State of New Jersey v. Richard Bard ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1016-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. APRIL 19, 2016
RICHARD BARD, a/k/a APPELLATE DIVISION
RICHARD BARD, JR.,
Defendant-Appellant.
__________________________________
Argued January 11, 2016 – Decided February 29, 2016
Before Judges Lihotz, Fasciale and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 13-11-0875.
Rochelle Watson, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Watson, of counsel and on the
brief).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Carol M. Henderson, Assistant Attorney
General, of counsel and on the brief; Lynne
M. Glass, Volunteer Attorney, on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Defendant Richard Bard appeals from a September 9, 2014
judgment of conviction, following his conditional guilty plea to
the amended disorderly person's offense of possession of
marijuana, N.J.S.A. 2C:35-10(a)(4). He was sentenced to a 180-
day county jail term and a 180-day period of parole
disqualification.
Defendant entered his plea following the denial of his
motion to suppress. In a single point on appeal, he argues:
DEFENDANT'S UNWILLINGNESS TO TALK TO THE
POLICE DURING THE FIELD INQUIRY COUPLED WITH
HIS PUTTING HIS HAND IN HIS BACK POCKET DID
NOT PROVIDE REASONABLE SUSPICION TO SEIZE
AND FRISK HIM.
Following our review of the arguments, in light of the
facts and applicable law, we conclude the totality of
circumstances satisfied the State's burden to show the State
Troopers had a reasonable articulable suspicion defendant was
armed, necessitating a stop and frisk. Accordingly, we affirm.
These facts are taken from the suppression hearing record.1
New Jersey State Trooper Chris Paligmo, one of two arresting
officers, was the sole testifying witness.2
1
After noting variations in spelling of certain names found
in the transcript and the judge's written opinion, we have
chosen to adopt the spelling set forth in the opinion.
2
Defendant waived his right to testify.
2 A-1016-14T3
On July 29, 2013, Trooper Paligmo and his partner, Trooper
Silipino, were assigned to perform "community policing," in full
uniform, at Tips Trailer Park. While assigned to the Bridgeton
Barracks, Trooper Paligmo had numerous personal experiences with
the area as a high-crime location, testifying he was involved in
arrests for multiple homicides, open-air narcotics distribution,
burglaries, assaults, weapons offenses, and gang activity. He
further noted, "[w]e have the highest call volume in the state"
and, in the months preceding defendant's arrest, the Cumberland
County Prosecutor's Office transmitted to the barracks "safety
alerts with threats . . . saying they were going to harm
troopers – that patrolled the area."
As the two troopers patrolled the neighborhood on foot, at
1:30 a.m., they walked along a partially paved path in an area
that was not well-lit. The troopers observed defendant walking
toward them, approximately thirty-three feet away. Trooper
Paligmo attempted to engage defendant, saying: "Hey, bud, what's
going on? How you doing?" Defendant displayed no reaction, did
not make eye contact and "acted as though he didn't hear us.
Head dropped, appeared to be nervous. And tried to . . . walk
by us, without acknowledging."
While walking toward the officers, when defendant was
approximately ten to fifteen feet away, his hand, which had been
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at his side, moved to his back pocket. The troopers then asked
him to "show his hands." Defendant did not comply and continued
to close the distance between him and the troopers with his hand
behind him. At that point, Trooper Silipino "secured" defendant
by making "sure he had control of his hand that was out of
view." He "pulled" defendant's hand from his pocket and held it
while Trooper Paligmo frisked the area of defendant's pocket
with his palm. Trooper Paligmo felt a hard bulge that was
"quite large," roughly five to six inches in diameter. The
trooper also felt the texture of the object and heard a crinkle
sound, concluding it was marijuana. He removed it from
defendant's pocket, finding a tightly packed bundle containing
"a large plastic bag filled with marijuana buds, and also
individual[ly] packaged marijuana." Defendant was subsequently
arrested.
When asked why he frisked defendant, Trooper Paligmo
testified: "I believed he had a weapon. His behavior was very
alarming to me; and, being with another trooper, I felt both of
our safeties [sic] may have been at risk." He explained his
belief in light of his training, stating:
the hands are described as always the most
threatening and dangerous part of our job,
in terms of when you can't see them. That
hand could always possess any sort of
weapon. Even including a needle. You are
told to – at any point of a stop, or a
4 A-1016-14T3
contact, a pedestrian contact, more or less,
that you need to see their hands, because
hands pose the most threat.
To deal with that, you ask to see them.
