STATE OF NEW JERSEY VS. FATEEN K. DAWSON (16-11-0985, 16-12-1097 AND 17-12-1079, CUMBERLAND COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4249-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FATEEN K. DAWSON, a/k/a
KHALID DAWSON, FATEEM
DAWSON, FATEEM RUMPH,
and FATEEN RUMPH,
Defendant-Appellant.
____________________________
Submitted March 25, 2020 – Decided April 23, 2020
Before Judges Fuentes and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment Nos. 16-11-
0985, 16-12-1097 and 17-12-1079.
Joseph E. Krakora, Public Defender, attorney for
appellant (Rochelle M. Watson, Deputy Public
Defender, of counsel and on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Andre R. Araujo,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Fateen Dawson appeals from the September 26, 2017 denial of
his motion to suppress physical evidence recovered following a motor vehicle
stop. We affirm.
We recite only the pertinent facts, which are gleaned primarily from the
testimony elicited from the arresting trooper and defendant, the only witnesses
who testified at the suppression hearing. On the evening of March 2, 2016, a
New Jersey State Police trooper was on routine patrol in Millville. He observed
defendant's vehicle traveling east on Route 49 when it crossed the center line
prior to the intersection at Route 47, and crossed back over the center line before
continuing east on Route 49. The trooper began to follow defendant's vehicle
and witnessed it crossings over the center line several more times. Further, the
trooper noticed the lamp used to illuminate defendant's vehicle tag was not
working. He activated the marked police vehicle's overhead lights to effectuate
a motor vehicle stop and observed defendant's car cross the center line again
before it came to a complete stop.
After defendant provided the trooper with certain documentation, the
trooper discovered an active traffic warrant pending against defendant. The
trooper arrested defendant and during a search of the defendant incident to his
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arrest, the trooper discovered a large glass vial with fluid, which later testified
positive for phenylcyclohexyl piperidine (PCP). Defendant received
summonses for failure to maintain lane, N.J.S.A. 39:4-88(b) and maintenance of
lamps, N.J.S.A. 39:3-61.
Defendant moved to suppress the evidence recovered during the search.
At the suppression hearing, the State produced and played the trooper's dash
cam video of the stop. Additionally, defendant played a video showing traffic
heading east on Route 49 at the intersection of 3rd Street. Defendant argued his
video demonstrated he was unfairly targeted for a motor vehicle stop because
every driver on the video crossed over the center line at 3rd Street due to
insufficient space in that area.
The motion judge credited the trooper's testimony and found his dash cam
recording of the incident corroborated the trooper's version of the stop.
Conversely, the judge did not find defendant's testimony believable. Although
the judge acknowledged defendant's video showed "every single car would cross
the center line at the intersection of Route 49 and 3[rd] Street," the judge
specifically found the trooper's car was "facing north on Route 47 at the
intersection of Route 49" when he initially observed defendant's vehicle cross
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the center lane. The judge added defendant "was pulled over . . . because of the
infractions which [the trooper] personally observed."
On appeal, defendant raises the following argument:
BECAUSE THE COURT ERRED IN FAILING TO
CONSIDER NECESSITY AS A DEFENSE UNDER
N.J.S.A. 2C:3-2 IN RELATION TO [DEFENDANT'S]
CROSSING ON THE CENTER LINE AT THE 3 rd
STREET INTERSECTION, AND THAT INSTANCE
MAY HAVE BEEN THE BASIS FOR A FINDING OF
REASONABLE SUSPICION, THIS MATTER MUST
BE REMANDED FOR A NEW ANALYSIS OF
REASONABLE SUSPICION ABSENT THE
IMPROPER CONSIDERATION OF THE
NECESSARY CONDUCT. U.S. CONST., AMENDS.
IV, XIV; N.J. CONST., ART. I, ¶ 7.
