State of New Jersey v. Richard Bard

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1016-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. APRIL 19, 2016

RICHARD BARD, a/k/a APPELLATE DIVISION
RICHARD BARD, JR.,

Defendant-Appellant.
__________________________________

Argued January 11, 2016 – Decided February 29, 2016

Before Judges Lihotz, Fasciale and Higbee.

On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 13-11-0875.

Rochelle Watson, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Watson, of counsel and on the
brief).

Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Carol M. Henderson, Assistant Attorney
General, of counsel and on the brief; Lynne
M. Glass, Volunteer Attorney, on the brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.
 Defendant Richard Bard appeals from a September 9, 2014

judgment of conviction, following his conditional guilty plea to

the amended disorderly person's offense of possession of

marijuana, N.J.S.A. 2C:35-10(a)(4). He was sentenced to a 180-

day county jail term and a 180-day period of parole

disqualification.

Defendant entered his plea following the denial of his

motion to suppress. In a single point on appeal, he argues:

DEFENDANT'S UNWILLINGNESS TO TALK TO THE
POLICE DURING THE FIELD INQUIRY COUPLED WITH
HIS PUTTING HIS HAND IN HIS BACK POCKET DID
NOT PROVIDE REASONABLE SUSPICION TO SEIZE
AND FRISK HIM.

Following our review of the arguments, in light of the

facts and applicable law, we conclude the totality of

circumstances satisfied the State's burden to show the State

Troopers had a reasonable articulable suspicion defendant was

armed, necessitating a stop and frisk. Accordingly, we affirm.

These facts are taken from the suppression hearing record.1

New Jersey State Trooper Chris Paligmo, one of two arresting

officers, was the sole testifying witness.2

1
After noting variations in spelling of certain names found
in the transcript and the judge's written opinion, we have
chosen to adopt the spelling set forth in the opinion.
2
Defendant waived his right to testify.

2 A-1016-14T3
 On July 29, 2013, Trooper Paligmo and his partner, Trooper

Silipino, were assigned to perform "community policing," in full

uniform, at Tips Trailer Park. While assigned to the Bridgeton

Barracks, Trooper Paligmo had numerous personal experiences with

the area as a high-crime location, testifying he was involved in

arrests for multiple homicides, open-air narcotics distribution,

burglaries, assaults, weapons offenses, and gang activity. He

further noted, "[w]e have the highest call volume in the state"

and, in the months preceding defendant's arrest, the Cumberland

County Prosecutor's Office transmitted to the barracks "safety

alerts with threats . . . saying they were going to harm

troopers – that patrolled the area."

As the two troopers patrolled the neighborhood on foot, at

1:30 a.m., they walked along a partially paved path in an area

that was not well-lit. The troopers observed defendant walking

toward them, approximately thirty-three feet away. Trooper

Paligmo attempted to engage defendant, saying: "Hey, bud, what's

going on? How you doing?" Defendant displayed no reaction, did

not make eye contact and "acted as though he didn't hear us.

Head dropped, appeared to be nervous. And tried to . . . walk

by us, without acknowledging."

While walking toward the officers, when defendant was

approximately ten to fifteen feet away, his hand, which had been

3 A-1016-14T3
at his side, moved to his back pocket. The troopers then asked

him to "show his hands." Defendant did not comply and continued

to close the distance between him and the troopers with his hand

behind him. At that point, Trooper Silipino "secured" defendant

by making "sure he had control of his hand that was out of

view." He "pulled" defendant's hand from his pocket and held it

while Trooper Paligmo frisked the area of defendant's pocket

with his palm. Trooper Paligmo felt a hard bulge that was

"quite large," roughly five to six inches in diameter. The

trooper also felt the texture of the object and heard a crinkle

sound, concluding it was marijuana. He removed it from

defendant's pocket, finding a tightly packed bundle containing

"a large plastic bag filled with marijuana buds, and also

individual[ly] packaged marijuana." Defendant was subsequently

arrested.

When asked why he frisked defendant, Trooper Paligmo

testified: "I believed he had a weapon. His behavior was very

alarming to me; and, being with another trooper, I felt both of

our safeties [sic] may have been at risk." He explained his

belief in light of his training, stating:

the hands are described as always the most
threatening and dangerous part of our job,
in terms of when you can't see them. That
hand could always possess any sort of
weapon. Even including a needle. You are
told to – at any point of a stop, or a

4 A-1016-14T3
 contact, a pedestrian contact, more or less,
that you need to see their hands, because
hands pose the most threat.

To deal with that, you ask to see them.
You ask a reasonable amount of time, or a
reason about a number of times to ask to see
those hands[] that you feel comfortable
with. After that, then you're trained to
see those hands through physical means.