You ask a reasonable amount of time, or a
reason about a number of times to ask to see
those hands[] that you feel comfortable
with. After that, then you're trained to
see those hands through physical means.
. . . .
[W]e're trained that 21 feet is the
. . . distance where you can be affected by
somebody just weaving with a knife. They
pull a knife, you've got within 21 feet, a
matter of seconds, they can be on you
without a reaction. So always, we're
taught, action is quicker than reaction.
And, in this case, that's what's going
through our heads; that's going through my
head. And, therefore, I thought it was
handled the best we could handle it at the
time.
On cross-examination, Trooper Paligmo acknowledged when
defendant was first observed he was not engaged in criminal
activity. He also admitted the fact defendant would not respond
to his greeting or that he dropped his head was not necessarily
dangerous. However, he stated "hands, that's . . . my primary
concern. If I can't see his hands, that makes me nervous. It
makes any other trooper nervous." He added, "there are certain
people who want to hurt the police or harm the police. And, I'm
here to tell you, they're going to harm the police."
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The judge issued a comprehensive written opinion. He found
Trooper Paligmo's testimony credible and analyzed the police-
citizen encounter step by step. He noted when defendant did not
respond to the officer's greeting, he was not ordered to stop
and his movements were not impeded.
When the defendant did not respond and
placed his hand behind his back and into his
rear pocket, he was still free to leave.
The [t]roopers did not order him to stop,
but simply asked him to show his hand. He
did not. There is no evidence before the
[c]ourt that had the [d]efendant complied
with such a request that anything further
would have happened. However, in that brief
moment of non-compliance with a reasonable
request, the police encounter escalated and
involved the detention of the defendant such
that his freedom of movement was hampered.
Analyzing the police conduct in detaining defendant and engaging
in a Terry frisk,3 the judge found the reasonable inferences,
drawn from the totality of the circumstances, warranted the
trooper's belief he and his partner's protection and safety were
at risk, justifying the limited frisk for weapons.
Defendant's motion to suppress was denied. Following entry
of his conditional guilty plea and sentence, he appealed.
3
See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968).
6 A-1016-14T3
The Supreme Court has explained the standard of review
applicable to our consideration of a trial judge's fact-finding
on a motion to suppress.
We are bound to uphold a trial court's
factual findings in a motion to suppress
provided those "findings are 'supported by
sufficient credible evidence in the
record.'" State v. Elders, 192 N.J. 224,
243-44 (2007) (quoting State v. Elders, 386
N.J. Super. 208, 228 (App. Div. 2006)).
Deference to those findings is particularly
appropriate when the trial court has the
"'opportunity to hear and see the witnesses
and to have the feel of the case, which a
reviewing court cannot enjoy.'" Id. at 244
(quoting State v. Johnson, 42 N.J. 146, 161
(1964)). Nevertheless, we are not required
to accept findings that are "clearly
mistaken" based on our independent review of
the record. Ibid. Moreover, we need not
defer "to a trial . . . court's
interpretation of the law" because "[l]egal
issues are reviewed de novo." State v.
Vargas, 213 N.J. 301, 327 (2013).
[State v. Watts, 223 N.J. 503, 516 (2015)
(alteration in original)]
An appellate court remains mindful not to "disturb the trial
court's findings merely because 'it 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' in a close case." Elders, supra, 192 N.J. at 244
(quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse
only when the court's findings "are so clearly mistaken 'that
7 A-1016-14T3
the interests of justice demand intervention and correction.'"
Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Defendant argues there was no evidence he was engaged in
illegal conduct and his decision not to interact with the police
was insufficient to support a stop and frisk. Also, he
maintains the unwarranted emphasis on the high crime nature of
the area could not "paint a gloss of criminality on what was
otherwise innocuous conduct." He urges reversal and suppression
of the narcotics seized in the warrantless stop.
We reject defendant's argument, which isolates the
individual facts presented. We conclude the trial judge
properly considered the totality of the circumstances when
determining the reasonableness of the troopers' reaction.
When analyzing a warrantless search and seizure, we start
with the parameters defined by our Federal and State
Constitutions. These protections require police to first secure
a warrant before seizing a person or conducting a search of a
home or a person. Watts, supra, 223 N.J. at 513-14; State v.
Reece, 222 N.J. 154, 167 (2015).
[B]oth the Fourth Amendment to the United
States Constitution and Article I, Paragraph
7 of the New Jersey Constitution guarantee
to New Jersey's citizens "[t]he right to
walk freely on the streets of a city without
fear of an arbitrary arrest." State v.
