Suppression granted where no furtive movements and merely being fixated no grounds for search
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISMAEL MOJICA,
Defendant-Appellant.
_______________________________
Submitted February 28, 2018 – Decided March 22, 2018
Before Judges Fuentes and Suter.NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-2411-16T3
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 16-
02-0579.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Lauren Bonfiglio, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Ismael Mojica appeals from the October 25, 2016
Judgment of Conviction, following his guilty plea under Indictment
16-02-0579 to unlawful possession of a weapon (handgun). He
alleges the trial court erred by denying his earlier motion to
suppress evidence of a handgun. We conclude the suppression motion
should have been granted. We reverse the order denying suppression
and defendant's conviction under Indictment 16-02-0579.
In 2016, defendant was indicted for second-degree unlawful
possession of a weapon (handgun),
N.J.S.A. 2C:39-5(b) (Count One);
and fourth-degree possession of hollow point bullets,
N.J.S.A.
2C:39-3(f) (Count Two). Following denial of his motion to suppress
the handgun, defendant pled guilty to Count One. Count Two was
dismissed.1 Defendant was sentenced to a five-year term of
imprisonment with a forty-two month period of parole
ineligibility.
We gather the following facts from the record developed at
the suppression motion.
On October 15, 2015 at about eight p.m., Detective Adolpho
Furtado of the Newark Police Department received an anonymous
"Crime Stopper" hotline tip that a man near a liquor store at the
intersection of Hartford and Norfolk in Newark was in possession
1
On the same day, defendant also pled guilty to charges in three
unrelated indictments, 15-10-2280, 15-12-2972 and 16-04-1136. He
was sentenced to three-year terms on each indictment to run
concurrently with the unlawful weapons offense. Another
indictment, 16-02-0528, was dismissed. Our decision here on the
unlawful weapons offense does not affect his plea on the other
unrelated indictments.
2 A-2411-16T3
of a handgun. The person was described as a black male, "wearing
gray sweat pants with a white and grey hoodie." Crime Stopper
hotline tips are not recorded. Detective Furtado relayed the tip
to a sergeant who was on patrol in the area.
According to the testimony of Detective Turon Hinnant, also
of the Newark Police Department, Detective Villette was conducting
surveillance on the location. There were between five and eight
males standing in front of a building at Norfolk Street. A number
of officers in vehicles approached the individuals who were
outside. Those individuals were told to "put their hands out and
lay down on the ground."
Hinnant testified that Villette observed a person, who fit
the general description, leaving the liquor store, walk over to
and enter a white Buick that was parked outside the Norfolk Street
property. Along with another detective, Detective Hinnant
approached the driver's side window of the white car parked near
the building and observed defendant "looking over his right
shoulder towards the sidewalk where the other detectives were
engaging with the five to eight males." He testified that while
defendant was "fixated on what they were doing, [defendant] put
an object into his right coat pocket." Hinnant demonstrated this
by making a motion toward his waistband area. Hinnant "believed
[defendant] was trying to conceal a weapon." He opened the car
3 A-2411-16T3
door, to defendant's surprise, and grabbed "towards the right
pocket." Hinnant felt a metal object that he believed was a gun.
He held onto the object, and asked defendant to step out of the
car. Once outside, Hinnant reached inside defendant's pocket and
found a handgun that was loaded with hollow point bullets.
Defendant was arrested. He was wearing a "[b]lack coat, white
shirt, grey sweat pants."
Defendant testified that he stopped at a grocery store, not
a liquor store, where he purchased "snacks and soda." He parked
on the street. When he got back into his car, he was speaking
with a friend who was a passenger. Then "[c]ars surrounded the
area" and he was not able to move out. He testified an officer
approached the car and told him to "step out." Defendant opened
the door and did so. He denied that the officer reached in the
car. The officers searched him.
