STATE IN THE INTEREST OF N.H. (FJ-07-0653-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4896-17T2
STATE IN THE INTEREST
OF N.H.,
A Juvenile.
___________________________
Submitted October 7, 2019 – Decided January 15, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FJ-07-0653-18.
Joseph E. Krakora, Public Defender, attorney for
appellant N.H. (Brian P. Keenan, Assistant Deputy
Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent State of New Jersey
(Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
N.H. appeals from the family court's order adjudicating him a delinquent.
He argues the court erred when it denied his motion to suppress a handgun found
after a detective ordered him to the ground at gunpoint, handcuffed him,
performed a pat-down search and discovered the handgun in N.H.'s left pant leg.
N.H. argues his initial encounter with the police was not, as the motion judge
found, a field inquiry but an investigatory stop that was unsupported by the
required reasonable and articulable suspicion that he was engaged in criminal
activity at the time, and that the subsequent stop and pat-down search was the
fruit of the initial unlawful seizure. Unpersuaded, we affirm.
The motion judge, following an evidentiary hearing at which Officer
Tashawn Bryant and Detective Jermin Spencer testified, found that a telephone
caller to the East Orange Police Department reported a shooting in the vicinity
of a high school. Bryant was dispatched to the area to locate victims, witnesses
or suspects. While en route to the area, Bryant heard a dispatch from a lieutenant
posted to the Real Time Crime Prevention Center (CPC). An audio recording,
played during Bryant's cross-examination at the suppression hearing, contained
the verbatim dispatch: "All will be advised with [sic] two males stepping off
from that area. They were going eastbound of Springdale from Prospect. One
had on orange pants."
Bryant saw two individuals who matched the description given in the
lieutenant's dispatch and transmitted: "All right I have the two males one with
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the orange pants walking eastbound [on] Springdale"; she requested backup
units and gave a description of the clothing worn by both males. Before Bryant
stopped her police vehicle, a plain-clothes detective in an unmarked vehicle
drove "into a driveway in front of the two individuals blocking their
passageway," and another uniformed officer in a marked vehicle exited his
vehicle. The judge further found the detective exited his vehicle and "flashed a
badge to . . . identify himself," whereupon one of the males, later identified as
N.H., ran. During the evidentiary hearing, N.H.'s counsel told the motion judge
that he wanted Bryant to "admit factually what is occurring on the [video]tape,
which is that [Bryant's] car is still moving and the detective is out in [sic] and
the officer, another marked unit is parked alongside." The judge told counsel
he had "established that"; and that Bryant stopped the car before she got out,
meaning she was still in a moving vehicle when N.H. began to run.
After Bryant exited her vehicle, she saw an object in N.H.'s right hand as
he ran. Although she believed the object was a handgun, she radioed only for
pursuing officers to use caution. She also transmitted the color of N.H.'s
clothing and his direction of travel.
Spencer heard Bryant's transmissions, saw a male wearing orange pants
running in the area described by Bryant, drew his gun and ordered the male,
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N.H., to the ground. N.H. complied, was handcuffed and frisked; Spencer seized
the gun.
We defer to the trial court's factual findings on a motion to suppress,
"unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of
justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245
(2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279
(2007)). In State v. S.S., our Supreme Court extended that deferential standard
of review to "factual findings based on a video recording or documentary
evidence" to ensure that New Jersey's trial courts remain "'the finder of the
facts[.]'" 229 N.J. 360, 381 (2017) (quoting Fed. R. Civ. P. 52(a) advisory
committee's note to 1985 amendment). The Court explained that "[p]ermitting
appellate courts to substitute their factual findings for equally plausible trial
court findings is likely to 'undermine the legitimacy of the [trial] courts in the
eyes of litigants, multiply appeals by encouraging appellate retrial of some
factual issues, and needlessly reallocate judicial authority.'" Id. at 380-81
(second alteration in original) (quoting Fed. R. Civ. P. 52(a) advisory
committee's note to 1985 amendment). The trial court's application of its factual
findings to the law, however, is subject to plenary review. State v. Cryan, 320
N.J. Super. 325, 328 (App. Div. 1999). We, therefore, review de novo the
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motion judge's conclusions that the first encounter the plain-clothes detective
had with N.H. was a field inquiry and that the pat-down search followed a
justifiable investigatory stop.
