STATE OF NEW JERSEY VS. RASHON BRYANTÂ (14-09-2366, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1530-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHON BRYANT,
a/k/a TERRELL A. BRYANT,
Defendant-Appellant.
_________________________________
Submitted September 26, 2017 – Decided October 26, 2017
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-
09-2366.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Rashon Bryant challenges a June 15, 2015 order
denying his motion to suppress evidence. We affirm.
Defendant waived an evidentiary hearing, adopting the facts
stated in a police report.1 On February 24, 2014, Newark police
approached a group of individuals standing on a sidewalk. As
police approached, defendant uttered "Oh shit," and dropped a
cloth bag from his hand onto the sidewalk, which made a metallic
sound upon impact. Police grabbed defendant while he was still
standing next to the bag. Police searched the bag and discovered
an unregistered firearm.
Defendant was indicted on a single count of second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant
filed a motion to suppress, which the trial court denied. The
judge found defendant released the bag directly after noticing the
police and uttering an expletive. The judge determined this
sequence of events provided police with reasonable suspicion to
approach defendant. The judge stated it was logical to conclude
defendant had disclaimed and abandoned the contents of the bag
given it contained an illegal firearm.
1
The parties have not provided the police report to us, however
the transcript of the motion hearing reflects the trial court read
directly from the report.
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After the judge adjudicated the motion, defendant pled guilty
to the indictment. He was sentenced to a five year term of
imprisonment subject to a forty-two month period of parole
ineligibility. On appeal from a September 24, 2015 judgment of
conviction, defendant raises the following argument:
POINT I – THE MOTION COURT ERRED IN DENYING
THE SUPPRESSION MOTION BECAUSE MR. BRYANT DID
NOT ENGAGE IN THE REQUISITE OVERT ACT TO
CONSTITUTE ABANDONMENT.
Defendant argues "the doctrine of abandonment does not
justify the search and seizure of the evidence in this matter."
He argues he did not abandon the bag by "placing [it] down next
to him or dropping it."
Defendant also argues the trial court had no basis to conclude
he attempted to leave the scene or move away from the bag because
he was immediately apprehended. Rather, defendant asserts the
police officers created the separation between him and the bag by
apprehending him.
Additionally, defendant asserts the uttering of an expletive
has no bearing on the issue of abandonment. He argues he could
have made the statement because he dropped the bag or because he
was uncomfortable in police presence.
Our standard of review on a motion to suppress is limited.
We must uphold the factual findings underlying the trial court's
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decision so long as those findings are supported by sufficient
credible evidence in the record. State v. Elders, 192 N.J. 224,
243 (2007). "A trial court's findings should not be disturbed
simply because an appellate court 'might have reached a different
conclusion were it the trial tribunal' or because 'the trial court
decided all evidence or inference conflicts in favor of one side.'"
State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Johnson,
42 N.J. 146, 162 (1964)). We will reverse only if convinced that
the motion judge's factual findings "are so clearly mistaken 'that
the interests of justice demand intervention and correction.'"
Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J.
at 162).
"Both the Fourth Amendment of the United States Constitution
and Article I, Paragraph 7 of the New Jersey Constitution, in
almost identical language, guarantee '[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.'" State v. Johnson, 193 N.J.
528, 541 (2008) (quoting U.S. Const. amend. IV; N.J. Const. art.
I, ¶ 7). However, "if the State can show that property was
abandoned, a defendant will have no right to challenge the search
or seizure of that property." Ibid. "[A]bandonment [of property]
has been defined as '[t]he relinquishing of a right or interest
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with the intention of never again claiming it.'" Id. at 548(quoting Black's Law Dictionary 2 (8th ed. 2004)).
The State's burden to demonstrate abandonment is by the
preponderance of the evidence. Id. at 548 n.4. "In determining
whether a defendant voluntarily and knowingly relinquished a
possessory or ownership interest in property in response to police
questioning, a court should apply a totality-of-the-circumstances
analysis." State v. Carvajal, 202 N.J. 214, 227 (2010).
