                            NOT FOR PUBLICATION WITHOUT THE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-1110-16T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

SHAEDDENZEL Y. COLEMAN,
a/k/a SHAED COLEMAN,

     Defendant-Appellant.
____________________________

                Submitted March 14, 2018 – Decided May 8, 2019

                Before Judges Fuentes and Koblitz.

                On appeal from Superior Court of New Jersey, Law
                Division, Monmouth County, Indictment No. 15-05-
                0939.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Stephen W. Kirsch, Assistant Deputy Public
                Defender, on the brief).

                Christopher J. Gramiccioni, Monmouth County
                Prosecutor, attorney for respondent (Mary R. Juliano,
                Assistant Prosecutor, of counsel and on the brief; Emily
                M. M. Pirro, Legal Assistant, on the brief).

       The opinion of the court was delivered by
FUENTES, P.J.A.D.

      A Monmouth County grand jury indicted defendant Shaeddenzel Coleman

on one count of second degree unlawful possession of a loaded nine millimeter

Smith & Wesson handgun, N.J.S.A. 2C:39-5(b) and one count of fourth degree

possession of a prohibited weapon, N.J.S.A. 2C:39-3(j). The police found and

seized this firearm incident to a motor vehicle stop of defendant's car. After the

court denied his motion to suppress the evidence seized, defendant pled guilty

to second degree unlawful possession of a handgun. In exchange, the State

agreed to dismiss the second count in the indictment and recommend the court

sentence defendant to a term of five years imprisonment with forty-two months

of parole ineligibility, as required by the Graves Act. N.J.S.A. 2C:43-6(c). The

court sentenced defendant consistent with the plea agreement.

      Pursuant to Rule 3:5-7(d), defendant appeals the court's denial of his

motion to suppress arguing: (1) the motion judge erred in upholding the validity

of the initial motor vehicle stop; and (2) the police officer did not have

reasonable suspicion to request that defendant sign a consent form to search the

car. After reviewing the record developed before the motion judge, we reject

defendant's arguments and affirm. The State called only one witness at the

N.J.R.E. 104 evidentiary hearing to adjudicate defendant's motion to suppress.

                                                                          A-1110-16T1
                                        2
We derive the following facts from the record developed from the testimony of

this witness.

                                        I

      At all times relevant to this case, Sergeant Lorenzo Pettway, then a patrol

officer in the Asbury Park Police, was assigned to the Department - Street

Crimes Unit (Street Crimes Unit), which he described as a

            small proactive unit set up in the police department to
            investigate individuals in Asbury Park engaging in
            narcotics, distribution, gang activity, shootings,
            homicide.

                  ....

            Primarily we focus[ed] on just patrolling the high-crime
            areas throughout the city, initiating investigations,
            cultivating confidential informants to further our
            investigations, assist[ing] the Detective Bureau with
            their investigation[s].

      On December 1, 2014, Pettway and his partner Officer Joseph Spanilla

were assigned to surveil "the 10 block of Atkins Avenue" in an unmarked SUV.

Pettway was wearing a t-shirt with "Police" across the front and a neck badge.

He testified that he had made arrests in that area involving "[e]verything from

narcotics possession, narcotics distribution, handgun possession . . . [to] other

weapons [] related offenses" including a homicide. On that particular day, the

police had received "a lot of complaints about a particular house . . . on Atkins

                                                                         A-1110-16T1
                                       3
Avenue." Pettway testified the house "was sort of a gang hangout spot, a lot of

Crip gang members . . . claiming the area, were hanging out at that location."

Pettway defined the phrase "claiming the area" as a property the gang had

"tagged out . . . spraypainted [sic] graffiti on the side of the building, sidewalks,

and they were selling drugs in that particular area."

      At approximately 10:50 p.m., Pettway saw "a black Chevy" drive south at

Atkins Avenue and stop in front of the suspected "Crip hangout" property. The

vehicle had two occupants, a driver and a passenger seated in the front. The

passenger stepped out of the car and started talking to the driver, who was

subsequently identified as defendant. The car then pulled over to the curb on

the right side of the road. As Pettway and Spanilla drove past defendant's car,

defendant and the passenger "looked up at [Pettway] real quick and then they,

the passenger, shut the door and walked into [the] Atkins [property] and the

driver drove off from the area real quick."

