STATE OF NEW JERSEY v. TYRAY R. BROWN (19-03-0498, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-3423-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRAY R. BROWN, a/k/a

TYRAY BROWN, TYRELL

BROWN, TYRE BROWN and

RYRAY R,

Defendant-Appellant.

_____________________________

Submitted November 15, 2021 – Decided January 4, 2022

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey, Law

Division, Camden County, Indictment No. 19-03-0498.

Joseph E. Karkora, Public Defender, attorney for

appellant (Molly O'Donnell Meng, Assistant Deputy

Public Defender, of counsel and on the brief).

Grace C. MacAulay, Camden County Acting

Prosecutor, attorney for respondent (Rachel M. Lamb,

Special Deputy Attorney General/Acting Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

On a sixty-degree December evening, Camden County police responded

to an emergency call about an unconscious man, later identified as defendant,

laying semi-conscious appearing to be under the influence of drugs in front of a

Camden residence. Concerned about his well-being, the officers checked on his

vital signs while waiting for emergency medical services (EMS) to arrive. When

Sergeant Angel Nieves grabbed defendant to wake him up, he felt something

hard in defendant's waistband, which turned out to be a handgun. Defendant

was subsequently charged with second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b)(1), and second-degree certain persons not to possess any

weapons, N.J.S.A. 2C:39-7(b)(1). After his motion to suppress the handgun was

denied by Judge Francisco Dominguez, defendant pled guilty to second-degree

unlawful possession of a weapon and was sentenced to five years in prison with

a one-year period of parole ineligibility.

In a one-point argument, defendant appeals arguing:

THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S MOTION TO SUPPRESS BECAUSE

THE POLICE DID NOT HAVE THE REQUISITE

REASONABLE SUSPICION TO FRISK []

DEFENDANT.

We are unpersuaded and affirm.

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At the suppression hearing, the State had the burden to prove that the

search of defendant's person and seizure of the handgun was not violative of our

state and federal constitutions. The State presented one witness, Nieves,1 while

defendant did not testify or produce any witnesses. At the hearing's conclusion,

Judge Dominguez issued an oral decision, finding Nieves's testimony credible,

and determining that his search and seizure of the handgun was permissible

under the community-caretaker exception and the Terry doctrine.2 Relying upon

State v. Diloreto, 180 N.J. 264 (2004), the judge found:

[Nieves] was not acting in an investigatory manner of a

criminal matter, but rather . . . all of these events acting

in concert gave rise to the officer's community[-

]caretaking role. Additionally, . . . the officer did not

perform this function as a pretext for a criminal

investigation. . . . [T]he officer in this case acted out of

concern for . . . defendant's safety while [he]

acknowledged that . . . he took steps to protect his

safety, in addition to . . . defendant's. . . . [T]he police

need not abandon their own safety while reasonably

engaged in . . . community[-]caretaking activity.

Regarding the application of Terry, the judge reasoned Nieves and other

officers at the scene "had authority to conduct the search because under the

1

At the time of his testimony, Nieves had been promoted to the position of

lieutenant.

2

Terry v. Ohio, 392 U.S. 1 (1968).

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circumstances . . . a reasonably prudent man . . . would be warranted in the belief

that his safety or that of others may be in danger." More specifically, the judge

found that based on the totality of the circumstances, since the officers were

unaware of the intoxicant defendant consumed; any objects he may have

possession, "such as hypodermic needles or other objects[] that could potentially

harm" someone when attempting to render aid to him; and "the unusual amount

of clothing . . . [he] was wearing that could conceal a weapon," the officers were

reasonable in their belief that their safety, and the safety of others, was in danger.

The judge stressed that when Nieves initially touched defendant to wake him

up, it was not for the purpose of a criminal investigation but was part of his

community-caretaking function. Thus, the judge ruled that "[i]t was within the

course of conducting that community-caretaking function that [Nieves] first felt

an object that he . . . believed may have been a weapon." 3

To adjudicate this appeal, we are guided by the following well-known

principles. Under the Fourth Amendment of the United States Constitution and

3

The State also argued that even if the search and seizure of the gun was not

justified under the community-caretaking exception, the handgun should be

found admissible under the inevitable discovery doctrine when defendant would

have been searched before being transported to the hospital. Because the judge

found that the community-caretaking exception applied, he did not address the

inevitable discovery argument.

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Article I, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search 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) (citing State v.

Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of

a person or property. Terry, 392 U.S. at 19-21 (seizure of a person); State v.

Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property). In Terry, the

United States Supreme Court held that a police officer is authorized to detain an

individual for a brief period, and to pat him down for the officer's safety, if that

detention is "based on 'specific and articulable facts which, taken together with

rational inferences from those facts,' give rise to a reasonable suspicion of

criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry,

392 U.S. at 21).

The community-caretaking doctrine, first enunciated by the Supreme

Court in Cady v. Dombrowski, 413 U.S. 433 (1973), is an exception to the

warrant requirement based on the awareness that police officers "often are called

on to perform dual roles." State v. Diloreto, 180 N.J. 264, 276 (2004). "The . . .

doctrine recognizes that police officers provide a wide range of social services

outside of their traditional law enforcement and criminal investigatory roles."

