State of New Jersey v. James L. Legette

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1207-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. May 18, 2015

APPELLATE DIVISION
JAMES L. LEGETTE,
a/k/a JAMES LEGGETTE, JR.,
a/k/a JAMES LEGETTE,

Defendant-Appellant.

_______________________________________

Argued September 22, 2014 – Decided May 18, 2015

Before Judges Sabatino,1 Guadagno and Leone.

On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment Nos. 12-04-0932.

A. Harold Kokes argued the cause for
appellant.

John J. Santoliquido, Assistant Prosecutor,
argued the cause for respondent (James P.
McClain, Atlantic County Prosecutor,
attorney; John Vincent Molitor, Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

1
Judge Sabatino did not participate in oral argument. He joins
the opinion with the consent of the parties. R. 2:13-2(b).
 Defendant James Legette was properly detained by a police

officer conducting an investigatory stop. Defendant sought to

get his identification by entering his apartment, which the

officer permitted on the condition that the officer accompany

him. While in his apartment, defendant attempted to conceal the

sweatshirt he was wearing which contained a firearm, but he was

thwarted by the officer. Defendant appeals the denial of his

motion to suppress the handgun, contending that the officer

should not have been allowed to accompany him to the apartment.

The Fourth Amendment of the United States Constitution, and

Article I, paragraph 7 of the New Jersey Constitution,

"guarantee the right of people to be free of unreasonable

searches and seizures in their homes." State v. Lamb, 218 N.J.

300, 314 (2014). Both the United States Supreme Court and the

New Jersey Supreme Court have found that when individuals under

arrest seek to enter their residence to obtain identification,

clothing, or other items, it is reasonable and permissible for

the police to accompany them to prevent them from escaping or

endangering the police. Washington v. Chrisman, 455 U.S. 1, 102

S. Ct. 812, 70 L. Ed. 2d 778 (1982); State v. Bruzzese, 94 N.J.

210, 234 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295,

79 L. Ed. 2d 695 (1984).

2 A-1207-13T3
 We apply those decisions to the situation here. The

officer had valid authorization to detain defendant for an

investigatory stop based on reasonable suspicion, and had a

reasonable belief that defendant was armed and dangerous. We

hold that an officer in that situation may accompany the

detainee who chooses to enter his residence to obtain

identification or other personal items. Accordingly, we affirm.

I.

At the suppression hearing, Officer Richard Dill testified

to the following facts. Dill was a uniformed K-9 officer with

ten years of experience in the Patrol Unit of the Somers Point

Police Department. On the night of January 17, 2012, he was

dispatched to investigate a noise complaint in a high-crime,

high-narcotics apartment complex he patrolled regularly. As he

drove through the complex, Dill saw defendant and another man

standing on a common porch of the apartment building. Entering

the building from another direction using a common hallway, Dill

heard the two men yelling to people in an apartment where there

was loud talking and music. After Dill neared the door to the

common porch, defendant opened the door about twelve inches.

Officer Dill smelled an overpowering odor of burnt marijuana

coming through the open doorway.

3 A-1207-13T3
 Suspecting defendant was committing a criminal act

involving marijuana, Officer Dill walked onto the common porch

and identified himself. Defendant immediately turned and

started walking at a fast pace into the parking lot. Dill told

defendant to stop and asked where he was going. Defendant said

he was going to his car. Dill asked if defendant had any

identification. Defendant said his identification was up in his

apartment, immediately volunteered to go into his apartment to

get his ID, and started walking back to the apartment building.

Officer Dill told defendant, "I have to come with you to

get [the ID]." Defendant did not protest and continued to walk

into the building. As defendant was walking, Officer Dill

noticed a bulge in the pocket of the grey hooded sweatshirt

defendant was wearing. Dill was concerned it could be a weapon

or contraband that defendant was attempting to conceal. Dill

went with defendant because "he's a suspect at this point and I

wasn't going to allow him out of my sight where he could

possibly discard evidence of the crime being committed or

possibly get any sort of weapon" that would endanger officer

safety.

Accompanied by Officer Dill, defendant entered the

apartment, went into the bedroom, picked up a wallet, removed

his identification, and handed it to Dill. Neither defendant

4 A-1207-13T3
nor the woman in the apartment protested Dill's accompanying

defendant. Defendant and Dill went into the living room, where

Dill radioed in the information from defendant's identification.

As Officer Dill was radioing, defendant took off his grey

sweatshirt, handed it to the woman, and told her to put it in

the bedroom. His suspicions further aroused, Dill stopped his

radio transmission and told defendant: "we're going to need that

sweatshirt." Defendant and Dill followed the woman back into

the bedroom. Although she put the grey sweatshirt on the floor,

defendant stepped over the grey sweatshirt and grabbed another

sweatshirt from the closet. Dill picked up the grey sweatshirt

from the floor, and said to defendant: "this is the sweatshirt

you were wearing. We need this one." Defendant's attempts to

get rid of the grey sweatshirt further raised Officer Dill's

concern for his safety and the preservation of evidence.

Reentering the living room with defendant, and holding the

grey sweatshirt, Officer Dill resumed calling in defendant's

identification to check for outstanding warrants. Defendant

became extremely nervous, repeatedly looked at the sweatshirt,

and his demeanor became uncooperative.

Increasingly concerned for his safety, Officer Dill asked

defendant to step back outside, where Dill's patrol vehicle, K-9

dog, and backup Officer Mark McElwee were. Once outside, Dill

5 A-1207-13T3
asked defendant to have a seat on the building steps. Defendant

started tying his shoe, causing concern he was preparing to

flee. Dill placed the sweatshirt on the ground. Defendant kept

looking at the sweatshirt and looking around nervously, so Dill

informed him he was handcuffing and detaining him during the

investigation, but was not arresting him.

