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Date: 07-15-2016
Case Style: STATE OF NEW JERSEY VS. MARCUS A. BOONE
Case Number: A-3720-13T2
Judge: Amy O'Connor
Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Plaintiff's Attorney: Sarah Elizabeth Ross, Deputy Attorney General; John J. Hoffman, Acting Attorney General, attorney
Defendant's Attorney: Stephen W. Kirsch, Assistant Deputy Public Defender;
Joseph E. Krakora, Public Defender attorney
Description: Police Officer Carmine Giannetta of the Elizabeth Police
Department was the only witness who testified at the suppression
hearing. Giannetta reported that, on January 11, 2012,
Detective Torres, also of the Elizabeth Police Department, was
stopped by a person on the street who reported that an African
American man in a puffy jacket was in possession of a handgun in
1 The court also dismissed the other charges with which defendant had been indicted, third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
A-3720-13T2 3
a specific rooming house in Elizabeth. Giannetta conceded he
knew nothing about the tipster, including whether he or she was
anonymous or known to the police, or whether the tipster was
reliable. Giannetta also admitted it was not uncommon to see
people wearing a puffy jacket – which he interpreted to mean a
down jacket - in winter, or for African-American men to be in
that area of Elizabeth.
Giannetta testified the rooming house was in a "high
narcotic area" where the police had made numerous arrests for
various offenses, including "narcotics and handguns." He
mentioned the Police Department had received complaints that
drugs were sold throughout the day in and on the grounds of the
rooming house.
At around 6:00 pm, Giannetta and Torres drove to the area
where the rooming house was located, where they were joined by
two other officers, Lieutenant Kiley and Sergeant Nowinski.
After emerging from their respective patrol cars, the four
officers, all in uniform, walked down the sidewalk toward the
rooming house, where they spotted co-defendant Lamont Jones and
an African-American male in a down jacket, later identified as
defendant, coming out of the front door of the rooming house.
As they walked down the front steps to the building, the two men
noticed the police. One of the two men said "Oh shit," and the
A-3720-13T2 4
two separated. Defendant began to walk at a fast pace away from
the police.
Giannetta did not know anything about defendant but he did
recognize Jones from "numerous" narcotics investigations and
from having recovered handguns from an apartment adjoining
Jones' apartment; the handguns reputedly belonged to Jones.
Giannetta did not elaborate upon the nature of the narcotics
investigations, but mentioned Jones is known to be a member of
the Crip gang and that he or "somebody near him" usually has a
gun.
Giannetta stopped Jones and the two "exchanged words."
Jones appeared to be nervous and, because of his demeanor, his
background, and the fact he might have a gun, Giannetta and
Nowinski grabbed and searched Jones for weapons. Although
cocaine was found on Jones, he did not have a weapon.
According to Giannetta, when defendant and Jones separated
and defendant began to walk away from the police, Kiley "ran
after [defendant], grabbed him, had a brief struggle, I guess."
(emphasis added). It is unknown which part, if not all, of the
latter statement was supposition by Giannetta.
Later in his testimony Giannetta stated that when Kiley
caught him, defendant started flailing his arms in the air and
Kiley pinned defendant up against a parked car. Giannetta heard
A-3720-13T2 5
Kiley say "I've got a gun," and saw Kiley having "like a brief
struggle against a car. . . [w]ith Mr. Boone." Giannetta then
ran over to assist Kiley with handcuffing defendant. Giannetta
admitted that he did not know how Kiley discovered the gun. A
pat-down search revealed defendant had cocaine and a handgun in
his possession. Having been placed under arrest, defendant and
Jones were then transported to the police station.
The trial court denied defendant's motion to suppress
evidence of the handgun for the following reasons.
I'm satisfied that it was defendant's reactions that gave some heightened sense and gave [the police] not only the right to stop and investigate but, also, to detain them briefly when Mr. Boone turns and walks away from them, and one of the other people in the group says "oh shit." I'm also satisfied that that instance is heightened by the officer's knowledge of one of those co-defendants, one of those individuals, being a – a gang member known to carry drugs.
Focusing now on what happened between Kiley and – and Boone. I'm satisfied that Kiley had a right and every reason to detain Mr. Boone on the street, to make further inquiry of him. I'm satisfied that there was a struggle, that the defendant did not have a right to struggle, that he was subject to arrest at that point for obstructing, and that anything that was recovered from him after that was [a] search incident to arrest. II
On appeal, defendant raises the following contentions:
A-3720-13T2 6
POINT I – THE MOTION TO SUPPRESS THE GUN SHOULD HAVE BEEN GRANTED. THE STATE PROVIDED ALMOST NO EVIDENCE OF WHAT ACTUALLY OCCURRED WHEN DEFENDANT WAS STOPPED AND SEARCHED.