Defendant argues that mere relinquishment of property does
not constitute abandonment. He points to Rios v. United States,
364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960), to support
this proposition. In Rios the United States Supreme Court reversed
a district court's denial of defendant's motion to suppress where
police followed a defendant who had entered a taxi, and then
stopped the cab and opened its door without probable cause, and
then the defendant "dropped a recognizable package of narcotics
to the floor of the vehicle." Id. at 254-56, 80 S. Ct. at 1432-
34, 4 L. Ed. 2d at 1690-91. The Supreme Court held the stop of
the cab was an unlawful arrest, and that nothing that happened
thereafter could make it lawful. Id. at 262, 80 S. Ct. at 1437,
4 L. Ed. 2d at 1694. Here, by contrast, defendant dropped the bag
before the police seized or arrested him.
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The Court added that if defendant had voluntarily revealed
the package of narcotics to police a lawful arrest could have
occurred. Id. at 261-62, 80 S. Ct. at 1436, 4 L. Ed. 2d at 1694.
The Court noted: "A passenger who lets a package drop to the floor
of the taxicab in which he is riding can hardly be said to have
'abandoned' it. An occupied taxicab is not to be compared to an
open field or vacated hotel room." Id. at 262 n.6, 80 S. Ct. at1437 n.6, 80 L. Ed. 2d at 1694 n.6 (citations omitted). Here,
defendant dropped the bag outside, in the middle of a crowd where
it could have been taken by numerous people. He thus voluntarily
relinquished his possessory interest in it, unlike Rios, who still
had the package with him in the cab's backseat, which he alone
occupied. Defendant also relies upon State v. Tucker, 136 N.J.
158 (1994), and argues objects jettisoned during a police pursuit
initiated without probable cause cannot be deemed abandoned. Id.
at 172. In Tucker the Court affirmed our reversal of the trial
court's denial of defendant's suppression motion. Id. at 173. In
that case, the defendant was sitting on a curb, and when he noticed
a police vehicle approaching, fled. Id. at 161. The police gave
chase, defendant was eventually cornered, and in the process
dropped a bag containing cocaine. Ibid. The Tucker Court held
the seizure was unreasonable because the only reason the police
pursued defendant was because he fled. Id. at 168-73. Tucker did
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not hold that fleeing was a prerequisite to abandonment. See
ibid. Therefore, even though the Court found defendant had dropped
the bag of cocaine, it could not be considered abandoned because
it was the product of an unreasonable search that lacked probable
cause. Ibid.Here, the search occurred because defendant dropped the bag,
which made a metallic sound, shortly after uttering an expletive
intimating his alarm at the police presence. These facts are
distinguishable from Tucker and Rios because in both cases the
defendant abandoned the property after the police took illegal
action to stop or pursue him. Here, defendant dropped and
abandoned the bag before the police took any action to seize him.
Moreover, we disagree with defendant's argument that an individual
"must take an overt action, such as fleeing from the location of
the abandoned property, to demonstrate an intent to relinquish
ownership of the property." Indeed, Tucker demonstrates the
opposite, and that the totality of circumstances dictate whether
a defendant has abandoned an object thereby subjecting it to a
search.
Here, defendant saw the police approaching, uttered "Oh
shit," and dropped the bag, which made a metallic clank, suggesting
under the circumstances it contained a gun. That gave the officers
a valid indication defendant was trying to abandon the gun before
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they could find it in his possession. Those indicia of abandonment
were not eliminated because the officers seized him before he
could flee or move away.
The trial court's findings demonstrate consideration of the
totality of the circumstances. The trial judge stated:
The court does not find or has not been given
any competent evidence to find that there was
a significant time interval between the
defendant's sighting of the police, dropping
of the bag, seizure of the defendant by the
police, to adopt the substance of the argument
[] put forth by the defendant that the
defendant steadfastly stood by the bag and its
contents and did not disclaim ownership of the
above.
. . . .
The court does conclude that there's
sufficient credible evidence to conclude that
the defendant abandoned the contraband and
thus relinquished any expectations of privacy
in it[.]
The trial court's determination that defendant voluntarily
relinquished possession of the bag is grounded in the court's
assessment of the totality of the circumstances. Having considered
the record and the applicable legal standards, the order denying
the motion to suppress was not an abuse of discretion.
Affirmed.
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