When Officer Dill's warrant inquiry came back negative, he

asked if he could check the sweatshirt, but defendant declined

to consent. Dill said he would conduct a canine sniff of the

sweatshirt, and to keep him from provoking the K-9 dog, he

placed defendant in the back of the patrol vehicle. Dill got

another sweatshirt and a towel from his police vehicle and

placed them alongside the grey sweatshirt, but the dog put his

nose in the grey sweatshirt, grabbed it in his mouth, and threw

it to the pavement. It landed making a metal "clank" that

sounded like a weapon. Dill picked up the sweatshirt, for the

first time manipulated the pocket, and felt a metal handgun.

The officer seized the loaded handgun.

Defendant was indicted for second-degree unlawful

possession of a handgun without a permit, N.J.S.A. 2C:39-5(b),

and second-degree possession of a weapon by a convicted person,

N.J.S.A. 2C:39-7. He filed a suppression motion. After hearing

the testimony and receiving supplemental briefing and argument,

6 A-1207-13T3
the trial court denied the motion. Defendant pled guilty to

possession of a weapon by a convicted person, and was sentenced

to a negotiated term of five years in prison without eligibility

for parole.2 The trial court denied bail pending appeal.

Defendant appeals the October 11, 2013 judgment of

conviction, raising the following issues:

POINT I. THE COURT ERRED IN
DETERMINING DEFENDANT IS LIKELY TO FLEE IF
ALLOWED BAIL PENDING APPEAL.

POINT II. DEFENDANT DOES NOT POSE A
DANGER TO COMMUNITY.

POINT III. THERE ARE SUBSTANTIAL
QUESTIONS OF FACT AND LAW THAT WERE RAISED
IN DEFENDANT'S MOTION TO SUPPRESS.

POINT IV. INVALID TERRY STOP.

POINT V. SUBSEQUENT WARRANTLESS HOME
INTRUSION AND FOURTH AMENDMENT.

POINT VI. PLAIN VIEW, PROBABLE CAUSE
AND EXIGENT CIRCUMSTANCES.

POINT VII. WARRANTLESS UNLAWFUL SEIZURE
AND ARREST OF DEFENDANT.

POINT VIII. OFFICER DILL'S TESTIMONY WAS
NOT CREDIBLE AND WAS UNRELIABLE.

POINT IX. TRIAL COURT RULED ON FACTS
THAT WERE OUTSIDE OF RECORD.

2
Defendant's sentence was concurrent to a three-year sentence
for an unrelated drug possession charge, and a one-year sentence
for an unrelated obstruction charge.

7 A-1207-13T3
 II.

We must hew to our "deferential standard of review." State

v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court

reviewing 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."

Ibid. (internal quotation marks omitted). "Those findings

warrant particular deference when they are substantially

influenced by [the trial judge's] opportunity to hear and see

the witnesses and to have the 'feel' of the case, which a

reviewing court cannot enjoy." Ibid. (alteration in original;

internal quotation marks omitted).

Here, the trial court found Officer Dill's testimony "very

credible and reliable." Defendant argues the court should have

discredited Dill because of differences in wording between his

testimony and report, and a discrepancy between his time

estimate and that of Officer McElwee. However, "[i]t is a

deeply rooted principle of our jurisprudence that '[a]ppellate

courts should defer to trial courts' credibility findings that

are influenced by matters such as observations of the character

and demeanor of witnesses and common human experience that are

not transmitted by the record.'" State v. Segars, 172 N.J. 481,

500-01 (2002) (citation omitted). Defendant has not shown the

8 A-1207-13T3
suppression court's findings were "'so clearly mistaken that the

interests of justice demand intervention and correction.'"

State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted).

Defendant also notes the trial court's letter opinion

contained certain factual details not reflected in the

suppression hearing testimony. We will base our determinations

solely on the facts in the testimony, and consider the validity

of each stage of Officer Dill's encounter with defendant.

A.

Defendant does not dispute that Officer Dill had the right

to enter the common hallway of the apartment building to

investigate the noise complaint. State v. Walker, 213 N.J. 281,

296 (2013); State v. Smith, 37 N.J. 481, 496 (1962); State v.

Brown, 282 N.J. Super. 538, 547 (App. Div.), certif. denied, 143

N.J. 322 (1995).

When defendant opened the door of the common porch, Officer

Dill detected the overwhelming odor of burnt marijuana. "'New

Jersey courts have recognized that the smell of marijuana itself

constitutes probable cause "that a criminal offense ha[s] been

committed and that additional contraband might be present."'"

Walker, supra, 213 N.J. at 290 (quoting State v. Nishina, 175

N.J. 502, 516-17 (2003) (quoting State v. Vanderveer, 285 N.J.

Super. 475, 479 (App. Div. 1995))).

9 A-1207-13T3
 In Vanderveer, a police officer encountered two individuals

on an outdoor porch and detected the odor of burnt marijuana.

Vanderveer, supra, 285 N.J. Super. at 477, 479. We held the

marijuana odor gave rise to probable cause "to conduct a

warrantless search of the persons in the immediate area from

where the smell has emanated." Id. at 481. Thus, Officer Dill

had the right to search defendant.

B.

Officer Dill chose to take a more restrained approach,

simply entering the common porch to speak to defendant. See

State v. Johnson, 171 N.J. 192, 209 (2002). When defendant

tried to hurry away, Dill stopped him. The trial court properly

found reasonable suspicion justifying this investigatory stop of

defendant.

At a suppression hearing, "'the State bears the burden of

proving by a preponderance of the evidence that a warrantless

search or seizure falls within one of the few well-delineated

exceptions to the warrant requirement.'" State v. Mann, 203

N.J. 328, 337-38 (2010) (citation omitted). "One such exception

is denominated an investigatory stop or a Terry stop." Id. at

338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.

