Opinion
DOCKET NO. A-5197-12T1
02-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIK E. DEJESUS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-09-0103. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Defendant Erik E. DeJesus appeals from the Law Division's judgment of conviction, finding him guilty of first degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), based upon defendant's conditional "open" guilty plea. On appeal, he challenges the trial court's denial of his motion to suppress, arguing the warrantless arrest of defendant was executed without probable cause, and, therefore, the evidence seized during the search incident thereto should have been suppressed. The State disagrees, contending that there was "more than sufficient probable cause" and that defendant did not have a reasonable expectation of privacy in the area searched, his front porch.
"An 'open plea' [i]s one that d[oes] not include a recommendation from the State, nor a prior indication from the court, regarding sentence." State v. Kates, 426 N.J. Super. 32, 42 n.4 (App. Div. 2012), aff'd, 216 N.J. 393 (2014). A conditional plea occurs when a defendant "reserv[es] on the record the right to appeal from the adverse determination of any specified pretrial motion." R. 3:9-3(f).
We have considered the parties' arguments in light of our review of the record and applicable legal principles. We affirm.
On September 15, 2011, a state grand jury returned an indictment charging defendant with first degree possession of CDS — ninety-eight grams of phencyclidine (PCP) — with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(6); third degree distribution of CDS in a school zone, N.J.S.A. 2C:35-7; and third degree possession of CDS, N.J.S.A. 2C:35-10(a)(1). The charges arose from defendant's arrest after police observed him engaging in two suspected drug transactions on March 10, 2010.
Defendant moved to suppress evidence obtained during what the parties agree was a warrantless arrest and search incident thereto. Following a suppression hearing on January 13, 2012, the trial court denied defendant's motion.
The court found the testimony of Peppi Pichette, a detective with the State's Division of Criminal Justice and the only witness to appear at the hearing, to be credible. Pichette holds a degree in criminal justice, is a graduate of the Division of Criminal Justice Academy, and had participated in approximately one hundred drug-related arrests before his encounter with defendant.
The facts, as adduced by the trial court from Pichette's testimony, can be summarized as follows.
Pichette received a credible tip from an unidentified confidential informant (CI), who had provided Pichette with reliable information on "five to ten" prior occasions. The CI informed Pichette about PCP being sold near a high school in Camden, a location "known to law enforcement as one of the most active drug sets in the City of Camden," and gave Pichette a description of the seller, who he said possessed a large amount of PCP, and the seller's automobile.
The transactions were characterized as "dip sales," meaning the sale of cigarettes saturated in liquid PCP. Pichette had observed similar sales in other cases during his tenure at his position and described them as being "a lot more obvious than a hand-to-hand [transactions] because they [involve] . . . actually unscrew[ing a] bottle, dip[ping] a cigarette . . . in it and then put[ting] it back, and then giv[ing] the cigarette to the person."
Based on this information, Pichette and other officers established a surveillance post less than a block away from the location identified by the CI. Aided by the use of binoculars, Pichette observed a car that matched the one described by the CI parked at the location. He also observed individuals involved in the "dip sale" of PCP as described to him by the CI.
Specifically, he saw two men standing on a nearby porch, one of whom matched the description given to him by the CI. That individual turned out to be defendant. He then observed a third person approach the porch and shake hands with defendant, after which defendant produced a cigarette and a container, dipped the cigarette in the container, and gave the cigarette to the other person. Although Pichette did not initially recognize the item defendant withdrew from his jacket, once defendant dipped the cigarette into it, Pichette had "a good indication of what [defendant] was doing just from the CI information and what [Pichette] was observing and [his] past experience." Shortly thereafter, Pichette observed a similar exchange between defendant and another individual.
After observing these transactions, Pichette conferred with his superior and arrested defendant. Pichette and the officers with him executed the arrest by driving to defendant's location, exiting their cars, pulling defendant off the porch, placing him on the ground, and securing him in handcuffs.
As Pichette placed defendant on the ground, he searched defendant's person for weapons and began to ask defendant for his name, what he was doing at the location, and whether he had any weapons or CDS on him. During the search, Pichette found several vials and clear plastic sandwich bags on defendant, containing what was later confirmed to be PCP and marijuana.
The trial court concluded from Pichette's testimony that his search and arrest of defendant occurred on "an open porch in the inner city [which] is not an area that has any expectation of privacy" associated with it. As a result, the court determined there was "no violation of the Fourth Amendment by this warrantless search" because "there was [no] intrusion into the privacy concerns of defendant . . . [or] into his home." The judge found Pichette's arrest and search of defendant were based upon the probable cause established by Pichette's observations of defendant being engaged in the two "dip sales," and the officer's "experience and background."
According to the trial court judge, Pichette's conclusion that defendant had conducted two "dip sales" and arrest of defendant were based on
CI information which proved to be reliable and dependable, . . . the education and experience he has, not only education at Temple University but other law enforcement education he's had, the experience he's had being involved in 100 CDS transactions, [and] the experience he's had with the CI based upon his information and observation.Accordingly, the judge denied defendant's motion.
