STATE OF NEW JERSEY VS. JAMIR TIMMONS (17-01-0071, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-0204-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMIR TIMMONS, a/k/a
JAMIR MALIK TIMMONS,
and JAMIR M. TIMMINS,

     Defendant-Appellant.
________________________

                   Submitted December 1, 2020 – Decided March 5, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 17-01-0071.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Patrick D. Laconi, Designated Counsel, on
                   the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Jamir Timmons pleaded guilty to second-degree unlawful

possession of a loaded .38-caliber Smith & Wesson revolver, N.J.S.A. 2C:39-

5(b), recovered from a fanny pack he was wearing and appeals from that

judgment of conviction pursuant to Rule 3:5-7(d), arguing:

            POINT I

            THE PRE-TRIAL COURT SHOULD HAVE
            SUPPRESSED THE EVIDENCE OF MARIJUANA
            AND THE HANDGUN RECOVERED FROM
            [DEFENDANT'S] PERSON DURING THE SEARCH
            INCIDENT   TO    [DEFENDANT'S]  ARREST
            BECAUSE THE POLICE [OFFICER] SEIZED
            [DEFENDANT] WITHOUT A REASONABLE
            ARTICULABLE SUSPICION THAT [DEFENDANT]
            WAS ENGAGED IN, OR ABOUT TO ENGAGE IN,
            CRIMINAL   ACTIVITY,   RENDERING   THE
            RECOVERY OF      MARIJUANA AND THE
            HANDGUN FRUIT OF THE POISONOUS TREE. [1]

                  A.    The Pre-Trial Court Erred in Failing to
                        Find [t]hat [Defendant] Had Turned Away
                        [f]rom and Walked Away [f]rom [the
                        Officer's] Patrol Vehicle Immediately Prior
                        [t]o [t]he Interaction Between [the Officer]
                        and [Defendant].

                  B.    The Pre-Trial Court Erred in Holding the
                        Police's   Initial   Interaction    with

1
  Defendant was arrested for possession of the revolver and marijuana. After
defendant moved to suppress the revolver and the marijuana, the marijuana
possession charge, N.J.S.A. 2C:35-10(a)(4), was dismissed.
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                                       2
                        [Defendant] [W]as a Valid Field Inquiry
                        and Not a Seizure Under the Fourth
                        Amendment.

                  C.    The Police Seized [Defendant] Without
                        Reasonable Suspicion that Criminal
                        Activity [W]as Afoot; Therefore the
                        Seizure Violated the Fourth Amendment.

                  D.    The Pre-Trial Court Erred [i]n Not
                        Suppressing [t]he Evidence of Illegal
                        Drugs and the Handgun Found on
                        [Defendant's] [P]erson [A]s a Result of an
                        Unlawful Seizure [A]s Fruit of the
                        Poisonous Tree.

            POINT II

            IF THE COURT DOES NOT REVERSE THE PRE-
            TRIAL     COURT'S      ORDERS    DENYING
            [DEFENDANT'S] MOTION TO SUPPRESS AND
            MOTION TO RECONSIDER PURSUANT TO POINT
            I ABOVE, AND HOLDS AT THE POINT WHEN
            [THE OFFICER] SAID TO [DEFENDANT],
            "EXCUSE ME, SIR," THE ENCOUNTER BETWEEN
            [THE OFFICER] AND [DEFENDANT] DID NOT
            RISE TO THE LEVEL OF A SEIZURE UNDER THE
            FOURTH AMENDMENT, THE PRE-TRIAL COURT
            ERRED IN FAILING TO SUPPRESS THE
            MARIJUANA AND HANDGUN SEIZED FROM
            [DEFENDANT'S] PERSON AS A RESULT OF AN
            UNCONSTITUTIONAL FIELD INQUIRY BASED
            ON IMPERMISSIBLE CRITERIA.

We determine these arguments are without merit and affirm substantially for the

reasons set forth in Judge Michael L. Ravin's well-reasoned written decisions


                                                                            A-0204-18
                                      3
denying defendant's motion to suppress the handgun and marijuana and motion

to reconsider that denial.

