Opinion
DOCKET NO. A-3740-13T3
07-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE ALMONTE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-07-0708. Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jose Almonte appeals from his October 23, 2013 judgment of conviction, challenging the denial of his motion to suppress. We affirm.
I.
The following facts are taken from the testimony and documents submitted into evidence at the suppression hearing. On February 12, 2012, Detective Eric Rivera received information from a confidential informant (CI). The CI had previously provided reliable information to the Special Investigations Unit (SIU) of the Mercer County Prosecutor's Office, which led to the arrest of two other individuals. In addition, the CI had provided information regarding narcotics that was known to be true and was corroborated by independent sources.
The CI informed Rivera that a narcotics trafficker named "Jose" "would be traveling, by train, to Trenton from the New York/northern New Jersey area on Friday, February 17, 2012, to distribute quantities of cocaine." The CI described Jose as "a Hispanic male, approximately 35 to 40 years of age, approximately 5'8" to 5'9" in height, and approximately 170 to 180 pounds."
On February 17, 2012, SIU officers set up surveillance at the Trenton train station in response to the CI's information. The CI accompanied them. The CI and Detective Rivera watched for "Jose" from a discrete location within the station. Plain-clothed officers and a uniformed New Jersey Transit officer surveilled the train platform. At approximately 12:30 p.m., the CI saw "a Hispanic male, whom he was able to positively identify as 'Jose,'" exit a southbound New Jersey Transit train from New York (and thus through northern New Jersey).
Four plain-clothed officers and the transit officer followed defendant out of the train station, displayed their police badges, announced their presence, and directed defendant to stop. Defendant "started to panic." "His eyes got real big, basically like a deer in headlights." Defendant "took off running," but the officers had started to make a "circle around him." In a lunging motion, "trying to get a route to run," defendant "ran into a tree" and "went down."
Thereafter, defendant was handcuffed. Defendant was advised of his Miranda rights. Detective Joe Angarone patted defendant down for weapons.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant indicated he understood his Miranda rights and agreed to speak with Detective Angarone. Defendant said he was in Trenton "to buy a car." However, defendant could not provide any information about what make or model of car he would be purchasing, or from what dealership he would be purchasing the car. Subsequently, defendant invoked his right to remain silent.
Defendant was transported to the Prosecutor's Office, where the officers applied for a search warrant to search defendant's person. Detective Rivera's affidavit in support of the warrant contained the information provided by the CI, the corroboration of those details by officers at the train station, defendant's attempt to flee from the officers, and his evasive and unsupported statements about "buying a car."
At 3:10 p.m., a motion judge issued the search warrant, which was executed at 3:20 p.m. A strip search revealed that defendant was wearing two pairs of underwear, and had a clear plastic bag containing six other bags in between the two pairs of underwear. The six bags contained a quantity of more than one-half ounce but less than five ounces of cocaine.
Defendant moved to suppress the cocaine, but Judge Mark J. Fleming denied the motion in a written opinion on June 14, 2013.
At the suppression hearing, defendant contended that when he was approached by the officers, they "did not identify themselves until he was being tackled." Judge Fleming found the State's witnesses were credible and "[d]efendant's testimony was not credible" due to "his evasive and inconsistent answers on cross-examination, and by his demeanor on cross, where he hesitated and paused noticeably before responding to a question, as if he were calculating what response would best help or support his story." Ultimately, Judge Fleming found the officers "displayed their police identifiers and announced their police presence, directing [d]efendant to stop."
A jury convicted defendant of third-degree cocaine possession, N.J.S.A. 2C:35-10(a)(1) (Count 1), and second-degree cocaine possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (Count 2). Judge Fleming sentenced defendant to a mandatory extended term of twelve years with a six-year period of parole ineligibility on Count 2, and a five-year term of incarceration on Count 1, to be served concurrently to the sentence on Count 2. Defendant now appeals, arguing:
THE TIP OF A CONFIDENTIAL INFORMANT SUGGESTING THAT THE DEFENDANT WAS CARRYING DRUGS FAILED TO GIVE THE POLICE A REASONABLE SUSPICION BECAUSE THE INFORMANT'S CREDIBILITY WAS INSUFFICIENTLY PROVEN, HIS BASIS OF KNOWLEDGE WAS UNKNOWN, AND THE TIP WAS NOT CORROBORATED BY ANY INVESTIGATION. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA 7.
II.
We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (citations omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (citations omitted). The suppression court's "'findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation omitted).
III.
At a suppression hearing, "'the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Mann, 203 N.J. 328, 337-38 (2010) (citation omitted). "One such exception is denominated an investigatory stop or a Terry stop." Id. at 338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Under the United States and New Jersey Constitutions, "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002).
Defendant's brief implies that officers tackled him without announcing they were police, making the stop more than a Terry stop for investigation. We disagree based on Judge Fleming's contrary findings. In any event, "the authority to conduct an investigative stop must necessarily carry with it some ability to effectuate such a stop, including the use of force, if necessary." State v. Branch, 301 N.J. Super. 307, 319 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998).
In cases where informants are the source of the facts supporting reasonable suspicion for an investigatory stop, the informant's "'veracity and basis of knowledge'" are highly relevant factors. State v. Keyes, 184 N.J. 541, 555 (2005) (citation omitted). "The veracity factor may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." Ibid. Corroboration of the tip by police also helps bolster the CI'S credibility. Id. at 555-56. "[T]he 'basis of knowledge' underlying an informant's tip can be established by direct evidence of the manner in which the informant learned of the criminal activity, by details that establish that the informant's knowledge has been derived from a trustworthy source, or by a prediction of hard-to-know future events." State v. Williams, 364 N.J. Super. 23, 34-35 (App. Div. 2003) (citing State v. Smith, 155 N.J. 83, 94-95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)).