2d 889 (1968)). An investigatory stop "'is valid if it is based

on specific and articulable facts which, taken together with

10 A-1207-13T3
rational inferences from those facts, give rise to a reasonable

suspicion of criminal activity.'" Ibid. (citation omitted).

As "'the smell of burnt marijuana under the total

circumstances create[s] a heightened and reasonable suspicion

that an offense was being committed,'" Dill was justified in

stopping defendant. Walker, supra, 213 N.J. at 290 (quoting

State v. Judge, 275 N.J. Super. 194, 202 (App. Div. 1994)). In

addition, given the evidence that defendant just committed a

marijuana offense, his hurried departure when the officer

appeared "'reasonably justif[ied] an inference that it was done

with a consciousness of guilt and pursuant to an effort to avoid

an accusation based on that guilt.'" State v. Tucker, 136 N.J.

158, 169 (1994) (citation omitted).

Moreover, Officer Dill appropriately asked defendant to

produce identification. "[I]t is well established that an

officer may ask a suspect to identify himself in the course of a

Terry stop." Hiibel v. Sixth Judicial Dist. Court, 542 U.S.

177, 186, 124 S. Ct. 2451, 2457, 159 L. Ed. 2d 292, 303 (2004);

Michigan v. Summers, 452 U.S. 692, 700 n.12, 101 S. Ct. 2587,

2593, 69 L. Ed. 2d 340, 348 (1981). "[T]he ability to . . .

check identification in the absence of probable cause promotes

the strong government interest in solving crimes and bringing

offenders to justice." United States v. Hensley, 469 U.S. 221,

11 A-1207-13T3
229, 105 S. Ct. 673, 680, 83 L. Ed. 2d 604, 612 (1985); see

State v. Sirianni, 347 N.J. Super. 382, 390-91 (App. Div.),

certif. denied, 172 N.J. 178 (2002).

C.

When Officer Dill asked defendant for his identification,

defendant said his ID was up in his apartment, immediately

volunteered to go get it, and started walking to the apartment.

Dill told defendant he would have to accompany defendant.

Defendant claims the officer violated his rights by accompanying

him into the apartment.3

The facts of this case strongly resemble the facts in

Chrisman. There, a police officer saw a college student with

alcohol and stopped him and asked for identification. Chrisman,

supra, 455 U.S. at 3, 102 S. Ct. at 815, 70 L. Ed. 2d at 783.

The student said that his ID was in his dormitory room and asked

if the officer would wait while he went to retrieve it. Ibid.

The officer answered that, under the circumstances, he would

have to accompany the student. Ibid.

The United States Supreme Court held the officer could

properly accompany the student into his dorm room, and upheld

his plain view seizure of the drugs he saw in the room. Id. at

3
At oral argument on appeal, defendant conceded the officer had
not violated his rights prior to that time.

12 A-1207-13T3
7-9, 102 S. Ct. at 817-18, 70 L. Ed. 2d at 785-86. The Court

ruled that "the officer had placed [the student] under lawful

arrest, and therefore was authorized to accompany him to his

room for the purpose of obtaining identification. The officer

had a right to remain literally at [the student's] elbow at all

times; nothing in the Fourth Amendment is to the contrary." Id.

at 6, 102 S. Ct. at 816, 70 L. Ed. 2d at 784 (footnote omitted).

The Court "h[e]ld therefore that it is not 'unreasonable'

under the Fourth Amendment for a police officer, as a matter of

routine, to monitor the movements of an arrested person, as his

judgment dictates, following the arrest." Id. at 7, 102 S. Ct.

at 817, 70 L. Ed. 2d at 785. "The officer's need to ensure his

own safety—as well as the integrity of the arrest—is compelling.

Such surveillance is not an impermissible invasion of the

privacy or personal liberty of an individual who has been

arrested." Ibid.

In Bruzzese, our Supreme Court "adopt[ed] the Chrisman rule

as the law of New Jersey." Bruzzese, supra, 94 N.J. at 234.4

4
The Court noted that "our lower courts also have followed the
Chrisman approach." Ibid. (citing, e.g., State v. Brown, 132
N.J. Super. 180, 184 (App. Div. 1975)). The Court disapproved
the sole exception, State v. Seiss, 168 N.J. Super. 269 (App.
Div. 1979), to the extent it "denies a police officer the
unequivocal right to accompany a person he has lawfully
arrested," ibid., and reversed the suppression court and panel
majority which had relied on Seiss. Id. at 216, rev'g State v.
(continued)

13 A-1207-13T3
There, when officers went to the defendant's house to execute an

arrest warrant, the defendant said he wanted to put on shoes and

a jacket before going outside. The officers, "[w]ithout

invitation," followed the defendant upstairs to his bedroom,

saying they had to accompany him. Id. at 215. Our Supreme

Court upheld their actions, "rul[ing] that once a defendant is

placed under lawful arrest, the arresting officer has the right

to remain at his side and to follow him wherever he chooses to

go." Id. at 232.

Our Supreme Court found "the reasons advanced by the

Supreme Court for its holding [in Chrisman] are equally

applicable in New Jersey." Ibid. Both Courts stressed

"'[e]very arrest must be presumed to present a risk of danger to

the arresting officer. . . . Moreover, the possibility that an

arrested person will attempt to escape if not proper[ly]

supervised is obvious.'" Id. at 231 (quoting Chrisman, supra,

455 U.S. at 7, 102 S. Ct. at 817, 70 L. Ed. 2d at 785).

"[T]he concerns [Chrisman found] present in an arrest

situation may also be present in an investigatory detention."

Servis v. Commonwealth, 371 S.E.2d 156, 162 (Va. Ct. App. 1988).