POINT II – THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
Specifically, defendant contends that the State failed to
prove by a preponderance of the evidence that the search and
seizure of the handgun fell within one of the exceptions to the
warrant requirement. He argues there was insufficient evidence
showing what occurred between Kiley and defendant, and thus the
State cannot demonstrate that the handgun was lawfully seized.
The State contends that the police conducted an
investigatory stop based upon a reasonable, articulable
suspicion that defendant had or was about to engage in criminal
activity and, during the course of that stop, frisked defendant
as a protective measure. In the alternative, the State argues
the police had the right to arrest defendant for obstructing
Kiley from executing the investigatory stop when he flailed his
arms. Thus, the State contends, the police were justified in
conducting a pat-down frisk incident to that arrest.
"Appellate courts reviewing a grant or denial of a motion
to suppress must uphold the factual findings underlying the
trial court's decision so long as those findings are supported
by sufficient credible evidence in the record." State v.
A-3720-13T2 7
Gamble, 218 N.J. 412, 424 (2014). But appellate courts may
reverse a trial court's determination if it "is 'so clearly
mistaken that the interests of justice demand intervention and
correction.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J.
146, 161 (1964)). Further, "[a] trial court's interpretation of
the law . . . and the consequences that flow from established
facts are not entitled to any special deference. Therefore, a
trial court's legal conclusions are reviewed de novo." Id. at
425 (internal citations omitted).
The Fourth Amendment of the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution protect
against unreasonable searches and seizures. U.S. Const. amend.
IV; N.J. Const. art. I, ¶ 7. "'No right is held more sacred, or
is more carefully guarded, by the common law, than the right of
every individual to the possession and control of his own
person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law.'" Terry v.
Ohio 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 898
99 (1968) (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250,
251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891)). Thus,
"[p]eople, generally, are free to go on their way without
interference from the government. That is, after all, the
essence of the Fourth Amendment — the police may not randomly
A-3720-13T2 8
stop and detain persons without particularized suspicion."
State v. Shaw, 213 N.J. 398, 409-10 (2012).
"A seizure occurs if, 'in view of all the circumstances
surrounding the incident, a reasonable person would have
believed that he [or she] was not free to leave.'" State v.
Sloane, 193 N.J. 423, 429 (2008) (quoting State v. Stovall, 170
N.J. 346, 355 (2002)). "Even a brief detention can constitute a
seizure." Stovall, supra, 170 N.J. at 356. Because warrantless
seizures and searches are presumptively invalid, when the police
seize a person and evidence without a warrant, and the defendant
moves to suppress the evidence, the State bears the burden of
proving by a preponderance of the evidence the seizure and
search fell within "'one of the well-delineated exceptions to
the warrant requirement.'" Shaw, supra, 213 N.J. at 409
(internal quotation marks omitted) (quoting State v. Frankel,
179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108,
160 L. Ed. 2d 128 (2004)).
One exception to the warrant requirement is an
investigatory stop, as recognized in Terry, supra, 392 U.S. at
20-22, 88 S. Ct. at 1879-80, 20 L. Ed. 2d at 905-06. "A police
officer may conduct an investigatory stop if, based on the
totality of the circumstances, the officer had a reasonable and
particularized suspicion to believe that an individual has just
A-3720-13T2 9
engaged in, or was about to engage in, criminal activity."
Stovall, supra, 170 N.J. at 356 (citing Terry, supra, 392 U.S.
at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). See also
Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657,
1661, 134 L. Ed. 2d 527, 544 (1996). "'The principal components
of a determination of reasonable suspicion . . . [are] the
events which occurred leading up to the stop . . . , and then
the decision whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount
to reasonable suspicion. . . ." Stovall, supra, 170 N.J. at 357
(quoting Ornelas, supra, 517 U.S. at 696, 116 S. Ct. at 1661-62,
134 L. Ed. 2d at 919).
The determination of whether an officer had reasonable
suspicion to conduct a brief investigatory stop is fact
sensitive and requires an evaluation of the "totality of the
circumstances[.]" State v. Pineiro, 181 N.J. 13, 22 (2004).
