STATE OF NEW JERSEY IN THE INTEREST OF A.A.J. (FJ-07-453-15, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0387-15T1
STATE OF NEW JERSEY
IN THE INTEREST OF A.A.J.,
A Juvenile.
__________________________________
Submitted January 25, 2017 – Decided March 15, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FJ-07-453-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison Perrone, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Camila
Garces, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A.A.J. appeals from an adjudication of delinquency for
conduct which, if committed by an adult, would constitute second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. We
affirm.
We derive the following facts from the hearing record. On
the morning of August 22, 2014, the Irvington Police received two
anonymous telephone calls expressing concern over a domestic
disturbance. One of the callers alleged that individuals involved
with the disturbance were in possession of guns. Both callers
requested police be sent to "269 or 271 Ellis Avenue." Detective
Algerome Burnett Crawford and Detective Thomas Turley were
dispatched to the location. While en route, the detectives
received a description of a 5'7" black male with shoulder-length
dreadlocks wearing a black shirt and black pants involved in the
incident.
Upon arriving in the area of 269 Ellis Avenue, the detectives'
attention was drawn to an open door at the adjacent building, 267
Ellis Avenue.1 Crawford witnessed one male standing in the open
doorway, one male on the porch, and approximately three or four
males in the hallway. The detectives approached the group and
entered the building to investigate whether the individuals they
observed had any involvement with the reported incident.
Upon entering the hallway, the detectives saw a stairwell
with three steps leading to an apartment on the left and an
1
The detectives were unable to determine the exact address of the
building due to the open door. However, the building was located
in the area of 269 Ellis Avenue.
2 A-0387-15T1
apartment on the right. Crawford observed a black male at the top
of the stairs who matched the reported description, by appearance
and clothing, as an individual involved in the incident. This
individual was later identified as A.A.J. According to Crawford,
A.A.J. was acting "very nervous" and "was shaking uncontrollably."
As the detectives approached A.A.J., he attempted to walk into the
apartment on the left. Crawford told A.A.J. to stop so that he
could speak to him. A.A.J. responded that he had just been in a
fight prior to the detectives' arrival.
Based on the information from the phone calls, A.A.J.'s
statement about being in a fight, his nervous behavior, and the
description received by the police, Crawford instructed A.A.J. to
place his hands on his head while he patted him down. When the
pat-down reached his right pocket, A.A.J. moved his hands from his
head toward the pocket. Crawford warned A.A.J. not to do this or
he would be handcuffed. The pat-down resumed and Crawford felt a
bulge he believed to be a handgun. While the detective was feeling
the object, A.A.J. proceeded to move his hands toward the area two
more times.
After feeling the bulge in A.A.J.'s right pants pocket,
Crawford immediately handcuffed him. The detective removed the
object from A.A.J.'s pocket, and confirmed it was a handgun. He
3 A-0387-15T1
then removed the magazine, and made sure the weapon was unloaded.
A.A.J. was taken into custody.
In an Essex County juvenile complaint, A.A.J. was charged
with second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5b; fourth-degree possession of hollow point bullets,
N.J.S.A. 2C:39-3f; and third-degree receiving stolen property,
N.J.S.A. 2C:20-7. Subsequent to the filing of the complaint,
A.A.J. filed a motion to suppress the handgun.
On April 27 and May 12, 2015, the Family Part judge conducted
a consolidated hearing on both the issue of suppression and the
issue of adjudication. At the conclusion of the hearing, the
judge granted a motion for a judgment of acquittal on the receiving
stolen property charge, N.J.S.A. 2C:20-7 and denied the motion to
suppress. A.A.J. was adjudicated delinquent on the charge of
unlawful possession of a handgun, N.J.S.A. 2C:39-5b, only.
Concerning the motion to suppress, the judge held that A.A.J.'s
temporary detention was "clearly appropriate," especially
considering the calls to the police, the description of the
suspect, the possibility of weapons being present, and A.A.J.'s
"nervous" behavior.
The judge sentenced A.A.J. to an eighteen-month term of
probation, but stayed the sentence pending the filing and
disposition of a motion for reconsideration. On June 22, 2015,
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the court denied A.A.J.'s motion for reconsideration and ordered
that the eighteen-month term of probation begin. This appeal
followed.
On appeal, A.A.J. raises the following points:
POINT I
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESSS THE GUN UNLAWFULLY SEIZED
BY POLICE. (U.S. CONST. AMENDS. IV AND XIV;
N.J. CONST. (1947) ART. I, ¶ 7).
POINT II
THIS MATTER SHOULD BE REMANDED FOR A NEW
[ADJUDICATION] HEARING BECAUSE THE COURT BELOW
IMPROPERLY, AND OVER THE JUVENILE'S OBJECTION,
HELD ONE COMBINED PROCEEDING TO RESOLVE BOTH
THE MOTION TO SUPPRESS AND THE ADJUDICATION
OF THE UNDERLYING CHARGES.
In reviewing a motion to suppress, we defer to the trial
court's factual and credibility findings, so long as they are
supported by the record. State v. Handy, 206 N.J. 39, 44 (2011).