Gibson, 218 N.J. 277[, 281] (2014). When
evaluating the reasonableness of a
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detention, the "totality of circumstances
surrounding the police-citizen encounter"
must be considered. State v. Privott, 203
N.J. 16, 25 (2010) (quoting [State v. Davis,
104 N.J. 490, 504 (1986)]).
[State v. Coles, 218 N.J. 322, 343 (2014)
(fist alteration in original).]
The constitution also allows a person the privilege, "upon
noting a police presence, to decide that he or she wishes to
have nothing to do with the police, without risking apprehension
solely by reason of the conduct manifesting that choice." State
v. L.F., 316 N.J. Super. 174, 179 (App. Div. 1998) (quoting
State v. Ruiz, 286 N.J. Super. 155, 162-63 (App. Div. 1995),
certif. denied, 143 N.J. 519 (1996)). "[D]eparture alone
signifies nothing more than behavior in fulfillment of a wish to
be a somewhere else." Ibid. (quoting Ruiz, supra, 286 N.J.
Super. at 163). Thus, police officers may not place their hands
on citizens "in search of anything" without "constitutionally
adequate, reasonable grounds for doing so." Sibron v. New York,
392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935
(1968).
While the warrantless seizure of a person is "presumptively
invalid as contrary to the United States and the New Jersey
Constitutions," Coles, supra, 218 N.J. at 342 (quoting State v.
Mann, 203 N.J. 328, 337-38 (2010)), there remains a critical
"balance to be struck between individual freedom from police
9 A-1016-14T3
interference and the legitimate and reasonable needs of law
enforcement." Id. at 343. A reviewing court must determine
whether the State has met its burden, by a preponderance of the
evidence, to establish the warrantless search or seizure of an
individual was justified in light of the totality of the
circumstances. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.
Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).
The parameters for an investigatory stop are well-defined.
[A] police officer may conduct an
investigatory stop of a person if that
officer has "particularized suspicion based
upon an objective observation that the
person stopped has been or is about to
engage in criminal wrongdoing." State v.
Davis, 104 N.J. 490, 504 (1986)[.] The stop
must be reasonable and justified by
articulable facts; it may not be based on
arbitrary police practices, the officer's
subjective good faith, or a mere hunch.
[Coles, supra, 218 N.J. at 343 (citation
omitted).]
The Terry exception to the warrant requirement permits a
police officer to detain an individual for a brief period, and
to pat him down for the officer's safety, if that stop is "based
on 'specific and articulable facts which, taken together with
rational inferences from those facts,' give rise to a reasonable
suspicion of criminal activity." State v. Rodriguez, 172 N.J.
117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct.
at 1880, 20 L. Ed. 2d at 906); see also State v. Williams, 192
10 A-1016-14T3
N.J. 1, 9 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S.
Ct. at 1884, 20 L. Ed. 2d at 911) (stating a Terry pat down is
constitutionally permissible when the police officer believes
the suspect "may be armed and presently dangerous").
When reviewing whether the State has shown a valid
investigative detention, consideration of the totality of the
circumstances requires we "give weight to 'the officer's
knowledge and experience' as well as 'rational inferences that
could be drawn from the facts objectively and reasonably viewed
in light of the officer's expertise.'" State v. Citarella, 154
N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11
(1997)). "The fact that purely innocent connotations can be
ascribed to a person's actions does not mean that an officer
cannot base a finding of reasonable suspicion on those actions
as long as 'a reasonable person would find the actions are
consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra,
149 N.J. at 11).
Finally, we must remember the "touchstone" for evaluating
whether police conduct has violated constitutional protections
is "reasonableness." State v. Hathaway, 222 N.J. 453, 476
(2015) (quoting State v. Judge, 275 N.J. Super. 194, 200 (App.
Div. 1994)). The reasonableness of police conduct is assessed
with regard to circumstances facing the officers, who must make
11 A-1016-14T3
split second decisions in a fluid situation. See State v.
Bruzzese, 94 N.J. 210, 228 (1983), cert. denied, 465 U.S. 1030,
104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Such encounters are justified only 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. No
mathematical formula exists for deciding
whether the totality of circumstances
provided the officer with an articulable or
particularized suspicion that the individual
in question was involved in criminal
activity. Such a determination can be made
only through a sensitive appraisal of the
circumstances in each case.
[Davis, supra, 104 N.J. at 505 (emphasis
added).]
