STATE OF NEW JERSEY VS. LARRY THOMPSON (15-08-0898 and 16-01-0055, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5530-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY THOMPSON, a/k/a
KEVIN THOMPSON

Defendant-Appellant.

Submitted May 12, 2020 – Decided June 1, 2020

Before Judges Fisher and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment Nos. 15-08-
0898 and 16-01-0055.

Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the brief).

Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (David M. Liston,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM

Following denial of his motion to suppress twenty-two clonazepam pills

seized without a search warrant, defendant Larry Thompson pled guilty to third-

degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1),

and was sentenced in accordance with a negotiated plea agreement. The sole

issue on this appeal is whether the Law Division judge erred in denying

defendant's motion. More particularly, defendant argues:

THE PILLS MUST BE SUPPRESSED BOTH
BECAUSE THEY WERE DISCOVERED AS A
RESULT OF LAW ENFORCEMENT'S UNLAWFUL
EXTENSION OF [DEFENDANT]'S DETENTION
WITHOUT REASONABLE SUSPICION AND
BECAUSE THE STATE FAILED TO SHOW THAT
POLICE HAD NOT ENGAGED IN AN ILLEGAL
SEARCH OF [DEFENDANT]'S WALLET. U.S.
CONST. AMENDS. IV, XIV; N.J. CONST. ART. I,
¶ 7.

a. The extension of the detention after the dissipation
of reasonable suspicion was improper.

b. The State failed to prove by a preponderance of the
evidence that the police legally obtained [defendant's]
name.

We reject defendant's contentions and affirm.

Patrolman Daniel Mazan of the New Brunswick Police Department was

the only witness to testify at the suppression hearing. Around 11:00 p.m. on

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September 14, 2014, Mazan was dispatched to the Albany Street train station on

the report of a disturbance involving a black male, who was wearing "a black

hood [sic] with a red stripe" and "pull[ed] a blade out on a man." Arriving within

minutes of receiving the dispatch, Mazan encountered defendant, a black man,

who was wearing a black jacket with red stripes. Defendant was arguing with

several people.

Defendant complied with Mazan's order to show his hands. A pat-down

search of defendant revealed no weapons. When Mazan asked defendant for his

name or identification, defendant initially gave a false first name and year of

birth then "volunteered" his real name and birth year. A warrant check of

defendant's true identity revealed outstanding warrants.

Mazan arrested defendant on the warrants and drove him back to police

headquarters. During the ride, Mazan heard defendant "moving in the back seat,

shuffling around. And [he] heard what sounded like rattling." From the camera

position inside his car, Mazan saw defendant lifting his buttocks forward. At

headquarters, Mazan performed a more thorough search of defendant's pants

pocket. The officer did not find "anything," but continued to hear the rattling

noise. Defendant complied with Mazan's request to turn over what he would

otherwise "retrieve" if defendant refused. Defendant gave Mazan a bottle of

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pills with its prescription label partially scratched off. The pills later tested

positive for clonazepam, the generic name for Klonopin.

Defendant's challenge to his arrest and Mazan's ensuing search primarily

arose from the following exchange on cross-examination:

DEFENSE COUNSEL: So how did you come to learn
that his name was Larry?

MAZAN: He told me it.

DEFENSE COUNSEL: It wasn't that you looked in his
wallet and looked at his ID. Right?

MAZAN: I don't recall that.

DEFENSE COUNSEL: That might have been?

MAZAN: If I did, I don't recall it. I'm pretty sure he
-- he just came forward and said it.

DEFENSE COUNSEL: So, you could have looked at
his ID in his wallet and gotten that -- his name Larry
from his wallet?

MAZAN: I'm not sure. I don't recall.

On redirect examination, Mazan reiterated that defendant "voluntarily" provided

his identifying information.

At the conclusion of the hearing, the judge denied the motion, concluding

he did not find "any evidence that the obtaining of [defendant's] name was done

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in an improper fashion." In his written decision that followed, the judge

elaborated:

Nothing in the officer's testimony, both on direct and
cross, provides any proof to support [defendant]'s
contention that his real name was acquired extra-legally
from him. [Defendant] posited that theory in cross[-]
examination, but the responses given did not
corroborate his theory and no other evidence was
proffered to support the notion that the acquisition of
his name during this encounter was improper,
warranting a suppression. The statement by [Mazan]
that [defendant] offered his real name during the
encounter is uncontroverted.

Finding there was no evidence of any impropriety by Mazan, the motion

judge concluded the officer had reasonable suspicion to stop defendant, who

matched the description of the information provided by the caller, and thereafter

ask his name. Accordingly, the judge found "no basis" to suppress the drugs

seized from defendant incident to his arrest.

Our review of a trial court's decision on a suppression motion is

circumscribed. We defer to the court's factual and credibility findings "so long

as those findings are supported by sufficient credible evidence in the record."

