                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5722-12T2

STATE OF NEW JERSEY,

     Plaintiff-Appellant,               APPROVED FOR PUBLICATION

                                           February 26, 2014
v.
                                          APPELLATE DIVISION
RAMIER A. DUNBAR,

     Defendant-Respondent.


          Argued telephonically December 5, 2013 –
          Decided February 26, 2014

          Before Judges Reisner, Alvarez and Carroll.1

          On appeal from the Superior Court of New
          Jersey,   Law   Division,  Hudson County,
          Indictment No. 13-01-0079.

          Seth P. Galkin, Special Deputy Attorney
          General/Acting Assistant Prosecutor, argued
          the cause for appellant (Gaetano T. Gregory,
          Acting Hudson County Prosecutor, attorney;
          Mr. Galkin, on the brief).

          Elizabeth C. Jarit, Assistant Deputy Public
          Defender, argued the cause for respondent
          (Joseph   E.   Krakora,   Public  Defender,
          attorney; Ms. Jarit, of counsel and on the
          brief).

     The opinion of the court was delivered by

ALVAREZ, J.A.D.

1
  Judge Carroll did not participate in oral argument. He joins
the opinion with counsel's consent. R. 2:13-2(b).
       During the early morning hours of August 19, 2012, two

Jersey    City    uniformed     officers      were   dispatched      in   a    marked

patrol car in response to a report of "shots fired."                              They

arrived within seconds of the transmission, basically turning a

corner.      They    encountered     a     group     of   approximately        thirty

persons    who    were   "yelling"   and      "screaming,"     and    immediately

dispersed upon the officers' arrival.                 As the officers scanned

the sidewalk, they noticed one individual, later identified as

defendant, Ramier Dunbar, who appeared nervous.                   He disappeared

into an adjoining alley while turning his head to watch the

marked patrol car.         Moments later, defendant came back out of

the alley and began to walk away from the intersection.                             The

patrol car followed him, and Officer Jose Perez asked defendant

if he had heard shots in the area.              Defendant appeared even more

nervous, did not respond but continued moving away from the

patrol car, looking back over his shoulder.

       Perez exited his vehicle and asked defendant to stop.                          At

that     point,     defendant     began       running,    Perez      behind       him.

Defendant reached into his waistband and threw a handgun onto

the ground.       Perez stopped to retrieve the weapon and continued

after defendant, who was soon apprehended.                  The ensuing search

revealed a bag of marijuana.




                                          2                                   A-5722-12T2
      Defendant         was     indicted         for   second-degree       unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) (count two); fourth-degree possession of a prohibited

device     —    a   hollow-point      bullet,      N.J.S.A.    2C:39-3(f)       (count

three);        third-degree       resisting      arrest,   N.J.S.A.      2C:29-2(a)

(count         four);     and       fourth-degree        obstruction       of      the

administration of law, N.J.S.A. 2C:29-1 (count five).

      Based on the facts we have recounted above, drawn from

Perez's testimony at the suppression hearing, the trial judge

granted defendant's motion and suppressed all evidence seized as

a result of his arrest.             The State appeals, and we now reverse.

      In    reaching      his     decision,      the   trial   judge    principally

relied upon State v. Williams, 410 N.J. Super. 549 (App. Div.

2009),     certif.      denied,     201   N.J.   440   (2010).     In    that    case,

police were patrolling a housing complex, hoping to deter a

possible retaliatory shooting.                   Id. at 552.       Upon observing

police officers in the area in front of an apartment building,

the defendant commenced to pedal away on his bicycle, placing

his   right      hand   in    his   pants   pocket,     ignoring   the    officers'

command that he stop.             Id. at 553.      The arresting officers gave

chase and pulled the defendant off his bicycle.                    Ibid.        As the




                                            3                               A-5722-12T2
officers       "grabbed"    the    defendant,        he    discarded        contraband.

Ibid.

      Since there was "nothing intrinsically suspicious about a

person riding a bicycle in a housing complex courtyard," or even

the ensuing flight, we affirmed suppression of the evidence.

Id. at 556, 564.           Other than defendant's attempt to pedal away

while placing his hand in his pocket, no circumstance explained

the     officers'     attention     nor    established           any    reasonable      or

articulable suspicion for the investigatory stop.                           Id. at 556-

57.      The    information       about   the   potential         of    a   retaliatory

shooting was vague, and non-specific in terms of where and when

the retaliation might occur; there was no evidence that the

source was reliable or the information just rumor; and there was

no reason to believe the defendant might be involved.                            Id. at

556-58.

      The State contends on appeal that the trial court erred

because, in this case, the stop of defendant was a proper field

inquiry.        The   State    further     claims         that    the    officers     had

sufficient       reasonable       suspicion     to        make    an     investigatory

detention, the gun was abandoned property and therefore lawfully

recovered, and the drugs properly seized incident to arrest.

      We review the trial court's findings of fact on a motion to

suppress deferentially, affirming whenever they are supported by




                                          4                                     A-5722-12T2
sufficient credible evidence in the record.                          State v. Elders,

192    N.J.    224,    243     (2007).       We    particularly         defer   to    those

findings that flow from the trial court's opportunity to see and

hear the witnesses, an opportunity not enjoyed by a reviewing

court.        State v. Johnson, 42 N.J. 146, 161 (1964); see also

State    v.    Diaz-Bridges,         208    N.J.    544,   565      (2012).      No    such

deference is accorded to the court's conclusions of law; such

issues are addressed de novo.                    State v. Gandhi, 201 N.J. 161,

176 (2010).

