STATE OF NEW JERSEY VS. JABIR T. TAYLOR

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).

Affirmed.