State of New Jersey v. Ramier A. Dunbar

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5722-12T2

STATE OF NEW JERSEY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

February 26, 2014
v.
APPELLATE DIVISION
RAMIER A. DUNBAR,

Defendant-Respondent.

Argued telephonically December 5, 2013 –
Decided February 26, 2014

Before Judges Reisner, Alvarez and Carroll.1

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 13-01-0079.

Seth P. Galkin, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Gaetano T. Gregory,
Acting Hudson County Prosecutor, attorney;
Mr. Galkin, on the brief).

Elizabeth C. Jarit, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Ms. Jarit, of counsel and on the
brief).

The opinion of the court was delivered by

ALVAREZ, J.A.D.

1
Judge Carroll did not participate in oral argument. He joins
the opinion with counsel's consent. R. 2:13-2(b).
 During the early morning hours of August 19, 2012, two

Jersey City uniformed officers were dispatched in a marked

patrol car in response to a report of "shots fired." They

arrived within seconds of the transmission, basically turning a

corner. They encountered a group of approximately thirty

persons who were "yelling" and "screaming," and immediately

dispersed upon the officers' arrival. As the officers scanned

the sidewalk, they noticed one individual, later identified as

defendant, Ramier Dunbar, who appeared nervous. He disappeared

into an adjoining alley while turning his head to watch the

marked patrol car. Moments later, defendant came back out of

the alley and began to walk away from the intersection. The

patrol car followed him, and Officer Jose Perez asked defendant

if he had heard shots in the area. Defendant appeared even more

nervous, did not respond but continued moving away from the

patrol car, looking back over his shoulder.

Perez exited his vehicle and asked defendant to stop. At

that point, defendant began running, Perez behind him.

Defendant reached into his waistband and threw a handgun onto

the ground. Perez stopped to retrieve the weapon and continued

after defendant, who was soon apprehended. The ensuing search

revealed a bag of marijuana.

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 Defendant was indicted for second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) (count two); fourth-degree possession of a prohibited

device — a hollow-point bullet, N.J.S.A. 2C:39-3(f) (count

three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)

(count four); and fourth-degree obstruction of the

administration of law, N.J.S.A. 2C:29-1 (count five).

Based on the facts we have recounted above, drawn from

Perez's testimony at the suppression hearing, the trial judge

granted defendant's motion and suppressed all evidence seized as

a result of his arrest. The State appeals, and we now reverse.

In reaching his decision, the trial judge principally

relied upon State v. Williams, 410 N.J. Super. 549 (App. Div.

2009), certif. denied, 201 N.J. 440 (2010). In that case,

police were patrolling a housing complex, hoping to deter a

possible retaliatory shooting. Id. at 552. Upon observing

police officers in the area in front of an apartment building,

the defendant commenced to pedal away on his bicycle, placing

his right hand in his pants pocket, ignoring the officers'

command that he stop. Id. at 553. The arresting officers gave

chase and pulled the defendant off his bicycle. Ibid. As the

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officers "grabbed" the defendant, he discarded contraband.

Ibid.

Since there was "nothing intrinsically suspicious about a

person riding a bicycle in a housing complex courtyard," or even

the ensuing flight, we affirmed suppression of the evidence.

Id. at 556, 564. Other than defendant's attempt to pedal away

while placing his hand in his pocket, no circumstance explained

the officers' attention nor established any reasonable or

articulable suspicion for the investigatory stop. Id. at 556-

57. The information about the potential of a retaliatory

shooting was vague, and non-specific in terms of where and when

the retaliation might occur; there was no evidence that the

source was reliable or the information just rumor; and there was

no reason to believe the defendant might be involved. Id. at

556-58.

The State contends on appeal that the trial court erred

because, in this case, the stop of defendant was a proper field

inquiry. The State further claims that the officers had

sufficient reasonable suspicion to make an investigatory

detention, the gun was abandoned property and therefore lawfully

recovered, and the drugs properly seized incident to arrest.

We review the trial court's findings of fact on a motion to

suppress deferentially, affirming whenever they are supported by

4 A-5722-12T2
sufficient credible evidence in the record. State v. Elders,

192 N.J. 224, 243 (2007). We particularly defer to those

findings that flow from the trial court's opportunity to see and

hear the witnesses, an opportunity not enjoyed by a reviewing

court. State v. Johnson, 42 N.J. 146, 161 (1964); see also

State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). No such

deference is accorded to the court's conclusions of law; such

issues are addressed de novo. State v. Gandhi, 201 N.J. 161,

176 (2010).

It is the State's burden to establish by a preponderance of

the evidence that the challenged stop and seizure falls within

an exception to the Fourth Amendment's warrant requirement.