      Defendant's car was facing south when it pulled away from the curb.

Pettway saw the car "move[d] left," onto Atkins Avenue. Atkins Avenue is a

narrow two-way street that allows parking on both sides. Thus, if there are cars

parked on both sides of the street, there is only room for one car to pass. At this

point, Pettway turned the unmarked police SUV around "to initiate a traffic


                                                                             A-1110-16T1
                                         4
stop." Pettway approached defendant's car and asked defendant for his driver's

license, motor vehicle registration, and insurance card. Defendant produced an

insurance card that reflected the insurance policy had expired. While defendant

searched through the car to see if he had an active insurance card, Pettway asked

him if he knew the person who had just gotten out of his car and entered the

house at Atkins Avenue. According to Pettway, defendant "hesitated and said

he didn't know his name." Based on defendant's inability to produce a valid

insurance card, Pettway advised defendant that his car would be towed and asked

him for permission to search the car.

       Following what he dubbed a "formal process," Pettway read defendant "a

Miranda1 warning card," had defendant initial after each specific right described

therein, and asked defendant to sign it. Pettway thereafter signed the Miranda

document as a witness. Pettway next described how he obtained defendant's

consent to search the car. He identified a "Consent to Search Form,"2 which he

"went over with Mr. Coleman." In response to a series of leading questions by

the prosecutor, Pettway explained that the Consent to Search Form: (1)

1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
  Although the Miranda card and Consent to Search Form were authenticated
and made part of the evidence the State presented to the motion judge at the
suppression hearing, these documents were not provided to this court as part of
the appellate record.
                                                                         A-1110-16T1
                                        5
"indicates what's going to be searched"; (2) advises "there is a right to refuse to

have the search conducted"; (3) contains "a line that says there's a right to revoke

his consent at any time . . . [and that] the search may stopped at any time;" and

"there's [a line indicating] a right to be present." Pettway testified that defendant

signed the Consent to Search Form and Officer Spanilla signed as a witness.

      Pettway testified he "accompanied" defendant back to his car to "stand by

while I conducted a search of the vehicle." Pettway searched the interior of the

car without incident. When he started to search the trunk, defendant "kind of

asked if there's anything in the vehicle in the trunk would he be in trouble for it.

And I explained if there was, he would be arrested, but I would give him an

opportunity to give a statement." At this point, defendant asked Pettway to allow

him to call his sister.

      Pettway testified he stopped the search to permit defendant to make the

call. Although Pettway was close enough to defendant to hear him speaking to

someone with a "female voice," he could not "make out" the substance of the

conversation. Pettway testified he heard defendant ask the female recipient if it

was "okay to let the police search the trunk, [was] there anything in there . . .

[?]" According to Pettway, defendant ended the call and told him to "go ahead

and search the trunk." Pettway testified he found a loaded nine millimeter Smith


                                                                             A-1110-16T1
                                         6
& Wesson handgun, "a single round [of] rifle ammunition . . . assorted [mail]

that belonged to Mr. Coleman, some clothing as well as identification [that]

belonged to Mr. Coleman." Pettway arrested defendant and transported him to

the police station for processing.

      At this point in Pettway's direct testimony, the prosecutor circled back to

the initial motor vehicle stop to ask the following questions:

            Q. Going back to the original motor vehicle stop, could
            you please tell us why you conducted the motor vehicle
            stop?

            A. When Mr. Coleman pulled in, he failed to use the
            turn signal.

            Q. So it was for a motor vehicle violation?

            A. Yes, ma'am.

            Q. And then during the stop, could you please tell us
            why you asked for consent to search the car?

            A. It was a combination of when I initially rode by
            them they looked nervous, they looked at me, they
            abruptly stopped talking to one another, and the
            passenger walked in the house and Mr. Coleman
            quickly pulled away.

            Then when I was speaking to Mr. Coleman and asked
            him about his friend, what his friend's name was, he
            appeared nervous and said he didn’t know his name, so
            at that point I thought there may be something in the car
            just based on that.


