STATE OF NEW JERSEY VS. TERIQ C. DAVIS (14-08-0720, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3157-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERIQ C. DAVIS, a/k/a
TARIQ C. DAVIS, TARIQ DAVIS,
TEIRIQ CROSBY DAVIS,
TERIG CROSBY DAVIS,
TERIO CROSBY DAVIS,
TERIO DAVIS, TERIQ C. DAVIS, SR.,
TERIQ CROSBY DAVIS,
TERIQ CROSBY DAVIS, SR.,
TERIQ DAVIS, and TERIQUE DAVIS,
Defendant-Appellant.
Argued January 30, 2019 – Decided April 29, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 14-08-0720.
Stephen P. Hunter, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Stephen P. Hunter, of
counsel and on the brief).
Meredith L. Balo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Michael A. Monahan, Acting Union
County Prosecutor, attorney; Meredith L. Balo, of
counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Teriq C. Davis was convicted of second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree
unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f). The jury
acquitted defendant of second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a) and fourth-degree aggravated assault, N.J.S.A.
2C:12-1(b)(4). Defendant appeals, arguing that the trial judge erroneously
denied his motion to suppress, and, if the conviction stands, that his sentence is
excessive. On January 27, 2017, the trial judge imposed seven years
imprisonment, subject to forty-two months of parole ineligibility, on the
unlawful possession of a weapon, and concurrent terms of eighteen months
incarceration on the possession of hollow point bullets and six months on the
disorderly persons charge of resisting arrest, which the judge decided as the trier
of fact. We affirm.
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Hillside police officers responded to a call reporting a "domestic in
progress involving a weapon." The dispatch included the information that
during the course of "an altercation between a boyfriend and girlfriend, . . . the
male on scene had pointed a handgun at his girlfriend."
Officer Joseph Vetter testified that upon arrival, he saw defendant walking
out the front door of the house holding a green reusable lunch bag in his left
hand. Defendant dropped the bag at the top of the landing as soon as he saw the
officers approach, and walked down some stairs. Vetter described the staircase
of this single-family home as "a small stairway leading up to the front door,
well-illuminated . . . just a small stairway, maybe five or six stairs up to the
landing with a small landing at the top." When police met defendant at the
sidewalk, he was ordered to raise his hands. Vetter walked into the home to
speak with the victim.
Officer Daniel Wanat and a third officer, who did not testify at the
suppression hearing, conducted a pat down of defendant to search for weapons.
Meanwhile, the victim informed Vetter that defendant's handgun, which he
pointed at her during an argument, was in the green bag he had taken with him.
Vetter walked back outside, looked inside the bag defendant had dropped, and
saw a handgun. He estimated that defendant was only five or six steps away
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from the bag. Vetter said that at the time he opened the bag, defendant was
standing at the foot of the landing, and had not been handcuffed.
Wanat testified at the suppression hearing that he saw defendant walk out
of the house and place a green bag he had been holding in his left hand "on the
top of the stoop as we were approaching." He estimated the distance between
the landing where the bag was located and defendant when arrested at maybe
four to five feet. Wanat did not remember if defendant walked all the way down
the stairs as the officers approached, but he did remember that defendant seemed
taller because he was standing on a step above them. When asked on cross-
examination "the approximate linear distance" between the edge of the landing
and the street, the officer said approximately twelve feet and then said he "really
[did not] know." Later on re-cross, Wanat said the distance between the green
bag and the bottom of the steps was approximately twelve or thirteen feet.
When defendant testified at the suppression hearing, he denied holding
the green bag as he walked out of the house. He said the officers tackled him to
the ground, cuffed his wrists behind him, and then one officer sat on his back
while the other put his knee in his face and smashed it to the ground. Defendant
also said that two officers went inside the house and returned with the green bag.
He heard one officer tell the other that they had "hit the jackpot." Defendant
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could not see what they were referring to as he was placed in the back seat of
the police car.
The judge denied the suppression motion because although the police had
probable cause to arrest and search incident to that arrest, defendant abandoned
the property when he threw it on the ground and walked away. He found the
police officers more credible than defendant, whom he found "not credible at
all." He reached those conclusions not only from the demeanor of the witnesses,
but from the internal consistency of their testimony. He observed that "[t]he
defendant would have this court believe that he innocently left the home and
was beset upon by police officers, [roughed] up and a gun was . . . attributed to
him."
