Heightened Attention from Police – State v. Moss, A-1080-11T2 (App. Div.)

State v. Moss, A-1080-11T2 (App. Div.)

On March 21, 2013, the Appellate Division affirmed the denial of the defendant’s suppression motion. On May 9, 2009, police were traveling in an unmarked car in an area of high crime and narcotic activity. The officers were wearing the modified uniform consisting of jeans, a t-shirt with police markings and a police badge around the neck. The officers observed individuals with prior arrests, one of which was the defendant. As the police car approached, the defendant acted startled and moved his right hand to his waistband. The police asked the defendant if he would approach the police to talk, at which point the defendant said no while backing up to the door of a house. Throughout the exchange with police, the defendant kept his right hand on the same position of his waistband. Police followed the defendant onto the porch, observed him throw a handgun from his waistband, detained the defendant and retrieved the handgun filled with 10 rounds.

At trial the defendant’s motion to suppress the handgun as evidence was denied because the trial judge found the police conducted a “Terry stop.” See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The trial judge found the arresting police officer to be highly credible, and his initial conversation with the defendant was a “field inquiry,” leading to the “Terry stop.” Based on the behavior of the defendant when the police talked to him, the arresting officer was justified in investigating further. The defendant’s holding of his waistband provided the arresting officer “specific and particularized” reason to believe the defendant was armed. See State v. Privott, 203, N.J. 29 (2010). The arresting officer properly recovered the handgun after the defendant abandoned the handgun and left the handgun in plain view.

On appeal, the criminal defense counsel argued the trial court erred in denying the suppression motion and the police required a warrant to seize the handgun dropped in the defendant’s home. The Appellate Division affirmed the trial court in applying the plain view doctrine to the handgun seizure. Based on the totality of the circumstances, the arresting officer had adequate suspicion to perform a “Terry stop.” The defendant’s behavior invited the heightened attention from the police and then they observed in plain view the defendant discarding the handgun. See State v. Johnson, 171 N.J. 192, 207 (2002). The take away is that police are justified in detaining an individual based on their behavior, when the behavior provides the officer specific and particularized reason to suspect criminal activity.

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