Elders, supra, 192 N.J. at 246. One such exception is the

investigatory or Terry2-type stop, in which specific and

articulable facts, along with rational inferences, give rise to

a reasonable and articulable suspicion of criminal activity.

State v. Pineiro, 181 N.J. 13, 20 (2004). The test is

objective, the question being whether at the moment of seizure,

the officer had at his command sufficient facts supporting a

person of reasonable caution in the belief that seizure was

appropriate. Id. at 21-22. The analysis must be fact-

2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).

5 A-5722-12T2
sensitive, each case must be carefully reviewed, and an

individual determination made. Id. at 22. The totality of the

circumstances must satisfy the reasonable and articulable

standard. Elders, supra, 192 N.J. at 247.

Unlike the facts in Williams, the circumstances of this

case gave rise to a reasonable and articulable suspicion that

defendant had committed a crime or was in the process of

committing one. In the aggregate, they support the conclusion

that the officers had a reasonable basis for suspicion that

defendant was engaged in criminal activity. See State v.

Stovall, 170 N.J. 346, 368 (2002). "Even if all of the factors

were susceptible of purely innocent explanations, a group of

innocent circumstances in the aggregate can support a finding of

reasonable suspicion." Ibid. (internal quotation marks

omitted).

The officers arrived within moments of the report of shots

being fired, and were faced with a chaotic scene. This alone is

an important difference from Williams, where nothing untoward

had occurred and it was uncertain whether it would. Although

the crowd began to disperse upon their arrival, only defendant

appeared nervous, drawing attention to himself by continuously

looking back towards the officers. Rather than simply leaving,

as the others were doing, he briefly ducked into an alley. When

6 A-5722-12T2
he walked away, and saw that the officers were following him,

his nervousness only increased. When Perez attempted to speak

to him, defendant began to run. Thus defendant's conduct, all

told, did much more to arouse reasonable suspicion than the

bicycle-rider's mere departure from the scene in Williams.

Defendant's nervousness alone would not have been

sufficient to justify the investigatory stop, as opposed to a

field inquiry, that resulted when Perez instructed defendant to

halt. See State v. De Lorenzo, 166 N.J. Super. 483, 488 (App.

Div. 1979) (explaining that an investigatory stop, as opposed to

a field inquiry, was not reasonable where the only factor was

defendant's nervousness). On the other hand, nervousness and

furtive movements may be considered in conjunction with other

factors to establish reasonable and articulable suspicion. See,

e.g., Elders, supra, 192 N.J. at 250 ("To be sure, nervousness

and conflicting statements, along with indicia of wrongdoing,

can be cumulative factors in a totality of circumstances

analysis that leads to a finding of reasonable and articulable

suspicion of ongoing criminality."); State v. Valentine, 134

N.J. 536, 553-54 (1994); State v. Todd, 355 N.J. Super. 132, 138

(App. Div. 2002) (finding reasonable and articulable suspicion

where defendant was "the only person then walking on [the]

street" near where a crime was committed and was "sweating and

7 A-5722-12T2
appeared nervous"). This defendant walked in and out of an

alley, keeping the officers in his line of vision. He continued

walking away while looking over his shoulder at the marked

police car. Defendant did not respond when Perez spoke to him.

And the observations must be placed in the context of the

report, made moments prior to the police arrival at the scene,

of a shooting. Thus, in the aggregate, defendant's conduct

supported a finding of reasonable suspicion. See State v.

Nishina, 175 N.J. 502, 512-13 (2003).

Another significant difference between this case and

Williams is that defendant discarded the contraband, not as he

was being physically restrained, but as he ignored the police

directive to stop and was attempting to flee the scene. Here,

"defendant's headlong flight" resulted in the very type of

potentially dangerous situation that the statutory scheme

requiring citizens to comply with police orders was intended to

prevent. See State v. Crawley, 187 N.J. 440, 451, cert. denied,

549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

In similar fashion to the scenario in Crawley, these

officers had reason to fear that the suspect might be armed.

This street encounter occurred within moments of a dispatch that

shots had been fired.

8 A-5722-12T2
 Therefore, the facts fit precisely into the language of

Terry which defines when an investigative stop is lawful. Such

street detentions are warranted "where a police officer observes

unusual conduct which leads him reasonably to conclude in light

of his experience that criminal activity may be afoot and that

the persons with whom he is dealing may be armed and presently

dangerous." Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20

L. Ed. 2d at 911. Perez reasonably concluded, while

investigating a reported shooting, that defendant's conduct

meant "criminal activity may be afoot." Ibid. The totality of

the circumstances combined to create reasonable and articulable

suspicion justifying the investigatory stop of defendant, making

seizure of the handgun, and defendant's eventual arrest, lawful.

Reversed and remanded.

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