I.
We review the factual findings made by a trial judge during a motion to
suppress deferentially, and so long as they are supported by sufficient credible
evidence, we will not disturb them. State v. Elders, 192 N.J. 224, 243 (2007).
When defending a warrantless search, the State bears the burden of establishing
by a preponderance of the credible evidence that it fits within one of the
exceptions to the warrant requirement. State v. Minitee, 210 N.J. 307, 318
(2012). One such exception is an officer's right to search a defendant's person
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without a warrant if there is probable cause to arrest. State v. Evans, 181 N.J.
Super. 455, 459 (App. Div. 1981). The purpose of a search incident to arrest is
to protect arresting officers from potential dangers, as well as to prevent
destruction or concealment of evidence. State v. Dangerfield, 171 N.J. 446, 461
(2002).
We have previously held that a container in a suspect's possession at the
time of a lawful arrest may be searched under the search incident to arrest
exception, even if the suspect is no longer holding the container at the time o f
the search. State v. Oyenusi, 387 N.J. Super. 146, 155 (App. Div. 2006). Such
searches are lawful, so long as contemporaneous with the arrest. Ibid.Defendant argues that the search in this case was unlawful because of the
distance he claims, twelve feet, between him at the point of the arrest and the
green bag. We are satisfied based on our review of the record, however, that
although when pressed on cross-examination, Wanat agreed the distance could
have been as many as ten or twelve feet, he also said the bag was located on a
landing only four or five steps above the street level. That description, more
precise than an estimate of distance, placed the bag, which officers knew
contained a handgun, within defendant's reach. Wanat's more concrete
description of the location of the bag, which did not include an estimate,
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matched Vetter's. Thus, it was reasonable for the officer to have searched the
bag, particularly in light of defendant's struggle when arrested, which the trial
judge found sufficient to warrant conviction of the disorderly persons offense of
resisting arrest. Relying on the judge's credibility findings, the search was
conducted incident to arrest and should be affirmed. See Oyenusi, 387 N.J.
Super. at 156-57.
II.
We briefly touch upon defendant's contention that he had not abandoned
the bag. Given the judge's factual finding that the officers' version of events
was accurate, we must assume that defendant was seen by the officers
deliberately discarding the bag and walking down the stoop.
Defendant did not even claim that the bag was his—in fact, he denied
ownership at the suppression hearing. Therefore, a reasonable construction of
the circumstances is that he abandoned the bag, hoping to either not have been
seen or to deflect the officers' attention from the lunch bag in which the handgun
was hidden.
Property is treated as abandoned when discarded. State v. Gibson, 318
N.J. Super. 1, 11 (App. Div. 1999) (quoting State v. Farinich, 179 N.J. Super. 1,
6 (App. Div. 1981)). If the State establishes the property was abandoned, the
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defendant has no right to challenge the search or seizure of it. State v. Johnson,
193 N.J. 528, 548 (2008).
The judge concluded, based on the officers' credible testimony, that
defendant casually walked out of the house, dropped the bag, and continued
down the steps as if he did not see anyone. It was not until the officers
approached him and Vetter went up the steps, that defendant began to struggle.
Therefore, on the theory of abandonment, the officers had an independent basis
to search.
III.
Finally, defendant challenges the court's sentence as excessive. We
review sentencing decisions deferentially. State v. Fuentes, 217 N.J. 57, 70
(2014). We do not substitute our judgment for that of the sentencing court. State
v. O'Donnell, 117 N.J. 210, 215 (1989). In this case, the trial court engaged in
an expansive analysis of the aggravating factors. The judge found aggravating
factors three, six, and nine, given defendant's long history with the criminal
justice system dating back some twenty years. See N.J.S.A. 2C:44-1(a)(3), (6),
and (9). His criminal history included Virginia as well as New Jersey.
The judge found no mitigating factors. Defendant's argument on appeal
that mitigating factors one, two, and seven should have been found by the trial
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court lacks sufficient merit to warrant discussion in a written opinion. See R.
2:11-3(e)(2); N.J.S.A. 2C:44-1(b)(1), (2), and (7). Possession of a loaded
handgun filled with hollow point bullets clearly poses a threat of serious harm
and has great potential to harm others. Defendant had not "led a law-abiding
life for a substantial period of time before the commission of the present
offense." N.J.S.A. 2C:44-1(b)(7).
Affirmed.
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