NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5486-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN C. COGDELL, a/k/a SEAN GOGDELL,
SEAN GOGDETT, DWIGHT S. MURPHY, SEAN
C. COGDELL, IVY DANTE and IVY DONTE,
Defendant-Appellant.
__________________________________
Submitted June 6, 2017 – Decided August 2, 2017
Before Judges Fasciale and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Accusation No. 16-
05-0116.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Following the denial of his motion to suppress physical
evidence, defendant Sean Cogdell pled guilty to Accusation 16-05-
00116, charging him with second-degree possession of a firearm
while committing a controlled dangerous substance/bias crime,
N.J.S.A. 2C:39-4(a). Defendant also pled guilty to the second
count in three separate indictments: I-14-03-00718, I-16-02-00421,
and I-16-03-00949, each of which charged him with third-degree
manufacturing/distribution of a controlled dangerous substance,
N.J.S.A. 2C:35-5(a)(1). In exchange, the State recommended an
aggregate custodial sentence of seven years with a forty-two month
period of parole ineligibility and dismissal of the remaining
charges. The court sentenced defendant in accordance with the
agreement and additionally imposed the requisite fines and
penalties.
On appeal, defendant raises one point for our consideration:
THE SUPPRESSION MOTION SHOULD HAVE BEEN
GRANTED BECAUSE THE POLICE CONDUCTED A SEIZURE
OF DEFENDANT WITHOUT A REASONABLE, ARTICULABLE
SUSPICION TO BELIEVE DEFENDANT HAD COMMITTED
A CRIME AND THE SUBSEQUENT ABANDONMENT OF THE
PROPERTY WAS A RESULT OF THE ILLEGAL SEIZURE.
U.S. Const. Amends. IV; XIV; N.J. Const. Art.
I, ¶¶ 1, 7.
We affirm.
2 A-5486-15T2
The relevant facts were established at a hearing on the motion
to suppress. On October 14, 2013, plainclothes detectives Del
Mauro and Costa, traveling in an unmarked vehicle westbound on
Clinton Avenue in Newark, observed two individuals engaged in a
conversation in front of 98 Clinton Avenue. One of the individuals
displayed currency in his hands. Suspecting a possible narcotics
transaction underway, the detectives decided to investigate
further. They pulled their vehicle to the curb. As the officers
exited their vehicle and approached the two men, they saw a pill
bottle in the hand of the other individual, later identified as
defendant. When the detectives announced their presence as police,
defendant looked up, appeared startled, and started to run. Once
defendant started to run, Detective Mauro yelled, "stop police."
While running, defendant discarded the pill bottle and a black
magnetic box from his pocket. As the black magnetic box was being
discarded, it revealed several glycine envelopes of suspected
heroin. Detective Mauro pursued defendant until he apprehended
him. During the pursuit, he never lost sight of defendant, did
not see anyone else running with defendant, and did not see anyone,
other than defendant, discarding objects to the ground.
In denying defendant's motion to suppress the physical
evidence seized, the motion judge found that defendant's seizure
did not occur until after the two detectives observed defendant
3 A-5486-15T2
with the prescription bottle, which the motion judge concluded
gave the detectives probable cause to believe that defendant was
in possession of a controlled dangerous substance. We agree.
The Fourth Amendment to the Constitution of the United States
and Article I, paragraph 7 of the New Jersey Constitution protect
citizens of this State from unreasonable searches and seizures.
State v. Pena-Flores, 198 N.J. 6, 18 (2009). "A warrantless
[seizure] is presumed invalid unless it falls within one of the
recognized exceptions to the warrant requirement." State v. Cooke,
163 N.J. 657, 664 (2000). "Because our constitutional
jurisprudence evinces a strong preference for judicially issued
warrants, 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) (quoting
State v. Elders, 192 N.J. 224, 249 (2007).
Police encounters with individuals generally occur at three
distinct levels: a field inquiry, an investigatory stop, and/or
an arrest. State v. Nishina, 175 N.J. 502, 510-11 (2003). There
are constitutional considerations at all levels of encounters.
Ibid. Here, the trial court found the investigative stop as a
basis for upholding the detectives' actions.
4 A-5486-15T2
An investigative stop, or the so-called "Terry1 stop," does
not require probable cause to believe a person has committed or
is about to commit an offense. Id. at 510. Rather, "[a] police
officer may conduct an investigatory stop if, based on the totality
of the circumstances, the officer ha[s] a reasonable and
particularized suspicion to believe that an individual has just
engaged in, or was about to engage in, criminal activity." State
v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 899, 906) (1968)).
"A police officer must be able 'to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant' the intrusion." State v.
Thomas, 110 N.J. 673, 678 (1988) (quoting Terry, supra, 392 U.S.
at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906). Specific and
articulable facts are more than a police officer's "inchoate and
unparticularized suspicion or hunch[.]" State v. Privott, 203
N.J. 16, 29 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S.
