Date: 04-16-2016

Case Style: STATE OF NEW JERSEY VS. JABIR T. TAYLOR

Case Number: A-5199-13T2

Judge: Garry S. Rothstadt, Heidi Currier

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Jane C. Schuster, Robert Lougy

Defendant's Attorney: Mark H. Friedman, Joseph E. Krakora, Samuel Feder

Description: Defendant Jabir T. Taylor, a/k/a Gilbert Jason, appeals
from his conviction after entering a conditional guilty plea to
one count of third-degree possession of a controlled dangerous
substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1), and one count
of third-degree possession of CDS, heroin, with intent to
distribute within 1000 feet of school property, N.J.S.A. 2C:35
5(a) and N.J.S.A. 2C:35-7.1 Defendant pled guilty following the
court's denial of his motion to suppress. In a single point on
appeal, he argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STATE FAILED TO MEET ITS BURDEN AND PROVE THAT THE OFFICERS' WARRANTLESS TERRY[2] STOP OF THE DEFENDANT WAS SUPPORTED BY REASONABLE SUSPICION.
We have considered defendant's argument in light of our
review of the record and applicable legal principles. We
affirm.
The facts developed at the suppression hearing can be
summarized as follows. On November 21, 2011, at approximately
2:30 p.m., Carteret Police Officer David Pomales and his
partner, Officer Reyes,3 were patrolling the Roosevelt Village
housing complex in separate vehicles. The officers came upon a
group of three to four people whom Pomales did not recognize
from his substantial experience patrolling the complex for nine
years. The complex had posted signs informing the public that
there was "no trespassing" on the premises. In order to
determine whether the individuals "belong[ed] there," Pomales
and Reyes drove their vehicles from different directions toward
the individuals "to stop the[m]." As the officers approached,
the individuals began to walk away and Reyes called out for them
to stop, but did not pursue the group. Defendant was the only
one to cooperate by acceding to the officer's request.
Reyes began speaking with defendant before Pomales joined
them. When he got to them, Pomales asked defendant where he was
from, explaining that there had been "a lot of trouble with
trespassing" in the area. According to Pomales, he wanted to
ensure defendant was not committing an act of "defiant
trespass." Defendant confirmed that he did not live in the
complex, but indicated that he came "to visit a cousin." At
that point, Pomales would not have allowed defendant to leave
the scene because it became "more of an investigation."
However, if defendant would have given Pomales information to
identify a person with whom he was visiting or doing business,
and Pomales could confirm such information, defendant would have
been free to leave.

Pomales asked defendant to identify his cousin. Defendant
told him "Foofa," but could not provide a "real name" or last
name, and, when asked where "Foofa" lived, defendant only
pointed in the general direction of a building in the complex
without giving an address or apartment number. As a result,
Pomales asked defendant for his identification, which defendant
provided. A warrant check revealed that defendant had "a couple
of [outstanding] warrants." Pomales arrested defendant,
conducted a search of his person, and discovered CDS in
defendant's possession.
After considering Pomales' testimony and the documents
admitted into evidence, the motion judge entered an order
denying defendant's application, setting forth his reasons in a
five-page written decision. According to the judge, the
officers conducted a permissible field inquiry when they stopped
defendant to question him without denying him the "right to
move." The judge relied upon the Supreme Court's decisions in
State v. Maryland, 167 N.J. 471 (2001), State v. Davis, 104 N.J.
490 (1986), and State v. Sheffield, 62 N.J. 441 (1973),
explaining that a field inquiry is less intrusive than an
investigative stop as long as, under "the totality of the
circumstances, a reasonable person would [not] feel that the
police had encroached on his or her freedom to leave" the scene.

Citing State v. Rodriguez, 172 N.J. 117 (2002), the judge
pointed out that "[a] mere request for identification does not
escalate a field inquiry into an investigative stop, provided
the officer asks questions which are not overbearing or
harassing, in a conversational tone, or in a manner that is non
confrontational and non-accusatory." Applying these principles,
the judge found that Pomales' questions "were limited to
questions concerning the reason for [d]efendant's presence in
the 'No Trespassing' area." As to Pomales' stop of defendant,
the judge concluded:
The objective facts support a finding that defendant was free to leave at any time. There is nothing in the record to suggest that either officer engaged in a form of questioning or employed actions designed to harass, embarrass or humiliate [d]efendant. The questioning of [d]efendant was designed to ascertain if he had a legitimate purpose to be in the housing project. There is nothing amiss in that inquiry. Defendant's questioning dealt solely with his right to be in the complex and served that singular and appropriate purpose.
Turning to the search itself, the judge concluded that,
based on defendant's responses to Pomales' questions, the
officer had a "well-grounded suspicion" that defendant was
committing an act of defiant trespass, N.J.S.A. 2C:18-3(b), by
being on the complex's premises. As a result, probable cause
existed to arrest and search defendant.