      At an evidentiary hearing, Judge Ravin heard testimony from the Irvington

police officer who found and seized the evidence. From that testimony, the

judge found that on September 26, 2016, the uniformed officer was assigned to

patrol a sector in Irvington which had experienced, as described by defendant in

his merits brief, "a slew of robberies" committed by suspects variously described

in a crime-alert flyer that was given to the officer prior to the start of his patrol:

             DUE TO THE RECENT INCREASE IN FIREARM
             ROBBERIES TOWN[-]WIDE[,] ALL UNITS ARE TO
             BE ON THE LOOK OUT FOR TWO BL[AC]K
             MALES BETWEEN THE

             AGES: 20-25

             WEIGHT: 130-160

             SKIN TONE:         LIGHT[-]SKINNED AND DARK[-
             ]SKINNED

             HAIR STYLE: LOW[-]CUT HAIR—DREAD LOCKS

             HOODED SWEAT . . . SHIRTS TO CONCEAL
             THEIR FACES.

      While on patrol that evening in a marked police unit, the officer observed

defendant walking with another male and deduced the two individuals matched

the description in the flyer. The judge noted defendant "was not doing anything

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                                          4
illegal" and the officer did not "notice any contraband on [d]efendant." But,

because the two matched the description in the flyer, the officer drove in

defendant's direction, stopped and exited his vehicle. As defendant and the

officer approached each other, the officer said, "[e]xcuse me, sir."

      Defendant contests the judge's findings as to what ensued during that

encounter, contending the officer's testimony contradicted his prior accounts

during the grand jury proceeding and in his incident report, as well as his

suppression-hearing testimony      during   cross-examination.         Particularly,

defendant argues the judge erred by finding defendant was walking toward the

officer in light of other testimony in which the officer said defendant briskly

walked away from him.

      While we review a motion judge's legal conclusions de novo, State v.

Dunbar, 

229 N.J. 521

, 538 (2017), our "review of a motion judge's factual

findings in a suppression hearing is highly deferential," State v. Gonzales, 

227 N.J. 77

, 101 (2016). We defer to those findings because they "are substantially

influenced by [the judge's] opportunity to hear and see the witnesses and to have

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

218 N.J. 300

, 313 (2014) (quoting State v. Elders, 

192 N.J. 224

, 244 (2007)). We

are obliged to uphold a motion judge's factual findings so long as there is


                                                                                 A-0204-18
                                        5
sufficient credible evidence in the record to support the judge's findings, 

Elders, 192 N.J. at 243

, and will reverse only when the trial court's findings "are so

clearly mistaken 'that the interests of justice demand intervention and

correction,'"

id. at 244

(quoting State v. Johnson, 

42 N.J. 146

, 162 (1964)).

      As Judge Ravin wrote in his opinion denying the suppression motion, he

"heard the testimony and observed the tone and demeanor of [the officer]" and,

observing that "[h]is testimony was reasonable [and that] he did not hesitate to

answer questions and was forthcoming when he did not remember or know an

answer[,]" found the officer credible. The judge recognized the discrepancies

between the officer's report and testimony but "did not detect an intent to

deceive." The judge's conclusion that defendant was walking toward the officer,

based on the officer's direct testimony deemed credible by the judge, is ent itled

to our deference.

      Moreover, even if defendant had been walking away from the officer, that

fact would have had no impact on the judge's finding that the officer's initial

encounter with defendant was a field inquiry, described by our Supreme Court

as "a voluntary encounter between the police and a member of the public in

which the police ask questions and do not compel an individual to answer ," and




                                                                                A-0204-18
                                        6
during which the individual is free to leave. State v. Rosario, 

229 N.J. 263

, 271

(2017); see also 

Elders, 192 N.J. at 246

.

       Although defendant argues the encounter at that point was an

investigatory stop, sometimes referred to as a Terry2 stop, implicating

constitutional requirements of "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 State v.

Rodriguez, 

172 N.J. 117

, 126 (2002)); see also 

Rosario, 229 N.J. at 272

, there

is no such impediment to an officer approaching a person and engaging in a

voluntary conversation, see State v. Stampone, 

341 N.J. Super. 247

, 252 (App.