. . . .

[W]e're trained that 21 feet is the
. . . distance where you can be affected by
somebody just weaving with a knife. They
pull a knife, you've got within 21 feet, a
matter of seconds, they can be on you
without a reaction. So always, we're
taught, action is quicker than reaction.
And, in this case, that's what's going
through our heads; that's going through my
head. And, therefore, I thought it was
handled the best we could handle it at the
time.

On cross-examination, Trooper Paligmo acknowledged when

defendant was first observed he was not engaged in criminal

activity. He also admitted the fact defendant would not respond

to his greeting or that he dropped his head was not necessarily

dangerous. However, he stated "hands, that's . . . my primary

concern. If I can't see his hands, that makes me nervous. It

makes any other trooper nervous." He added, "there are certain

people who want to hurt the police or harm the police. And, I'm

here to tell you, they're going to harm the police."

5 A-1016-14T3
 The judge issued a comprehensive written opinion. He found

Trooper Paligmo's testimony credible and analyzed the police-

citizen encounter step by step. He noted when defendant did not

respond to the officer's greeting, he was not ordered to stop

and his movements were not impeded.

When the defendant did not respond and
placed his hand behind his back and into his
rear pocket, he was still free to leave.
The [t]roopers did not order him to stop,
but simply asked him to show his hand. He
did not. There is no evidence before the
[c]ourt that had the [d]efendant complied
with such a request that anything further
would have happened. However, in that brief
moment of non-compliance with a reasonable
request, the police encounter escalated and
involved the detention of the defendant such
that his freedom of movement was hampered.

Analyzing the police conduct in detaining defendant and engaging

in a Terry frisk,3 the judge found the reasonable inferences,

drawn from the totality of the circumstances, warranted the

trooper's belief he and his partner's protection and safety were

at risk, justifying the limited frisk for weapons.

Defendant's motion to suppress was denied. Following entry

of his conditional guilty plea and sentence, he appealed.

3
See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968).

6 A-1016-14T3
 The Supreme Court has explained the standard of review

applicable to our consideration of a trial judge's fact-finding

on a motion to suppress.

We are bound to uphold a trial court's
factual findings in a motion to suppress
provided those "findings are 'supported by
sufficient credible evidence in the
record.'" State v. Elders, 192 N.J. 224,
243-44 (2007) (quoting State v. Elders, 386
N.J. Super. 208, 228 (App. Div. 2006)).
Deference to those findings is particularly
appropriate when the trial court has the
"'opportunity to hear and see the witnesses
and to have the feel of the case, which a
reviewing court cannot enjoy.'" Id. at 244
(quoting State v. Johnson, 42 N.J. 146, 161
(1964)). Nevertheless, we are not required
to accept findings that are "clearly
mistaken" based on our independent review of
the record. Ibid. Moreover, we need not
defer "to a trial . . . court's
interpretation of the law" because "[l]egal
issues are reviewed de novo." State v.
Vargas, 213 N.J. 301, 327 (2013).

[State v. Watts, 223 N.J. 503, 516 (2015)
(alteration in original)]

An appellate court remains mindful not to "disturb the trial

court's findings merely because 'it might have reached a

different conclusion were it the trial tribunal' or because 'the

trial court decided all evidence or inference conflicts in favor

of one side' in a close case." Elders, supra, 192 N.J. at 244

(quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse

only when the court's findings "are so clearly mistaken 'that

7 A-1016-14T3
the interests of justice demand intervention and correction.'"

Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Defendant argues there was no evidence he was engaged in

illegal conduct and his decision not to interact with the police

was insufficient to support a stop and frisk. Also, he

maintains the unwarranted emphasis on the high crime nature of

the area could not "paint a gloss of criminality on what was

otherwise innocuous conduct." He urges reversal and suppression

of the narcotics seized in the warrantless stop.

We reject defendant's argument, which isolates the

individual facts presented. We conclude the trial judge

properly considered the totality of the circumstances when

determining the reasonableness of the troopers' reaction.

When analyzing a warrantless search and seizure, we start

with the parameters defined by our Federal and State

Constitutions. These protections require police to first secure

a warrant before seizing a person or conducting a search of a

home or a person. Watts, supra, 223 N.J. at 513-14; State v.

Reece, 222 N.J. 154, 167 (2015).

