STATE OF NEW JERSEY VS. JIHAD EWINGÂ (14-09-2760, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-3611-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JIHAD EWING,
Defendant-Appellant.
____________________________
Submitted April 26, 2017 – Decided August 30, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
14-09-2760.
Eugene P. Tinari, attorney for appellant.
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Maura G. Murphy,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Jihad Ewing appeals from a January 19, 2016 judgment
of conviction for second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b). Defendant moved to suppress the handgun
seized without a warrant, which formed the evidential basis for
the gun possession charge. When his motion was denied, defendant
entered a negotiated guilty plea and was sentenced to a five-year
term of imprisonment, with a three-year period of parole
ineligibility, in accordance with the Graves Act, N.J.S.A. 2C:43-
6(c). On appeal, defendant challenges the denial of his motion
to suppress the handgun, arguing the police had neither "reasonable
suspicion [nor] probable cause to stop the [d]efendant's vehicle
nor could they establish a reasonable and articulable suspicion
that defendant was armed." We disagree and affirm.
I.
At the suppression hearing conducted on July 10 and September
11, 2015, the following facts were adduced. On December 15, 2011,
New Jersey State Troopers Salvatore Lopresti, Jr., and Bryan Burke,
both veteran officers, were patrolling Sixth Avenue and Ferry
Street in Camden in an unmarked black SUV as part of a surge detail
to combat "open air drug" and other violent criminal activity. At
approximately midnight, the troopers observed a silver Dodge wagon
with tinted windows "just parked randomly on the side of the road"
in a dark, deserted residential area with "no other vehicles or
traffic around." According to Lopresti, the vehicle was suspicious
based on "where it was parked, . . . the location it was parked,
[and] how it was parked." Lopresti testified, "there's not really
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a parking spot there for that vehicle." Burke testified that the
vehicle was suspicious because "[i]t wasn't in a parking space"
and "[i]t was kind of stopped in the middle of the road." Moreover,
according to Burke, he could see that "the driver had his foot on
the brake" because "the brake lights were on[.]"
The troopers pulled up about four to five feet behind the
vehicle with their headlights shining directly into the vehicle.
While Burke, who was driving, testified that he activated the
emergency lights, Lopresti could not recall whether the emergency
lights were activated. From behind the vehicle, the troopers
observed two occupants in the car, the driver and a front seat
passenger. According to Lopresti, for about two seconds, the
front seat passenger and the driver "duck[ed] out of view[,]" as
if "they were doing something underneath . . . their seat," and
then "popp[ed] back up." Lopresti believed the occupants of the
vehicle were trying to hide something. Burke testified he could
"see the suspension shift on the tires of the car moving back and
forth a little bit, along with the movement of the driver's
silhouette[,]" and "it appeared that the driver's silhouette did
kind of lower himself below the headrest of the vehicle."
While observing the movement in the Dodge wagon, the troopers
immediately exited their vehicle and approached the car, Lopresti
going to the passenger's side and Burke going to the driver's
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side. Burke knocked on the window to identify himself and asked
the driver to put down his window. Burke repeated the request
when the driver did not put the window down all the way. After
Burke repeated the request, the driver complied. Fearing for his
safety, Burke told the driver to exit the vehicle so that he could
perform a frisk for weapons. The driver, later identified as
defendant, stated "I have a gun." At that point, Burke handcuffed
defendant and patted him down. From defendant's waistband, Burke
recovered a semi-automatic handgun loaded with hollow-nosed
bullets, and placed defendant under arrest.
In ruling on the suppression motion, preliminarily, the judge
found both troopers' testimony to be credible, noting "they
answered the questions without hesitation[,] or any apparent
evasion, and when they were not sure of an answer[,] answered in
the appropriate manner." The judge then made factual findings
consistent with the troopers' testimony. The judge found that the
troopers were patrolling an area "known for open air drug sets and
criminal activity" when "they observed defendant's vehicle" in
circumstances that aroused their suspicions. The judge also
credited both troopers' testimony that "they observed movements
in defendant's vehicle after . . . the troopers pulled behind
defendant's vehicle." The judge explained,
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In their testimony both troopers stated
that the observation of these movements made
them suspicious, and that, through their
training and experience, these actions were
consistent with someone attempting to conceal
something in the vehicle.
Finding that the troopers had reasonable suspicion to conduct
an investigatory stop, and specific and articulable facts that
would warrant heightened caution to justify ordering defendant out
of the car for officer safety, the judge upheld the search and
seizure. Regarding the propriety of the initial encounter, the
judge reasoned:
As in [State v. Hughes, 296 N.J. Super. 291(App. Div. 1997)], the knowledge and
experience of Troopers Burke and Lopresti,
coupled with their observations of defendant's
vehicle stopped either in the middle or
towards the side of the road, not in a parking
space, with no cars nearby, with no . . .
houses nearby, near midnight, in a high crime
area aroused their suspicion. . . .
Hughes . . . suggests that the use of emergency
lights or searchlights amounts to a seizure
under the Fourth Amendment, thus requiring
reasonable suspicion.
Given the inconclusive testimony
regarding the activation of the emergency
lights, this [c]ourt will analyze the
circumstances of defendant's arrest under the
more exacting standard in which reasonable
suspicion must have existed at the time [the]
troopers engaged the emergency lights.