"Unless the totality of the circumstances satisfies the
reasonable and articulable suspicion standard, the investigatory
stop 'is an unlawful seizure, and evidence discovered during the
course of an unconstitutional detention is subject to the
exclusionary rule.'" State v. Mann, 203 N.J. 328, 339 (2010)
(quoting State v. Elders, 192 N.J. 224, 247 (2007)).
A-3720-13T2 10
Some of the factors to be considered when reviewing a
police officer's decision to embark upon an investigatory stop
are as follows. One factor is the officer's experience and
knowledge. Pineiro, supra, 181 N.J. at 22 (citing State v.
Davis, 104 N.J. 490, 504 (1986)). The defendant's presence in a
high crime area, see Pineiro, supra, 181 N.J. at 26, and the
defendant's criminal history, if known, are also relevant
factors, id. at 24-25, 29. The suspect's demeanor, such as
nervousness when questioned by the police, may be considered in
determining whether reasonable suspicion exists. Stovall,
supra, 170 N.J. at 367. However, a person's flight upon seeing
the police, without more, generally does not constitute
reasonable suspicion to support a stop. State v. Dangerfield,
171 N.J. 446, 457-58 (2002); Pineiro, supra, 181 N.J. at 26;
State v. Tucker, 136 N.J. 158, 168-69 (1994).
Significantly, "[a]n anonymous tip, standing alone, is
rarely sufficient to establish a reasonable articulable
suspicion of criminal activity." State v. Rodriguez, 172 N.J.
117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329, 110
S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). "[A]n
unverified and uncorroborated informant's tip does not by itself
justify a Terry stop[,]" State v. Richards, 351 N.J. Super. 289,
300 (App. Div. 2002) (citing State v. Caldwell, 158 N.J. 452,
A-3720-13T2 11
460-61 (1999)), "[a]nd that is so even if the tip is of a gun in
the possession of a suspect. See Florida v. J.L., 529 U.S. 266,
120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)." Ibid.
In J.L., the Court held an anonymous caller's report to
the police "that a young black male standing at a particular bus
stop and wearing a plaid shirt was carrying a gun," without
more, was insufficient "to justify a police officer's stop and
frisk of that person." J.L., supra, 529 U.S. at 268, 120 S. Ct.
at 1377, 146 L. Ed. 2d at 258-59. "[T]he United States Supreme
Court declined to adopt a man with a gun exception to the rule
of individualized reasonable suspicion to 'stop and frisk' and
ordered the evidence suppressed." Richards, supra, 351 N.J.
Super. at 300 (citing J.L., supra, 529 U.S. at 272, 120 S. Ct.
at 1379, 146 L. Ed. 2d at 261). The Court further noted "that
an anonymous tip lacking indicia of reliability . . . does not
justify a stop and frisk whenever and however it alleges the
illegal possession of a firearm." J.L., supra, 529 U.S. at 274,
120 S. Ct. at 1380, 146 L. Ed. 2d at 262.
During an investigatory stop, a police officer may conduct
a protective search, also known as a pat-down or frisk, "where
he has reason to believe that he is dealing with an armed and
dangerous individual . . . ." Terry, supra, 392 U.S. at 27, 88
S. Ct. at 1883, 20 L. Ed. 2d at 909. If that basis exists, the
A-3720-13T2 12
officer may "conduct a carefully limited search of the outer
clothing of such person[] in an attempt to discover weapons
which might be used to assault him." Terry, supra, 392 U.S. at
30, 88 S. Ct. at 1885, 20 L. Ed. 2d at 911.
The police may also pat-down an individual incident to an
arrest. See State v. Moore, 181 N.J. 40, 45 (2004). A person
who flees from an investigatory stop still may be convicted of
obstruction under N.J.S.A. 2C:29-1 even though the stop is later
found to have been unconstitutional. See State v. Crawley, 187
N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740,
166 L. Ed. 2d 563 (2006).2
Here, the evidence presented by the State failed to show
the police had the requisite suspicion that a crime had been or
was about to be committed. Similar to the circumstances in
J.L., all the police had to go on was the report of a tipster
stating that an African-American male in a puffy coat was in
possession of a handgun at the rooming house. J.L., supra, 529
U.S. at 268-69, 120 S. Ct. at 1381, 146 L. Ed. 2d at 264. The
State did not introduce any evidence about the source of the
information upon which that report was based. White, supra, 496
U.S. at 328-29, 110 S. Ct. at 2415-16, 110 L. Ed. 2d at 307-08.