This argument lacks merit. As our Supreme Court noted, "[c]onduct that
would otherwise be criminal is justified if the evil avoided is greater than that
sought to be avoided by the law defining the offense committed, or, conversely,
if the conduct promotes some value higher than the value of compliance with
the law." State v. Tate, 102 N.J. 64, 73 (1986) (citing Arnolds & Garland, The
Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil , 65
J. Crim. L. C. & P.S. 289 (1974)); see State v. Romano, 355 N.J. Super. 21, 29
(App. Div. 2002).
"Necessity" is a recognized affirmative defense to alleged criminal
conduct under the Code. N.J.S.A. 2C:3-2(a). But motor vehicle offenses, such
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as those for which defendant received summonses, "are not offenses under New
Jersey's Criminal Code." State v. Fogarty, 128 N.J. 59, 64 (1992). Accordingly,
we construe defendant's argument under the elements of the common-law
defense of necessity:
(1) There must be a situation of emergency arising
without fault on the part of the actor concerned;
(2) This emergency must be so imminent and
compelling as to raise a reasonable expectation of harm,
either directly to the actor or upon those he was
protecting;
(3) This emergency must present no reasonable
opportunity to avoid the injury without doing the
criminal act; and
(4) The injury impending from the emergency must be
of sufficient seriousness to outmeasure the criminal
wrong.
[State v. Romano, 355 N.J. Super. 21, 29 (App. Div.
2002) (citation omitted).]
A defendant must present some evidence to support the affirmative
defense of necessity, but the burden ultimately rests on the State to "disprove
the defense beyond a reasonable doubt." Id. at 36. Here, defendant is not entitled
to the common-law defense of necessity because contrary to his assertion, the
motion judge did not rely "upon one instance of [defendant] crossing the center
line as a basis to justify the stop." Instead, the judge found the trooper pulled
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defendant's vehicle over "because of the infractions which he personally
observed." In other words, the arresting trooper effectuated the motor vehicle
stop only after he saw defendant commit multiple motor vehicle violations.
Defendant does not contend that each of his multiple infractions was committed
out of necessity, so his challenge to the motor vehicle stop based on this
affirmative defense is unpersuasive. Defendant's necessity argument also fails
because the motion judge specifically rejected the notion that the arresting
trooper was located at the intersection of Route 49 and 3rd Street when he saw
defendant cross a center line. Instead, the judge found defendant's car was "on
Route 49 when it crossed the center lane prior to the intersection with Route 47."
Appellate courts reviewing a grant or denial of a motion to suppress must
defer to a trial court's factual findings so long as those findings are supported by
sufficient evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014);
State v. Elders, 192 N.J. 224, 243 (2007). We defer to those findings of fact
because they "are substantially influenced by [an] opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). An appellate court should
disregard those findings only when a trial court's findings of fact are clearly
mistaken and "the interests of justice demand intervention and correction." Id.
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at 162. However, we review a trial court's legal conclusions de novo. State v.
Gandhi, 201 N.J. 161, 176 (2010). Guided by these standards, we are satisfied
defendant's motion to suppress was properly denied.
To conduct a lawful investigatory stop, an officer needs a reasonable and
articulable suspicion that an offense has occurred, even if that offense is only a
minor traffic offense. State v. Amelio, 197 N.J. 207, 211 (2008). Based on the
motion judge's factual and credibility findings, it is evident the trooper's
observations of defendant's multiple traffic offenses plainly met the reasonable
and articulable suspicion threshold.
Finally, we note that a search incident to a lawful arrest is one of many
recognized exceptions which justifies a warrantless search of a suspect's person.
State v. Oyenusi, 387 N.J. Super. 146, 153 (App. Div. 2006) (citing Chimel v.
California, 395 U.S. 752, 762-63 (1969)). Although defendant does not
challenge the lawfulness of his search, we agree with the motion judge's
conclusion that the search "did not exceed the legally allowable scope and the
search of the defendant . . . was legal."
Affirmed.
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