Sansone, Birudaraju,
and Estevez testified.
The motion judge issued an order and placed a decision on the record
denying defendant's motion. Rejecting defendant's argument, the police had
lacked probable cause to effectuate a search of the SUV, the motion judge found
the detectives credible and concluded "the police clearly developed probable
cause to believe that the defendant was in possession of a firearm, specifically
a rifle or some other type of long gun." The judge found the duffle "bag lent
itself to carrying a rifle" and that "the size of the bag and the way the defendant
held it and manipulated it, indicated . . . the bag contained a gun." As for how
defendant held and "manipulated" the bag, the judge described defendant
holding "the bag under his arm with two hands. One hand was at the top, another
was in the middle." Finding defendant had "display[ed] a lot of nervous type
conduct," the judge determined "defendant’s conduct suggests nervousness that
would be inconsistent with having a lawful right to carry the gun." While the
motion judge found defendant's suspicious behavior supported the conclusion
he had a gun, he also found that the belief he had a gun supported the conclusion
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he was behaving in a suspicious way: "he was acting suspicious . . . which was
supportable by the fact that the defendant clearly appeared to be carrying
contraband." The judge found the actual reason for the motor-vehicle stop was
not defendant's failure to stop at the red light, which was "just a pretextual basis
for the stop," but the belief defendant "was carrying a gun." The judge held with
that belief, the police had a right to stop the SUV.
The motion judge went on to find that "[o]nce they stopped the vehicle,
[the police] were entitled to go where facts and circumstances took them." The
judge believed the observation of the scope lens cover and detection of burnt-
marijuana odor "added to the police authority here," entitling them to search the
vehicle without first obtaining a search warrant. Citing State v. Robinson, 228
N.J. 529 (2017), and State v. Witt, 223 N.J. 409 (2015), the motion judge also
concluded the police had a right to conduct a protective sweep of the SUV, even
though defendant was no longer in it.
A jury and a different judge presided over defendant's trial. After the jury
was unable to reach a verdict, the trial judge declared a mistrial. Pursuant to a
subsequent plea agreement, defendant pleaded guilty to unlawful possession of
an assault firearm, N.J.S.A. 2C:39-5(f), in exchange for the dismissal of the
other pending charges. The trial judge sentenced plaintiff to seven years in
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prison in accordance with the plea agreement, with a mandatory three and a half
years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
Defendant preserved his right to appeal the pre-trial denial of his motion to
suppress.
In this appeal, defendant argues:
I. THERE WAS NO PROBABLE CAUSE TO
SEARCH DEFENDANT'S VEHICLE, SO THE TRIAL
COURT ERRED IN DENYING THE MOTION TO
SUPPRESS.
II.
Our scope of review on a motion to suppress is limited. State v. Ahmad,
246 N.J. 592, 609 (2021). We "uphold the factual findings underlying the trial
court's [suppression] decision so long as those findings are supported by
sufficient credible evidence in the record." Ibid. (quoting State v. Elders, 192
N.J. 224, 243 (2007)). We review de novo a trial court's legal conclusions "and
the consequences that flow from established facts." State v. Hubbard, 222 N.J.
249, 263 (2015); see also State v. Nyema, ___ N.J. ___, ___ (2022) (slip op. at
21).
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution forbid law enforcement from
conducting unreasonable searches and seizures. State v. Terry, 232 N.J. 218,
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231 (2018). A warrantless search or seizure is presumptively unreasonable and
invalid. State v. Chisum, 236 N.J. 530, 545 (2019); State v. Hagans, 233 N.J.
30, 38 (2018); see also Elders, 192 N.J. at 246 (finding "our constitutional
jurisprudence evinces a strong preference" for searches conducted pursuant to
"judicially issued warrants"). For a court to find permissible a warrantless
search, the State must prove by a preponderance of the evidence the search fell
within one of the few recognized exceptions to the warrant requirement.
Chisum, 236 N.J. at 545; see also Nyema, ___ N.J. ___ (slip op. at 22).
One recognized exception is an "an investigative stop, a procedure that
involves a relatively brief detention by police during which a person's movement
is restricted." Nyema, ___ N.J. ___ (slip op. at 22); see also State v. Rosario,
229 N.J. 263, 272 (2017). A "roadside stop by a police officer constitutes a
seizure under both the Federal and New Jersey Constitutions." State v. Dunbar,
229 N.J. 521, 532 (2017). It doesn't matter how "brief or limited" the stop is.
State v. Scriven, 226 N.J. 20, 33 (2016).