2 Defendant was not charged with obstruction or violating any other aspect of N.J.S.A. 2C:29-1.
A-3720-13T2 13
There was no evidence about the identity or reliability of the
tipster and the tip was not corroborated. Ibid.
Further, the tip imparted little by way of identifying the
individual with the handgun. The tip did note the location of
the person with the handgun with particularity, but as even
Giannetta conceded, there was nothing uncommon about an African
American man being in that area of Elizabeth and, at that time
of year, it was not uncommon for many to be wearing down
jackets. In short, the tip was insufficient to warrant a Terry
stop, and that is so even though the tip was of a person in
possession of a weapon. J.L., supra, 529 U.S. at 268-69, 120 S.
Ct. at 1381, 146 L. Ed. 2d at 264; Richards, supra, 351 N.J.
Super. at 301 (citing Caldwell, supra, 158 N.J. at 460-61).
As for other indicia defendant had committed or was about
to commit a crime, there was evidence drugs sales were common in
and on the grounds of the rooming house. However, there was
nothing about defendant's demeanor or conduct that provided the
police with a reasonable, particularized, and objective basis to
suspect he had just engaged in or was about to engage in
criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at
1880, 20 L. Ed. 2d at 906.
When the police approached him, defendant simply walked
away hurriedly. His movements can hardly be characterized as
A-3720-13T2 14
flight, especially when there was no testimony the officers
indicated in any way to defendant that he should stop or
otherwise submit to them. Even if defendant had been fleeing
from the police, as previously stated, flight upon seeing the
police, without more, generally does not constitute reasonable
suspicion to support a stop. Dangerfield, supra, 171 N.J. at
457-58. Certainly, the very fact defendant did walk away from
the officers suggested he did not plan to inflict any harm upon
the police.
The only witness who testified at the suppression hearing
knew nothing about defendant. More important, there was no
evidence the officer who conducted the investigatory stop of
defendant had any knowledge of him, let alone had knowledge he
had a criminal history or a proclivity to engage in violence.
There also was no evidence about Kiley's training and experience
and what impelled him to go after defendant.
In the final analysis, the State, which bore the burden of
proving the seizure and search fell within one of the exceptions
to the warrant requirement, did not show that Kiley possessed a
reasonable, particularized, and objective basis for suspecting
defendant had just engaged in, or was about to engage in,
criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at
1880, 20 L. Ed. 2d at 906. Thus, because the investigatory stop
A-3720-13T2 15
was an unlawful detention, the evidence discovered during that
stop is subject to the exclusionary rule and must be suppressed.
Terry, supra, 392 U.S. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at
910-11.
The State alleges defendant interfered with Kiley's efforts
to execute an investigatory stop when defendant flailed his arms
and, thus, violated N.J.S.A. 2C:29-1. The State contends that
even if the investigatory stop were unlawful, as Kiley was
authorized to frisk defendant incident to his arrest for
obstruction, during which the gun was discovered, there are no
grounds to reverse the trial court's decision to deny
defendant's motion to suppress. We disagree.
Little is known about what transpired during the
investigatory stop. According to Giannetta, after defendant
moved away from the police, Kiley went after and "caught"
defendant, who started flailing his arms in the air. Kiley then
pinned defendant against a parked car. Giannetta did indicate
there was a brief struggle, but he was not specific about
whether the struggle was the act of defendant flailing his arms
and Kiley pinning him against the car, or whether Giannetta was
referring to some other, undisclosed conduct.
But most important, there is no evidence defendant resisted
a command to stop or otherwise failed to cooperate with Kiley.
A-3720-13T2 16
The fact defendant flailed his arms may well be evidence he was
obstructing Kiley's good faith efforts to fulfill his duties as
a police officer. On the other hand, flailing his arms also
could have been an instinctive reaction to suddenly being
grabbed or to Kiley using excessive force. It is simply not
known why, or for how long, defendant flailed his arms. There
is insufficient evidence about how this encounter unfolded and
what transpired, including what was communicated to defendant –
if anything - to support a finding defendant obstructed the
police in violation of N.J.S.A. 2C:29-1, thus warranting a pat
down search incident to the arrest.
The order denying defendant's motion to suppress evidence
and the judgment of conviction is reversed. The trial court is
directed to enter an order suppressing the handgun. In light of
our disposition, we need not address defendant's contention his
sentence is manifestly excessive.
Plaintiff's Experts:
Defendant's Experts:
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