In his appeal, defendant argues the motion judge
erroneously found that Pomales and Reyes conducted a "field
inquiry" rather than a "Terry stop," and did so without a
reasonable suspicion of defendant having committed a criminal
act. We disagree.
In our review of a motion to suppress, we "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. Mann, 203 N.J. 328, 336 (2010)
(quoting State v. Elders, 192 N.J. 224, 243 (2007)). We give
"deference to those findings of the trial judge which are
substantially influenced by his [or her] opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "A trial
court's findings should be disturbed only if they are so clearly
mistaken 'that the interests of justice demand intervention and
correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
Only in those circumstances "should an appellate court 'appraise
the record as if it were deciding the matter at inception and
make its own findings and conclusions.'" Ibid. (quoting
Johnson, supra, 42 N.J. at 162). However, we need not defer to
a trial court's "'interpretation of the law' because '[l]egal
issues are reviewed de novo.'" State v. Watts, 223 N.J. 503,
516 (2015) (alteration in original) (quoting State v. Vargas,
213 N.J. 301, 327 (2013)).
Under the Fourth Amendment of the United States
Constitution and Article 1, paragraph 7 of the New Jersey
Constitution, "[a] warrantless search is presumed invalid unless
it falls within one of the recognized exceptions to the warrant
requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing
State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of
the warrantless seizure of a person or property. Terry, supra,
392 U.S. at 19-21, 88 S. Ct. at 1879-80, 20 L. Ed. 2d at 904-06
(seizure of a person); State v. Hempele, 120 N.J. 182, 216-17
(1990) (seizure of property).
The seizure of a person occurs in a police encounter if the
facts objectively indicate that "the police conduct would have
communicated to a reasonable person that the person was not free
to decline the officers' requests or otherwise terminate the
encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting
Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389,
115 L. Ed. 2d 389, 402 (1991)). In applying this test, our
courts implement the constitutional guarantee to protect the
"reasonable expectations of citizens to be 'secure in their
persons, houses, papers and effects.'" Id. at 165 (quoting N.J.
Const. art. I, ¶ 7).
The constitutional requirements for a field inquiry and an
investigatory stop are different. A field inquiry "is a limited
form of police investigation that, except for impermissible
reasons such as race, may be conducted without grounds for
suspicion." State v. Daniels, 393 N.J. Super. 476, 484 (App.
Div. 2007) (quoting Rodriguez, supra, 172 N.J. at 126). It is
"the least intrusive encounter, and occurs when a police officer
approaches an individual and asks 'if [the person] is willing to
answer some questions.'" State v. Pineiro, 181 N.J. 13, 20
(2004) (alteration in original) (quoting State v. Nishina, 175
N.J. 502, 510 (2003)). A field inquiry is permissible "[s]o
long as the questioning 'is not harassing, overbearing, or
accusatory in nature.'" State v. Gibson, 218 N.J. 277, 291
(2014) (quoting Nishina, supra, 175 N.J. at 510). During such a
field inquiry, "[t]he person approached . . . need not answer
any question put to him [or her]; indeed, he [or she] may
decline to listen to the questions at all and may go on his [or
her] way." Maryland, supra, 167 N.J. at 483 (quoting Florida v.
Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d
229, 236 (1983)).