Ct. at 1883, 20 L. Ed. 2d at 909). "No mathematical formula exists
for deciding whether the totality of circumstances provide[s] the
officer with an articulable or particularized suspicion that the
individual in question was involved in criminal activity." State
1
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.
2d 899, 906) (1968)).
5 A-5486-15T2
v. Davis, 104 N.J. 490, 505 (1986). In such an evaluation, we
afford "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)).
We also note, "[t]he 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). Nonetheless, "an investigative stop may become a de facto
arrest" when the conduct of police officers escalates into action
that is more intrusive than what is necessary to accomplish the
investigation, measured of course, under the totality of the then
existing circumstances. State v. Bernokeits, 423 N.J. Super. 365,
372 (App. Div. 2011). Ultimately, "[i]n any given case, the
reasonableness of the investigatory detention is a function of the
degree and kind of intrusion upon the individual's privacy balanced
against the need to promote governmental interests." Id. at 372
(citing Davis, supra, 104 N.J. at 504).
We apply these concepts to the totality of the circumstances
confronting the detectives at the time of defendant's seizure.
6 A-5486-15T2
Relying upon State v. Tucker, 136 N.J. 158 (1994), the crux of
defendant's argument is that his seizure was not based upon a
reasonable and articulable suspicion of criminal activity because
the seizure occurred before the detectives observed the
prescription pill bottle. To support this contention, defendant
points to Detective Mauro's initial testimony during direct
examination where the detective testified that:
[u]pon us, you know, walking towards them,
they observed us. Mr. Cogdell looked at us,
had a surprised look on his face. We yelled,
"Stop Police," as we were going to further
investigate. The other -- the unknown black
male had pulled the money back, walked off and
he started running, Mr. Cogdell.
When asked whether he observed defendant holding anything after
he and his partner made their initial observations, Detective
Mauro responded, "At this point no."
The record reveals that later in his direct examination,
Detective Mauro changed his testimony. Specifically, after
testifying that he did not remember when he first saw the
prescription bottle, he was permitted to refresh his recollection
with a police report of the incident. Once he refreshed his
recollection, he testified he first observed the prescription
bottle as he and his partner were exiting their vehicle, at which
point he yelled, "stop police." Relying upon Detective Mauro's
initial testimony, defendant argues the police announced their
7 A-5486-15T2
presence by yelling "stop police," before observing the
prescription bottle. Defendant therefore contends the detectives'
actions constituted an illegal seizure, without the requisite
reasonable and articulable suspicion, necessitating the
suppression of the physical evidence recovered following his
apprehension.
Defendant's argument, however, overlooks the motion judge's
specific findings. Despite the change in the officer's testimony
after refreshing his recollection, the motion judge credited the
version of Detective Mauro's testimony wherein he testified that
he observed the prescription bottle as he was exiting his unmarked
vehicle and did not yell, "stop police," until defendant started
to run away.
In our review, 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. Watts, 223 N.J. 503, 516 (2015) (quoting Elders, supra, 192 at
243-44 (2007)). "Deference to those findings is particularly
appropriate when the trial court has [had] the 'opportunity to
hear and see the witnesses and to have the feel of the case, which
a reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra,
192 N.J. at 244). Review of a trial court's legal conclusions,
8 A-5486-15T2
however, is conducted de novo. Reese v. Weis, 430 N.J. Super.
552, 568 (App. Div. 2013).
Here, the motion judge found the order to stop was given
after Detective Mauro observed the prescription bottle in
defendant's hand and, defendant appearing surprised by the
announcement of police presence, started to run. Thus, the court
concluded the seizure did not take place immediately as defendant
urges. Rather, the court was satisfied that at the time the
seizure occurred, the detectives had probable cause to believe
defendant was in possession of a controlled dangerous substance.
That there were inconsistencies in the detective's testimony
did not require the motion judge to reject the detective's
testimony entirely. Inconsistency was but one factor, along with
other factors, the judge was obliged to consider in his overall
assessment of the witness's credibility. See Model Jury Charge
(Criminal), "Prior Contradictory Statements of Witnesses (Not
Defendant)" (1994). The judge noted, for example, the witness's
experience. The judge also pointed out the witness's explanation
regarding the passage of time between the incident and his
testimony, which led the judge to state, "when you look at the
time it doesn't surprise me that he didn't remember those things,
the other person. Because I think he was focused on, at that
point, Mr. Cogdell."
9 A-5486-15T2
We discern no basis to disturb the judge's credibility
assessment here. The finding that the seizure occurred after
there was reasonable and articulable suspicion and that the
contraband recovered was lawfully seized, is supported by the
record. Consequently, the motion judge properly concluded the
facts surrounding defendant's seizure and recovery of the physical
evidence were distinguishable from the circumstances in Tucker,
supra, 136 N.J. at 172 (holding that "[p]roperty is not considered
abandoned when a person throws away incriminating articles due to
the unlawful actions of police officers".
Affirmed.
10 A-5486-15T2
STATE OF NEW JERSEY VS. SEAN C. COGDELL(16-05-0116, ESSEX COUNTY AND STATEWIDE)
Combined Opinion