Div. 2001). An individual's Fourth Amendment rights are not violated by police

simply "approaching [him] on the street or in another public place, by asking

him if he is willing to answer some questions, by putting questions to him if the

person is willing to listen, or by offering in evidence in a criminal prosecution

his voluntary answers to such questions." Florida v. Royer, 

460 U.S. 491

, 497

(1983); see also State v. Davis, 

104 N.J. 490

, 497 (1986). "[A] field [inquiry]

is not a Fourth Amendment event 'so long as the officer does not deny the

individual the right to move.'" State v. Egan, 

325 N.J. Super. 402

, 409 (Law


2 Terry v

. Ohio, 

392 U.S. 1

(1968).
                                                                              A-0204-18
                                        7
Div. 1999) (quoting State v. Sheffield, 

62 N.J. 441

, 447 (1973)). As Judge Ravin

determined, that is precisely what happened here.

      We have previously held a police officer does not illegally seize an

individual when an officer makes a U-turn to follow the individual where, as

here, the officer does so without activating the vehicle's siren or otherwise

asserting his or her authority. See State v. Hughes, 

296 N.J. Super. 291

, 296-97

(App. Div. 1997). Further, the officer did not "make demands or issue orders,"

and did not ask any questions that were "overbearing or harassing in nature,"

Davis, 104 N.J. at 497

n.6; see also 

Rodriguez, 172 N.J. at 126

, nor did he, at

that point, accuse defendant of any wrongdoing, see State v. Nishina, 

175 N.J. 502

, 510 (2003).

      As Judge Ravin concluded, the officer's simple statement—"[e]xcuse me,

sir"—would not cause an objectively reasonable person to have felt she or he

was not "free to leave or to terminate the encounter with police." 

Rosario, 229 N.J. at 273

. Defendant made the decision—whether he was walking toward or

away—to stop and engage the officer. As stated in defendant's merits brief,

when the officer said, "[e]xcuse me, sir," "at that point, defendant stopped and

began speaking with [the officer]." He did not "attempt[] to terminate the

contact by departing" or "clearly express[] a desire not to cooperate." State v.


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                                       8
Stovall, 

170 N.J. 346

, 358 (2002) (quoting 4 Wayne R. LaFave, Search and

Seizure § 9.3(a), at 102-03 (3d ed. 1996)).

      That changed, however, when the officer asked defendant if he possessed

any marijuana. See State ex rel. J.G., 

320 N.J. Super. 21

, 30 (App. Div. 1999)

(holding an officer's question, "you do not have anything you shouldn't ,"

"converted [a] field inquiry into a Terry stop detention"); see also State v.

Contreras, 

326 N.J. Super. 528

, 540 (App. Div. 1999) (holding a police

encounter where "the officers spoke to defendants in a conversational tone and

. . . did not draw their weapons or use handcuffs," was converted to a seizure by

asking "defendants whether they had any contraband on them," questions

deemed "overbearing or harassing in nature").

      Judge Ravin correctly determined defendant was seized at that juncture;

but the officer had "specific and articulable facts which, taken together with

rational inferences from those facts," provided "a reasonable suspicion of

criminal activity." 

Elders, 192 N.J. at 247

(quoting 

Rodriguez, 172 N.J. at 126

).

As the judge found, from a distance of about sixty-two inches the officer

detected the smell of "raw marijuana emanating from [d]efendant." The judge

credited the officer's testimony that, in his fifteen years on the force, he had

training and experience in the smell of marijuana, and found that under the


                                                                              A-0204-18
                                       9
totality of the circumstances, the officer had a reasonable suspicion that

defendant possessed marijuana, thus justifying the investigatory stop.

      Judge Ravin's ruling followed the two-step analysis, recognized by our

Supreme Court, set forth in United States v. Cortez, 

449 U.S. 411

, 418 (1981),

            for determining whether the totality of circumstances
            creates a "particularized suspicion." A court must first
            consider the officer's objective observations. The
            evidence collected by the officer is "seen and weighed
            not in terms of library analysis by scholars, but as
            understood by those versed in the field of law
            enforcement."      "[A] trained police officer draws
            inferences and makes deductions . . . that might well
            elude an untrained person. The process does not deal
            with hard certainties, but with probabilities." Second,
            a court must determine whether the evidence "raise[s] a
            suspicion that the particular individual being stopped is
            engaged in wrongdoing."

            

[Davis, 104 N.J. at 501

(alterations in original)
            (citations omitted) (quoting 

Cortez, 449 U.S. at 418

).]

