STATE OF NEW JERSEY VS. DARRYL J. HUNTER (15-02-0132, 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NOT FOR PUBLICATION WITHOUT THE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-2641-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL J. HUNTER, a/k/a DARRYL
HUNTER, DARRLY HUNTER, DAREYL
HUNTER, DARRYLK BROWN, MARKIETH
BROWN,
Defendant-Appellant.
_____________________________
Submitted May 8, 2017 – Decided May 31, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 15-02-0132.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah D. Brigham,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Darryl J. Hunter appeals the denial of his motion
to suppress evidence seized by police following a motor vehicle
stop, arguing that the warrantless search violated his
Constitutional rights. After a review of the record and
defendant's contentions in light of the applicable principles of
law, we affirm.
Defendant was charged in two indictments and an accusation
with various weapons offenses and terroristic threats. The
following facts are derived from the suppression motion hearing.
At 8:30 p.m. on October 3, 2014, Sergeant Todd Kelly of the
Elizabeth Police Department received a message from police
headquarters that an anonymous caller had described an ongoing
incident on Community Lane in Elizabeth. The caller stated that
a bearded, black male, wearing a gray hooded sweatshirt and khaki
pants, was waving a handgun in front of numerous bystanders while
calling: "Where is he?"
Kelly arrived at the area in a marked patrol car within two
minutes of receiving the radio transmission from dispatch. He
stopped half a block from Community Lane, in a well-lit area at
the corner of Second and Pine Streets, to wait for backup units
to arrive. When stopped, Kelly observed a white Pontiac pull out
of a driveway connecting Community Lane to Pine Street, turn onto
Pine Street, and drive towards him. The car stopped at the stop
2 A-2641-15T3
sign directly across from Kelly, then crossed the intersection,
passing the patrol car at ten to fifteen miles per hour. Kelly
testified that the Pontiac was only three feet away from him as
it passed his vehicle. The officer was able to see the driver
clearly, and noted it was a black male with a beard wearing a gray
hoodie.
Based on his nineteen years of experience and his
determination that the driver of the Pontiac fit the description
provided by the anonymous caller, Kelly conducted a motor vehicle
stop. Defense counsel questioned the validity of the traffic stop
as the anonymous caller had not mentioned a vehicle. Kelly
responded that "[v]ery rarely do suspects in in-progress crimes
stay exactly where they're committing the crime. Most of them
flee the area."
After Kelly informed the back-up units of his observations,
he made a U-turn and ordered the driver of the Pontiac to pull
over on Pine Street. The driver, later identified as defendant,
pulled over the vehicle, but when Kelly shone a spotlight into the
rear windshield, defendant ducked down out of sight towards the
passenger side of the car. After receiving information that the
Pontiac was registered to an individual who lived on Community
Lane, Kelly got out of his vehicle.
3 A-2641-15T3
As Kelly was exiting his car, Elizabeth police officers
Dany Rivera and Lina Castro arrived at the scene. Kelly approached
the driver's side of the car, and defendant "popped" back up in
his seat and immediately opened the door. Kelly confirmed that
the driver's appearance and attire matched the tipster's
description, and he ordered defendant to get on the ground and
show his hands. Defendant complied, and Kelly and Rivera arrested
him.
Through the open driver's side door of the vehicle, Castro
observed a fully loaded magazine to a semi-automatic handgun on
the floor by the driver's seat. She also discovered a silver and
black semi-automatic handgun, matching the description provided
by the tipster, under the front passenger seat. Castro seized
both items. Defendant subsequently indicated that he wished to
speak with Kelly. After Miranda1 warnings were administered,
defendant stated that he carried the handgun for protection from
a gang member that had threatened him. Defendant also stated that
the car was owned by his girlfriend.
When defendant's girlfriend arrived at the scene she gave
the officers consent to search the vehicle; the search revealed a
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4 A-2641-15T3
plastic ziploc bag containing a white powdery substance suspected
to be cocaine and a small digital scale.
Defendant moved to suppress the evidence collected from the
vehicle, arguing that the police did not establish a reasonable
and articulable suspicion sufficient to conduct a motor vehicle
stop. Following a suppression hearing, Judge Robert J. Mega denied
defendant's motion in a written decision issued September 14,
2015. The judge found the officers' testimony to be credible, and
concluded that
[t]he key facts observed prior to the stop –
the ability to see the driver's face, beard,
and gray hoodie in close proximity to []
Community Lane; and the short passage of time
between the report and Sergeant Kelly's
observation – created a reasonable and
articulable suspicion for Sergeant Kelly to
initiate the stop in question. Accordingly,
based on the totality of circumstances, this
[c]ourt finds that enough reasonable and
articulable suspicion existed to justify a
stop of [d]efendant's motor vehicle.
Subsequent to the denial of his motion to suppress the
evidence seized from the vehicle, defendant entered a guilty plea
to second-degree unlawful possession of a weapon and third-degree
terroristic threats. Defendant was sentenced to a term of seven
years subject to a forty-two month parole disqualifier on the
weapons charge and a concurrent three-year sentence on the
5 A-2641-15T3
terroristic threats charge. The judge dismissed the remaining
charges and imposed requisite fines and penalties.