(continued)
Bruzzese, 187 N.J. Super. 435, 438-40 (App. Div. 1982); see also
id. at 453, 455 (Milmed, P.J.A.D., dissenting) (following
Chrisman and Brown and finding the right to accompany "well
embedded in the law").

14 A-1207-13T3
Both the United States and New Jersey Supreme Courts have found

the danger of "'an on-the-street or roadside investigatory

encounter'" to be comparable to "'[t]he risk of danger in the

context of an arrest in the home.'" State v. Jones, 179 N.J.

377, 406 (2004) (quoting Maryland v. Buie, 494 U.S. 325, 333,

110 S. Ct. 1093, 1098, 108 L. Ed. 2d 276, 285 (1990)). Our

Supreme Court has likened the public interest in preventing

flight from an attempted arrest and an attempted investigatory

stop because a "defendant's refusal to obey the officer's

command to stop [can] set off a chase along with the attendant

danger of escalating violence no different than if he had

disobeyed a command to submit to an arrest." State v. Crawley,

187 N.J. 440, 457, cert. denied, 549 U.S. 1078, 127 S. Ct. 740,

166 L. Ed. 2d 563 (2006).

Federal Courts of Appeals have recognized that "[a]lthough

the Supreme Court [in Chrisman] refers to the student as having

already been placed under arrest when the officer accompanied

him back to his dorm room to retrieve identification, we do not

think that this characterization makes Chrisman any less

applicable" to a pre-arrest situation. United States v.

Roberts, 612 F.3d 306, 308, 310 n.4 (5th Cir.) (officers waiting

for a defendant to get identification before executing an arrest

warrant could accompany the defendant into his apartment), cert.

15 A-1207-13T3
denied, 562 U.S. 1116, 131 S. Ct. 839, 178 L. Ed. 2d 570 (2010).

Thus, where an officer has probable cause, but no plan to arrest

the detainee unless he is unable to provide identification, "it

is reasonable for police to keep him in view to ensure that

credentials are the only object of the expedition." United

States v. Garcia, 376 F.3d 648, 651-52 (7th Cir. 2004). Indeed,

"several courts have since applied Chrisman's reasoning to allow

a police officer to accompany a suspect into dwellings in

situations in which probable cause existed but formal arrests

had not yet occurred." Hoover v. Dir., N.D. Dep't of Transp.,

748 N.W.2d 730, 737 (N.D. 2008); State v. Diercks, 674 S.W.2d

72, 79 (Mo. Ct. App. 1984).

Other courts have applied Chrisman to Terry stops where the

officer has reasonable suspicion and a reasonable belief a

suspect is "potentially dangerous." Conway v. Commonwealth, 407

S.E.2d 310, 313-15 & n.3 (Va. Ct. App. 1991) (en banc); Johnson

v. State, 662 P.2d 981, 984, 987 (Alaska Ct. App. 1983); Servis,

supra, 371 S.E.2d at 162. Some courts required only reasonable

suspicion. State v. Mayfield, 694 P.2d 915, 917-18 (Kan. Ct.

App. 1985); State v. Lupek, 712 S.E.2d 915, 920-21 (N.C. Ct.

App. 2011); Washington v. Commonwealth, 509 S.E.2d 512, 516-17

(Va. Ct. App. 1999); Commonwealth v. Daniels, 421 A. 2d 721,

724-25 (Pa. Super. Ct. 1980) ("the police had sufficient grounds

16 A-1207-13T3
to enter the bedroom [with the detainee] under the Terry

analysis alone"). All of these cases hold that an officer can

accompany a person detained in an investigatory stop who seeks

to retrieve personal items from his residence. Our research has

found no published case to the contrary.5

We agree an officer who has lawfully detained a suspect in

an investigatory stop, like an officer who has lawfully arrested

a subject, need not let the suspect out of his sight or presence

during the detention. Rather, if the detained person seeks to

obtain identification or other items from his residence, the

officer may accompany the detainee to prevent escape or danger

to the officer and others. Such monitoring is justified by the

normal authority of an officer conducting a lawful Terry stop

"'to take such steps as [are] reasonably necessary to protect

[his and others'] personal safety and to maintain the status quo

during the course of the stop.'" Servis, supra, 371 S.E.2d at

162 (quoting Hensley, supra, 469 U.S. at 235, 105 S. Ct. at 683-

84, 83 L. Ed. 2d at 616).

5
Cf. Commonwealth v. Johnson, 777 S.W.2d 876, 879-80 (Ky. 1989),
cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952
(1990) (where a person was neither arrested nor detained upon
reasonable suspicion, but was simply tagging along with officers
executing a warrant to search his car, the court was "not
persuaded that the police are authorized, in anticipation of
executing a search warrant upon a person's property in another
location, to constantly observe him at a time at which he is not
under arrest").

17 A-1207-13T3
 We recognize there are differences between a detention and

an arrest. "[T]he privacy rights of an individual who is placed

under lawful arrest are diminished." Bruzzese, supra, 94 N.J.

at 232. Moreover, arrestees are more likely to want to retrieve

items such as clothing or footwear because they are being taken

to a police station. On the other hand, investigatory stops,

like arrests, are "encounters with the police in which a

person's freedom of movement is restricted," State v. Elders,

192 N.J. 224, 246 (2007), and the detainee may be subjected to

the "invasion of privacy that occurs in a pat-down of a person's

body," State v. Smith, 134 N.J. 599, 619 (1994). Moreover,

detainees have not yet been searched and may not have been

frisked. Thus, there is a greater risk that detainees,

particularly unfrisked detainees, have on their persons weapons

they could access, or contraband or evidence they could conceal

or destroy, if left unaccompanied. A Terry stop "'involves a

police investigation "at close range" . . . when the officer

remains particularly vulnerable in part because a full custodial

arrest has not been effected.'" State v. Carter, 235 N.J.