We agree with his assessment that the stop was supported by the reasonable and

articulable suspicion that defendant possessed marijuana based on the officer's

recognition of the smell coming from defendant.

      Responding to the officer's inquiry, defendant admitted he had marijuana

in his fanny pack. The officer told defendant to surrender the marijuana. When

defendant opened the fanny pack, the officer immediately recognized the handle



                                                                            A-0204-18
                                      10
of a gun protruding from the bag. Defendant was arrested for possessing the

firearm. Marijuana was discovered in the search incident to defendant's arrest.

      Defendant does not challenge that the firearm was properly seized under

the plain view doctrine 3 or the marijuana was seized pursuant to a valid search

incident to arrest. See Chimel v. California, 

395 U.S. 752

, 762-63 (1969); see

also State v. Gibson, 

218 N.J. 277

, 299 (2014). He argues the seizure of that

evidence was the fruit of the improper investigatory stop. In that we agree with



3
  The plain view doctrine permits law enforcement to seize contraband without
a warrant under the following conditions:

            First, the police officer must be lawfully in the viewing
            area.

            Second, the officer has to discover the evidence
            "inadvertently," meaning that he did not know in
            advance where evidence was located nor intend
            beforehand to seize it.

            Third, it has to be "immediately apparent" to the police
            that the items in plain view were evidence of a crime,
            contraband, or otherwise subject to seizure.

            [State v. Bruzzese, 

94 N.J. 210

, 236 (1983) (citations
            omitted) (quoting Coolidge v. New Hampshire, 

403 U.S. 443

, 466 (1971)), overruled in part by Gonzales,
            

227 N.J. 77

.]

Later, in Gonzales, the Court "reject[ed] the inadvertence prong as a component
of the plain-view exception as articulated in 

Bruzzese.” 227 N.J. at 101

.
                                                                             A-0204-18
                                      11
Judge Ravin that the initial contact with defendant was a field inquiry that

transformed into an investigatory stop based on a reasonable and articulable

suspicion that defendant possessed marijuana, leading to the plain view seizure

of the handgun and the marijuana seizure following defendant's arrest, there is

no reason to suppress the evidence under the exclusionary rule.

      We also reject defendant's contention that the field inquiry was

impermissibly based on defendant's race. Of course,

            the questioning of [a] defendant as part of a field
            inquiry is not sustainable if the officers approached him
            and his companions solely because of their race and
            age. Although a field inquiry may be conducted in the
            absence of grounds for suspicion without violating the
            Fourth Amendment or Article I, paragraph 7 of the New
            Jersey Constitution, that does not mean the police may
            rely on impermissible criteria to question individuals.

            [State v. Maryland, 

167 N.J. 471

, 484 (2001).]

      But that is not what happened in this case.       The officer approached

defendant not solely because he was a black male, although that was part of the

description of the robbers in the flyer the officer received before beginning his

patrol.   As Judge Ravin observed in his reconsideration-motion opinion,

defendant was in the same area where the robberies were committed. He was

wearing similar clothing to that described, albeit common garb. Defendant's

age—eighteen—was close to that of the suspects. And, as the officer testified,

                                                                              A-0204-18
                                      12
he believed both defendant and the person initially with him matched the

description.

      Judge Ravin found the field inquiry was not based solely on defendant's

race, but on the legitimate need to inquire into the rash of robberies in the

officer's sector; the record contains sufficient, credible evidence to support this

finding. See 

Stovall, 170 N.J. at 363

(concluding that, if officer had "failed to

investigate suspicious behavior, he would have been derelict in his duty"

because "[a] police officer has the duty to investigate suspicious behavior").

That defendant may not have matched the exact description in the flyer should

not have curtailed the officer's initial approach. The rapidly unfolding events,

transitioning from field inquiry to investigatory stop after the officer smelled

marijuana when he closed to within about five feet from defendant at 9:30 p.m.

on a late-September evening, did not present the officer with any prolonged

exposure to defendant's appearance that would have lent support to defendant's

contention that "it should have been immediately obvious to [the officer] once

he observed [defendant] and the other person, that the two persons [did] not

match the suspects in the [flyer]."

      We determine the balance of defendant's arguments to be without

sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).


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                                       13
Affirmed.




                 A-0204-18
            14

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