We also note it is important for courts to take a realistic
approach to "reviewing police behavior in the context of the
ever-increasing violence in society." State v. Valentine, 134
N.J. 536, 545 (1994) ("As the front line against violence, law-
enforcement officers are particularly vulnerable to violence
often becoming its victims."). Guided by these principles, we
examine the facts and circumstances presented in this case.
The trial judge listed the culmination of events which,
when considered in their totality, formed the troopers'
reasonably articulable suspicion of activity placing them in
danger. These include: the troopers were on foot, walking a
12 A-1016-14T3
dimly lit pathway, and patrolling a very high-crime area at 1
a.m. When Trooper Paligmo observed defendant, he was wearing
dark clothing and walking toward him and appeared nervous;
rather than look at the troopers, he lowered his head and would
not make eye contact. Trooper Paligmo addressed defendant,
which he ignored and then placed his hand, which had been at his
side, behind his back, reaching into his pocket. At that point,
the distance between defendant and the troopers was no more than
fifteen feet, a span the trooper's training taught him was
critical. Defendant was asked to show his hand, but refused.
The troopers acted after they processed probabilities, as guided
by their training and direct experience in this neighborhood,
along with their assessment of the events, which occurred in a
matter of seconds. We conclude, as did the trial judge, the
troopers considered their safety to be at great risk because
they reasonably believed defendant possessed a weapon and took
limited action for their protection.
We reject defendant's argument suggesting the judge
erroneously relied on defendant's decision "to ignore the
officer's invitation to chat" as justification for the unlawful
detention. He maintains his constitutional right to ignore a
police field inquiry cannot support a reasonable articulable
suspicion justifying an investigative stop. In our view of the
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judge's opinion, we determine the mention of defendant's refusal
to engage the troopers was contextual only, not determinative.
The pivotal facts changing this encounter from a man
walking toward two police officers on a neighborhood street to a
situation where police officers became alarmed they faced grave
danger by the encounter include defendant's hand movement toward
and into his back pocket and his disregard when told to show his
concealed hand. Adding these crucial elements, which elapsed
over seconds, to Trooper Paligmo's personal knowledge of the
numerous violent crimes occurring in the neighborhood, the
warnings regarding police safety, the hour of day, the lack of
lighting, and the troopers' training and experience, the
troopers' fear of exposure to danger was rationally drawn,
making Trooper Silipino's stop of defendant not only objectively
reasonable, but necessary to assure the troopers' safety. See
Coles, supra, 218 N.J. 343-44 ("Case law has recognized law
enforcement's need to respond to the fluidity of a street
encounter where there is a reasonable suspicion of wrongdoing
. . . ."); State v. Pineiro, 181 N.J. 13, 25-27 (2004); Privott,
supra, 203 N.J. at 28.
The totality of these facts presented display the troopers'
reactions resulted from more than a suspicion or hunch. When
viewed together, the facts demonstrate the troopers' perception
14 A-1016-14T3
defendant was likely reaching for a weapon and posed a safety
threat was reasonable, which meets Terry's standard and
justifies a stop and frisk. See Michigan v. Long, 463 U.S.
1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220
(1983) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880,
20 L. Ed. 2d at 906) (stating under the Fourth Amendment, a pat-
down or frisk is "permissible if the police officer possesses a
reasonable belief based on 'specific and articulable facts
which, taken together with the rational inferences from those
facts, reasonably warrant' the officer in believing that the
suspect is dangerous and the suspect may gain immediate control
of weapons").
The reasonableness of the troopers' response to secure
defendant's concealed hand is also informed by the Court's
opinion in Williams, which held "[u]nder New Jersey's
obstruction statute, when a police officer commands a person to
stop, or as in this case orders him to place his hands on his
head for a pat-down search, that person has no right to take
flight or otherwise obstruct the officer in the performance of
his duty." Williams, supra, 192 N.J. at 11. The Court found
the "defendant was obliged to submit to the investigatory stop,
regardless of its constitutionality." Id. at 10.
15 A-1016-14T3
In this matter, defendant's lack of compliance under the
circumstances described would lead a reasonable police officer,
or any reasonable person, to perceive an imminent threat to the
troopers' safety. State v. Daniels, 393 N.J. Super. 476, 487
(App. Div. 2007). See also Williams, supra, 192 N.J. at 9. See
also State v. Otero, 245 N.J. Super. 83, 93 (App. Div. 1990)
("With the occupants' hands hidden, the officer was unable to
assess the extent to which his safety was in jeopardy.").