Super. 232, 239 n.4 (App. Div. 1989) (citation omitted); Servis,

supra, 371 S.E.2d at 162. By accompanying the detainee, the

officer can better act "at the first indication that he was in

danger, or that evidence might be destroyed," Chrisman, supra,

18 A-1207-13T3
455 U.S. at 9, 102 S. Ct. at 818, 70 L. Ed. 2d at 786, and

better "prevent [the detainee's] escape," Bruzzese, supra, 94

N.J. at 234.

Moreover, as the high courts observed in Chrisman and

Bruzzese, permitting such monitored movement may benefit the

suspects who desire to get identification, clothing, or similar

items. "Indeed, were the rule otherwise, it is doubtful that an

arrested person would ever be permitted to return to his

residence, no matter how legitimate the reason for doing so.

Such a rule would impose far greater restrictions on the

personal liberty of arrested individuals than those occasioned

here." Chrisman, supra, 455 U.S. at 7 n.4, 102 S. Ct. at 817,

70 L. Ed. 2d at 785; see Bruzzese, supra, 94 N.J. at 234

(finding "the Chrisman rule offers a sensible middle ground").

Such monitored movement may benefit detainees even more than

arrestees because it could enable them to dispel police

suspicions. Many detainees would "welcome the opportunity to

find their driver's licenses and thus avoid full custodial

arrest." Garcia, supra, 376 F.3d at 651.

The Supreme Courts in Chrisman and Bruzzese held that

officers can accompany arrestees as a matter of course, without

a special showing. "The absence of an affirmative indication

that an arrested person might have a weapon available or might

19 A-1207-13T3
attempt to escape does not diminish the arresting officer's

authority to maintain custody over the arrested person."

Chrisman, supra, 455 U.S. at 6, 102 S. Ct. at 816-17, 70 L. Ed.

2d at 785. "The officer need not posit any special need for the

accompaniment so long as the arrest is lawful." Bruzzese,

supra, 94 N.J. at 232. "'There is no way for an officer to

predict reliably how a particular subject will react to arrest

or the degree of the potential danger,'" and there is "the

constant risk that the arrested defendant will seek to escape."

Id. at 231, 234 (quoting Chrisman, supra, 455 U.S. at 7, 102 S.

Ct. at 817, 70 L. Ed. 2d at 785). The same could be said about

Terry stops.

Here, the circumstances justified Officer Dill accompanying

defendant. Dill clearly had reasonable suspicion that defendant

engaged in a marijuana offense. Defendant's attempt to evade

Dill by rushing off to his car gave reason to believe defendant

would flee if allowed to head toward his apartment

unaccompanied.

Moreover, after defendant started walking to his apartment,

the officer noticed a bulge in the pocket of defendant's grey

sweatshirt. "The bulge in the [defendant's] jacket permitted

the officer to conclude that [he] was armed and thus posed a

serious and present danger to the safety of the officer."

20 A-1207-13T3
Pennsylvania v. Mimms, 434 U.S. 106, 111-12, 98 S. Ct. 330, 334,

54 L. Ed. 2d 331, 337-38 (1977). "Indeed, a bulge alone has

been held sufficient to validate a protective pat-down." Smith,

supra, 134 N.J. at 621.

Thus, the circumstances here provided not only reasonable

suspicion defendant was involved in crime, but also reasonable

suspicion that he was armed and dangerous. The circumstances

clearly justified Officer Dill in accompanying defendant to

prevent him from escaping, accessing a possible weapon in his

sweatshirt or his residence, or concealing or destroying the

possible contraband in the sweatshirt.

Because both types of reasonable suspicion are present

here, we need not decide whether reasonable suspicion that a

detainee was involved in crime is itself sufficient to justify

accompanying the detainee. However, we do not believe probable

cause is necessary to justify accompanying a detainee in a Terry

stop to prevent attack or escape. "'The Fourth Amendment does

not require a policeman who lacks the precise level of

information necessary for probable cause to arrest to simply

shrug his shoulders and allow a crime to occur or a criminal to

escape.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Adams

v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed.

2d 612, 616 (1972)). Instead, the officer is permitted to

21 A-1207-13T3
detain the defendant during the Terry stop and prevent his

escape.

Defendant stresses Officer Dill was investigating a noise

complaint and a marijuana offense. However, an "officer's

authority to maintain custody over" a defendant is not "altered

by the nature of the offense." Chrisman, supra, 455 U.S. at 6-7

& n.3, 102 S. Ct. at 816-17, 70 L. Ed. 2d at 784-85. Moreover,

the officer's authority to maintain custody allows him to

accompany the defendant "as a matter of routine"; the Court

rejected defendant's claim that "'exigent circumstances'" are

required. Id. at 6-7, 11, 102 S. Ct. at 816-17, 819, 70 L. Ed.

2d at 785, 788 (citation omitted).

For the reasons above, we apply Chrisman and Bruzzese and

conclude Officer Dill's action of accompanying defendant to his

apartment "was reasonable, and hence, constitutional, under both

the Fourth Amendment of the United States Constitution and

Article I, paragraph 7 of the New Jersey Constitution."

Bruzzese, supra, 94 N.J. at 235. We note that "the police did

not create the scenario that prompted defendant to return to his

[apartment]." Ibid. "It was the defendant himself who decided

to go [there]." Ibid. "The police did not order or even

22 A-1207-13T3
suggest that defendant" do so. Ibid.6 "[T]he policeman's act of

following defendant [to his apartment] was a reasonable

consequence of defendant's own voluntary choice to go" there to

get his identification. Ibid.

We emphasize that a detainee may choose not to enter his

residence once he becomes aware an officer must accompany him.

