STATE OF NEW JERSEY v. MARVIN PULLIAM (19-06-0675, HUDSON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2907-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN PULLIAM, a/k/a
MARVIN GOLDEN, ASLAMA
GOLDEN, MARV PULLIAM,
MARVIN L. PULLIAM, and
MARVIN PULLIAN,
Defendant-Appellant.
__________________________
Submitted April 26, 2022 – Decided October 3, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 19-06-0675.
Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary Markarian, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Colleen Kristan Signorelli, Assistant
Prosecutor, on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendant Marvin Pulliam appeals from the August 26, 2020 order of the
Law Division denying his motion to suppress evidence, which was followed by
a May 28, 2021 judgment of conviction of two counts arising from defendant
possessing a gun and pointing it at a person on a public street. We affirm.
I.
At about 4:30 p.m. on March 28, 2019, two Jersey City police officers
were at a police station when they heard a dispatch that shots had been fired at
the intersection of Grant Avenue and Martin Luther King, Jr. Boulevard, a few
blocks away. They got into a marked patrol car driven by officer Aguilar and
proceeded north on Bergen Avenue toward Grant Avenue.
On Bergen Avenue between Bostwick Avenue and Myrtle Avenue, about
one block from the scene of the shooting, a man driving south in a green van
"waved down" the officers. Aguilar stopped the patrol car and briefly spoke to
the man while both remained in their vehicles. The man, who did not identify
himself, said "the guy's coming up the block, the guy's coming up the block ."
He described the individual as a black male wearing a blue hoodie and pointed
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toward the intersection of Myrtle Avenue and Bergen Avenue. The officers
obtained no further information from the man.
Aguilar immediately transmitted the information he received from the
man over the radio, saying that an individual coming down Myrtle Avenue
"might be involved in it," although the man had not expressly identified the
person in the blue hoodie as having been involved in the shooting. He then
observed a black male, later identified as defendant, wearing a "dark navy
sweater" and "another jacket on top of him with a hood" walking on Myrtle
Avenue toward Bergen Avenue. Aguilar believed defendant might have been
involved in the shooting because he matched the description given by the man
in the van.
The officers, who were in uniform, exited the patrol car and ordered
defendant to stop. Defendant instead ran through the backyard of a nearby
building. The officers pursued defendant on foot before apprehending him in
the backyard.
Shortly thereafter, a person on the fire escape of a nearby building shouted
to the officers. He said that something was "right here, it's over here, it landed
over here, I heard a thump, it landed over here" and pointed toward an object on
the ground. Aguilar walked to the location to which the person was pointing
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and observed a handgun on Myrtle Avenue near the sidewalk. The officers
arrested defendant.
A grand jury indicted defendant, charging him with first-degree attempted
murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); second-degree possession
of a firearm without a permit, N.J.S.A. 2C:39-5(b)(1); second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); third-degree
receiving stolen property, N.J.S.A. 2C:20-7(a); fourth-degree reckless risking of
widespread injury or damage, N.J.S.A. 2C:17-2(c); fourth-degree obstruction of
the administration of law, N.J.S.A. 2C:29-1(a); fourth-degree resisting arrest by
flight, N.J.S.A. 2C:29-2(a)(2); and second-degree possession of weapon by a
certain person, N.J.S.A. 2C:39-7(b)(1).
Defendant moved to suppress the evidence obtained as a result of his
arrest, arguing that Aguilar lacked reasonable suspicion of criminal activity to
permit the officer to stop him.
After an evidentiary hearing, the trial court denied the motion. In a written
opinion, the court found that the officers conducted an investigatory stop of
defendant under Terry v. Ohio, 392 U.S. 1 (1968), and State v. Stovall, 170 N.J.
346 (2002). The court found that Aguilar reasonably inferred from the statement
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of the man in the van that he was identifying someone involved in the nearby
shooting and that
[a]lthough on its face the clothing worn by [d]efendant
does not exactly match the description originally
provided by the unidentified individual, this [c]ourt,
having had the opportunity to hear Aguilar's testimony
and finding it to be credible, finds that the officer was
interchanging "sweater" and "hoodie" as one in the
same.
....
The difference between a hoodie, sweater and hooded
sweater appears semantic to this [c]ourt. It is not as
though the officer called out about someone in a ski
jacket and then stopped someone in a knitted sweater,
nor is it as though the officer called about someone in
a blue sweater and stopped someone in a red sweater.
Thus, the trial court concluded, the officers had a reasonable suspicion th at
defendant had committed a crime associated with the nearby shooting sufficient
to justify an investigatory stop. An August 26, 2020 order memorializes the trial
court's decision.
