STATE OF NEW JERSEY VS. SEAN C. COGDELL(16-05-0116, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-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.

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