State v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J. 224, 243

(2007). Deference is afforded because the "findings of the trial judge . . . are

substantially influenced by his opportunity to hear and see the witnesses and to

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have the 'feel' of the case, which a reviewing court cannot enjoy." State v.

Reece, 222 N.J. 154, 166 (2015) (alteration in original) (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)). We disregard a trial court's factual and

credibility findings only if clearly mistaken. State v. Hubbard, 222 N.J. 249,

262 (2015). The legal conclusions of the trial court, however, are reviewed de

novo. Id. at 263.

An investigatory stop is a well-established exception to a search or seizure

conducted without a warrant. State v. Coles, 218 N.J. 322, 342 (2014). When

an "anonymous tip is conveyed through a 9-1-1 call and contains sufficient

information to trigger public safety concerns and to provide an ability to identify

the person, a police officer may undertake an investigatory stop of that

individual." Gamble, 218 N.J. at 429.

"[A]n investigative detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop." State v. Shaw, 213 N.J. 398,

411 (2012) (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). In determining

whether an investigative detention is justified under the reasonable suspicion

standard, "a court must consider the 'totality of the circumstances – the whole

picture.'" State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v.

Cortez, 449 U.S. 411, 417 (1981)).

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 Not surprising, defendant – who was dressed in outerwear similar to that

described by the 9-1-1 caller – does not challenge Mazan's initial stop and frisk.

Instead, he argues that when the initial pat-down search failed to yield a weapon,

"reasonable suspicion had evaporated," thereby unlawfully extending the stop.

Defendant contends our Supreme Court's recent decision in State v. Chisum, 236

N.J. 530 (2019), supports his position. We disagree.

In Chisum, officers responded to a noise complaint at a motel room

occupied by ten people. Id. at 535. During the suppression hearing, an officer

acknowledged the "investigation was complete" when the renter agreed to turn

down the noise and the officers decided not to issue a summons. Id. at 537.

Nonetheless, police ran a warrant check on all occupants, which revealed an

active warrant for one of the defendants. Id. at 538. The defendant was arrested

on the warrant and police recovered a handgun incident to his arrest; his co-

defendant – who willfully remained in the motel room even though he was

record-checked with negative results – was then frisked for weapons and

arrested when officers found a handgun. Id. at 538-39.

Reversing our decision that upheld the search, the Court concluded the

detention of all occupants, including the defendants, was unconstitutional. Id.

at 548. The Court found the officers prolonged the defendants' detention after

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the investigation had concluded and, as such, it "was unnecessary and improper

because doing so would do nothing to help confirm or undermine the police

officers' decision regarding the noise complaint." Id. at 550.

By contrast, Mazan testified he "was still investigating . . . the incident"

after his pat-down search of defendant revealed no weapons. As the State

effectively argues, "defendant could have discarded or hidden the blade nearby

or secreted it on his person in a way that made it undetectable in a pat-down."

Notably, Mazan did not find the pill bottle during the pat-down search or search

incident to defendant's arrest.

Unlike the finality of the noise complaint in Chisum, the encounter here

was fluid: Mazan arrived at the scene; observed defendant fitting the description

of the 9-1-1 call and engaging in an ongoing dispute; a search revealed no

weapons; but defendant could have been within reach of some sort of blade, th e

size of which was unknown. Under those circumstances, it was reasonable for

Mazan to continue his investigation and ask defendant his name. Indeed, as the

motion judge correctly recognized, asking defendant for his "name or

identification d[id] not implicate the Fourth Amendment." See State v. J.S.G.,

456 N.J. Super. 87, 108 (App. Div. 2018).

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 Moreover, the Court has long recognized, "law enforcement's need to

respond to the fluidity of a street encounter where there is a reasonable suspicion

of wrongdoing; accordingly, the duration of the investigative stop may be

extended for a reasonable but limited period for investigative purposes "

provided the detention is "reasonable both at its inception and throughout its

entire execution." Coles, 218 N.J. at 343-44. Given the totality of the

circumstances, we perceive no basis to disturb the motion judge's conclusion

that the stop was reasonable. The record amply supports the reasonableness of

its duration.

Nor do we find any merit in defendant's argument that the motion judge

improperly shifted the burden to him to demonstrate his name was legally

obtained. Instead, the judge rejected counsel's attempt to discredit Mazan's

testimony in that regard, and correctly noted the officer's testimony was

unrefuted. Mazan ultimately maintained defendant voluntarily disclosed his

name, stating he "d[id]n't recall" the disclosure occurring as counsel suggested.

Based on that testimony, the judge found the "[a]bsen[ce of] any evidence of

any improprieties by the officer." The judge's decision rested on his

unexpressed credibility findings, see Locurto, 157 N.J. at 473, to which we owe

our deference, see Gamble, 218 N.J. at 424.

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 To the extent not specifically addressed, defendant's remaining arguments

lack sufficient merit to warrant discussion in this written opinion. R. 2:11-

3(e)(2).

Affirmed.

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