"[D]eficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 545 (1983)). In making the determination of reliability, courts must give "sufficient weight to the officer's knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997).
Defendant argues that the affidavit provided by Detective Rivera failed to reveal how the informant had proven to be reliable in the past. However, Rivera averred that the CI had been reliable in previous investigations and that the CI's information had "led to the arrest of two individuals in the past." Rivera further affirmed he had participated in "approximately 285 narcotics investigations since 2004" and has "become familiar with the practices, methods, techniques, and equipment used by those involved in the unlawful trafficking, distribution, possession, and use of controlled substances in the State of New Jersey." Based on his experience and the credible information previously provided by the CI, Rivera found the CI reliable. Because the CI had a track record of providing reliable tips that police used in previous investigations, the CI's reliability was not based on a bald assertion that the CI was "reliable" by an officer. See Zutic, supra, 155 N.J. at 111.
Further, police corroboration at the Trenton train station bolstered the CI's credibility. Officers corroborated the tip when defendant exited the specified train on the very day the CI had predicted, and matched the CI's physical description. The veracity of the CI's information was heightened by the CI's in-person identification of defendant. "'[I]n-person, an officer can observe the informant's demeanor and determine whether the informant seems credible . . . .' Moreover, 'an in-person informant risks losing anonymity and being held accountable for a false tip.'" See State v. Basil, 202 N.J. 570, 586 (2010) (citations omitted). Defendant has not demonstrated that the trial court's finding of veracity of the CI is "'so clearly mistaken that the interests of justice demand intervention and correction.'" Robinson, supra, 200 N.J. at 15 (citation omitted).
The CI related that his information was "based upon personal knowledge, observations and conversations with individuals CI had met." Defendant complains that the affidavit contained no details about the CI's basis of knowledge. Nonetheless, "[t]he basis of knowledge for the tip can also be established by predicting hard-to-know future events . . . imply[ing] that the informant derived that information directly as a witness or as one privy to a reliable witness or source." Smith, supra, 155 N.J. at 95. "Therefore, the mere allegation that such future events will occur is sufficient to infer that the informant is at least claiming to be relying on a reliable source." Ibid.
Here, the CI provided an accurate description of the defendant, his correct name, the date of defendant's travel, the train station to which defendant was traveling, and the direction from which the train would come. Based on these predictions of future events, it can be inferred that "the informant had a sufficient basis of knowledge of the underlying criminal conduct." Ibid. Therefore, the officers had reasonable suspicion to conduct an investigatory stop of defendant.
Defendant relies on State v. Rodriguez, 172 N.J. 117 (2002). However, in Rodriguez, there was only a tip from an anonymous caller. Id. at 129-30. "An anonymous tip, standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity" because "'the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable."'" Id. at 127 (quoting Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)). Further, the anonymous tipster "provided no explanation of how or why he arrived at th[e] conclusion" that the defendant would be carrying drugs. Id. at 131.
By contrast, the informant here had demonstrated veracity by providing truthful information in the past, which had been sufficiently reliable to lead to the arrest of two persons. The informant here further demonstrated veracity by appearing with the police and identifying defendant, "plac[ing] himself or herself at risk of a criminal charge." See State v. Golotta, 178 N.J. 205, 218-19, 228 (2003) (distinguishing Rodriguez in part because the anonymous caller used the 9-1-1 system, creating a possibility of being identified and prosecuted for providing false information). The informant here also told police he based his information on personal knowledge, observations, and conversations.
Upon being confronted, defendant frantically attempted to flee when the police approached. "[F]light alone does not create reasonable suspicion for a stop, let alone probable cause." State v. Dangerfield, 171 N.J. 446, 457 (2002) (citing State v. Tucker, 136 N.J. 158, 169 (1994)). However, "'reactions by individuals to a properly limited Terry encounter, . . . such as flight, may often provide the necessary information, in addition to that the officers already possess, to constitute probable cause.'" Tucker, supra, 136 N.J. at 168 (citation omitted). Here, the circumstances "'reasonably justif[ied] an inference that [defendant's flight] was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" Ibid. (citation omitted). Thus, defendant's "flight converted articulable suspicion into probable cause" for his arrest. State v. Ramos, 282 N.J. Super. 19, 22 (App. Div. 1995).
Further, a defendant's "lying to the police" can contribute to probable cause. State v. Lund, 119 N.J. 35, 48 (1990). Here, the officers had good reason to believe that defendant was lying to them about taking a train to Trenton "to purchase a vehicle of an unknown make and model from an unknown individual in an unknown location," as the trial court aptly put it.
Indeed, defendant admitted it was untrue in his suppression hearing testimony. --------
"Probable cause exists if at the time of the police action there is 'a "well grounded" suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (citation omitted). Based on the totality of information the officers had at the time they stopped defendant — the detailed information from the CI, police corroboration of defendant's physical description and travel, the CI's in-person identification, defendant's flight at the approach of police, and defendant's evasive lies to the police — the officers had a well-grounded suspicion that a crime had been or was being committed, namely "probable cause to believe that [defendant] possess[ed] criminal contraband." Lund, supra, 119 N.J. at 48. As a result, the search warrant was properly issued, and the cocaine in defendant's underwear was properly seized.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION