Appellate review of trial court determination
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
14-2-8702 State v. Thorpe , App. Div. (per curiam) (11 pp.) This is an important case addressing the need by the police to independently verify information received from an anonymous caller to establish their own probable cause for the search, arrest and eventual charging of a criminal defendant. This court outlines the Appellate Court’s standard of review of the trial court’s finds of fact and its own legal conclusions.
The key facts are as follows:
The State presented one witness at the suppression hearing. Trenton police officer Jamar Booker testified he and his partner, Officer Vito Renna, were patrolling in a marked police car on the night they arrested defendant. They were dispatched to Martin Luther King Boulevard and Rossell Avenue at approximately ten o’clock in response to an anonymous call reporting “a black male with a gun standing next to a silver automobile.” The dispatcher gave no other information to the officers about the man with the gun, such as a name or description, and Officer Booker knew nothing about the caller’s reliability. He did not even know if the caller had personally observed a man with a gun.
According to Officer Booker, the neighborhood at Martin Luther King Boulevard and Rossell Avenue is a residential, high crime area. It was not unusual for people to be out of their homes at ten o’clock at night. The street and sidewalk were illuminated by a nearby street light, and the officers activated a white, sidebar light on the patrol car. It was not raining.
When the officers arrived, Officer Booker saw four black males standing on the sidewalk near the house on the corner. A silver vehicle was parked in front of the second house from the corner. The officer saw no weapons and saw no outline of a weapon in the men’s clothing.
Officer Booker exited the patrol car’s passenger side and approached one of the men, Alphonso Clark, whom he recognized from past arrests. The officer explained he was “drawn to him because he was the first individual that I accosted coming out of my vehicle.” Officer Booker “went to actually grab him and place him in a pat frisk position,” but diverted his attention to a second black male, defendant, when he saw defendant “reach for his waistband, and that’s an area we know in law enforcement where guns are concealed.” Officer Booker described how defendant reached into his waistband and then pulled his sweatshirt “over top of his waistband as if to conceal something.” Based on his training and experience, as well as the content of the dispatch, the officer believed defendant was concealing a firearm. for his safety, Officer Booker immediately approached [defendant]. I went to put him in [a] pat frisk position and reached for the waistband where I saw him reach, and he actually reached. I put my hand on top of his, removed it and I reached again and felt the bulge.
Officer Booker pulled back defendant’s hand, removed 40 caliber Smith and Wesson semi-automatic handgun, arrested defendant, and secured the weapon. When Officer Booker finished testifying, the State rested. Defendant presented two witnesses: Lucy Johnson and Curtis Burnett. Lucy Johnson, an investigator for defendant, took photographs and measurements of the intersection and surrounding area. Burnett testified that he, defendant, and Alphonso Clark were eating in front of the house on the corner of Martin Luther King Boulevard and Rossell Avenue; a man who stayed there cooked shrimp, fish, and chicken, and “a lot of people [were] standing around getting food and eating it.” He, defendant and Clark were sitting on the porch when the police arrived.
Burnett gave the following account of defendant’s arrest: Fearing a loaded When they came down the street, they didn’t have no sirens on, no headlights. They just whipped up and told us, one of you all got a gun on you all. The other one jumped out, came around. He told me and the other guy turn around. Booker grabbed [defendant]. The other cop told us turn around a face the wall. We turned around, faced the wall. He told him, you can let them two go, we got who we want. And we went walking off. When Officer Booker, Burnett said, “somewhat.” Burnett did not see defendant reach for his waistband. Burnett explained: “The cops whipped up. They told us put our hands up, and they grabbed [defendant], and told us to turn around.” According to Burnett, defendant put up his hands when told to do so by the officers.
When reviewing a trial court’s decision to grant or deny a motion to suppress evidence, 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. Handy, 206 N.J. 39, 44 (2011) (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 [the] opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.” State v. Johnson, 42 N.J. 146, 161 (1964). Our review of a trial court’s legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.