As Bruzzese stated, "even after the police told the defendant

they would have to accompany him, he could have declined to go

[into his apartment] or asked [a third party] at that point to

get his [identification]." Ibid. If defendant had elected not

to enter his apartment, "the officers could not have entered

[it] without a search warrant." Ibid.

Thus, a defendant holds the key to whether there is

accompanied entry into the residence, because it is based on his

own entry, and it cannot occur if he decides not to enter

accompanied. Here, defendant turned that key by continuing into

his apartment after learning that the officer would have to

accompany him.

6
Nothing in the record suggests Dill accompanied defendant "to
conduct an exploratory search of his [apartment]." Ibid. In
any event, "the proper inquiry for determining the
constitutionality of a search-and-seizure is whether the conduct
of the law enforcement officer who undertook the search was
objectively reasonable, without regard to his or her underlying
motives or intent." Id. at 219.

23 A-1207-13T3
 Given that the defendant holds the key, our Supreme Court

in Bruzzese authorized officers to accompany an arrestee into

his home even though "one of this country's most protected

rights throughout history has been the sanctity and privacy of a

person's home," and that courts have "applied a more stringent

standard . . . to searches of a residential dwelling." Id. at

217. The Court emphasized that "the touchstone of the Fourth

Amendment is reasonableness," and that the officer's action in

following the defendant into his home "was reasonable, and

hence, constitutional, under both the Fourth Amendment of the

United States Constitution and Article I, paragraph 7 of the New

Jersey Constitution." Id. at 217, 235.

We similarly recognize that "'physical entry of the home is

the chief evil against which the wording of the Fourth Amendment

is directed.'" State v. Vargas, 213 N.J. 301, 313 (2013)

(quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313,

92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752, 764 (1972)). "The

Fourth Amendment and the New Jersey Constitution assure the

'highest degree of protection to privacy interests within the

home.'" State v. Coles, 218 N.J. 322, 337 (2014) (citation

omitted). "Both protect against unreasonable searches and

regard the warrantless entry into a person's home as

'presumptively unreasonable.'" Ibid. (citation omitted).

24 A-1207-13T3
 Nonetheless, like the Supreme Court in Bruzzese, "we

balance, as we must in all search and seizure cases, the

interests of public safety, in this instance the protection of

policemen, against the intrusion." Bruzzese, supra, 94 N.J. at

232. We similarly conclude the "officer is entitled to the

protection he or she would receive under this rule," and that it

is "reasonable to permit policemen to keep [detained] persons in

sight and within reach to prevent their escape." Id. at 232,

234. This is particularly true where, as here, there is a

reasonable belief they may be armed and dangerous.

D.

Once defendant entered his apartment, he provided Officer

Dill further grounds for believing his grey sweatshirt contained

a weapon or other contraband. Defendant removed the grey

sweatshirt and instructed his female companion to put it in the

bedroom while the officer was busy, and then suspiciously

stepped over the grey sweatshirt to grab another sweatshirt from

the closet. Given this indication that defendant was trying to

conceal evidence, Dill "had unrestricted access to the

[apartment]" to prevent it. Chrisman, supra, 455 U.S. at 9, 102

S. Ct. at 818, 70 L. Ed. 2d at 786.

Indeed, Officer Dill would have been justified in seizing

and searching the sweatshirt "under the well-recognized 'plain

25 A-1207-13T3
view' exception to a warrantless seizure of property under the

Fourth Amendment." Bruzzese, supra, 94 N.J. at 235-36, 239

(upholding the plain view seizure and inspection of boots). The

officer was "lawfully in the viewing area." Id. at 236. As set

forth below, he had "'probable cause to associate the

[sweatshirt] with criminal activity'" based on what he

"'reasonably knew at the time of the seizure.'" Johnson, supra,

171 N.J. at 213 (quoting Bruzzese, supra, 94 N.J. at 237).

Finally, Dill "discover[ed] the evidence 'inadvertently,'

'meaning that he did not know in advance where evidence was

located nor intend beforehand to seize it.'" Id. at 206

(quoting Bruzzese, supra, 94 N.J. at 236). Because he "did not

know in advance that evidence would be found in" the grey

sweatshirt before he first encountered defendant, he did not use

"the plain-view doctrine only as a pretense" to avoid getting a

warrant in advance of the encounter. Id. at 211-13; see also

State v. Padilla, 321 N.J. Super. 96, 109 & n.7 (App. Div.

1999), aff'd o.b., 163 N.J. 3 (2000).

Once again, Officer Dill chose a more restrained approach

and simply secured the grey sweatshirt rather than immediately

searching it. Invalidating his actions "would have the perverse

effect of penalizing the officer for exercising more restraint

26 A-1207-13T3
than was required under the circumstances." Chrisman, supra,

455 U.S. at 8, 102 S. Ct. at 817, 70 L. Ed. 2d at 786.

Moreover, Officer Dill's monitoring of defendant's

movements was "conducted in an objectively reasonable fashion."

Bruzzese, supra, 94 N.J. at 234. He did not "'lead the accused

from place to place and attempt to use his presence in each

location to justify a search'" of the apartment. Id. at 234-35

(citation omitted). Instead, he simply insisted that defendant

keep the sweatshirt he had been wearing, and accompanied him to

retrieve it. Dill also did not "direct [defendant] to go to

another area without a legitimate reason grounded in the safety

of the police or the public." Ibid. Instead, when defendant

became extremely nervous, repeatedly looked at the sweatshirt,

and became uncooperative, Dill directed defendant back outside

of the apartment where the stop could be conducted with greater

safety for the officer.7

E.