Defendant, pursuant to an agreement, later entered a guilty plea to fourth-
degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), a lesser included offense of
attempted murder, and second-degree possession of weapon by a certain person.
The court dismissed the remaining counts of the indictment and sentenced
defendant to an aggregate five-year term of imprisonment without parole.
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This appeal followed. Defendant makes the following argument.
POLICE LACKED REASONABLE SUSPICION TO
STOP PULLIAM BASED SOLELY ON
KNOWLEDGE SHOTS HAD BEEN FIRED IN THE
AREA AND AN ANONYMOUS CITIZEN'S REPORT
THAT A BLACK MAN IN A BLUE SWEATER
WOULD BE COMING AROUND THE CORNER.
II.
Both the federal and state constitutions protect citizens against
unreasonable searches and seizures. See U.S. Const. amend. IV; N.J. Const. art.
I, ¶ 7. The parties agree that Aguilar's encounter with defendant was an
investigatory stop, which constitutes a seizure under both the federal and state
constitutions. An investigatory stop or detention, sometimes referred to as a
Terry stop, involves a temporary seizure that restricts a person's movement. A
Terry stop implicates a constitutional requirement that there be "'specific and
articulable facts which, taken together with rational inferences from those facts,'
give rise to a reasonable suspicion of criminal activity." State v. Elders, 192
N.J. 224, 247 (2007) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)).
The State has the burden to establish that a stop was valid. State v. Mann, 203
N.J. 328, 337-38 (2010); State v. Pineiro, 181 N.J. 13, 20 (2004). If there was
no reasonable suspicion of criminal activity to justify the stop, evidence
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discovered as a result of the stop is subject to exclusion. State v. Chisum, 236
N.J. 530, 546 (2019).
To determine whether reasonable suspicion existed, a judge must consider
the totality of the circumstances, viewing the "whole picture" rather than taking
each fact in isolation. State v. Nelson, 237 N.J. 540, 554-55 (2019) (quoting
Stovall, 170 N.J. at 361). Investigatory stops are justified "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."
State v. Davis, 104 N.J. 490, 505 (1986).
A [judge] 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 [judge] must determine whether the evidence "raise[s]
a suspicion that the particular individual being stopped
is engaged in wrongdoing."
[Id. at 501 (quoting United States v. Cortez, 449 U.S.
411, 418 (1981)) (alterations in original).]
"[A]n appellate court reviewing a motion to suppress must uphold the
factual findings underlying the trial court's decision so long as those findings
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are supported by sufficient credible evidence in the record." Elders, 192 N.J. at
243 (quotations omitted). We disregard only those findings that "are clearly
mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). We review legal
conclusions of the trial court de novo. State v. Watts, 223 N.J. 503, 516 (2015).
Defendant argues that the vague and generic information provided to
Aguilar by an unnamed member of the public and the officer's failure to observe
suspicious activity on defendant's part before stopping him, fall short of the
specific and articulable facts necessary to justify a Terry stop. The State
counters that Aguilar acted reasonably because, while responding to a dangerous
emergency situation, he received sufficiently specific information from a
member of the public, including a description of the suspect's clothing,
justifying an investigatory stop of defendant.
We begin our analysis with the meaning and reliability of the statement
made to Aguilar by the man in the van. "Generally speaking, information
imparted by a citizen directly to a police officer will receive greater weight than
information received from an anonymous tipster." State v. Basil, 202 N.J. 570,
586 (2010). "Thus, an objectively reasonable police officer may assume that an
ordinary citizen reporting a crime, which the citizen purports to have observed,
is providing reliable information." Ibid. This is so because "we assume that an
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ordinary citizen 'is motivated by factors that are consistent with law enforcement
goals,'" ibid. (quoting Davis, 104 N.J. at 506), and thus may be regarded as
trustworthy. State v. Hathaway, 222 N.J. 453, 471 (2015). In addition, when
an ordinary citizen gives information in person, "an officer can observe the
informant's demeanor and determine whether the informant seems credible
enough to justify immediate police action without further questioning . . . ."
Basil, 202 N.J. at 586. Information received from a citizen "concerning a
criminal event would not especially entail further exploration or verification of
his personal credibility or reliability before appropriate police action is taken."
Hathaway, 222 N.J. at 471 (quoting Davis, 104 N.J. at 506).
In each of these precedents, our Supreme Court found that the anonymous
report of criminal activity by an ordinary citizen, when considered in context
with other facts, was sufficient to give law enforcement personnel authority to
enter a premises under the emergency aid exception to the warrant requirement,
see State v. Frankel, 179 N.J. 586, 598 (2004), effectuate an arrest based on
probable cause, or conduct a Terry stop. A critical element of the Court's
analysis in each case was that the anonymous citizen reported criminal acts
based on personal knowledge.