The trial judge denied defendant's motion to suppress,
finding the facts were not in dispute. Although the parties agreed
an anonymous tip alone could not support a warrantless search, the
court found the State had "overcome the hurdle in providing
additional information as it relates to the tip, including the
hour of the day, a location, the clothing, the car, and the
activity." The court found defendant's "action" of "making contact
with a pocket" gave the officer "pause for his protection at that
4 A-2411-16T3
point" and "justifie[d] the officer at least searching that area
. . . . for his protection."
On appeal, defendant raises the issue that
LAW ENFORCEMENT CONDUCTED A SEIZURE AND SEARCH
OF MR. MOJICA WITHOUT REASONABLE SUSPICION
THAT HE WAS ARMED AND, THEREFORE, THE FRUITS
OF THE SUBSEQUENT SEARCH MUST BE SUPPRESSED.
U.S. CONST. AMENDS IV AND XIV; N.J. CONST.
ART. I, PAR. 7.
Our review of the denial of a suppression motion is limited.
State v. Handy,
206 N.J. 39, 44 (2011). "When reviewing a trial
court's decision to grant or deny a suppression motion, [we] 'must
defer to the factual findings of the trial court so long as those
findings are supported by sufficient evidence in the record.'"
State v. Dunbar,
229 N.J. 521, 538 (2017) (quoting State v.
Hubbard,
222 N.J. 249, 262 (2015)). "We will set aside a trial
court's findings of fact only when such findings 'are clearly
mistaken.'" Ibid. (quoting Hubbard,
222 N.J. at 262). "We accord
no deference, however, to a trial court's interpretation of law,
which we review de novo." Ibid. (quoting State v. Hathaway,
222 N.J. 453, 467 (2015)).
Our legal analysis will be guided by the motion judge's
factual findings. However, whether the police had a reasonable,
articulable basis to detain and search defendant is a legal
question, not a factual one, to which we owe no deference.
5 A-2411-16T3
Both the Federal and State constitutions protect citizens
against unreasonable searches and seizures. U.S. Const. amend.
IV; N.J. Const. art. I, ¶ 7. An investigatory stop, sometimes
referred to as a Terry2 stop, implicates constitutional
requirements and must be based on "specific and articulable facts
which, taken together with rational inferences from those facts"
provide a "reasonable suspicion of criminal activity." State v.
Elders,
192 N.J. 224, 247 (2007) (quoting State v. Rodriquez,
172 N.J. 117, 126 (2002)). "Because an investigative detention is a
temporary seizure that restricts a person's movement, it must be
based on an officer's 'reasonable and particularized suspicion
. . . that an individual has just engaged in, or was about to
engage in, criminal activity.'" State v. Rosario,
229 N.J. 263,
272 (2017) (quoting State v. Stovall,
170 N.J. 346, 356 (2002)).
The officer's "articulable reasons" or "particularized suspicion"
is based on the officer's assessment of the totality of the
circumstances. State v. Davis,
104 N.J. 490, 504 (1986).
Here, the stop was based, in part, on information relayed to
the police by an anonymous tip. "In determining the reliability
of a tip, a court must consider an informant's 'veracity,'
'reliability,' and 'basis of knowledge.'" Stovall,
170 N.J. at
2
Terry v. Ohio,
392 U.S. 1 (1968).
6 A-2411-16T3
362 (quoting Alabama v. White,
496 U.S. 325, 328-29 (1990)). To
determine the informant's "basis of knowledge", "the nature and
details revealed in the tip may imply" that the knowledge of the
criminal activity comes from a "trustworthy source." Stovall,
170 N.J. at 362. "In determining whether reasonable suspicion exists,
a court must consider 'the totality of the circumstances- the
whole picture.'" Id. at 361 (quoting United States v. Cortez,
449 U.S. 411, 417 (1981)). The reliability of the tip is part of the
totality of the circumstances analysis. Id. at 361-62. Generally,
an anonymous tip is not sufficient alone to justify a stop because
it lacks, veracity, reliability and a basis of knowledge. State
v. Matthews,
398 N.J. Super. 551, 559 (App. Div. 2008).
The State contends the Crime Stopper's tip was verified
because a person matching the description was found at the location
indicated. Those facts verified a portion of the information, but
did not verify the assertion of illegality. For that, the State
contends that it was nighttime, defendant was "fixated" on the
police activity and defendant made a furtive gesture by moving
something to his pocket.
