SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
|
v.
DAVID M. GIBSON,
______________________________________________________
|
Submitted April 17, 2012 - Decided
Before Judges Fisher, Nugent and
Carchman.
On appeal from the Superior Court of
New Jersey, Law Division, Burlington County, Indictment Nos. 08-03-0299 and
08-08-0882.
Joseph E. Krakora, Public Defender,
attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of
counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L.
Deal, Assistant Prosecutor, of counsel and on the brief).
The
opinion of the court was delivered by
FISHER, P.J.A.D.
In
this appeal, defendant argues, among other things, that the trial judge erred
in denying his motion to suppress evidence seized from him following his arrest
for defiant trespass. This
argument centers on whether, by the time of the search, the arresting officer
possessed probable cause that defendant had engaged in a defiant trespass -- an
issue that requires our consideration of whether it mattered that the owner of
the property had posted a "no loitering" instead of a "no
trespassing" sign. We reject
this and defendant's other arguments and affirm.
In
indictments returned in 2008 and 2009, defendant was charged with various drug
offenses. With regard to the 2008
indictment, defendant moved for the suppression of evidence seized from him at
the police station following his arrest for defiant trespass. After conducting an evidentiary
hearing, the trial judge denied defendant's motion for reasons expressed in an
oral opinion. Defendant later,
with regard to the 2008 indictment, pleaded guilty to third-degree possession
of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and, with regard to the 2009
indictment, pleaded guilty to third-degree CDS possession with the intent to
distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. The trial judge imposed concurrent
eight-year terms, subject to four-year parole ineligibility periods, on these
convictions.
In
this appeal, defendant argues:
I. OFFICER COMEGNO DID NOT HAVE
REASONABLE SUSPICION TO STOP, LET ALONE PROBABLE CAUSE TO ARREST, GIBSON FOR
DEFIANT TRESSPASS BECAUSE, CONTRARY TO THE SPECIFIC REQUIRE-MENTS OF N.J.S.A.
2C:18-3b(2), THE OMEGA COMMUNITY CENTER DID NOT HAVE A POSTING NOTIFYING GIBSON
AGAINST TRESPASS. EVEN IF THERE
HAD BEEN NOTICE AGAINST TRESSPASS, THE TOTALITY OF THE CIRCUMSTANCES DID NOT
GIVE RISE TO A WELL-GROUNDED SUSPICION THAT GIBSON WAS THE TYPE OF
"UNWANTED" PERSON THAT THE OMEGA HOUSE PRESIDENT HAD AN INTEREST IN
REMOVING.
A. Comegno Did Not Have Reasonable
Suspicion To Stop Gibson, Let Alone Probable Cause For a Full Custodial Arrest.
B. Even If Notice Against Trespass Had
Existed, The Totality Of The Circumstances Did Not Furnish Comegno With
Probable Cause To Believe That Gibson Committed Defiant Trespass.
II. EVEN IF THERE HAD BEEN PROBABLE
CAUSE FOR GIBSON'S ARREST, THE SECOND, MORE INTRUSIVE SEARCH THAT OCCURRED AT
THE STATION HOUSE, DURING WHICH THE DRUGS WERE FOUND, WAS UNCONSTITUTIONAL
BECAUSE GIBSON HAD NOT BEEN GIVEN AN OPPORTUNITY TO POST BAIL. THEREFORE, THE TRIAL COURT ERRED IN
DENYING GIBSON'S MOTION TO SUPPRESS.
III. IN THE EVENT THAT THIS COURT
REVERSES THE DENIAL OF GIBSON'S MOTION TO SUPPRESS [WITH REGARD TO THE 2008
INDICTMENT], GIBSON REQUESTS THAT THE MATTER BE REMANDED FOR THE JUDGE TO
RECONSIDER THE SENTENCE IMPOSED [WITH REGARD TO THE 2009 INDICTMENT].
We find insufficient merit in these
arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding the legitimacy
of the officer's street encounter and eventual arrest of defendant.
The
arresting officer was the only individual to testify at the suppression
hearing. He recounted that, on
November 24, 2007, at 3:20 a.m., he was in Burlington City, in the vicinity of
a community center owned by the Omega fraternity. According to the officer, the area in front of the facility
was well lit and a first floor window displayed a sign that declared: "No Loitering."
The
officer observed defendant standing on the Omega property, leaning against the
facility's porch. As the officer
approached, defendant began walking away.
The officer drove around the corner and met up with defendant a short
distance away.
The
officer described how he then "simply struck up a conversation" with
defendant. He asked defendant what
he was doing in the area and requested identification. The officer explained that he engaged
in this discussion in order "to determine whether or not [defendant] had
permission to be on the [Omega] property or was maybe in the area waiting for
somebody that resided at the property." Defendant responded to the officer that he was "coming
from his child's mother's home," located two blocks away, and was waiting
for a ride. The officer observed
that defendant "seemed very excited, somewhat evasive" and believed
defendant "was looking around as if he was attempting to run." The officer arrested defendant for
trespassing on the Omega property.
The
officer searched defendant at the scene "to eliminate the possibility of
any weapons," and then transported defendant to the police station. There, defendant was more thoroughly
searched, and a clear plastic baggie, which contained thirteen smaller bags of
crack cocaine, was uncovered. This
is the evidence that defendant sought to have suppressed.
The
legitimacy of the officer's warrantless stop of defendant turned on whether the
officer had "a reasonable suspicion of criminal activity," State
v. Rodriguez, 172 N.J. 117, 126 (2002), arising from "specific
and articulable facts . . .
taken together with rational inferences from those facts," Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.