An officer is not prohibited from approaching a person and engaging in a
voluntary conversation—a field inquiry. State v. Davis, 104 N.J. 490, 497
(1986); State v. Stampone, 341 N.J. Super. 247, 252 (App. Div. 2001). A field
inquiry does not violate Fourth Amendment 1 protections "so long as the officer
does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441,
447 (1973); see also State v. Rosario, 229 N.J. 263, 273-74 (2017) (citing State
v. Egan, 325 N.J. Super. 402, 410-11 (App. Div. 1999)). "A field inquiry is
permissible so long as the questions '[are] not harassing, overbearing, or
accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in
original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "The officer's
demeanor is relevant to the analysis." State v. Rodriguez, 172 N.J. 117, 126
(2002) (citing Davis, 104 N.J. at 497 n.6). "For example, 'an officer would not
be deemed to have seized another if his questions were put in a conversational
manner, if he did not make demands or issue orders, and if his questions were
1
U.S. Const. amend. IV; see also State v. Handy, 206 N.J. 39, 45-46 (2011)
(recognizing that, like the Fourth Amendment, the "parallel language" of N.J.
Const. art. I, ¶ 7 protects citizens from unreasonable searches and seizures).
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not overbearing or harassing in nature.'" Ibid. (citation omitted) (quoting Davis,
104 N.J. at 497 n.6).
"An encounter becomes more than a mere field inquiry when an
objectively reasonable person feels that his or her right to move has been
restricted." Ibid. The critical inquiry when determining whether a field inquiry
was converted into an investigative detention is whether a reasonable citizen
under the same circumstances would have felt that the officer restrained his or
her right to move by physical force or a show of authority. State v. Tucker, 136
N.J. 158, 164-66 (1994) (citing U. S. v. Mendenhall, 446 U.S. 544, 553-54
(1980)).
Although the motion judge mentioned that the detective, when he pulled
his unmarked vehicle "into a driveway in front of the two individuals[,]
block[ed] their passageway," the judge concluded that the officer, by so
operating the vehicle, flashing his badge and identifying himself "was [making]
an appropriate field inquiry." We agree.
The judge found the detective "did not have the opportunity to even
approach [N.H.] and the other gentleman . . . [t]o ask if they were willing to
answer some questions." The detective's display of his badge—especially
considering he was not in uniform and his vehicle was not marked—was not the
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"physical force or . . . show of authority" sufficient to restrain N.H.'s freedom
of movement. Mendenhall, 446 U.S. at 553. It was simply a prudent way to
show the pair he was a police officer and not someone alighting from a car to
accost them.
We are unconvinced by N.H.'s attempt to analogize the facts of this case
to those in Rosario. There a police officer who received an anonymous tip that
the defendant was selling drugs recognized defendant's car while on patrol.
Rosario, 229 N.J. at 267. The officer positioned his car at a perpendicular angle
approximately seven to ten feet in front of the defendant's car, partially
confining the defendant's vehicle to an enclosed area. Id. at 268. He then
activated the rooftop flood light on his patrol car, aimed it at the defendant's car,
and, after noticing that she was still in the car, approached her and asked her to
produce identification. Ibid. Under those circumstances, the Court concluded
the encounter was an investigative detention because someone
sitting in a lawfully parked car outside her home who
suddenly finds herself blocked in by a patrol car that
shines a flood light into the vehicle, only to have the
officer exit his marked car and approach the driver's
side of the vehicle, would not reasonably feel free to
leave.
[Id. at 273.]
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The Court also commented that the officer's request for identification,
"[a]lthough not determinative . . . reinforce[d] that this was an inv estigative
detention." Ibid.