State v. Scriven, 226 N.J. 20, 38 (2016) (internal quotation marks and citations

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omitted). The doctrine provides an independent justification for intrusions into

a citizen's liberty that would otherwise require a showing of probable cause or

reasonable and articulable suspicion of criminal behavior. Diloreto, 180 N.J. at

276. Our Supreme Court has found that the community-caretaker role permits

officers to "check on the welfare or safety of a citizen who appears in need of

help on the roadway without securing a warrant or offending the Constitution."

Scriven, 226 N.J. at 38.

The doctrine entails a fact-sensitive, two-part inquiry. First, a court must

ask whether the officer has reacted to an objectively reasonable community -

concern. Id. at 39 (stating that officers must have an "objectively reasonable

basis" to stop a vehicle to provide aid or check a motorist's welfare). That

concern must serve as a distinct motivation for the officer's conduct, divorced

from any desire to further a criminal investigation. In other words, community-

caretaking may not serve as a pretext for a warrantless intrusion into a citizen's

liberty that does not satisfy another warrant exception. State v. Bogan, 200 N.J.

61, 77 (2009). However, the "divorce" between the two police functions "need

only relate to a sound and independent basis for each role, and not to any

requirement for exclusivity in terms of time or space." Ibid. (citation omitted).

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Second, the court must discern whether the actions taken by the officer

pursuant to his community-caretaking remained within the limited scope

justified by that function. As with all police stops, the officer's conduct must be

"reasonably related in scope to the circumstances which justified the

interference in the first place." State v. Dickey, 152 N.J. 468, 476 (1998)

(quoting Terry, 392 U.S. at 20). Moreover, an officer's "community[-

]caretaking inquiry must not be 'overbearing or harassing in nature.'" State v.

Drummond, 305 N.J. Super. 84, 89 (App. Div. 1997) (quoting State v. Davis,

104 N.J. 490, 503 (1986)).

While there are similarities between the emergency aid and

community-caretaking exceptions, they are doctrinally separate and distinct.

State v. Witczak, 421 N.J. Super. 180, 192 (App. Div. 2011). "The

community[-]caretaker exception asks whether the police are 'engaged in

"functions, [which are] totally divorced from detection, investigation, or

acquisition of evidence relating to the violation of a statute."'" Ibid. (quoting

State v. Cassidy, 179 N.J. 150, 161 (2004)) (second alteration in original). The

emergency aid exception focuses on an objectively reasonable belief an

emergency exists and that there is a reasonable nexus between the emergency

and the area to be searched. State v. Hathaway, 222 N.J. 453, 470 (2015).

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Having reviewed the record on appeal, we discern no basis to reject the

Judge Dominguez's findings of fact given they were supported by sufficient

credible evidence in the record and based on his opportunity to hear and see

Nieves's testimony. See State v. Lamb, 218 N.J. 300, 313 (2014) (quoting State

v. Elders, 192 N.J. 224, 244 (2007)) (recognizing that appellate review

ordinarily defers to the trial judge's factual 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"). And under our de novo review, we conclude the judge made sound

legal conclusions that Nieves's search and seizure did not violate our state and

federal constitutions. See State v. Rockford, 213 N.J. 424, 440 (2013) (stating

when a trial judge's decision is based upon a legal conclusion, "we conduct a de

novo, plenary review").

Defendant concedes the police officers were initially acting as

community-caretakers, but, citing Diloreto, he contends the frisk and search of

his person was "investigatory" and "not justified under the community-

caretaking exception to the warrant requirement." We disagree.

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Upon arriving at the scene, Nieves's concern was about defendant's

welfare.4 He observed defendant lying on his side on the ground, "appear[ing]

to be out of it, kind of semi-conscious." Believing he was under the influence

of drugs, Nieves checked to see if he was breathing or had a pulse. Once he

determined defendant had a pulse, he started shaking him and calling out to him,

saying "Hey, Papi." Defendant did not verbally respond but merely looked up

towards Nieves and smiled. While shaking him, Nieves "brushed up against

something hard and . . . conducted a pat down of his waist area[,] and [having]

felt something . . . lifted up his shirt and saw the butt of a handgun."

Nieves also testified he was concerned about the safety of arriving EMS

personnel, himself, and the other officer present, because he had experienced

situations where individuals under the influence have "snapp[ed] out of it,

whatever condition it is" and "attack EMS or . . . attack officers." His concern

was further heightened by the fact that defendant was overdressed for the

approximately sixty-degree weather, wearing "long johns," "a thick sweatshirt,"

and "[a] face mask." His training and experience suggested defendant was

clothed that way to conceal a weapon. Taking from the Court's ruling in

4

During the suppression hearing, a video taken from the body camera worn by

Nieves was shown. However, neither party included it with the record on

appeal.

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Diloreto, Nieves's actions "reflected the essence of the community[-]caretaker

function, revealing no motive other than an honest desire to verify defendant's"

safety and well-being. 180 N.J. at 280. Accordingly, we uphold the judge's

order denying defendant's motion for suppression.

Affirmed.

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