[B]oth the Fourth Amendment to the United
States Constitution and Article I, Paragraph
7 of the New Jersey Constitution guarantee
to New Jersey's citizens "[t]he right to
walk freely on the streets of a city without
fear of an arbitrary arrest." State v.
Gibson, 218 N.J. 277[, 281] (2014). When
evaluating the reasonableness of a

8 A-1016-14T3
 detention, the "totality of circumstances
surrounding the police-citizen encounter"
must be considered. State v. Privott, 203
N.J. 16, 25 (2010) (quoting [State v. Davis,
104 N.J. 490, 504 (1986)]).

[State v. Coles, 218 N.J. 322, 343 (2014)
(fist alteration in original).]

The constitution also allows a person the privilege, "upon

noting a police presence, to decide that he or she wishes to

have nothing to do with the police, without risking apprehension

solely by reason of the conduct manifesting that choice." State

v. L.F., 316 N.J. Super. 174, 179 (App. Div. 1998) (quoting

State v. Ruiz, 286 N.J. Super. 155, 162-63 (App. Div. 1995),

certif. denied, 143 N.J. 519 (1996)). "[D]eparture alone

signifies nothing more than behavior in fulfillment of a wish to

be a somewhere else." Ibid. (quoting Ruiz, supra, 286 N.J.

Super. at 163). Thus, police officers may not place their hands

on citizens "in search of anything" without "constitutionally

adequate, reasonable grounds for doing so." Sibron v. New York,

392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935

(1968).

While the warrantless seizure of a person is "presumptively

invalid as contrary to the United States and the New Jersey

Constitutions," Coles, supra, 218 N.J. at 342 (quoting State v.

Mann, 203 N.J. 328, 337-38 (2010)), there remains a critical

"balance to be struck between individual freedom from police

9 A-1016-14T3
interference and the legitimate and reasonable needs of law

enforcement." Id. at 343. A reviewing court must determine

whether the State has met its burden, by a preponderance of the

evidence, to establish the warrantless search or seizure of an

individual was justified in light of the totality of the

circumstances. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.

Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).

The parameters for an investigatory stop are well-defined.

[A] police officer may conduct an
investigatory stop of a person if that
officer has "particularized suspicion based
upon an objective observation that the
person stopped has been or is about to
engage in criminal wrongdoing." State v.
Davis, 104 N.J. 490, 504 (1986)[.] The stop
must be reasonable and justified by
articulable facts; it may not be based on
arbitrary police practices, the officer's
subjective good faith, or a mere hunch.

[Coles, supra, 218 N.J. at 343 (citation
omitted).]

The Terry exception to the warrant requirement permits a

police officer to detain an individual for a brief period, and

to pat him down for the officer's safety, if that stop is "based

on 'specific and articulable facts which, taken together with

rational inferences from those facts,' give rise to a reasonable

suspicion of criminal activity." State v. Rodriguez, 172 N.J.

117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct.

at 1880, 20 L. Ed. 2d at 906); see also State v. Williams, 192

10 A-1016-14T3
N.J. 1, 9 (2007) (quoting Terry, supra, 392 U.S. at 30, 88 S.

Ct. at 1884, 20 L. Ed. 2d at 911) (stating a Terry pat down is

constitutionally permissible when the police officer believes

the suspect "may be armed and presently dangerous").

When reviewing whether the State has shown a valid

investigative detention, consideration of the totality of the

circumstances requires we "give weight to 'the officer's

knowledge and experience' as well as 'rational inferences that

could be drawn from the facts objectively and reasonably viewed

in light of the officer's expertise.'" State v. Citarella, 154

N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11

(1997)). "The fact that purely innocent connotations can be

ascribed to a person's actions does not mean that an officer

cannot base a finding of reasonable suspicion on those actions

as long as 'a reasonable person would find the actions are

consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra,

149 N.J. at 11).

Finally, we must remember the "touchstone" for evaluating

whether police conduct has violated constitutional protections

is "reasonableness." State v. Hathaway, 222 N.J. 453, 476

(2015) (quoting State v. Judge, 275 N.J. Super. 194, 200 (App.

Div. 1994)). The reasonableness of police conduct is assessed

with regard to circumstances facing the officers, who must make

11 A-1016-14T3
split second decisions in a fluid situation. See State v.

Bruzzese, 94 N.J. 210, 228 (1983), cert. denied, 465 U.S. 1030,

104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

Such encounters are justified only if the
evidence, when interpreted in an objectively
reasonable manner, shows that the encounter
was preceded by activity that would lead a
reasonable police officer to have an
articulable suspicion that criminal activity
had occurred or would shortly occur. No
mathematical formula exists for deciding
whether the totality of circumstances
provided the officer with an articulable or
particularized suspicion that the individual
in question was involved in criminal
activity. Such a determination can be made
only through a sensitive appraisal of the
circumstances in each case.