       It is the State's burden to establish by a preponderance of

the evidence that the challenged stop and seizure falls within

an    exception       to   the     Fourth    Amendment's        warrant    requirement.

Elders, supra, 192 N.J. at 246.                      One such exception is the

investigatory         or     Terry2-type      stop,       in    which     specific      and

articulable facts, along with rational inferences, give rise to

a    reasonable   and        articulable     suspicion         of   criminal    activity.

State    v.    Pineiro,       181    N.J.    13,     20    (2004).        The    test    is

objective, the question being whether at the moment of seizure,

the officer had at his command sufficient facts supporting a

person of reasonable caution in the belief that seizure was

appropriate.           Id.    at    21-22.         The    analysis      must    be    fact-


2
  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).



                                             5                                   A-5722-12T2
sensitive,    each    case   must       be     carefully     reviewed,      and    an

individual determination made.            Id. at 22.       The totality of the

circumstances      must   satisfy       the     reasonable      and     articulable

standard.    Elders, supra, 192 N.J. at 247.

    Unlike the facts in Williams, the circumstances of this

case gave rise to a reasonable and articulable suspicion that

defendant    had   committed      a    crime    or   was   in   the     process    of

committing one.      In the aggregate, they support the conclusion

that the officers had a reasonable basis for                     suspicion that

defendant    was   engaged   in       criminal    activity.       See     State     v.

Stovall, 170 N.J. 346, 368 (2002).               "Even if all of the factors

were susceptible of purely innocent explanations, a group of

innocent circumstances in the aggregate can support a finding of

reasonable    suspicion."             Ibid.      (internal      quotation      marks

omitted).

    The officers arrived within moments of the report of shots

being fired, and were faced with a chaotic scene.                     This alone is

an important difference from Williams, where nothing untoward

had occurred and it was uncertain whether it would.                        Although

the crowd began to disperse upon their arrival, only defendant

appeared nervous, drawing attention to himself by continuously

looking back towards the officers.               Rather than simply leaving,

as the others were doing, he briefly ducked into an alley.                        When




                                         6                                  A-5722-12T2
he walked away, and saw that the officers were following him,

his nervousness only increased.                When Perez attempted to speak

to him, defendant began to run.                 Thus defendant's conduct, all

told, did much more to arouse reasonable suspicion than the

bicycle-rider's mere departure from the scene in Williams.

      Defendant's        nervousness          alone     would     not     have      been

sufficient to justify the investigatory stop, as opposed to a

field inquiry, that resulted when Perez instructed defendant to

halt.        See State v. De Lorenzo, 166 N.J. Super. 483, 488 (App.

Div. 1979) (explaining that an investigatory stop, as opposed to

a field inquiry, was not reasonable where the only factor was

defendant's nervousness).               On the other hand, nervousness and

furtive movements may be considered in conjunction with other

factors to establish reasonable and articulable suspicion.                          See,

e.g., Elders, supra, 192 N.J. at 250 ("To be sure, nervousness

and conflicting statements, along with indicia of wrongdoing,

can     be    cumulative      factors    in    a      totality    of    circumstances

analysis that leads to a finding of reasonable and articulable

suspicion       of   ongoing   criminality.");          State    v.    Valentine,    134

N.J. 536, 553-54 (1994); State v. Todd, 355 N.J. Super. 132, 138

(App. Div. 2002) (finding reasonable and articulable suspicion

where    defendant      was    "the   only     person    then    walking    on   [the]

street" near where a crime was committed and was "sweating and




                                           7                                  A-5722-12T2
appeared nervous").            This defendant walked in and out of an

alley, keeping the officers in his line of vision.                           He continued

walking     away    while    looking      over     his    shoulder      at    the    marked

police car.        Defendant did not respond when Perez spoke to him.

And   the   observations       must       be   placed     in    the    context      of    the

report, made moments prior to the police arrival at the scene,

of a shooting.          Thus, in the aggregate, defendant's conduct

supported     a    finding    of    reasonable       suspicion.          See    State       v.

Nishina, 175 N.J. 502, 512-13 (2003).

      Another      significant        difference         between       this     case      and

Williams is that defendant discarded the contraband, not as he

was being physically restrained, but as he ignored the police

directive to stop and was attempting to flee the scene.                                Here,

"defendant's       headlong    flight"         resulted    in    the     very     type      of

potentially        dangerous       situation       that    the        statutory      scheme

requiring citizens to comply with police orders was intended to

prevent.     See State v. Crawley, 187 N.J. 440, 451, cert. denied,

549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

      In    similar    fashion       to    the     scenario      in     Crawley,       these

officers had reason to fear that the suspect might be armed.

This street encounter occurred within moments of a dispatch that

shots had been fired.




                                               8                                    A-5722-12T2
     Therefore, the facts fit precisely into the language of

Terry which defines when an investigative stop is lawful.                 Such

street detentions are warranted "where a police officer observes

unusual conduct which leads him reasonably to conclude in light

of his experience that criminal activity may be afoot and that

the persons with whom he is dealing may be armed and presently

dangerous."     Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884, 20

L.   Ed.   2d    at   911.       Perez   reasonably     concluded,      while

investigating    a    reported   shooting,   that   defendant's      conduct

meant "criminal activity may be afoot."         Ibid.     The totality of

the circumstances combined to create reasonable and articulable

suspicion justifying the investigatory stop of defendant, making

seizure of the handgun, and defendant's eventual arrest, lawful.

     Reversed and remanded.




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