STATE OF NEW JERSEY VS. DAVID WILEY (15-02-0266, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4454-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID WILEY,

Defendant-Appellant.
__________________________

Submitted January 29, 2019 – Decided May 16, 2019

Before Judges Suter and Geiger.

On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 15-02-0266.

Joseph E. Krakora, Public Defender, attorney for
appellant (Jay L. Wilensky, Assistant Deputy Public
Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Jaimee M. Chasmer, Assistant Prosecutor,
on the brief).

PER CURIAM
 Defendant appeals his June 13, 2017 judgment of conviction, arguing that

the trial court erred by denying his motion to suppress evidence of a gun . We

affirm.

An eight-count indictment was returned against defendant. The first three

counts related to defendant's involvement with the shooting death of Joshua

Taylor on August 8, 2014. The remaining counts related to his possession of a

gun a few days later that was connected to Thomas' death. Defendant's motions

to suppress evidence of the gun, to sever charges, to reduce his bail and to

suppress his statement given to police prior to his arrest, were all denied.

Defendant pleaded guilty in May 2017 to an amended charge of first-

degree aggravated manslaughter with extreme indifference to human life,

N.J.S.A. 2C:11-4(a)(1), and second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a). During the factual basis for the plea,

defendant acknowledged he was found in possession of a gun on and that it was

his intention to use the gun unlawfully against another person.

Defendant was sentenced to a ten-year term for aggravated manslaughter,

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent eight-

year term for the gun possession charge, subject to a four-year parole disqualifier

under the Graves Act, N.J.S.A. 2C:43-6(c).

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 I

Officers Joamie Fernandez and Mark Hennessey were on patrol in Jersey

City at 4:00 a.m. on August 16, 2014, when they turned onto Martin Luther King

Drive. Fernandez testified at the suppression hearing that he saw four people

about 250 feet away at the next intersection, which was well-lit. He recognized

defendant, who was standing astride a bicycle, because they had taken the same

English class in high school. When the officers were about twenty to twenty-

five feet away, Hennessy "pointed out the male on the bike and said [']gun[']."

Defendant's hoodie was not covering his waistband.

Fernandez saw the silver and black handle of a gun. He testified that right

after that, he saw defendant "grab the handle of the weapon, move it over to his

right side and peddle away with his left hand." Fernandez activated the lights

and siren, and "told [defendant] to stop." Defendant continued to peddle away,

but in a short time, jumped off the bike and ran. Fernandez pursued defendant

on foot and saw him "remove the handgun and [throw] it on the ground."

Fernandez picked up the gun and continued to chase defendant, who ran into an

alley. He could not find him, but other officers arrested defendant a block away.

Hennessy testified that he saw the gun when he was about half a block

away and told Fernandez. As they approached in the patrol car, defendant

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"started to move the bike and adjust the gun and drove off." He saw defendant

slide the gun from the front of his waistband to his hip. Defendant "backed up

and started to turn the bike to go away." All of this happened before the police

told defendant to stop. He acknowledged that he discussed his report about four

or five times with Fernandez.

The trial court denied defendant's motion to suppress the gun because

defendant had no "reasonable expectation of privacy" in it, and because the plain

view exception applied. Without making an express finding of credibility, the

court accepted the officers' testimony that they saw defendant with the gun. The

court found that this established "probable cause to effectuate an arrest" and

justified the officers in approaching defendant. Defendant then "knowingly and

voluntarily discarded the gun when he fled police in an attempt to get rid of

evidence" and did so "without any coercion by police." The court found

defendant had no reasonable expectation of privacy in the gun because he

abandoned it. Even if there were some expectation of privacy, the court found

the plain view exception applied. The court concluded that "[b]ased on the

observation[s] and experience of the police officers, the incriminating character

of the handgun was readily apparent . . . ."

Defendant appeals, raising a single issue:

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 THE POLICE LACKED SUFFICIENT CAUSE FOR
THE SEIZURE OF THE DEFENDANT,
NECESSITATING SUPPRESSION.

We affirm the order that denied defendant's suppression motion.

II

"When reviewing a trial court's decision to grant or deny a suppression

motion, [we] 'must defer to the factual findings of the trial court so long as those

findings are supported by sufficient evidence in the record.'" State v. Dunbar,

229 N.J. 521, 538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)).

"We will set aside a trial court's findings of fact only when such findings 'are

clearly mistaken.'" Ibid. (quoting Hubbard, 222 N.J. at 262). "We accord no

deference, however, to a trial court's interpretation of law, which we review de

novo." Ibid. (citing State v. Hathaway, 222 N.J. 453, 467 (2015); State v.

Hinton, 216 N.J. 211, 228 (2013)); see also State v. Terry, 232 N.J. 218, 230

(2018).