[Davis, supra, 104 N.J. at 505 (emphasis
added).]

We also note it is important for courts to take a realistic

approach to "reviewing police behavior in the context of the

ever-increasing violence in society." State v. Valentine, 134

N.J. 536, 545 (1994) ("As the front line against violence, law-

enforcement officers are particularly vulnerable to violence

often becoming its victims."). Guided by these principles, we

examine the facts and circumstances presented in this case.

The trial judge listed the culmination of events which,

when considered in their totality, formed the troopers'

reasonably articulable suspicion of activity placing them in

danger. These include: the troopers were on foot, walking a

12 A-1016-14T3
dimly lit pathway, and patrolling a very high-crime area at 1

a.m. When Trooper Paligmo observed defendant, he was wearing

dark clothing and walking toward him and appeared nervous;

rather than look at the troopers, he lowered his head and would

not make eye contact. Trooper Paligmo addressed defendant,

which he ignored and then placed his hand, which had been at his

side, behind his back, reaching into his pocket. At that point,

the distance between defendant and the troopers was no more than

fifteen feet, a span the trooper's training taught him was

critical. Defendant was asked to show his hand, but refused.

The troopers acted after they processed probabilities, as guided

by their training and direct experience in this neighborhood,

along with their assessment of the events, which occurred in a

matter of seconds. We conclude, as did the trial judge, the

troopers considered their safety to be at great risk because

they reasonably believed defendant possessed a weapon and took

limited action for their protection.

We reject defendant's argument suggesting the judge

erroneously relied on defendant's decision "to ignore the

officer's invitation to chat" as justification for the unlawful

detention. He maintains his constitutional right to ignore a

police field inquiry cannot support a reasonable articulable

suspicion justifying an investigative stop. In our view of the

13 A-1016-14T3
judge's opinion, we determine the mention of defendant's refusal

to engage the troopers was contextual only, not determinative.

The pivotal facts changing this encounter from a man

walking toward two police officers on a neighborhood street to a

situation where police officers became alarmed they faced grave

danger by the encounter include defendant's hand movement toward

and into his back pocket and his disregard when told to show his

concealed hand. Adding these crucial elements, which elapsed

over seconds, to Trooper Paligmo's personal knowledge of the

numerous violent crimes occurring in the neighborhood, the

warnings regarding police safety, the hour of day, the lack of

lighting, and the troopers' training and experience, the

troopers' fear of exposure to danger was rationally drawn,

making Trooper Silipino's stop of defendant not only objectively

reasonable, but necessary to assure the troopers' safety. See

Coles, supra, 218 N.J. 343-44 ("Case law has recognized law

enforcement's need to respond to the fluidity of a street

encounter where there is a reasonable suspicion of wrongdoing

. . . ."); State v. Pineiro, 181 N.J. 13, 25-27 (2004); Privott,

supra, 203 N.J. at 28.

The totality of these facts presented display the troopers'

reactions resulted from more than a suspicion or hunch. When

viewed together, the facts demonstrate the troopers' perception

14 A-1016-14T3
defendant was likely reaching for a weapon and posed a safety

threat was reasonable, which meets Terry's standard and

justifies a stop and frisk. See Michigan v. Long, 463 U.S.

1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220

(1983) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880,

20 L. Ed. 2d at 906) (stating under the Fourth Amendment, a pat-

down or frisk is "permissible if the police officer possesses a

reasonable belief based on 'specific and articulable facts

which, taken together with the rational inferences from those

facts, reasonably warrant' the officer in believing that the

suspect is dangerous and the suspect may gain immediate control

of weapons").

The reasonableness of the troopers' response to secure

defendant's concealed hand is also informed by the Court's

opinion in Williams, which held "[u]nder New Jersey's

obstruction statute, when a police officer commands a person to

stop, or as in this case orders him to place his hands on his

head for a pat-down search, that person has no right to take

flight or otherwise obstruct the officer in the performance of

his duty." Williams, supra, 192 N.J. at 11. The Court found

the "defendant was obliged to submit to the investigatory stop,

regardless of its constitutionality." Id. at 10.

15 A-1016-14T3
 In this matter, defendant's lack of compliance under the

circumstances described would lead a reasonable police officer,

or any reasonable person, to perceive an imminent threat to the

troopers' safety. State v. Daniels, 393 N.J. Super. 476, 487

(App. Div. 2007). See also Williams, supra, 192 N.J. at 9. See

also State v. Otero, 245 N.J. Super. 83, 93 (App. Div. 1990)

("With the occupants' hands hidden, the officer was unable to

assess the extent to which his safety was in jeopardy.").