Defendant's increasing nervousness, uncooperativeness, and

apparent preparation to flee led Officer Dill, whose backup

officer was leaving to investigate another person, to handcuff

7
Officer Dill estimated they had spent only about three minutes
in the apartment. Officer McElwee said it "was probably five,
ten minutes." Neither time period suggests, and defendant does
not contend, that his detention exceeded the permissible
duration of a Terry stop.

27 A-1207-13T3
defendant. Dill then conducted a canine sniff of defendant's

sweatshirt, placing him in the police car to prevent him from

triggering any protective efforts by the police dog. The metal

clank resulting from the canine sniff gave further proof that

the sweatshirt contained a weapon, as the subsequent search

confirmed.

The trial court properly found these precautions were

reasonable and not unnecessarily intrusive under the

circumstances. "The touchstone of a court's analysis under the

Fourth Amendment is, as always, '"the reasonableness in all the

circumstances of the particular governmental invasion of a

citizen's personal security."'" Smith, supra, 134 N.J. at 614

(quoting Mimms, supra, 434 U.S. at 109, 98 S. Ct. at 332, 54 L.

Ed. 2d at 335 (quoting Terry, supra, 392 U.S. at 19, 88 S. Ct.

at 1878-79, 20 L. Ed. 2d at 904)). "Authorities must be allowed

'to graduate their response to the demands of any particular

situation.'" United States v. Montoya De Hernandez, 473 U.S.

531, 542, 105 S. Ct. 3304, 3311, 87 L. Ed. 2d 381, 392 (1985)

(citation omitted).

Defendant contends the officer's precautions exceeded the

scope of a Terry stop. "'[A]n investigative stop becomes a de

facto arrest when the officers' conduct is more intrusive than

necessary for an investigative stop.'" State v. Dickey, 152

28 A-1207-13T3
N.J. 468, 478 (1998) (citation and other internal quotation

marks omitted). "'[F]actors that may weigh in favor of an

arrest are subjecting a suspect to unnecessary delays,

handcuffing him, or confining him in a police car.'" Id. at 479

(citation omitted). However, handcuffing does not necessarily

"establish[] the fact of an arrest." Id. at 483. Further, our

Supreme Court has refused "to hamstring the police officers' on-

the-scene determination to keep defendant detained in the patrol

car" during a Terry stop if their investigation requires them to

divert their attention from the defendant. Coles, supra, 218

N.J. at 347.

Moreover, "conducting a dog sniff [does] not change the

character of a [Terry] stop that is lawful at its inception and

otherwise executed in a reasonable manner," because it

"generally does not implicate legitimate privacy interests."

Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-

38, 160 L. Ed. 2d 842, 847 (2005); see also State v. Cancel, 256

N.J. Super. 430, 434-37 (App. Div. 1992), certif. denied, 134

N.J. 484 (1993). Officer Dill had reasonable suspicion that

defendant's sweatshirt contained drugs or a weapon, and the K-9

dog trained to detect drugs was immediately available to conduct

a dog sniff for drugs. Indeed, an officer in a lawful

investigatory stop may conduct a dog sniff even if it "prolongs

29 A-1207-13T3
the stop" to a reasonable extent needed to complete the dog

sniff procedure, so long as the officer has "reasonable

suspicion" of drug possession. Rodriguez v. United States, 575

U.S. __ , __ S. Ct. __ , __ L. Ed. 2d __ (2015) (slip op. at 6-

8); State v. Baum, 393 N.J. Super. 275, 290 (App. Div. 2007),

aff'd as modified, 199 N.J. 407 (2009).8

Even if Officer Dill's actions of handcuffing defendant and

placing him in the police vehicle converted the investigatory

stop into a de facto arrest, those actions are valid if

"supported by probable cause." Coles, supra, 218 N.J. at 346.

As set forth above, "the smell of marijuana itself constitutes

probable cause 'that a criminal offense had been committed.'"

Walker, supra, 213 N.J. at 290 (citations omitted).9 Indeed,

8
The resulting clanking noise made by the gun was the product of
a legal canine sniff, regardless of whether the dog was trained
to search for a gun.
9
"Possession of . . . marijuana" remains an offense. N.J.S.A.
2C:35-10(a)(3)-(4); see N.J.S.A. 2C:35-2, 24:21-5(e)(10)
(defining marijuana as a Schedule I controlled dangerous
substance). Neither party has invoked the New Jersey
Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 to -
16, which seeks "to protect from arrest, prosecution, property
forfeiture, and criminal and other penalties, those [registered
qualifying] patients who use marijuana to alleviate suffering
from debilitating medical conditions." N.J.S.A. 24:6I-2(e).
Moreover, there is no claim or evidence here that defendant or
anyone using marijuana on the porch was an "authorized holder of
an appropriate registration, permit or order form" under that
Act, which is an affirmative defense. N.J.S.A. 2C:35-18; see
(continued)

30 A-1207-13T3
this probable cause arguably gave the officer the right to

arrest defendant for committing a marijuana offense in his

presence. See id. at 295-96.10

Defendant's hurrying away from the officer suggested

defendant had committed that offense, and arguably "converted

articulable suspicion into probable cause." State v. Ramos, 282

N.J. Super. 19, 22 (App. Div. 1995). The high level of

suspicion was only increased by the bulge in defendant's grey

sweatshirt, his attempt to conceal the grey sweatshirt, and his

suspicious act of stepping over this grey sweatshirt to get

another sweatshirt. Considering "the totality of the

circumstances," there was "'a well grounded suspicion that a

crime has been or is being committed'" before Dill secured the

sweatshirt in the apartment. State v. Basil, 202 N.J. 570, 585,

589 (2010) (citation omitted). Defendant only added further

(continued)
N.J.S.A. 24:6I-3, -4, -5, -6(e); N.J.A.C. 8:64-2.5, -3.1.
Accordingly, we need not address the effect of that Act.
10
N.J.S.A. 40A:14-152.1 allows "arrest for any crime committed
in [an] officer's presence." N.J.S.A. 40A:14-152 allows "arrest
[of] any disorderly person or any person committing a breach of
the peace" "upon view," ibid., that is, "in the presence of the
arresting officer." State v. Dangerfield, 171 N.J. 446, 460
(2002); see Walker, supra, 213 N.J. at 286. "The 'in presence'
requirement . . . is satisfied by the [officer's] use of his
sense of smell in much the same manner as if he had used his
sight or hearing or touch[.]" Judge, supra, 275 N.J. Super. at
203.