"To be lawful, an automobile stop 'must be based on reasonable and
articulable suspicion that an offense, including a minor traffic offense, has been
or is being committed.'" State v. Bacome, 228 N.J. 94, 103 (2017) (quoting
State v. Carty, 170 N.J. 632, 639-40 (2002)). "An investigative detention is
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permissible 'if it 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.'" Chisum, 236 N.J. at 545-46 (quoting State v. Pineiro, 181
N.J. 13, 20 (2004)). An investigatory stop is not permissible if it is "based on
arbitrary police practices, the officer's subjective good faith, or a mere hunch."
State v. Coles, 218 N.J. 322, 343 (2014). A decision to conduct an investigatory
stop must be supported by "some objective manifestation that the suspect was
or is involved in criminal activity." State v. Thomas, 110 N.J. 673, 678 (1988);
see also State v. Williams, 410 N.J. Super. 549, 555 (App. Div. 2009).
"[T]o determine whether officers objectively possessed reasonable and
articulable suspicion to conduct an investigatory stop," a court must consider
"the totality of the circumstances of the encounter . . . in a very fact-sensitive
analysis." Nyema, ___ N.J. ___ (slip op. at 28). A "suspect’s conduct can be a
factor, but when the conduct in question is an ambiguous indicator of
involvement in criminal activity and subject to many different interpretations,
that conduct cannot alone form the basis for reasonable suspicion. " Id. at ___
(slip. op. at 32). "Information acquired after a stop cannot retroactively serve
as the basis for the stop." Id. at ___ (slip op. at 30).
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Applying those principles to this case, the question before us is whether
Estevez had a reasonable articulable suspicion defendant was engaged in
criminal activity when he stopped defendant's vehicle. In addressing that
question, we do not consider defendant's alleged failure to stop at a red light.
Estevez admitted he did not stop defendant's car because of the alleged traffic
violation and that defendant's "car was getting stopped whether there was a
motor vehicle violation or not." Based on that admission, the motion judge
found the alleged traffic violation was "just a pretextual basis for the stop" and
the real reason for the stop was the belief defendant "was carrying a gun."
Estevez's decision to stop defendant's car was based entirely on the report
from Sansone and Birudaraju of "a black male coming out of a residence who
appeared . . . to have a rifle in his possession." The record is devoid of any
evidence Sansone and Birudaraju described in their radio call the vehicle the
"black male" was driving, other than to relate the direction in which he was
driving it. Seeing a "black male" driving a vehicle in the direction related by
Sansone and Birudaraju, Estevez decided to stop that vehicle.
Sansone's and Birudaraju's belief defendant had a rifle was based on
defendant's "nervous" appearance and "suspicious manner," the type of bag he
had, and the way he held the bag. His purportedly "nervous" and "suspicious"
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conduct was that he twice looked up and down a one-way street when he came
out of his residence and was "looking in all directions" when he returned to his
residence.
The motion judge based his decision on a factual finding defendant had
"display[ed] a lot of nervous type conduct" and his "nervousness . . . would be
inconsistent with having a lawful right to carry the gun." Engaging in circular
reasoning, the judge found both that defendant's nervous and suspicious conduct
indicated he was in the unlawful possession of a gun and that his apparent
possession of contraband supported the conclusion defendant was acting
suspiciously. The motion judge found the duffle "bag lent itself to carrying a
rifle" and that "the size of the bag and the way the defendant held it and
manipulated it, indicated . . . the bag contained a gun."
A duffle bag lends itself to carrying a lot of things. That is the nature of
a duffle bag. Looking around a one-way street is not "display[ing] a lot of
nervous type conduct" and is not sufficient credible evidence to support the
motion judge's conclusion. It also is not inherently indicative of criminal
behavior. Neither is carrying a duffle bag under an arm holding it with two
hands. Defendant's conduct, at most, is an "ambiguous indicator of involvement
in criminal activity and subject to many different interpretations, [which] cannot
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alone form the basis for reasonable suspicion." Nyema, ___ N.J. ___ (slip. op.
at 32).
The information Estevez received from Sansone and Birudaraju, on which
he based his decision to stop defendant's vehicle, indicates a hunch and did not
amount to objectively reasonable and articulable suspicion justifying an
investigatory stop. Because the investigatory stop was improper, the subsequent
search of the vehicle was illegal and the physical evidence seized in that search
should have been suppressed.
Given our ruling on the stop, we need not address defendant's remaining
arguments. Defendant's conviction and sentence are vacated, and the matter is
remanded for further proceedings.
Reversed, vacated, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
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