We also reject defendant's argument, which parses

individual facts scrutinizing whether defendant's unwillingness

to talk to police or the "innocuous" and "nonthreatening" act of

concealing his pocketed hand were sufficient to satisfy Terry's

standards. State v. Stovall, 170 N.J. 346, 368 (2002) (holding

a group of innocent circumstances in the aggregate can support a

reasonable suspicion finding). Defendant looks to United States

v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996), as support for

his position. The facts here are distinguishable, making the

holding in Davis inapposite.

In Davis, the defendant exited a car and walked toward a

business known for engaging in criminal and gang activity with

his hands in his pocket. Ibid. He ignored a police order to

stop. Ibid. The court held "Davis' actions in exiting the car,

making and then breaking eye contact with the officers, and then

16 A-1016-14T3
walking away from the officers also d[id] not furnish the basis

for a valid Terry stop." Ibid. Further, "[t]he fact that Davis

had his hands in his coat pockets on a December night in Tulsa

also does not justify an investigative detention." Id. at 1469.

We do not agree the holding in Davis dictates the outcome

of this matter. The law requires us to assess all circumstances

and make a common sense determination of whether the State

showed a reasonable probability defendant's conduct posed a

danger to the troopers. Cf. State v. Moore, 181 N.J. 40, 46

(2004) (quoting State v. Zutic, 155 N.J. 103, 113 (1998))

("Although several factors considered in isolation may not be

enough, cumulatively these pieces of information may 'become

sufficient to demonstrate probable cause.'"). More importantly,

the reasonableness of police reaction is driven by the unique

circumstances and renders any analysis case specific. See State

v. Dennis, 113 N.J. Super. 292, 296-98 (App. Div.), certif.

denied, 58 N.J. 337 (1971).

Unlike the defendant in Davis, who was walking away from

police, defendant in this case walked toward police as he moved

his hand to his back pocket and continued to conceal his hand,

despite requests for him to expose it to the troopers' view.

The troopers' safety concerns were supported because defendant

17 A-1016-14T3
was no more than fifteen feet away when he concealed his hand,

preventing the troopers from avoiding direct contact.

Further, the judge found defendant was not stopped merely

because he decided not to talk to police while he walked through

a high-crime area. He was not stopped merely because he

appeared nervous when aware of the police presence or because he

dropped his head and avoided eye contact as he continued toward

the troopers. Defendant was not stopped when he moved his hand

from his side to his back pocket. However, after crediting the

training and practical experience of the troopers, whose every

day work transpires on these streets, defendant's refusal to

show his concealed hand led to the reasonable belief he

possessed a weapon and posed a threat. Bruzzese, supra, 94 N.J.

at 228. See Otero, supra, 245 N.J. Super. at 93 ("When the

occupants [of a motor vehicle] refused to expose their hands,

justification arose for taking the 'stop and frisk' steps

required to ensure the officer's safety."). Even if several

factors viewed in isolation may not be enough, cumulatively all

of these pieces of information are sufficient to meet the

State's burden to validate a Terry stop. Stovall, supra, 170

N.J. at 368.

Once an officer has a basis to make a lawful investigatory

stop, he may protect himself during that stop by conducting a

18 A-1016-14T3
search for weapons if he "has reason to believe that the suspect

is armed and dangerous." Adams v. Williams, 407 U.S. 143, 146,

92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972) ("So long as

the officer is entitled to make a forcible stop, and has reason

to believe that the suspect is armed and dangerous, he may

conduct a weapons search limited in scope to this protective

purpose."). Here, for their protection, troopers had a right to

disarm defendant, using a limited protective frisk of his back

pocket. "The test is not whether there were other reasonable or

even better ways to execute the search, for hindsight and

considered reflection often permit more inspired after-the-fact

decision-making." Watts, supra, 223 N.J. at 514. "[T]hose who

must act in the heat of the moment do so without the luxury of

time for calm reflection or sustained deliberation." Hathaway,

supra, 222 N.J. at 469 (quoting State v. Frankel, 179 N.J. 586,

599, certif. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d

128 (2004)). We must not examine the facts distorted by

hindsight, but "examine the conduct of those officials in light

of what was reasonable under the fast-breaking and potentially

life-threatening circumstances that were faced at the time."

Ibid. (quoting Frankel, supra, 179 N.J. at 599). "For purposes

of our Federal and State Constitutions, it is enough that the

19 A-1016-14T3
police officers, in performing their duties, acted in an

objectively reasonable fashion." Watts, supra, 223 N.J. at 515.

The search and seizure was objectively reasonable. As a

result, suppression was properly denied.

Affirmed.

20 A-1016-14T3