We also reject defendant's argument, which parses
individual facts scrutinizing whether defendant's unwillingness
to talk to police or the "innocuous" and "nonthreatening" act of
concealing his pocketed hand were sufficient to satisfy Terry's
standards. State v. Stovall, 170 N.J. 346, 368 (2002) (holding
a group of innocent circumstances in the aggregate can support a
reasonable suspicion finding). Defendant looks to United States
v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996), as support for
his position. The facts here are distinguishable, making the
holding in Davis inapposite.
In Davis, the defendant exited a car and walked toward a
business known for engaging in criminal and gang activity with
his hands in his pocket. Ibid. He ignored a police order to
stop. Ibid. The court held "Davis' actions in exiting the car,
making and then breaking eye contact with the officers, and then
16 A-1016-14T3
walking away from the officers also d[id] not furnish the basis
for a valid Terry stop." Ibid. Further, "[t]he fact that Davis
had his hands in his coat pockets on a December night in Tulsa
also does not justify an investigative detention." Id. at 1469.
We do not agree the holding in Davis dictates the outcome
of this matter. The law requires us to assess all circumstances
and make a common sense determination of whether the State
showed a reasonable probability defendant's conduct posed a
danger to the troopers. Cf. State v. Moore, 181 N.J. 40, 46
(2004) (quoting State v. Zutic, 155 N.J. 103, 113 (1998))
("Although several factors considered in isolation may not be
enough, cumulatively these pieces of information may 'become
sufficient to demonstrate probable cause.'"). More importantly,
the reasonableness of police reaction is driven by the unique
circumstances and renders any analysis case specific. See State
v. Dennis, 113 N.J. Super. 292, 296-98 (App. Div.), certif.
denied, 58 N.J. 337 (1971).
Unlike the defendant in Davis, who was walking away from
police, defendant in this case walked toward police as he moved
his hand to his back pocket and continued to conceal his hand,
despite requests for him to expose it to the troopers' view.
The troopers' safety concerns were supported because defendant
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was no more than fifteen feet away when he concealed his hand,
preventing the troopers from avoiding direct contact.
Further, the judge found defendant was not stopped merely
because he decided not to talk to police while he walked through
a high-crime area. He was not stopped merely because he
appeared nervous when aware of the police presence or because he
dropped his head and avoided eye contact as he continued toward
the troopers. Defendant was not stopped when he moved his hand
from his side to his back pocket. However, after crediting the
training and practical experience of the troopers, whose every
day work transpires on these streets, defendant's refusal to
show his concealed hand led to the reasonable belief he
possessed a weapon and posed a threat. Bruzzese, supra, 94 N.J.
at 228. See Otero, supra, 245 N.J. Super. at 93 ("When the
occupants [of a motor vehicle] refused to expose their hands,
justification arose for taking the 'stop and frisk' steps
required to ensure the officer's safety."). Even if several
factors viewed in isolation may not be enough, cumulatively all
of these pieces of information are sufficient to meet the
State's burden to validate a Terry stop. Stovall, supra, 170
N.J. at 368.
Once an officer has a basis to make a lawful investigatory
stop, he may protect himself during that stop by conducting a
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search for weapons if he "has reason to believe that the suspect
is armed and dangerous." Adams v. Williams, 407 U.S. 143, 146,
92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972) ("So long as
the officer is entitled to make a forcible stop, and has reason
to believe that the suspect is armed and dangerous, he may
conduct a weapons search limited in scope to this protective
purpose."). Here, for their protection, troopers had a right to
disarm defendant, using a limited protective frisk of his back
pocket. "The test is not whether there were other reasonable or
even better ways to execute the search, for hindsight and
considered reflection often permit more inspired after-the-fact
decision-making." Watts, supra, 223 N.J. at 514. "[T]hose who
must act in the heat of the moment do so without the luxury of
time for calm reflection or sustained deliberation." Hathaway,
supra, 222 N.J. at 469 (quoting State v. Frankel, 179 N.J. 586,
599, certif. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d
128 (2004)). We must not examine the facts distorted by
hindsight, but "examine the conduct of those officials in light
of what was reasonable under the fast-breaking and potentially
life-threatening circumstances that were faced at the time."
Ibid. (quoting Frankel, supra, 179 N.J. at 599). "For purposes
of our Federal and State Constitutions, it is enough that the
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police officers, in performing their duties, acted in an
objectively reasonable fashion." Watts, supra, 223 N.J. at 515.
The search and seizure was objectively reasonable. As a
result, suppression was properly denied.
Affirmed.
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