Here, N.H. ran before the detective uttered a word. There was no question
posed, nor command given. And, obviously, N.H. was not prevented from
leaving. In short, N.H. fled before the field inquiry could begin. The detective's
mere act of pulling his vehicle in front of N.H. into a driveway is not a show of
authority that, without more, would cause someone to believe he was not free to
leave. This street encounter was the type of legitimate police practice that courts
have not restricted. The Mendenhall Court recognized the United States
Supreme Court's prior acknowledgment of the "need for police questioning as a
tool in the effective enforcement of the criminal laws." 446 U.S. at 554.
"Without such investigation, those who were innocent might be falsely accused,
those who were guilty might wholly escape prosecution, and many crimes would
go unsolved. In short, the security of all would be diminished." Ibid. (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)).
The police pursuit and subsequent seizure of N.H. was justified as an
investigatory stop, familiarly known as a Terry stop. Terry v. Ohio, 392 U.S. 1
(1968). Our analysis of the propriety of an investigatory stop balances the
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competing interests between "a citizen's privacy and freedom of movement" and
"proper law[]enforcement activities." Davis, 104 N.J. at 504-05. Investigative
stops are justified, even absent probable cause, "if the evidence, when
interpreted in an objectively reasonable manner, shows that the encounter was
preceded by activity that would lead a reasonable police officer to have an
articulable suspicion that criminal activity had occurred or would shortly occur."
Id. at 505. Courts are to determine whether the totality of the circumstances
gives rise to an "articulable [and] particularized" suspicion of criminal activity,
not by use of a strict formula, but "through a sensitive appraisal of the
circumstances in each case." Ibid.
Our Supreme Court recognized the two-step analysis set forth in United
States v. Cortez, 449 U.S. 411, 418 (1981),
for determining whether the totality of circumstances
creates a "particularized suspicion." A court must first
consider the officer's objective observations. The
evidence collected by the officer is "seen and weighed
not in terms of library analysis by scholars, but as
understood by those versed in the field of law
enforcement." "[A] trained police officer draws
inferences and makes deductions . . . that might well
elude an untrained person. The process does not deal
with hard certainties, but with probabilities." Second,
a court must determine whether the evidence "raise[s] a
suspicion that the particular individual being stopped is
engaged in wrongdoing."
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[Davis, 104 N.J. at 501 (alterations in original)
(citations omitted) (quoting Cortez, 449 U.S. at 418.)]
N.H. argues that, like the defendant in Tucker, his flight did not justify a
Terry stop. See Tucker, 136 N.J. at 169-70. Unlike the defendant in Tucker,
who was observed by police simply sitting on a curb before he fled, was chased
and stopped, id. at 161-62, police pursued N.H. only after Bryant saw the object
in his hand as he ran. The Tucker Court noted our observation that what the
record in that case "does not show is also highly persuasive: no observed
criminal activity; no particularized suspicious conduct . . .; no reports of recent
nearby crimes; [and] no descriptions of recent crime suspects[.]" Id. at 169
(quoting State v. Tucker, 265 N.J. Super. 358, 360 (App. Div. 1993), aff'd, 136
N.J. 158 (1994)). The record here, however, as the motion judge found, does
contain sufficient facts to justify the investigatory stop that resulted in the
seizure of the gun from N.H.
From Bryant's credited testimony, and his review of the body-cam and
dash-cam recordings, the motion judge found that as soon as N.H. began to run,
Bryant broadcast that she saw an object in N.H.'s hand. That fact, together with
the observation of N.H. and his companion leaving the area of the reported
shooting, led the motion judge to conclude police had a reasonable and
articulable suspicion that justified a Terry stop. The judge also determined that
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Spencer—with full knowledge of Bryant's broadcast about the object in N.H.'s
hand, N.H.'s orange clothing and his direction of travel—was justified in
stopping the male wearing orange pants and patting him down for weapons.
Inasmuch as both the attempted initial inquiry by the detective and
Spencer's investigatory stop and frisk fell within the delineated exceptions to the
warrant requirement, State v. Maryland, 167 N.J. 471, 482 (2001); State v.
Piniero, 181 N.J. 13, 20-21 (2004), the seizure of the gun was constitutionally
permissible, and the motion to suppress was properly denied.
Affirmed.
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