Assuming, for purposes of this motion,
that the emergency lights were activated, an
investigatory stop commenced when Trooper
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Burke activated the emergency lights . . .
because simultaneous with that action police
exited their vehicle and moved to either side
of the defendant's stopped vehicle, thus
giving rise to circumstances where, after
consideration of the "totality of the
circumstances a reasonable person would feel
that the police had encroached on his or her
freedom to leave." [State v. Daniels, 393 N.J.
Super. 476, 484 (App. Div. 2007)].
Here, under these facts, as this [c]ourt
finds them to be, reasonable suspicion existed
because the testimony of Troopers Burke and
Lopresti demonstrated . . . "a particularized
and objective basis for suspecting the person
stopped of criminal activity[.]" [State v.
Stovall, 170 N.J. 346, 356 (2002).] [U]nlike
[State v. Dangerfield, 339 N.J. Super. 229(App. Div. 2001)], where the Supreme Court
held that officers did not have reasonable
suspicion or probable cause to stop the
defendant based solely upon the fact that the
defendant was in a high crime area and the
defendant took flight upon observing law
enforcement, troopers in the present matter
established reasonable suspicion through the
circumstances of encountering defendant, the
actions of defendant, and the high crime area
in which the trooper encountered defendant.
. . . .
Taken together, these facts amount to greater
reasonable suspicion than "mere presence in
an area known for its drug activity," as held
in Dangerfield[.]
In evaluating the propriety of ordering defendant to exit the
vehicle, citing State v. Smith, 134 N.J. 599 (1994), the judge
acknowledged that "ordering a person from a vehicle requires more
than a hunch" and "an officer must be able to point to specific
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and articulable facts that would warrant heightened caution to
justify ordering the occupants to step out of a vehicle." The
judge found that based on the time, location and circumstances of
the encounter, and after observing movement in defendant's
vehicle, which aroused the trooper's suspicions and engendered
their belief that the occupants "[were] concealing something in
the vehicle[,] . . . Trooper Burke credibly testified that at that
moment he began to fear for his safety, and he was concerned that
defendant may have had a firearm in the vehicle." According to
the judge, "[d]efendant's reluctance to roll down his window,"
despite his ultimate compliance after repeated requests from
Trooper Burke, further "raised the level of suspicion."
The judge concluded:
Here, based upon the credible testimony,
Troopers Burke and Lopresti demonstrated
specific and articulable facts that justified
Trooper Burke's ordering of defendant out of
his vehicle.
. . . .
Finally, whether the handgun was lawfully
seized pursuant to a frisk of defendant's
person, pursuant to [Terry v. Ohio, 392 U.S.
1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968)] a
limited exploratory frisk of the subject's
person is permissible to preserve the safety
of an officer if under the circumstances the
officer reasonably believes that the suspect
may be armed and dangerous. [State v. Arthur,
149 N.J. 1, 13 (1997)].
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. . . .
Here, prior to performing a frisk
defendant stated to Trooper Burke, "I have a
gun," . . . as he exited the vehicle. As of
this time no frisk had been conducted. . . .
[A]s the defendant told Trooper Burke that he
had a weapon, Trooper Burke had a reasonable
belief that defendant was armed and dangerous.
II.
On appeal, defendant argues:
1. THE TRIAL COURT ERRED WHEN IT DENIED THE
[APPELLANT'S] MOTION TO SUPPRESS PHYSICAL
EVIDENCE.
A. THE LEVEL OF SUSPICION
NECESSARY FOR A TRAFFIC STOP BASED
ON A TRAFFIC VIOLATION UNDER WHREN
V. [U.S.]1 IS PROBABLE CAUSE, NOT
REASONABLE ARTICULABLE SUSPICION.
B. THERE WAS NO REASONABLE
ARTICULABLE SUSPICION OR PROBABLE
CAUSE TO CONDUCT A VEHICLE STOP OF
THE APPELLANT'S VEHICLE.
C. THERE WAS NO REASONABLE
ARTICULABLE SUSPICION OR PROBABLE
CAUSE TO CONDUCT AN INVESTIGATORY
DETENTION AND SUBSEQUENT FRISK.
We review a motion judge's factual findings in a suppression
hearing with great deference. State v. Gonzales, 227 N.J. 77, 101
(2016). In our review of a "grant or denial of a motion to
1
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89(1996).
8 A-3611-15T1
suppress [we] must uphold the factual findings underlying the
trial court's decision so long as those findings are supported by
sufficient credible evidence in the record." State v. Gamble, 218
N.J. 412, 424 (2014). We defer "to those findings of the trial
judge which are substantially influenced by [her] 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) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). We owe no deference, however, to the trial court's legal
conclusions or interpretation of the legal consequences that flow
from established facts. Our review in that regard is de novo.
State v. Watts, 223 N.J. 503, 516 (2015); State v. Vargas, 213
N.J. 301, 327 (2013).
In State v. Rosario, 229 N.J. 263, 272 (2017, our Supreme
Court recently reaffirmed that a police officer may conduct an
"investigative detention, also called a Terry2 stop or an
investigatory stop," if during an encounter with a citizen the
officer has "'reasonable and particularized suspicion . . . that
an individual has just engaged in, or was about to engage in,
criminal activity.'" Ibid. (quoting State v. Stovall, 170 N.J.
346, 356 (2002). Here, the motion judge found Burke met this
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).
9 A-3611-15T1
standard when he and his partner decided to investigate defendant's
vehicle. It is beyond dispute that the Troopers had probable
cause to arrest defendant once defendant voluntarily stated: "I
have a gun." As the motion judge correctly noted, defendant made
this statement before he exited the vehicle, thus obviating the
need for Burke to conduct a Terry pat down.
Affirmed.
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