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For example, in Basil, the victim of a crime, who refused to identify
herself out of fear for her safety, approached an officer when he arrived at the
scene and said that Basil had pointed a shotgun at her before tossing the weapon
under a nearby car. 202 N.J. at 587. Her statement was based on "information
from her personal knowledge regarding events that occurred minutes earlier."
Ibid. "Importantly, the young woman's reliability was immediately corroborated
by the discovery of the shotgun in the precise location where she said it was
discarded." Ibid. The Court found that the citizen's corroborated report gave
the officer probable cause to arrest Basil. Ibid.Similarly, in Hathaway, at approximately 4:00 a.m., the "animated" and
"upset" victim of an armed robbery approached casino security personnel and
reported that he had been robbed at gunpoint and forced to disrobe in his hotel
room. 222 N.J. at 461. A few minutes later, the victim left the casino without
revealing his identity. Ibid. The security official viewed a surveillance video
that confirmed that the victim had arrived at a specific hotel room with two men
and two women, and left alone in what appeared to be a panic shortly before
giving his report of having been robbed. Id. at 462. The security official relayed
this information, and his observation that the gunmen and two women may still
be in the room, to a law enforcement officer. Ibid. The Court found that the
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officer had no objectively reasonable basis to doubt the victim's report, id. at
476, and an objectively reasonable basis to believe that an emergency required
him to enter the hotel room without a warrant. Id. at 476-79.
In Davis, a member of the local first aid squad called 9-1-1 to report that
he observed two men on bicycles "hanging around" a closed gas station just
before midnight. 104 N.J. at 494. Based on that information, an officer, who
found no one at the gas station, searched for the suspects in his patrol car. Id.
at 495. About three blocks from the station, the officer encountered two men on
bicycles riding against traffic, whom he stopped pursuant to Terry. Ibid.Ultimately, the two men admitted that they had stolen the bicycles. Id. at 496.
The Court found that a member of a first aid squad "while not part of the
government, is more involved and presumably more public spirited than the
average citizen." Id. at 506. Thus, the Court found, "[t]he police could . . . rely
on him as a credible source of information." Ibid. The Court concluded the
report "furnished [a] sufficient basis for the police to investigate whether
criminal activity had occurred or was about to occur," justifying a Terry stop.
Ibid.Here, the citizen's statement to the officer – "the guy's coming up the
block, the guy's coming up the block" – does not convey a report of criminal
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activity. Nor does the report, on its face, indicate that it is based on the citizen's
personal observations. The trial court found, however, that in light of the
circumstances in which the report was made, Aguilar reasonably interpreted the
statement as a report that the citizen had personal knowledge that someone
involved in the shooting approximately a block away was fleeing the scene via
Myrtle Avenue. Given the proximity of the officer's interaction with the citizen
to the reported shooting scene, the exigency of the circumstances, and the
absence of any other explanation for the citizen's report, we conclude there is
sufficient support in the record for the trial court's finding regarding the
objective reasonableness of Aguilar's interpretation of the man's statement as a
report of criminal activity.1
Moments later, Aguilar saw a person reasonably matching the description
given by the citizen – a black man in a blue hoodie – moving away from the
scene of the shooting in the direction and on the street reported by the citizen.
Although defendant's clothing was not an exact match to what the citizen
described, we see no basis to reverse the trial court's conclusion that the
1
Although defendant accurately notes that the record does not contain evidence
of the amount of time that passed between the shooting, the report of the
shooting to the police, and the dispatch that triggered Aguilar's immediate
response, nothing in the record suggests that Aguilar was under the impression
that anything other than exigent circumstances existed.
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difference between a blue hoodie and a blue sweater with a hooded jacket over
it is not meaningful in this context. The officer's observation of defendant
corroborated the citizen's report in several respects, bolstering the
reasonableness of the Terry stop.
We do not agree with defendant's argument that the holdings in State v.
Shaw, 213 N.J. 398 (2012), and State v. Caldwell, 158 N.J. 452, 460 (1999),
control the outcome here. In Shaw, an officer searching for Shaw, a fugitive,
knew only that he was black and male. 213 N.J. at 403. When the officer saw
two black males walking away from a multi-unit apartment building where he
suspected Shaw would be found, he stopped both men, one of whom was Shaw.