                                                                         A-1110-16T1
                                        7
             Q. Was that also due to the location of these events?

             A. Oh, yeah, oh, yeah. The location that the individual
             walked into the house is a known Crip house. It's the
             Crip safe house and we have had a lot of investigation
             at that location, around that area.

      Pettway testified that after he arrested defendant for the unlawful

possession of a handgun, he issued him a summons under Title 39 for operating

an uninsured motor vehicle, failure to signal, and failure to wear a seatbelt. He

also impounded defendant's car.

      On cross-examination, Pettway admitted he did not know the name of the

man he saw exit defendant's car and walk inside the alleged Crip safe house, nor

whether this man had any affiliation to the Crips. Pettway did not know the

names of any of the individuals who allegedly made complaints about the house

on Atkins Avenue or when these complaints were made; none of the alleged

complaints named defendant nor involved a car similar to the car defendant was

driving that day. Pettway also did not see or detect any contraband or other

indicia of illicit activity when he interacted with defendant immediately after or

in the course of the motor stop. The following exchange describes defendant's

activity prior to his arrest.

             Q. You asked Mr. Coleman where he was coming from;
             is that right?


                                                                          A-1110-16T1
                                        8
            A. Yes.

            Q. And he told you that he had come off from work?

            A. Yes, ma'am.

            Q. And that he dropped his friend off at his house?

            A. Yes, ma'am.

            Q. Anything about that suspicious to you, in and of
            itself?

            A. No. In and of itself, no.

            Q. Mr. Coleman was not able to produce an up-to-date
            insurance card, true?

            A. That's correct, ma'am.

            Q. And you made the decision to tow the car, right?

            A. Yes, ma'am.

            Q. And you also made the decision to search the car?

            A. Yes, ma'am.

            Q. It's not required to conduct a search before calling
            a tow truck, true?

            A. That's correct, ma'am.

      Pettway stopped defendant's car at approximately 10:50 p.m.          The

computer generated record of interactions with the dispatcher at the station is

known under the acronym "CAD." Page seven of Pettway's police report of this

                                                                       A-1110-16T1
                                        9
incident indicates a CAD report timed 11:43 p.m. was generated documenting a

transmission that a handgun had been found in defendant's car.           Despite

defendant's failure to produce a valid insurance card, the record shows Pettway

did not call for a tow truck before he searched defendant's car. Finally, Pettway

did not issue the Title 39 summons against defendant until he returned to the

police station.

      Based on this testimonial evidence, the motion judge found "the totality

of the circumstances certainly gave reasonable suspicion that either the car had

- - that there was evidence of a crime or a crime about to have been committed

that would allow Officer Pettway to request permission to search." Citing State

v. Tucker, 136 N.J. 158, 169 (1994), the motion judge found "the high crime and

late evening hours" were factors that supported a "particularized suspicion or

reasonable belief that the circumstances are consistent with criminal conduct."

      In addition to the elements of time, the area's reputation for criminal

activity, and the numerous complaints about the presence of a "gang safe house,"

the judge found it particularly germane that:

             once [Pettway] indicated that the car was going to be
             impounded [Pettway] gave the defendant the option of
             consenting to the search and as indicated, the defendant
             clearly understood the terms of the consent and asked
             that at some point during the search that it be stopped.
             The officer lawfully complied with that, allowed the

                                                                         A-1110-16T1
                                       10
            defendant to make a request by telephone and then the
            search continued.

                                        II

      Based on this record, defendant raises the following arguments:

            THE MOTION TO SUPPRESS SHOULD HAVE
            BEEN GRANTED; CONTRARY TO THE MOTION
            JUDGE'S RULING, THE STATE DID NOT CARRY
            ITS BURDEN OF DEMONSTRATING THE
            VALIDITY OF: (A) THE MOTOR-VEHICLE STOP,
            BECAUSE     THE     OFFICER    PROVIDED
            INSUFFICIENT TESTIMONY TO LEAD TO A
            CONCLUSION THAT A VIOLATION OF A
            MOTOR-VEHICLE LAW HAD TAKEN PLACE,
            AND (B) THE REQUEST FOR CONSENT TO
            SEARCH, BECAUSE IT WAS UNSUPPORTED BY
            REASONABLE SUSPICION THAT SUCH A
            REQUEST WOULD LEAD TO THE DISCOVERY OF
            CONTRABAND.