"A key distinction between a field inquiry and an
investigative stop is whether, considering the totality of the
circumstances, a reasonable person would feel that the police
had encroached on his or her freedom to leave." Daniels, supra,
393 N.J. Super. at 484. For instance, "a mere request for
identification does not escalate a field inquiry into an
investigative stop, provided the officer asks questions which
are not overbearing or harassing, in a conversational tone, or
in a manner that is non-confrontational and non-accusatory."
Ibid. (citing Rodriguez, supra, 172 N.J. at 126).
In upholding the appropriateness of a field inquiry under
similar circumstances in Daniels, we observed:
The questioning of defendant was designed to ascertain if he had a legitimate purpose to be in the housing project. We discern nothing amiss in that inquiry. . . . Defendant's questioning dealt solely with his right to be in the complex and, as results would prove, served that singular and appropriate purpose.
[Id. at 485 (citations omitted).]
An investigatory stop, unlike a field inquiry, is
characterized by a detention in which the person approached by a
police officer would not reasonably feel free to leave, even
though the encounter falls short of a formal arrest. State v.
Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392
U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The
Terry exception to the warrant requirement permits a police
officer to detain an individual for a brief period, and to pat
him or her 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." Rodriquez, supra, 172 N.J. at
126 (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20
L. Ed. 2d at 906). Under this well-established standard, "[a]n
investigatory stop is valid only if the officer has a
'particularized suspicion' based upon an objective observation
that the person stopped has been [engaged] or is about to engage
in criminal wrongdoing." Davis, supra, 104 N.J. at 504.
Applying these principles, we agree that defendant's
encounter with Pomales and Reyes amounted to no more than a
field inquiry, for the reasons expressed by the judge and the
court in Daniels:
There is nothing in the record to suggest that either officer engaged in a form of questioning or employed actions designed to harass, embarrass or humiliate defendant. Additionally, there is nothing in the record to suggest that the officers' actions were pretextual in nature or design. The judge's finding that this was initially a field inquiry is supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).[4]

[Daniels, supra, 393 N.J. Super. at 484-85.]
We reach that conclusion despite the officer's subjective
belief that the encounter escalated to an investigatory stop
once defendant failed to provide useful information about either
the identity or location of his cousin. See Tucker, supra, 136
N.J. at 165-66 ("[A]nalysis of whether citizens are 'secure in
their persons' depends on an objective analysis of all the
circumstances of their encounter."). Also, we find no merit to
defendant's contentions that the officers conducted an
investigatory stop by using their vehicles in an attempt to
surround the suspicious individuals and by failing to further
investigate the alleged cousin's whereabouts within the complex.5
(continued) not having been called as a witness to be without sufficient merit to warrant discussion in a written opinion. R. 2:113(e)(2). Suffice it to say, the record is devoid of any evidence that Reyes said or did anything to elevate the nature of defendant's encounter to a Terry stop, and defendant's arguments to the contrary are based on pure conjecture and speculation.
5 In Daniels, we rejected a similar argument raised by the defendant as part of his challenge to the trial court's finding of probable cause to arrest. We stated:
[D]efendant contends that his answers did not provide probable cause to arrest him for defiant trespass. Somewhat ironically, defendant argues that because his answers were so evasive, there could have been no way for the officers to ascertain whether he (continued)

A-5199-13T2 12
The evidence seized from defendant was the result of his arrest
for outstanding warrants that were discovered after he provided
information about his identity in response to Pomales' field
inquiry, see Immigration & Naturalization Serv. v. Delgado, 466
U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255
(1984) ("[I]nterrogation relating to one's identity or a request
for identification by the police does not, by itself, constitute
a Fourth Amendment seizure."),[6] and was not the result of the
(continued) was lawfully there. Therefore, defendant submits that the police could not have had probable cause to arrest him without first conducting their own independent investigation. However, defendant relies on a misreading of the factually inapposite [State ex rel.] J.M., 339 N.J. Super. 244 (App. Div. 2001), to support his argument that the burden was on the officers to prove, through independent investigation, that the non-resident defendant was a trespasser. Additionally, defendant's argument would seemingly reward his failure to cooperate with the police and provide an insurmountable bar for law enforcement to overcome when trying to arrest a person for trespass.
[Id. at 485.]
6 "While most citizens will respond to a police request, the fact that people do so, and do so even without being told that they are free not to respond, hardly eliminates the consensual nature of the response." State v. Sirianni, 347 N.J. Super. 382, 389 (App. Div.) (quoting State v. Hickman, 335 N.J. Super. 623, 635 (App. Div. 2000)), certif. denied, 172 N.J. 178 (2002).

A-5199-13T2 13
officer having insinuated that defendant might be in possession
of contraband, which would have escalated the field inquiry into
a Terry stop.7 See, e.g., State v. Costa, 327 N.J. Super. 22, 31
(App. Div. 1999) (finding an officer's questions asking the
defendant "what are you doing" and "[a]re you doing something
that you're not supposed to be doing out here" converted a field
inquiry into a Terry stop); State v. Contreras, 326 N.J. Super.
528, 540, (App. Div. 1999) (asking the defendants whether they
were in possession of contraband escalated field inquiry into an
investigative detention); State ex rel. J.G., 320 N.J. Super.
21, 31-32 (App. Div. 1999) (asking juvenile if there was
"anything on him that he shouldn't have" converted field inquiry
into a Terry stop).

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: