STATE OF NEW JERSEY v. B.H., Defendant-Appellant. (2010)

Defendant B.H. was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1);  third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1);  and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).   These charges arose from an incident that occurred on April 25, 2008, in Lindenwold, New Jersey.

After unsuccessfully pursuing a motion to suppress the evidence, defendant pled guilty to third-degree possession of cocaine.   He also pled guilty to third-degree possession with intent to distribute cocaine, downgraded from the original second-degree charge in another indictment stemming from an earlier arrest in January 2008.   In exchange for these two guilty pleas, the State recommended that defendant be sentenced to no more than four years in prison without a term of parole ineligibility, with agreed-upon jail credit of 336 days from April 25, 2008, on both sentences (even though he was only incarcerated on one indictment during this time).   The State also agreed to a six-month loss of his driver's license on both charges to run concurrent to each other.   The State additionally agreed to dismiss the remaining counts of the indictment stemming from the April arrest, as well as the only remaining count of third-degree possession of cocaine from the earlier arrest.¹  After reviewing the record in light of the contentions advanced on appeal, we affirm.

In response to a complaint of a domestic dispute between a woman and a black man in a red shirt armed with a knife, the Lindenwold police were dispatched to The Greens, an apartment complex in a high-crime area, on April 25, 2008, at 11:00 p.m. When two police officers arrived they saw defendant, who met the description of the armed man.   He was pushing an empty baby stroller and appeared flustered and upset.   He also reached his hands into his pockets more than once.   The police handcuffed defendant for their personal safety and conducted a pat-down search for the knife.   Defendant's back pocket was full of papers.   Fearing a knife was concealed in the papers, one officer pulled out the contents of defendant's back pocket, at which point a bag of crack cocaine fell to the ground.

Concerned about the empty baby stroller, the police were able to establish that defendant's nine-month-old baby girl lived at the same building complex in apartment number 308.   Another officer went to apartment 308 to check on the well-being of the baby.   This officer heard loud music and a baby screaming from inside the apartment.   He knocked on the door several times and received no response.   The baby's cries stopped.   After calling for back-up and hearing from defendant that the door was unlocked, the officers entered the apartment and found it in disarray.   Defendant's daughter was asleep wearing only a wet diaper.   No one else was there.   The officers searched for a clean diaper and wipes to change the child before calling the Division of Youth and Family Services.   While looking for baby wipes, they found forty-three small bags of crack cocaine and other drug paraphernalia in a backpack.

On May 7, 2008, defendant filed an affidavit with the court admitting the crack cocaine found in the backpack was his, thereby exonerating the mother of his child.

Defendant raises the following single point on appeal:

DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED AND ALL OF THE FRUITS OF HIS ILLEGAL ARREST, INCLUDING THE DRUGS THAT ARE THE SUBJECT MATTER OF THIS INDICTMENT, SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.

Defendant argues that the trial judge did not rule on the legality of the original arrest, finding only that the police were properly in the apartment under both the community caretaking and emergency aid doctrines.   Under the community caretaking doctrine police officers may enter a home without a warrant for the purpose of ensuring the safety and welfare of a child.   See Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S.Ct. 2523, 2527-31, 37 L. Ed.2d 706, 713-18 (1973);  State v. Bogan, 200 N.J. 61, 73-77 (2009);  State v. Garland, 270 N.J.Super. 31, 44-45 (App.Div.), certif. denied, 136 N.J. 296 (1994).   Under the emergency aid doctrine police officers may enter a home without a warrant if they reasonably believe that a person inside is in need of immediate assistance.   See, e.g., State v. Frankel, 179 N.J. 586, 599 (2004).

At the suppression hearing defendant maintained the officers arrested him without probable cause.   He argued that the search of his back pocket was incident to an unlawful arrest.   The trial judge, however, made no findings as to whether defendant was unlawfully arrested or as to the nature of the pat-down, since defense counsel's argument focused primarily on whether the officers were permitted to enter the apartment and look around for baby wipes without a warrant.   We will decide the legal issues raised by defendant de novo without the necessity of remanding the matter to the trial court because the facts are not disputed.  Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366 (1995).   We have “plenary” review of a trial judge's legal conclusions regarding a motion to suppress.  State v. Handy, 412 N.J.Super. 492, 498 (App.Div.2010) (citing Manalapan Realty, supra, 140 N.J. at 378).

Defense counsel did not argue that the contents of the backpack should be suppressed as fruit of the defendant's unlawful arrest at the suppression hearing as he does on appeal.   At the suppression hearing, however, defense counsel did raise the general issue that defendant was unlawfully arrested prior to the discovery of crack cocaine in his back pocket.   Defense counsel raised the issue sufficiently to justify our consideration of the argument on appeal.   See State v. Ross, 335 N.J.Super. 536, 541 (App.Div.2000) (finding that an issue raised during oral argument at a suppression hearing is preserved for appeal).

Defendant concedes that once the crack cocaine bag fell from his back pocket the police were justified in placing him under arrest.   He does not argue on appeal that the search of the backpack in the apartment is constitutionally defective if his initial detention was permissible.   Additionally, defendant does not assert that the officers lacked reasonable suspicion when they stopped him.   Although an anonymous tip providing an accurate description of a subject's appearance and location will not justify an investigative stop, State v. Rodriguez, 172 N.J. 117, 133 (2002), defendant concedes there was sufficient indicia of criminality in this case to do so.   Rather, defendant's argument on appeal is that with only an anonymous tip verified by a general description, placing him in handcuffs at the scene is an unconstitutional arrest rather than a lawful investigative stop.

We agree with defendant that the anonymous tip coupled with the officers' observations that defendant met the general description was insufficient evidence of probable cause to justify defendant's arrest.

The issue before us on appeal is thus narrowed to whether the circumstances of defendant's stop and placement in handcuffs was an arrest or a constitutionally permissible stop.   Defendant argues that the use of handcuffs converted the detention into an arrest.

The Supreme Court held that it is consistent with the Fourth Amendment for police to stop a person without a warrant based upon an objectively reasonable and articulable suspicion of criminal behavior.  State v. Dickey, 152 N.J. 468, 477 (1998) (citing Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L. Ed.2d 889, 905 (1968)).   In doing so, police are also permitted to conduct a “reasonable search for weapons,” a Terry frisk for officer safety, if they have reason to believe that the person is armed and dangerous, regardless of whether there is probable cause for an arrest.  Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed.2d at 909.   In order to conduct a Terry frisk, officers “need not be absolutely certain that the individual is armed;  the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”  Ibid. Under this rationale, officers may pat-down a suspect's outer clothing and seize any unidentifiable object felt in a suspect's pocket that may reasonably contain a weapon.   See, e.g., State v. Nishina, 175 N.J. 502, 514-15 (2003);  State v. Roach, 172 N.J. 19, 27 (2002).

A Terry stop becomes the “functional equivalent” of an arrest, and thus must be supported by probable cause, when the officer's conduct is more intrusive than necessary to confirm or dispel his suspicion in a short period of time.  Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L. Ed.2d 229, 238 (1983);  Dickey, supra, 152 N.J. at 478-79.   While there is no bright-line test to determine when police conduct exceeds the bounds of a Terry stop, courts have enumerated various factors to aid in the analysis:  (1) the length of time and unnecessary delays involved;  (2) the degree of fear and humiliation engendered by the police conduct;  (3) whether the suspect was transported to another location or isolated from others;  and (4) whether the subject was handcuffed or confined in a police car.  Dickey, supra, 152 N.J. at 479 (citations omitted).

We find the police justified in temporarily placing defendant in handcuffs to conduct a pat-down search.   Although two police officers were at the scene at that time, making the situation less precarious, they still reasonably believed defendant could be armed and dangerous.   They were investigating a report of an armed man involved in a domestic violence incident in a high-crime area.   The officers observed that defendant was upset and putting his hands in his pockets.   They saw him pushing an empty stroller at 11:00 p.m. These observations, in addition to the tip, provided reasonable and articulable suspicion of criminal behavior sufficient to justify the intrusion.   Applying handcuffs is somewhat more intrusive than ordering an individual to stand up against a wall or a car to be frisked.   In all of these circumstances, however, the individual's movement is restricted.   The use of handcuffs does not single-handedly transform a Terry stop into an arrest.   See United States v. Johnson, 592 F.3d 442, 448 (3d Cir.2010);  United States v. Smith, 3 F.3d 1088, 1094 (7th Cir.1993).

We find that the temporary detention here was justified.   Defendant was not placed under arrest until the bag of crack cocaine fell from his pocket.   Because the arrest was lawful, the crack cocaine seized in the apartment was not the fruit of an illegal arrest and was thus admissible.

Affirmed.

FOOTNOTES

FN1. Defendant agreed not to appeal as part of the plea agreement.   Nonetheless, defendant has exercised his right to appeal, and the State has not chosen to withdraw the plea agreement pursuant to Rule 3:9-3(d).  See State v. Sainz, 107 N.J. 283, 294 (1987)..  FN1. Defendant agreed not to appeal as part of the plea agreement.   Nonetheless, defendant has exercised his right to appeal, and the State has not chosen to withdraw the plea agreement pursuant to Rule 3:9-3(d).  See State v. Sainz, 107 N.J. 283, 294 (1987).

PER CURIAM