      As an appellate court, we are bound to defer to the motion judge's factual

findings "that are 'supported by sufficient credible evidence in the record.'"

State v. Mohammed, 226 N.J. 71, 88 (2016) (quoting State v. Gamble, 218 N.J.

412, 424 (2014)). This deferential review is particularly appropriate in cases

where, as here, the judge's findings are "substantially influenced by [an]

opportunity to hear and see the witnesses and to have the 'feel' of the case, which

a reviewing court cannot enjoy." Gamble, 218 N.J. at 424-25 (citing State v.

Johnson, 42 N.J. 146, 161 (1964)). However, the judge's legal conclusions


                                                                           A-1110-16T1
                                       11
derived from these facts are reviewed de novo. State v. Nash, 212 N.J. 518, 541

(2013)

      A traffic stop "must be based on reasonable and articulable suspicion that

an offense, including a minor traffic offense, has been or is being

committed." State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty,

170 N.J. 632, 639-40 (2002)). Reasonable suspicion means "the police officer

must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion." Terry

v. Ohio, 392 U.S. 1, 21 (1968). "Reasonable suspicion" is "less than proof . . .

by a preponderance of evidence," and "less demanding than that for probable

cause," but must be something greater "than an 'inchoate and unparticularized

suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7 (1989). "To

satisfy the articulable and reasonable suspicion standard, the State is not

required to prove that the suspected motor-vehicle violation occurred." State v.

Locurto, 157 N.J. 463, 470 (1999). Instead, "the State need prove only that the

police lawfully stopped the car, not that it could convict the driver of the motor -

vehicle offense." State v. Williamson, 138 N.J. 302, 304 (1994).

      The State must show an officer had an objectively reasonable belief a

traffic violation occurred. State v. Puzio, 379 N.J. Super. 378, 383 (App. Div.


                                                                            A-1110-16T1
                                        12
2005). However, "the fact that information an officer considers is ultimately

determined to be inaccurate . . . does not invalidate a seizure." State v. Pitcher,

379 N.J. Super. 308, 318 (App. Div. 2005).

      N.J.S.A. 39:4-126 provides:

            No person shall . . . turn a vehicle from a direct course
            or move right or left upon a roadway, or start or back a
            vehicle unless and until such movement can be made
            with safety. No person shall so turn any vehicle without
            giving an appropriate signal in the manner hereinafter
            provided in the event any other traffic may be affected
            by such movement.

            [(Emphasis added).]

      In Williamson, the Court explained that N.J.S.A. 39:1-126 "does not

require that a signal be given whenever a lane change is made." 138 N.J. at 303.

Instead, before moving right or left on a roadway, a motorist is required to signal

a lane change if "other traffic may be affected by such movement." Id. at 303

(quoting N.J.S.A. 39:4-126). The Court focused on the language "may affect

traffic" and explained that other traffic may be "fairly close and visible, and that

the signal need not be dictated solely by concerns of safety and accident

avoidance." Ibid. The Court reasoned that "[m]otorists in the vicinity whose

movements may be affected must be made aware of a driver's intentions." Ibid.

Therefore, "the officer ordering a stop must have some articulable basis for


                                                                            A-1110-16T1
                                        13
concluding that the lane change might have an effect on traffic." Ibid. To prove

a violation, the State need not show that the signal did in fact affect traffic, but

only that it had "the potential of doing so." State v. Moss, 277 N.J. Super. 545,

547 (App. Div. 1994). "Other traffic" can include a police vehicle. Williamson,

138 N.J. at 304; Moss, 277 N.J. Super. at 547.

      Defendant argues that Pettway did not explain how the movement of

defendant's vehicle away from the curb may have affected other traffic. In

response, the State emphasizes that Pettway provided a reasonable, articulable

basis from which the motion judge found that the traffic stop was based, in part,

on defendant's observable failure to signal in violation of N.J.S.A. 39:4-126.