Deference is afforded because the "findings of the trial judge
. . . are substantially influenced by his opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166
(2015) (alteration in original) (quoting State v. Locurto, 157
N.J. 463, 471 (1999)). We disregard a trial court's factual and
credibility findings only if clearly mistaken. State v. Hubbard,
5 A-0387-15T1
222 N.J. 249, 262 (2015). The legal conclusions of the trial
court, however, are reviewed de novo. Id. at 263.
The Fourth Amendment to the United States Constitution and
Article 1, paragraph 7 of the New Jersey Constitution guarantee
the right "of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures[.]"
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The Fourth
Amendment and Article 1, paragraph 7 of the New Jersey Constitution
both "require[] the approval of an impartial judicial officer
based on probable cause before most searches may be undertaken."
State v. Patino, 83 N.J. 1, 7 (1980).
Warrantless searches are presumed invalid. State v. Gamble,
218 N.J. 412, 425 (2014); State v. Cooke, 163 N.J. 657, 664 (2000).
"Any warrantless search is prima facie invalid, and the invalidity
may be overcome only if the search falls within one of the specific
exceptions created by the United States Supreme Court." State v.
Hill, 115 N.J. 169, 173 (1989) (citing Patino, supra, 83 N.J. at
7). The State carries the burden of proving the existence of an
exception by a preponderance of the evidence. State v. Amelio,
197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct.
2402, 173 L. Ed. 2d 1297 (2009).
6 A-0387-15T1
One exception, based upon Terry,2 is "the right of a police
officer to conduct a brief, investigatory stop . . . ." State v.
Morrison, 322 N.J. Super. 147, 151-52 (1999). "There must be
'some objective manifestation that the suspect was or is involved
in criminal activity'" in order for a Terry stop to be considered
valid. State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v.
Thomas, 110 N.J. 673, 678 (1988)). In determining whether the
investigative detention was justified under this reasonable
suspicion standard, "a court must consider the 'totality of the
circumstances - the whole picture.'" State v. Stovall, 170 N.J.
346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411,
417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)).
Once stopped, the "officer may conduct a reasonable search
for weapons if he [or she] is 'justified in believing that the
individual whose suspicious behavior he [or she] is investigating
at close range is armed and presently dangerous to the officer or
to others.'" State v. Richards, 351 N.J. Super. 289, 299 (App.
Div. 2002) (quoting Terry, supra, 392 U.S. at 24, 88 S. Ct. at
1881, 20 L. Ed. 2d at 908).
A Terry stop and frisk are two separate constitutional events.
Thomas, supra, 110 N.J. at 678-79 (explaining that "[u]nder the
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
7 A-0387-15T1
Terry rule, whether there is good cause for an officer to make a
protective search incident to an investigatory stop is a question
separate from whether it was permissible to stop the suspect in
the first place."). A Terry search allows an officer "to pat down
a citizen's outer clothing when the officer 'has reason to believe
that he [or she] is dealing with an armed and dangerous individual,
regardless of whether he [or she] has probable cause to arrest the
individual for a crime.'" State v. Nishina, 175 N.J. 502, 514-15
(2003) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883,
20 L. Ed. 2d at 909).
The reasonableness of a Terry search is measured objectively.
Thomas, supra, 110 N.J. at 679. The officer conducting the search
must "point to particular facts from which he [or she] reasonably
inferred that the individual was armed and dangerous." Ibid.
(quoting Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889,
1903, 20 L. Ed. 2d 917, 935 (1968)). "The officer need not be
absolutely certain that the individual is armed; the issue is
whether a reasonably prudent [person] in the circumstances would
be warranted in the belief that his [or her] safety or that of
others was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct.
at 1883, 20 L. Ed. 2d at 909. Like reasonable suspicion to stop,
the existence of reasonable suspicion to frisk "is based on the
totality of the circumstances." State v. Roach, 172 N.J. 19, 27
8 A-0387-15T1
(2002); see also State v. Bard, 445 N.J. Super. 145, 156 (App.
Div. 2016) (slip op. at 10). "[D]ue weight must be given" to the
detective's experience. See State v. Valentine, 134 N.J. 536,
543, 547-48 (1994) (quoting Terry, supra, 392 U.S. at 27, 88 S.
Ct. at 1883, 20 L. Ed. 2d at 909).
Predicated upon the calls made to the Irvington Police
detailing that individuals with handguns were arguing at a
specified location, A.A.J.'s statement about previously being in
a fight, and A.A.J.'s appearance matching the description received
by the police, it was objectively reasonable for the detective to
suspect that A.A.J. was armed with a handgun. Given the totality
of the circumstances presented, we conclude the pat-down was
lawful. Roach, supra, 172 N.J. at 27.
Finally, we address A.A.J.'s argument that the court erred
by consolidating the motion to suppress hearing with the
adjudication hearing. Our review of the record reveals that the
judge applied the proper legal standards, evidentiary rules, and
differing burdens of proof when confronted with issues relating
to each hearing. While we do not approve the process of
consolidation employed here, we nonetheless recognize that judges
are "capable of sorting through admissible and inadmissible
evidence without resultant detriment to the decision-making
process. State v. Kern, 325 N.J. Super. 435, 444 (App. Div. 1999).
9 A-0387-15T1
Affirmed.
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