2d 889, 906 (1968). See also
State v. Elders, 192 N.J. 224, 247 (2007). We are satisfied, as was the trial
judge, that the lateness of the hour, defendant's immediate departure from the
Omega property upon seeing the officer, and defendant's excited and evasive
demeanor when questioned, were all specific and articulable facts that gave the
officer a reasonable suspicion of criminal activity.[1] And, when defendant failed to assert
that he was on the Omega property with permission, the officer possessed
probable cause to arrest defendant for defiant trespass.
We
lastly consider defendant's contention that the requirements of the trespass
statute were not met, thereby negating the police officer's assertion that he
possessed a reasonable suspicion of criminal activity and, later, probable
cause -- the foundation for the warrantless search. That is, N.J.S.A. 2C:18-3(b) defines defiant trespass
as the act of "enter[ing] or remain[ing] in any place" without
"license[] or privilege[]" where "notice against trespass
is given" (emphasis added).
The statute delineates three ways in which notice must be given;
relevant here is the second: "[p]osting in a manner prescribed by law or
reasonably likely to come to the attention of intruders." N.J.S.A. 2C:18-3(b)(2). Defendant argues that the officer did
not have reasonable suspicion or probable cause that he had committed a defiant
trespass because the property owner did not give sufficient notice to meet the
statute's requirements.
We
conclude, in the circumstances of this case, that the officer had probable
cause to believe a defiant trespass had occurred even though the property owner
posted a "no loitering" sign instead of a "no trespassing"
sign. Indeed, there is nothing in
our jurisprudence to suggest a stilted interpretation of N.J.S.A.
2C:18-3(b)(2) that would require the property owner to talismanically invoke
the word "trespass" in the posting required as opposed to some other
similar wording. To be sure, some
of the cases defendant relied upon in this regard actually dealt with the fact
that the property owner had posted a "no trespassing" sign,[2]
but none of those cases suggests that N.J.S.A. 2C:18-3(b)(2) is
satisfied only by the words "no trespassing." Notice sufficient to satisfy the
statute's requirements may be given through the utilization of other words so
long as the owner's intent to keep others off the property is reasonably
conveyed.[3]
In
the final analysis, "no loitering" is a message sufficient to convey
the same meaning as "no trespassing." Approached literally, "no loitering" could be
understood as prohibiting "standing around or moving slowly about"
the property, see Black's Law Dictionary 942 (6th ed. 1990), or
as prohibiting "wandering, remaining or prowling" on the property, N.J.S.A.
2C:33-2.1.[4] A property owner, in giving notice that
"loitering" was not permitted expresses an intent that no person
"stand around," "move slowly," "wander,"
"remain" or "prowl" on its property. Such a direction does not convey a
significantly different message from a "no trespassing" sign as to
preclude the police officer here from reasonably concluding that defendant was
engaged in criminal activity by leaning against the porch of the Omega
property.
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[1]There is no
doubt that the officer began the encounter as a field inquiry, which an officer
may conduct without violating the Fourth Amendment or Article I, paragraph 7 of
the New Jersey Constitution. A
field inquiry occurs when an officer "merely approach[es] an individual on
the street or in another public place, by asking him if he is willing to answer
some questions," and then "by putting questions to him if the person
is willing to listen." Florida
v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L.
Ed. 2d 229, 236 (1983). When a
field inquiry evolves to the point where "an objectively reasonable person
feels [the] right to move has been restricted," Rodriguez, supra,
172 N.J. at 126, the warrantless street encounter becomes justifiable
only if it may be classified as an investigative stop or if the officer had
probable cause to justify an arrest.
[2]Only two of
the four decisions cited by defendant reveal that the sign there in question
actually stated "no trespassing." See State in the Interest of J.M., 339 N.J.
Super. 244, 247 (App. Div. 2001); State v. Vonderfecht, 284 N.J.
Super. 555, 556 (App. Div. 1995).
The third -- State v. Dangerfield, 171 N.J. 446, 452
(2002) -- observed only that the sign "warn[ed] against trespassing"
without revealing the exact wording of the sign. And the fourth -- State v. Pierce, 175 N.J. Super.
149 (Law Div. 1980) -- appears only to have considered application of the
trespass statute in the absence of any posted notice.
[3]We are mindful
of the axiomatic proposition that penal statutes should be strictly
construed. State v. Ciancaglini,
204 N.J. 597, 606 (2011).
This general rule does not mean, however, that a penal statute should be
construed in a manner that would produce absurd results. State v. Provenzano, 34 N.J.
318, 322 (1961). The adoption of
defendant's proposed construction, which would require landowners to use the
phrase "no trespassing" to the exclusion of all other
similarly-worded signs in order to trigger criminal liability under the defiant
trespass statute, would disserve the legislative intent.
[4]Interestingly,
the word "loitering" is contained only in the statute's title as
appearing in New Jersey Statutes Annotated -- "Loitering for
purpose of illegally using, possessing or selling controlled substance" --
and appears nowhere in the actual text of the statute, which prohibits, when
coupled with other conduct, the "wander[ing], remain[ing] or
prowl[ing]" in a public place.
N.J.S.A. 2C:33-2.1(b)(1).
We think these terms convey what a reasonable person would assume to be
loitering. We caution, however,
that whatever insight this statute may provide into the meaning of
"loitering" must be tempered with the understanding that the title
appearing in New Jersey Statutes Annotated is likely not part of the
statute, see L. 1991, c. 383, § 1, and thus does not
appear to be "the product of legislative action," State v. Darby,
246 N.J. Super. 432, 440-41 (App. Div.), certif. denied, 126 N.J.
342 (1991); see also N.J.S.A. 2C:1-1(g).
