Suppression of Evidence from a police “Terry Stop” due to a violation of a municipal ordinance (Curfew Violation)

State v. Welch New Jersey Appellate Division (Unreported Decision November 7, 2018)

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In this case the police approach a defendant who is alleged to have violated a curfew issued from Hurricane Sandy.  The facts are as follows:

1) Officer Calleja testified that in the bright moonlight, aided by the patrol vehicle’s headlights, he saw defendant about to step onto a sidewalk while holding a beer can in his right hand.

2) Calleja got out of the vehicle, approached defendant with his flashlight on, and told him to stop.

3) Defendant threw the beer can away and began to walk down a driveway from the sidewalk into the yard.

4) After Calleja yelled “stop, police,” defendant began to run.

5) Calleja gave chase and eventually stopped defendant, followed by Bizub and Burnette. 6) Calleja wrapped his arms around defendant, who struggled and repeatedly tried to reach into his front jacket pocket.

6) Three men came into the yard while Calleja wrestled with defendant and yelled at the officers as well as defendant.

7) Once defendant was handcuffed, Bizub began to yell, “gun.”

8) Calleja looked down and saw a handgun magazine on the ground.

9) Burnette searched defendant while Calleja held him, and Calleja saw Burnette pull a 9mm Ruger out of the left side of defendant’s jacket.

10) A childhood acquaintance and friend of defendant, Anthony Kinch, testified to the contrary.

11) He said he placed a flare light in front of his home and was outside around 10:00 p.m. on the relevant date.

12) An officer instructed Kinch and his companions to go inside because of the statewide curfew, and he complied.

13) Since he had gone back in, Kinch did not see defendant again until about ten minutes later, in a neighbor’s back yard.

14) Kinch said he saw two officers follow defendant and tackle him to the ground.

15) The officers took defendant to three different spots in the back yard, and one of them picked up a handgun in an area about 200 feet from where defendant had been standing.

At the law division motion to suppress the court ruled:

During the suppression hearing, only Calleja testified. A Law Division judge denied the motion, finding Calleja a “completely credible[]” witness. She held, applying Terry v. Ohio, 392 U.S. 1, 27 (1968), that the initial investigatory stop was lawful because the officers reasonably believed that defendant had violated the municipal ordinance prohibiting the consumption of alcohol in public places. Under State v. Nishina, 175 N.J. 502, 512-14 (2003), police may lawfully approach a person to address a municipal ordinance violation. Once the officer attempted to speak to defendant and he fled, the officer had a right to follow and detain him. Once police saw the loaded magazine on the ground beneath defendant, they had the right to arrest, and to search incident to the arrest.

Appellate court’s review of the trial judge’s decision for a motion to suppress:

It is well-established that “[a]ppellate courts reviewing a grant or denial of 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. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We defer “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, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nor do we disturb the trial court’s findings merely because we “might have reached a different conclusion . . . .” Ibid.

New Jersey’s case law addressing a police observation of the violation of a municipal ordinance:

Both the United States and New Jersey Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I,  7. Warrantless searches and seizures are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). The State carries the burden to prove that the warrantless conduct fell within a valid exception to the warrant requirement. State v. DeLuca, 168 N.J. 626, 632 (2001).

A stop based upon the belief that a municipal ordinance was violated is recognized as a valid stop. Nishina, 175 N.J. at 512-14. Those stopped by police, even if a court later determines that the stop was invalid, are not permitted to flee or to resist. State v. Crawley, 187 N.J. 440, 458 (2006). There is no “distinction between fleeing from an arrest and fleeing from an investigatory detention.” Id. at 459.

Probable cause to arrest exists “if at the time of the police action there is a ‘well grounded’ suspicion that a crime has been or is being committed.” State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). Probable cause existed in this case because defendant fled, having been seen violating the State curfew and the municipal ordinance, and after being ordered to stop.

Defendant contends that Calleja’s stop “was not a lawful stop because it was not credible that the police officer, in . . . darkness, could see the person with a beer can and identify the man walking as defendant.” Defendant also maintains that “[e]ven if this was defendant, the evidence did not prove that defendant was on public property with the beer can; the proofs showed that defendant was on private property . . . .” Defendant’s challenge to the court’s denial of the motion to suppress depends on his claim that Calleja was not credible. However, the court’s finding that Calleja was credible is supported by the record and is entitled to deference. Between the moonlight and the vehicle headlights, it is credible that Calleja saw a man holding a silver beer can a few feet away in the darkness post-Sandy, in violation of the curfew. As the judge found, at the time Calleja attempted to detain defendant, he had more than a well-grounded suspicion that an offense had been committed. See Johnson, 171 N.J. at 214. Defendant’s argument that he was drinking on private property also fails since in this case the judge found Calleja credible, and Calleja saw defendant crossing the street. Defendant’s reliance on State v. Gibson, 218 N.J. 277 (2014), lacks merit as well. In Gibson, a defendant was stopped only because he was observed trespassing, in the officer’s opinion, on private property. Id. at 297-98. Here, Calleja saw defendant violating curfew and holding an open container of alcohol while crossing a street. Gibson is therefore factually distinguishable from this situation. Gibson was not committing any offense while this defendant was violating a state curfew and a municipal ordinance, and fled when ordered to stop.

The attempted investigatory stop of defendant was supported by reasonable and articulable suspicion. The situation escalated once defendant fled. Seizure of the firearm was permissible as the fruit of a search incident to the ensuing lawful arrest. The trial judge’s denial of the motion to suppress was proper.