This conduct by defendant could have reasonably affected traffic. The State

argues that State v. Heisler, 422 N.J. Super. 399 (App. Div. 2011) and State v.

Jones, 326 N.J. Super. 234 (App. Div. 1999) highlight the facts necessary to

show a reasonable and articulable suspicion of a failure to signal traffic

violation.

      In Heisler, the defendant, who was being followed by a police officer, was

traveling towards an intersection, and pulled into a left-turn lane without

signaling. 422 N.J. Super. at 407. The police officer testified that besides his

vehicle, there was other traffic traveling in the vicinity, and explained "[o]ne


                                                                            A-1110-16T1
                                        14
vehicle turned into a parking lot before reaching the intersection. Another

vehicle [turned onto the same road] while defendant and [the police officer]

waited at the light." Ibid. The court explained that the police officer had a

reasonable and articulable suspicion that the defendant had violated a motor

vehicle law by failing to signal because "the officer reasonably believed that

defendant's actions may have affected other vehicles.        Also, the evidence

supported a reasonable and articulable suspicion that the failure to signal may

have affected [the police officer's] own vehicle." Id. at 413.

      In Jones, the court ultimately suppressed the evidence on other grounds.

326 N.J. Super. at 245. However, the defendant argued the state trooper did not

have a reasonable and articulable suspicion of a motor vehicle violation because

the State Trooper did not testify that other traffic had been affected by the

defendant's failure to signal. Id. at 239. The State Trooper testified the traffic

stop occurred during rush hour, and there were several other vehicles on the road

when the defendant failed to signal. Ibid. The court determined "the rush hour

traffic conditions were sufficient to support an articulable and reasonable basis

for concluding that the unsignaled [sic] lane change might have an effect on

other vehicles." Id. at 239.




                                                                          A-1110-16T1
                                       15
      Here, Pettway testified Atkins Avenue is a narrow, two-way street where

cars are allowed to park on both sides of the road, and "sometimes . . . one

direction of traffic going north might have to stop to allow the traffic going

south." As he passed defendant's vehicle, Pettway testified he saw defendant

pull away from the curb without signaling, and began to drive south down the

road. The motion judge found that "[e]ven if there would be some defense as to

whether or not there were enough vehicles around that would constitute a

hazard," Pettway had a reasonable and articulable suspicion that a motor vehicle

violation had occurred. There is no evidence or testimony from Pettway that

other vehicles were traveling in the vicinity at the time of defendant's failure to

signal. Instead, based on the record, the only vehicle that may have been

affected by defendant's failure to signal was Pettway's unmarked police SUV.

      According to Pettway, there were cars parked on both sides of the street,

reducing even more Atkin Avenue's narrow traffic lanes. When defendant

pulled out from the curb, two lanes of traffic would not be available to motorists

traveling on the road at the same time. This would negatively affect the flow of

traffic by creating a funnel effect for other cars trying to pass through. It is not

clear from the record whether this situation was present when defendant failed

to signal. However, under these circumstances, Pettway had a reasonable and


                                                                            A-1110-16T1
                                        16
articulable suspicion that a motor-vehicle violation occurred under N.J.S.A.

39:4-126.

      We thus discern no legal grounds to interfere with the motion judge's

decision to deny defendant's motion to suppress the evidence found as a result

of the traffic stop.

                                      III

      We next address whether the motion judge properly rejected defendant's

argument attacking the validity of Pettway's request to defendant to sign a

consent form to search the car. Defendant argues the motion judge erred in

upholding the validity of his consent because Pettway did not have a reasonable

suspicion that the search would lead to the discovery of contraband. We begin

our analysis by reaffirming certain bedrock principles of our State's search and

seizure jurisprudence.

      Warrantless searches and seizures are presumed invalid under the Fourth

Amendment of the United States Constitution and Article I, Paragraph 7, of the

New Jersey Constitution. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden

is on the State to prove that a warrantless search "falls within one of the few

well-delineated exceptions to the warrant requirement." Ibid. (quoting State v.

Maryland, 167 N.J. 471, 482 (2001)). A knowing, voluntary consent is a well-


                                                                        A-1110-16T1
                                      17
recognized exception to the Fourth Amendment's search warrant requirement.