31 A-1207-13T3
suspicion by his escalating nervousness and preparation to flee.

Therefore, there was plainly probable cause to arrest defendant

before he was handcuffed or confined, and even before Dill

secured the sweatshirt in the apartment.

It is "'irrelevant'" whether Officer Dill had the

subjective belief he had probable cause to arrest. State v.

O'Neal, 190 N.J. 601, 613-14 (2007) (citation omitted). As

Bruzzese held, "[i]n determining whether a police officer's

actions are constitutional, we do not rely on the officer's own

subjective appraisal, but upon an objective evaluation by a

neutral judicial authority." Bruzzese, supra, 94 N.J. at 219-

20. "Although an officer may testify to his or her subjective

intent, the crucial inquiry is whether the officer's conduct was

objectively reasonable." O'Neal, supra, 190 N.J. at 614. "'An

action is reasonable under the Fourth Amendment, regardless of

the individual officer's state of mind, as long as the

circumstances, viewed objectively, justify [the] action.'" Id.

at 613-14 (quoting Brigham City v. Stuart, 547 U.S. 398, 404,

126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) (internal

quotation marks omitted)).

"[T]he fact that the officers did not believe there was

probable cause and proceeded on a consensual or Terry-stop

rationale would not foreclose the State from justifying [a

32 A-1207-13T3
defendant's] custody by proving probable cause." Florida v.

Royer, 460 U.S. 491, 507, 103 S. Ct. 1319, 1329, 75 L. Ed. 2d

229, 242 (1983) (plurality opinion) (citing Sibron v. New York,

392 U.S. 40, 66-67, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917, 936-

37 (1968)). Thus, in O'Neal, our Supreme Court upheld a

purported Terry stop because "objectively, [the officers] had

probable cause," and "could have immediately placed him under

arrest, searched him, and seized the bag of drugs as a search

incident to a lawful arrest." O'Neal, supra, 190 N.J. at 607,

611, 613-14. Similarly, even if Officer Dill's precautions made

this a de facto arrest, probable cause justified arrest, the

search of defendant's sweatshirt, and the seizure of the gun.

See id. at 613-14.

F.

At the suppression hearing, the parties cited Chrisman and

Bruzzese, which the State urged authorized Officer Dill to

accompany defendant into his apartment. The trial court agreed

"the police acted within their authority in following the

Defendant into the apartment." However, in its appellate brief,

the State without explanation abandoned that position, and

instead argued that we should uphold the denial of suppression

on the grounds of inevitable discovery.

33 A-1207-13T3
 At oral argument, the State clarified it was not confessing

error in the trial court's ruling, but merely offering a new,

alternative basis for affirmance. Regardless, any confession of

error would not be binding on this court. State v. Josey, 290

N.J. Super. 17, 32 (App. Div.), certif. denied, 146 N.J. 497

(1996). "[A] confession of error by the State must be taken

into account by an appellate court but is not a controlling

factor," and "'does not relieve this [c]ourt of the performance

of the judicial function.'" Ibid. (quoting Young v. United

States, 315 U.S. 257, 258, 62 S. Ct. 510, 511, 86 L. Ed. 832,

834-835 (1942)). The trial court has made a ruling, and "'our

judicial obligations compel us to examine independently the

errors confessed.'" Id. at 32 (quoting Young, supra, 315 U.S.

at 258-59, 62 S. Ct. at 511, 86 L. Ed. at 835). Our analysis

finds no error by the trial court.

Thus, we do not consider the State's new inevitable

discovery argument, which was raised for the first time on

appeal, without the necessary facts being developed in the trial

court. State v. Bradley, 291 N.J. Super. 501, 516 (App. Div.

1996); see State v. M.A., 402 N.J. Super. 353, 358 n.1 (App.

Div. 2008); see generally State v. Robinson, 200 N.J. 1, 18-22

(2009).

34 A-1207-13T3
 III.

Defendant's appellate brief also challenged the sentencing

court's denial of bail pending appeal. He did not file a motion

in this court seeking bail pending appeal under Rule 2:9-4. A

defendant requesting bail pending appeal should raise that issue

by motion filed promptly after filing the appeal, to bring the

request to our attention earlier. At this point, the appeal is

no longer pending before us and the issue is moot.

In any event, a defendant may only receive bail pending

appeal "if it appears that the case involves a substantial

question that should be determined by the appellate court, that

the safety of any person or of the community will not be

seriously threatened if the defendant remains on bail and that

there is no significant risk of defendant's flight." Ibid. The

sentencing court found that the safety of the community would be

seriously threatened given defendant's firearm conviction and

criminal history, and that there was a significant risk of

flight as he was facing a substantial prison sentence.

"The setting of bail is vested in the sound discretion of

the trial court, and we consequently review the trial court's

decision for an abuse of discretion." State v. Steele, 430 N.J.

Super. 24, 34 (App. Div.), appeal granted, 214 N.J. 233 (2013),

35 A-1207-13T3
appeal dismissed, __ N.J. __ (2014). Even assuming the appeal

presents a substantial question, we find no abuse of discretion.

Affirmed.

36 A-1207-13T3