These combination of factors do not provide a reasonable
articulable basis for the stop and seizure. In Florida v. J.L.,
529 U.S. 266 (2000), the police received an anonymous tip that a
person at a specific location and dressed in a plaid shirt had a
7 A-2411-16T3
gun. The police saw a person matching the description at the
location, but did not "see a firearm, and J.L. made no threatening
or otherwise unusual movements." Id. at 268. The police told
J.L. to put up his hands and frisked him, finding a gun. The
Supreme Court found there were not reasonable grounds to stop and
frisk J.L. because the anonymous tip, without more, was not
"reliable in its assertion of illegality." Id. at 272.
Our courts have held that an anonymous tip without more "is
rarely sufficient to establish a reasonable articulable suspicion
of criminal activity." Rodriquez,
172 N.J. at 127 (citing Alabama,
496 U.S. at 329.). "To justify action based on an anonymous tip,
the police in the typical case must verify that the tip is reliable
by some independent corroborative effort." Id. at 127 (citing
Alabama,
496 U.S. at 329-30). In Rodriguez, the Court found "that
the officers lacked a sufficient basis to detain defendant" where
the stop was "based solely on information furnished by an anonymous
informant who provided no explanation or basis of knowledge for
that information." Id. at 132-33.
In State v. Privott,
203 N.J. 16, 28-30 (2010), the Court
upheld an investigatory stop and frisk based on an anonymous tip
combined with the officer's knowledge about the defendant from a
prior narcotics arrest. This included the officer's awareness
that "defendant was associated with violent gangs that were
8 A-2411-16T3
responsible for recent shootings in the area," defendant appeared
to be nervous, tried to walk away and then "made a movement of his
hand to his waistband." Id. at 28-29.
By contrast, in State v. Richards,
351 N.J. Super. 289, 308
(App. Div. 2002), the arrest was made in an area that was not a
high crime or high drug area, the defendant made no furtive
movements, did not act nervously, was using a pay phone, was not
known to the police and when stopped, simply stood "quiet in the
face of police presence." Id. at 306. In this light, we held
that the circumstances "did not establish a reasonable suspicion
that defendant was armed and dangerous justifying the Terry stop."
Id. at 308. See also Matthews,
398 N.J. Super. at 559 (invaliding
search based solely on unidentified anonymous tip).
Here, there was nothing unusual about leaving a store at
eight o'clock at night, observing police activity occurring right
outside one's car, and then reaching into one's pocket while seated
in the car. The officers did not testify that they knew defendant,
or that this was a high crime area. Defendant had not committed
a motor vehicle violation. He did not attempt to flee. The police
did not testify that he was acting nervously or suspiciously. He
was at best "fixated" on the nearby police activity and then made
a singular movement of his hand to his pocket. "[A]n officer's
safety concerns based on [these ostensibly] asserted 'furtive'
9 A-2411-16T3
movements by defendant cannot provide reasonable and articulable
suspicion to support a detention in the first instance." Rosario,
229 N.J. at 277. On this record, the totality of the circumstances
lacked an objectively reasonable articulable basis for the
investigatory stop of defendant and seizure of the weapon.
We are constrained to reverse the order denying suppression
of the evidence of the handgun under Indictment 16-02-0579. We
remand the case for further proceeding under that indictment. Our
decision does not affect defendant's guilty pleas or sentencing
under indictments 15-10-2280, 15-12-2972 or 16-04-1136.
Reversed and remanded.
10 A-2411-16T3