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Coles, 218 N.J.

322, 337 (2014). The record must show the consent to search was freely and

voluntarily given. Bustamonte, 412 U.S. at 248-49; State v. Sugar, 100 N.J.

214, 234 (1985) ("A valid consent to a search must be clear, knowing, voluntary,

unequivocal, and express."). The person giving consent must know he or she

has the right to refuse consent. State v. Johnson, 68 N.J. 349, 353-54 (1975).

      Prior to seeking consent to search a motor vehicle, the requesting officer

must have a reasonable and articulable suspicion that a search would reveal

evidence of criminal wrongdoing. Carty, 170 N.J. at 635. That standard has

been defined as "a particularized and objective basis for suspecting the person

stopped of criminal activity[,]" and is a far lower standard than probable

cause. State v. Stovall, 170 N.J. 346, 356-57 (2002) (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996)). "A finding of reasonable and articulable

suspicion of ongoing criminality" is determined by objective "cumulative

factors in a totality of the circumstances analysis." State v. Elders, 192 N.J. 224,

250 (2007); see also Gamble, 218 N.J. at 413 ("The standard takes into account

'the totality of the circumstances — the whole picture.'"). Factors that have been

found to give rise to a reasonable suspicion in the totality of the circumstances


                                                                            A-1110-16T1
                                        18
include nervousness of the defendant, "additional evasive action, lying to the

police, the presence of other incriminating information about the motorist or

occupants of the car . . . even the lateness of the hour." Gamble, 218 N.J. at 430.

Additionally, "a group of innocent circumstances in the aggregate can support a

finding of reasonable suspicion." Stovall, 170 N.J. at 368.

      Here, defendant argues Pettway lacked reasonable and articulable

suspicion to request consent to search his car. In response, the State identifies

seven separate factors that, when considered in the totality of the circumstances,

established a reasonable and articulable basis for Pettway to suspect that a search

of defendant's vehicle would reveal evidence of criminal wrongdoing. These

factors are: (1) the late hour; (2) the location where the stop occurred was known

to law enforcement as a high crime area that included the presence of a gang

safe house; (3) the "evasive conduct" of the passenger leaving the car and

entering the gang safe house immediately after Pettway drove by defendant's

car; (4) defendant's immediate attempted departure in violation of the motor

vehicle code; (5) defendant's nervous demeanor when approached by Pettway;

(6) defendant's inability to identity the passenger; and (7) Pettway's training and

experience as a police officer assigned to the Street Crimes Unit.




                                                                           A-1110-16T1
                                       19
      Our Supreme Court has considered the "late hour of night" and an area's

status as a "high crime area" as factors in a totality of the circumstances analysis.

See Gamble, 218 N.J. at 430 (identifying the "lateness of the hour" and the

location's status as a "high-crime" area as factors that, in the totality of the

circumstances, can give rise to a reasonable and articulable suspicion of criminal

activity); State v. Nishina, 175 N.J. 502, 512 (2003) (explaining that "[t]he time

of day and physical location at which a police-citizen encounter takes place are

relevant to the analysis"); State v. Butler, 278 N.J. Super. 93, 104-5 (1994) ("The

lateness of the hour and high-crime status of an area are two important factors

which can typically elevate an officer's suspicion.").

      The Court has also concluded that a defendant's nervousness and

suspicious behavior, considered in the context of other factors, may play a role

in determining whether a police officer can establish a reasonable and articulable

suspicion to request consent to search a defendant's vehicle. See State v. Mann,

203 N.J. 328, 339-40 (2010) (noting that a defendant's nervousness alone may

not be sufficient to establish a reasonable and articulable suspicion, however,

when coupled with other factors, may give rise to reasonable suspicion);

Nishina, 175 N.J. at 512 (explaining that a defendant's "highly questionable, if

not inherently unreliable" response to a question contributed to an officer's


                                                                             A-1110-16T1
                                        20
reasonable suspicion); Stovall, 170 N.J. at 367 (noting that while "some

individuals become nervous when questioned by a police officer . . . the fact that

such reactions may be commonplace does not detract from the well-established

rule that a suspect's nervousness plays a role in determining whether reasonable

suspicion exists").