Id. at 403-04. The stop was based on nothing more than the race and gender of
the men stopped. Id. at 411. The officer ultimately arrested Shaw and found
heroin in his waistband. Id. at 405. The Court invalidated the arrest, concluding
that the officer "had no objective basis to believe that Shaw was anyone other
than a random person walking out of a residential apartment building," and, as
a result, had no basis to conduct a Terry stop. Id. at 411-12.
Similarly, in Caldwell, officers went to an apartment building to arrest
someone who they believed to be a fugitive. 158 N.J. at 454-55. The only
information they had about the fugitive was that he was a black male. Id. at 455.
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As they arrived in front of the building, the officers saw a black male standing
alone outside. Id. at 455. When the man ran into the building, the officers
followed him and, ultimately, arrested him. Id. at 455-56. In the course of the
arrest, the officers discovered cocaine. Id. at 456. The man, Caldwell, was not
the fugitive sought by the officers.
The Court invalidated the arrest, concluding that it was "evident that the
police did not have sufficient information to justify" their pursuit and detention
of Caldwell. Id. at 460. Noting that the officers had no information concerning
the fugitive's "height, weight. . . clothing" or "distinguishing characteristics,"
the Court held that the race and gender of the individual sought was
insufficiently precise to allow for the seizure of Caldwell. Ibid. Otherwise, the
Court explained, "police could theoretically conduct wide-ranging seizures on
the basis of vague general descriptions." Ibid.Aguilar stopped defendant based on more information than his race and
gender. The officer reasonably interpreted the citizen's comments as a report
that a black male in a blue hoodie was involved in a shooting that had just
transpired and was fleeing the scene via Myrtle Avenue. The officer then saw a
black male in sufficiently similar clothing traversing Myrtle Avenue coming
from the direction of the shooting. These circumstances are distinct from those
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before the Court in Shaw and Caldwell. The clothing match corroborated the
citizen's report, as did the contemporaneous appearance of defendant on Myrtle
Avenue. The potentially dangerous situation was fluid. Aguilar was required
to make a split-second decision in the aftermath of an afternoon shooting on a
public street, just a block from where he spotted defendant.
Nor do we view the Court's opinion in State v. Nyema, 249 N.J. 509(2022), issued after the parties submitted their briefs in this matter, to require a
different outcome. In Nyema, police received a dispatch that two black males,
one with a gun, had robbed a convenience store. Id. at 516. An officer driving
to the scene saw, when he was approximately three-quarters of a mile from the
store, cars approaching from the opposite direction. Ibid. Using a spotlight
mounted on the patrol car, the officer illuminated the interior of the approaching
vehicles. Id. at 516-17. The occupants of the second car, three black males, did
not respond to the light, looking straight ahead. Id. at 517. This contrasted with
the reaction of the occupants of the first vehicle, who demonstrated "alarm or
annoyance" at the light. Ibid. The officer stopped the second vehicle, which
contained the defendant. Ibid. The occupants were arrested for possession of a
stolen vehicle and were later charged with robbery of the store. Id. at 518.
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The Court found that the information possessed by the officer at the time
of the stop did not constitute reasonable suspicion of criminal activity. Id. at
531. As the Court explained,
[c]ertainly, race and sex – when taken together with
other, discrete factors – can support reasonable and
articulable suspicion. But here, the initial description
did not provide any additional physical descriptions
such as the suspects' approximate heights, weights,
ages, clothing worn, mode of transportation, or any
other identifying feature that would differentiate the
two Black male suspects from any other Black men in
New Jersey. That vague description, quite frankly, was
"descriptive of nothing."
[Id. at 531 (quoting Caldwell, 158 N.J. at 468 (Handler,
J., concurring)).]
The Court continued,
[i]f that description alone were sufficient to allow
police to conduct an investigatory stop of defendants'
vehicle, then law enforcement officers would have been
permitted to stop every Black man within a reasonable
radius of the robbery. Such a generic description that
encompasses each and every man belonging to a
particular race cannot, without more, meet the
constitutional threshold of individualized reasonable
suspicion.
[Id. at 531-32.]2
2
The Court subsequently discounted the relevancy of the absence of reaction
of the occupants of the car to the spotlight's glare. Id. at 533-34.
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Although the question is a close one, we see the citizen's report of the
clothing worn by the man fleeing the scene of the shooting, along with his
description of his direction of travel and the block on which he was travelling,
to be sufficient to distinguish the circumstances before this court from those
before the Court in Nyema. Based on the information received from the citizen,
Aguilar could not theoretically have stopped every black man in New Jersey or
within a reasonable radius of the shooting. The officer possessed reliable
information describing details distinguishing the suspect from other black men
in the area.
Affirmed.
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