Defendant presents the following argument on appeal:
POINT I. THE WARRANTLESS STOP AND SEARCH OF
THE PONTIAC AUTOMOBILE VIOLATED THE
DEFENDANT'S RIGHT TO BE FREE FROM [AN]
UNLAWFUL SEARCH AND SEIZURE GUARANTEED BY THE
NEW JERSEY AND FEDERAL CONSTITUTIONS.2
We review a motion to suppress under a deferential standard,
recognizing that the trial judge has had an opportunity to "hear
and see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244
(2007) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We
will not disturb the trial court's decision so long as it is
"supported by sufficient credible evidence" and not "so clearly
mistaken 'that the interests of justice demand intervention and
correction.'" State v. Scriven, 226 N.J. 20, 32-33 (2016) (citing
Elders, supra, 192 N.J. at 243-44).
Defendant contends that Kelly did not have a reasonable and
articulable suspicion sufficient to justify the motor vehicle stop
leading to his arrest. He argues that the police did not
2
The only argument presented by defendant in his brief is that
the officer did not have a reasonable and articulable suspicion
for the traffic stop.
6 A-2641-15T3
independently corroborate the anonymous tip, and therefore, it was
insufficient to support a warrantless stop of his car.
The United States and New Jersey Constitutions guarantee an
individual's right to be free from "unreasonable searches and
seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A
warrantless search is "presumed invalid unless it falls within one
of the recognized exceptions to the warrant requirement." State
v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke, 163 N.J.
657, 664 (2000)).
"A lawful stop of an automobile must be based on reasonable
and articulable suspicion that an offense . . . has been or is
being committed." State v. Carty, 170 N.J. 632, 639-40 (citing
Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59
L. Ed. 2d 660, 673 (1979)), mod. by 174 N.J. 351 (2002).
In determining whether an investigative stop of an automobile
was reasonable, a court must consider the "specific reasonable
inferences" that an officer is entitled to draw based on the facts
available to him at the moment of the stop and in light of his
experience. State v. Maryland, 167 N.J. 471, 487 (2001) (citations
omitted). "[I]narticulate hunches" and "subjective good faith"
are insufficient to justify a warrantless search and seizure.
Ibid. "Rather, the officer 'must be able to point to specific and
articulable facts which, taken together with rational inferences
7 A-2641-15T3
from those facts, reasonably warrant [the] intrusion.'" Ibid.
(alteration in original) (citations omitted).
An anonymous tip, standing alone, is insufficient to
establish a reasonable and articulable suspicion. State v.
Privott, 203 N.J. 16, 26 (2010) (citing Florida v. J.L., 529 U.S.
266, 271, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 260 (2000)).
To satisfy the reasonable suspicion standard, the anonymous tip
must be "reliable in its assertion of illegality" by providing
predictive information about criminal activity. Id. at 27-28
(citing J.L., supra, 529 U.S. at 271, 120 S. Ct. at 1379, 146 L.
Ed. 2d at 260-61; State v. Rodriguez, 172 N.J. 117, 131 (2002)).
Thus, "[t]he police must verify that the tip is reliable by some
independent corroborative effort." Id. at 26.
A court must consider the totality of the circumstances in
considering whether there was a reasonable and articulable
suspicion that an individual was involved in criminal activity;
an anonymous tip is but one factor under this analysis. State v.
Gamble, 218 N.J. 412, 433-34 (2014).
In Privott, supra, police received information from an
anonymous caller who reported a man armed with a handgun at a
specific location. 203 N.J. at 21. The man was described as "a
tall, thin, dark-skinned man, dressed in a black jacket with a
black and red cap." Ibid. When the police arrived at the scene,
8 A-2641-15T3
they found a man who matched the physical description and was
wearing a similar hat, although the jacket he wore was a different
color. Ibid. The officers recognized the man from prior arrests
and detected movements he made as they approached as ones commonly
used by armed persons to conceal a weapon. Id. at 29. The Court
found that under the totality of the circumstances the officers
were justified in conducting an investigatory stop. Id. at 30.
Here, the trial judge noted that the anonymous caller
described the suspect as a bearded, black male, wearing a gray
hooded sweatshirt and khaki pants and waving a handgun in front
of numerous bystanders. He further noted that Kelly, who received
this information from the dispatcher and was the first officer to
respond to the location, was clearly able to see the driver of the
Pontiac exiting Community Lane as he slowly passed the police
vehicle on a well-lit road within a distance of three feet. The
driver was a black male with a beard wearing a gray hoodie. Judge
Mega stated: "This observation was close to the location of the
reported gunman, a mere half a block from the reported location
of the gunman. Moreover, this observation occurred within two
minutes of Sergeant Kelly receiving the report of the gunman in
the area of [] Community Lane." He concluded that the evidence
presented at the hearing created a "reasonable and articulable
suspicion to initiate the stop in question. Accordingly, based
9 A-2641-15T3
on the totality of circumstances, this Court finds that a
reasonable and articulable suspicion existed to justify a stop of
Defendant's motor vehicle."
We are satisfied that the judge's denial of defendant's motion
to suppress is supported by the credible evidence in the record.
Affirmed.
10 A-2641-15T3