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Date: 03-07-2017

Case Style:


Case Number: A-4773-14T2

Judge: George S. Leone


Plaintiff's Attorney:

James P. McClain, Atlantic County Prosecutor, Mario C. Formica, Chief Assistant Prosecutor

Defendant's Attorney:

Joseph E. Krakora, Public Defender, Jay L. Wilensky, Assistant Deputy Public Defender

Description: At the suppression hearing, police officer Brian Hambrecht
testified as follows. During the afternoon of March 4, 2014, he
and fellow officer Nicholas Berardis were on patrol in a high
crime area of Atlantic City. Both officers were in a marked
police car and in uniform. Hambrecht noticed a man, later
identified as defendant, walking down the sidewalk. After
looking over at the patrol car, defendant bent over, "clinched"
his chest, and appeared to be choking or dry heaving.
Concerned for his well-being, Hambrecht stopped the patrol
car and asked defendant, who was on the opposite sidewalk, if he
needed medical attention. Defendant did not respond. When
Hambrecht repeated his question, defendant replied he had been
choking on a cigarette.
Defendant then abruptly stood up and quickly walked down
the sidewalk. As he did so, he "bladed"1 his body away from the
patrol car, held his right hand against his jacket in the area
of his waist, and continuously looked over his right shoulder at
the patrol car. Hambrecht then noticed there was a large bulge
on the right side of defendant's jacket. Defendant gripped the
bulge with his right hand, while his left hand was "swinging" as
he walked.
The officers were suspicious defendant was concealing a
firearm. Officer Berardis jumped out of the patrol car and
instructed defendant to stop. Defendant turned around, looked
at Berardis, adjusted his waistband, and ran. Berardis ran
after defendant, and managed to catch up to him and bring him to
the ground. Hambrecht exited the patrol car and assisted in
placing defendant into custody.
When searched, the police discovered defendant was carrying
a loaded, approximately two-foot-long, semi-automatic rifle.
The barrel was tucked into defendant's pants, and the rest of
the rifle extended up the right side of his body over his
clothes but under his jacket. The police also noticed
defendant's left forearm was wrapped in an ace bandage. They
subsequently learned defendant had fractured his arm
approximately nine weeks before.
Berardis's testimony was consistent with Hambrecht's. He,
too, believed defendant was concealing a weapon because, after
defendant recovered from what caused him to bend over, Berardis
could see a bulge in defendant's jacket after he stood up and
walked away. Berardis also noticed defendant clutched the right
side of his body, bladed his body away from the police, and
continuously looked over his shoulder at them as we walked away
from them at a fast pace. When Berardis got out of the patrol
car and ordered him to stop, defendant ran.
Berardis added that, as defendant was running away, he gave
defendant additional orders to stop, but to no avail. Defendant
looked back at Berardis as he ran, and, at one point when
defendant turned, Berardis noticed a large-capacity magazine
protruding out from the bottom of defendant's jacket. After
Berardis caught up to and brought defendant to the ground, he
discovered defendant had a high-powered, semi-automatic rifle in
his possession; attached to the rifle was a high-capacity
Defendant also testified. He admitted he was carrying a
loaded, concealed rifle for which he did not have a permit. He
was afraid the police might find the weapon in his home and was
moving it to another location when stopped by the police.
Defendant claimed he did not do anything to attract the police
officers' attention.
Specifically, he maintained he never appeared to require
medical attention, and the weapon was concealed in such a way
that no part of the rifle should have alerted the police he was
carrying a weapon. Finally, he claimed he had fractured his
left forearm nine weeks before and was still wearing a hard
splint on his left arm. He asserted he could not have been
swinging his left arm as he walked because the splint extended
above his elbow and restricted his movements.
According to defendant, the officers slowly drove down the
street, staying parallel to him as he walked down the sidewalk,
and stared at him. When defendant inquired what it was the
police wanted, they asked him what he was doing. Defendant
replied he was smoking a cigarette, and kept walking. The
police continued to creep alongside him in the patrol car as
defendant walked down the sidewalk. Then, when the passenger
door of the patrol car opened, defendant crossed the street and
ran down the sidewalk. However, Berardis caught up to and
tackled defendant to the ground.
The trial court credited the police officers' testimony,
rejecting and characterizing as "patently incredible"
defendant's assertion a full-sized, semi-automatic weapon that
was partly inserted into his pants was not readily observable.
The court concluded that, because the officers had a reasonable,
articulable suspicion defendant was illegally concealing a
firearm, they were justified in conducting an investigatory
Further, the trial court found that, when defendant failed
to abide by Berardis's command to stop and instead fled, there
was probable cause to arrest defendant both for weapons offenses
and obstruction. During a search incident to that arrest, the
police found the weapon defendant sought to suppress. Because
the evidence was seized pursuant to a lawful arrest and search,
the trial court denied defendant's suppression motion.
Defendant makes the following argument on appeal:

Defendant concedes if the investigatory stop was
constitutionally valid, the subsequent search and seizure of the
weapon incident to his arrest was also legitimate. However, for
the following reasons, defendant contends the trial court erred
when it found the investigatory stop valid.
First, defendant contends all of the officers' testimony
should have been discredited, because it was not credible
defendant's left arm was "swinging" when the splint precluded
such movement. Second, defendant asserts he had a right to
ignore the officers' questions during the field inquiry about
his well-being. Third, he claims none of the officers' actions
can be justified under the community-caretaking doctrine, see
State v. Cassidy, 179 N.J. 150, 161 (2004), because defendant
was free to reject medical assistance.
In short, defendant argues the officers merely conducted a
field inquiry or engaged in an act under the community
caretaking doctrine and neither act justified a search and
seizure of the weapon. Defendant's arguments miss the mark.
The police did not engage in a search and seizure while
conducting a field inquiry or providing care under the community
caretaking doctrine. Defendant fails to address the fact the
police could search defendant to protect themselves and as part
of a search incident to an arrest.
"Appellate review of a motion judge's factual findings in a
suppression hearing is highly deferential." State v. Gonzales,
227 N.J. 77, 101 (2016). "[A]n appellate court reviewing 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. Rockford, 213 N.J. 424, 440 (2013) (quoting State v.
Robinson, 200 N.J. 1, 15 (2009) (alteration in original)).
"Thus, appellate courts should reverse only when the trial
court's determination is 'so clearly mistaken "that the
interests of justice demand intervention and correction."'"
State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v.
Elders, 192 N.J. 224, 244 (2007)).
"[U]nder both the Fourth Amendment to the United States
Constitution and Article I, Paragraph 7 of our State
Constitution, searches and seizures conducted without warrants
issued upon probable cause are presumptively unreasonable and
therefore invalid." Elders, supra, 192 N.J. at 246. "[T]he
State bears the burden of proving by a preponderance of the
evidence that a warrantless search or seizure 'falls within one
of the few well-delineated exceptions to the warrant
requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13,
19-20 (2004)).
Here, the trial court explicitly found the officers'
testimony more credible than defendant's in the "very few
instances where the officers' and [d]efendant's recollection of
events diverged." We accept, as we must, the officers' account
of what occurred. Moreover, the difference between the
officers' and defendant's testimony about the extent to which he
could move his left arm or whether it appeared he needed medical
assistance is immaterial. In the final analysis, the issue is
whether there was a lawful investigatory stop and a search
conducted for the officers' protection during that stop, or
whether there was a search incident to an arrest.

Here, the totality of the circumstances gave rise to
reasonable suspicion justifying an investigatory stop. An
investigatory stop, otherwise known as a Terry stop,2 "is valid
if it 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." State v. Mann,
203 N.J. 328, 338 (2010) (quoting Pineiro, supra, 181 N.J. at
20). "The totality of the circumstances must be considered in
evaluating whether an officer had a reasonable suspicion to
conduct a brief investigatory stop. An officer's experience and
knowledge are factors courts should consider in applying the
totality of the circumstances test." Pineiro, supra, 181 N.J.
at 22 (citation omitted).
Here, reasonable suspicion defendant was illegally carrying
a firearm was manifest. First, both officers saw a bulge under
defendant's jacket, which defendant was gripping as he walked
and then ran from the police after Berardis ordered him to stop.
"The bulge . . . permitted the officer to conclude that
[defendant] was armed and thus posed a serious and present
danger to the safety of the officer." Pennsylvania v. Mimms,
434 U.S. 106, 112, 98 S. Ct. 330, 334, 54 L. Ed. 2d 331, 338

Second, the concern defendant might be carrying a firearm
was amplified by his movements, which suggested he was
concealing something from the officers. He stood up abruptly,
quickly walked away, and turned his body away from the officers.
Thus, based on the totality of the circumstances, there were
specific and particularized reasons to conduct an investigatory
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 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." Id. at 30, 88 S.Ct. at 1885, 20 L. Ed. 2d
at 911.
Here, given the bulge and the magazine that was in full
view, the officers clearly were "authorized to take such steps
as were reasonably necessary to protect their personal safety
and to maintain the status quo during the course of the stop."
United States v. Hensley, 469 U.S. 221, 235, 105 S. Ct. 675,
683-84, 83 L. Ed. 2d 604, 616 (1985). "Indeed, a bulge alone
has been held sufficient to validate a protective pat-down."

A-4773-14T2 11

State v. Smith, 134 N.J. 599, 621 (1994). Thus, removing the
rifle from defendant's possession was reasonable to protect the
officers' safety.
More importantly, the officers could seize the firearm as
part of a search incident to arrest. After Berardis ordered
defendant to stop, defendant looked at Berardis, adjusted his
waistband, and ran, adding to the suspicion that he was carrying
a firearm. That was confirmed when Berardis saw a large
capacity magazine sticking out of defendant's jacket. At this
point, Berardis plainly had probably cause to arrest defendant
for unlawfully carrying a firearm and an illegal large-capacity
magazine. See N.J.S.A. 2C:39-3(j), -5(b). Police officers are
permitted to search an individual incident to an arrest. See
State v. Moore, 181 N.J. 40, 45 (2004). That was itself
sufficient basis to search defendant and seize the gun.
Moreover, a person who flees from an investigatory stop may
be convicted of obstruction under N.J.S.A. 2C:29-1, even if 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). Here, defendant was
arrested and charged with N.J.S.A. 2C:29-1. Even if the
magazine was not evident, the police would have been authorized
to search defendant incident to arrest for obstruction, and this
weapon would have been discovered. Accordingly, the trial court
properly denied defendant's motion to suppress.


To the extent any arguments defendant raised have not been explicitly addressed in this opinion, it is because we are
satisfied the arguments lack sufficient merit to warrant
discussion in a written opinion.

Plaintiff's Experts:

Defendant's Experts:


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