      A court may also consider a police officer's training and past experiences

in determining whether reasonable and articulable suspicion existed.           See

Stovall, 170 N.J. at 361 (considering a detective's independent observations and

law enforcement experience); State v. Citarella, 154 N.J. 272, 279 (1997)

(giving 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").

      Finally, a defendant's sudden departure from an area, when considered in

the totality of the circumstances, can also contribute to an officer's reasonable

suspicion. See Pineiro, 181 N.J. at 25-26 (explaining that "flight alone does not

create reasonable suspicion . . . although in combination with other

circumstances it may support reasonable and articulable suspicion"); Citarella,

154 N.J. at 281 (explaining that defendant's flight became an additional factor

that heightened the level of reasonable and articulable suspicion).


                                                                          A-1110-16T1
                                         21
      Defendant argues the motion judge erred by finding it significant that

defendant and his passenger attempted to leave the area when they noticed

Pettway observing them, because "ordinary people in urban areas often do not

wish to be in the presence of the police." We agree there is no rational basis to

support this type of gross generalization. Indeed, it is per se improper to

associate any form of stereotype behavior to a person merely based on where he

or she resides. However, the record shows the motion judge's decision to deny

defendant's motion was based on the totality of the circumstances, including the

seven factors the State identified.

Defendant also argues the circumstances here are similar to those the Court

reviewed in Elders, in which the defendant's nervousness and refusal to identify

the passenger of his car did not give rise to an articulable and reasonable

suspicion that contraband would be found in his vehicle. 192 N.J. at 246-51. We

disagree.

      In Elders, the Court found that the State Troopers lacked a reasonable and

articulable suspicion to request consent to search a car, and instead relied on a

"hunch" that "something was wrong." Elders, 192 N.J. at 250. The Troopers in

Elders came upon two cars on the shoulder of the New Jersey Turnpike at

approximately three o'clock in the morning. Id. at 232. Two of the defendants


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were attempting to re-attach a gas tank to one of the cars, while two other

defendants sat on the guardrails; two other defendants were asleep in another

car; all of the defendants were from North Carolina. Ibid. The Troopers did not

accept the defendants' explanation regarding the gas tank, and "surmised that

perhaps drugs were being secreted in a compartment beneath the car." Ibid.

When the Troopers asked them where they came from, the defendants gave

conflicting stories naming different cities in New York, and appeared nervous.

Id. at 233-35.

      In concluding that the State did not show articulable suspicion, the Court

highlighted the nervousness and conflicting statements of the defendants, and

explained that "not all persons feel comfortable in the presence of the police"

and that the out-of-state defendants may not be familiar with New York. Id. at

249. However, the Court also explained that "nervousness and conflicting

statements, along with indicia of wrongdoing, can be cumulative factors in a

totality of the circumstances analysis that leads to a finding of reasonable and

articulable suspicion of ongoing criminality." Id. at 250.

      Here, the totality of the circumstances, including but not limited to

defendant's nervousness and refusal to identify his passenger, are factors that

contributed to Pettway's reasonable and articulable suspicion that a search would


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reveal evidence of criminal wrongdoing. Furthermore, "[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.'"

Citarella, 154 N.J. at 279 (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). In

Elders, the Troopers relied on the defendants' nervousness and inconsistent

statements to support a "hunch." These were the only factors that the State relied

on to argue the Troopers had a reasonable and articulable suspicion that a search

of the defendants' cars would reveal evidence of criminal wrongdoing. Elders,

192 N.J. at 250.

      Here, considering the totality of the circumstances, prior to seeking

consent to search the vehicle, Pettway had a reasonable and articulable suspicion

that a search of defendant's vehicle would reveal evidence of criminal

wrongdoing. Although viewed in isolation, each of the factors highlighted by

Pettway may be constitutionally insufficient to justify a consent to search, when

viewed in the aggregate, the motion judge found they established a reasonable

and articulable suspicion. We discern no legal or factual basis to disturb the

judge's decision to deny defendant's motion to suppress.

      Affirmed.


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