Both the federal and State constitutions protect citizens against

unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I,

¶ 7; see Terry, 232 N.J. at 231. "'The test of reasonableness cannot be fixed by

per se rules; each case must be decided on its own facts.'" Terry, 232 N.J. at

231 (quoting South Dakota v. Opperman, 428 U.S. 364, 372-73 (1976)).

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 There are three types of interactions with law enforcement that involve

different constitutional implications. "A field inquiry is essentially a voluntary

encounter between the police and a member of the public in which police ask

questions and do not compel an individual to answer." State v. Rosario, 229

N.J. 263, 271 (2017). Because there is no restriction from movement in these

circumstances, law enforcement does not generally need to have a well-

grounded suspicion of criminal activity. State v. Elders, 192 N.J. 224, 246

(2007) (citing State v. Rodriquez, 172 N.J. 117, 126 (2002)).

An investigatory stop or detention, sometimes referred to as a Terry1 stop,

implicates constitutional requirements, and must be based on "specific and

articulable facts which, taken together with rational inferences from those facts ,"

provide a "reasonable suspicion of criminal activity." Elders, 192 N.J. at 247

(quoting Rodriquez, 172 N.J. at 126). "Because an investigative detention is a

temporary seizure that restricts a person's movement, it must be based on an

officer's 'reasonable and particularized suspicion . . . that an individual has just

engaged in, or was about to engage in, criminal activity.'" Rosario, 229 N.J. at

272 (alteration in original) (quoting State v. Stovall, 170 N.J. 346, 356 (2002)).

1
Terry v. Ohio, 392 U.S. 1, 27 (1968).
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 Reasonable suspicion is "a particularized and objective basis for

suspecting the person stopped of criminal activity." Stovall, 170 N.J. at 356

(quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). The officer's

"'articulable reasons' or 'particularized suspicion'" is based on the officer's

assessment of the totality of the circumstances. State v. Davis, 104 N.J. 490,

504 (1986). The officer must "be able to articulate something more than an

'inchoate and unparticularized suspicion or hunch.'" Stovall, 170 N.J. at 357

(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

The third type of interaction is an arrest. Rosario, 229 N.J. at 272. Arrests

require "probable cause and generally [are] supported by an arrest warrant or by

demonstration of grounds that would have justified one." Ibid.

Defendant contends that he was just standing with others on a street corner

with others not doing anything visibly wrong. He argues his conduct did not

justify a police stop. The problem was that the police saw the gun. Officers

have a duty to investigate suspicious behavior. Stovall, 170 N.J. at 363; Davis,

104 N.J. at 503. It was reasonable for the police to believe that someone

standing on a corner in Jersey City at 4:00 a.m., with a gun at his waist, who

moves it to his side when he sees the police, is engaged in some type of criminal

activity. The totality of the circumstances can include the officer's "independent

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observation and law enforcement experience." Stovall, 170 N.J. at 361. The

gun gave the police a reasonable suspicion to believe that defendant was

engaged in criminal activity. We are satisfied that the totality of the

circumstances provided a reasonable, articulable suspicion that defendant was

about to or had engaged in criminal activity and that this was a valid

investigatory stop.

We do not agree with defendant that this case is similar to State v. Tucker,

136 N.J. 158 (1994). There, the defendant was sitting on a curb when he saw

the police and fled. As the police pursued him, he discarded packets which

contained cocaine. The Court found there was no reasonable, articulable basis

for the police to stop the defendant merely because he fled when he saw the

police. That was not the situation in this case because the police saw the gun.

The trial court held that because defendant abandoned the gun he had no

expectation of privacy in it. The question for purposes of the Fourth

Amendment is whether the defendant relinquished his reasonable expectation of

privacy in the discarded property. State v Burgos, 185 N.J. Super. 424, 426-27

(App. Div. 1982). "[A] defendant abandons property 'when he voluntarily

discards, leaves behind or otherwise relinquishes his interest in the property in

question so that he can no longer retain a reasonable expectation of privacy with

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regard to it at the time of a search.'" State v. Carroll, 386 N.J. Super. 143, 160

(App. Div. 2006) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div.

1981)).

In Tucker, the Court held that the defendant did not abandon his privacy

interests because the drugs were obtained as the product of an illegal seizure.

136 N.J. at 172. In this case, the police had a reasonable articulable suspicion

to stop defendant and to pursue him once he fled. Defendant dropped the gun

as Officer Fernandez pursued him. His action in discarding the gun was an

abandonment because it was not the "product of an illegal seizure." Ibid. By

abandoning the gun, defendant lost any expectation of privacy in it, and there

was no basis for him to assert a constitutionally protected privacy interest.

Carroll, 386 N.J. Super. at 160.

We affirm the trial court's denial of defendant's suppression motion and

judgment of conviction. Defendant's remaining arguments regarding the

suppression motion lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

Affirmed.

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