The judge did suppress the statements made by defendant in response to Pichette's questioning while being arrested.
After the denial of the suppression motion, defendant conditionally pled guilty to first-degree possession of CDS with intent to distribute. He did so without any recommendation by the prosecutor as to sentencing, or any inclination or promise from the judge as to what sentence he might impose.
At defendant's ensuing sentencing, the court sentenced defendant to an eight-year term of imprisonment, subject to a three-year period of parole ineligibility. The court found a sentence one degree lower, in the second-degree range, was justified because the mitigating factors outweighed the aggravating factors. The court also dismissed the two remaining counts of the indictment.
After the entry of his judgment of conviction, defendant filed this appeal. In his appeal, he specifically argues:
BECAUSE THE POLICE HAD NEITHER PROBABLE CAUSE NOR A WARRANT, DEFENDANT'S ARREST WAS ILLEGAL AND THE EVIDENCE SEIZED IN THE SEARCH OF HIS PERSON MUST BE SUPPRESSED.
A. NO PROBABLE CAUSE.
B. WARRANTLESS ARREST.
We find defendant's argument to be without merit.
We begin our review of defendant's contentions by recognizing its limited scope. "[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." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citation omitted); see also State v. Hathaway, 222 N.J. 453, 467 (2015). A reviewing court generally defers to a trial court's findings, "which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, we need not defer to any legal conclusions reached from the established facts. See Hathaway, supra, 222 N.J. at 467.
Applying these standards to our review, we find no errors in the conclusions reached by the trial court. We reject defendant's arguments that Pichette's observations did not provide police with probable cause to arrest him and that, even if it did, the police were required to secure a warrant before arresting him because defendant's actions took place in his residence, albeit on its open porch.
We turn first to defendant's argument that Pichette could not have "breach[ed] the porch without a warrant in order to arrest" defendant. We disagree and conclude the trial judge correctly found defendant had no reasonable expectation of privacy while he conducted transactions on his open front porch.
Areas of a property open to the public are subject to a diminished expectation of privacy. See State v. Johnson, 171 N.J. 192, 209 (2002). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Id. at 209 (alteration omitted) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)). Thus, a front porch open to full view from the street is not "part of the curtilage . . . protected by the Fourth Amendment." Id. at 208. As there is no reasonable expectation of privacy on an open front porch, it is a "public place" in which a person may be arrested without a warrant so long as the police have probable cause to believe a felony has been committed. See State v. Nikola, 359 N.J. Super. 573, 582-83 (App. Div.), certif. denied, 178 N.J. 30 (2003); see also United States v. Santana, 427 U.S. 38, 42, 96 S. Ct. 2406, 2409, 49 L. Ed. 2d 300, 305 (1976); Kirkpatrick v. Butler, 870 F.2d 276, 280 (5th Cir. 1989), cert. denied, 493 U.S. 1051, 110 S. Ct. 854, 107 L. Ed. 2d 848 (1990).
"Curtilage is land adjacent to a home and may include walkways, driveways, and porches." State v. Domicz, 188 N.J. 285, 302 (2006) ()(citing Johnson, supra, 171 N.J. 192, 208-09).
At the hearing, there was no evidence of "whether the [porch was] included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by [defendant] to protect the area from observation by people passing by." See Domicz, supra, 188 N.J. at 302 (quoting Johnson, supra, 171 N.J. at 208). Rather, Pichette's testimony was that it was open to observation and subject to his surveillance without obstruction, albeit through the use of binoculars. Under these circumstances, defendant could not have had any reasonable expectation of privacy and was in a "public place" for purposes of the Fourth Amendment. See Johnson, supra, 171 N.J. at 208; Nikola, supra, 359 N.J. Super. at 582-83. As a result, the officers did not require a warrant to arrest defendant based upon their observation of him making repeated suspected CDS sales from that location. See Nikola, supra, 359 N.J. Super. at 582-83; Santana, supra, 427 U.S. at 42, 96 S. Ct. at 2409, 49 L. Ed. 2d at 305; Kirkpatrick, supra, 870 F.2d at 280.
We turn our attention next to defendant's challenge to the trial court's determination that Pichette had probable cause to arrest defendant based upon his observation of defendant's interactions with the two individuals on his front porch. Defendant contends that there could be no legitimate finding of probable cause because the officer admitted "he did not know the significance of what he had observed" and there was no observation of either individual giving defendant any money. Again, we disagree.
"[A] police officer has probable cause to arrest a suspect when the officer possesses 'a well[-]grounded suspicion that a crime has been or is being committed.'" State v. Shannon, 222 N.J. 576, 585 (2015) (alterations in original) (quoting State v. Basil, 202 N.J. 570, 585 (2010)), petition for cert. filed, No. 15-786 (U.S. Dec. 17, 2015). "That well-grounded suspicion should be based on the totality of the circumstances as viewed by 'an objectively reasonable police officer.'" Ibid. (quoting Basil, supra, 202 N.J. at 585). The facts and circumstances must show "reasonable ground[s] for belief of guilt." State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)). "Although several factors considered in isolation may not be enough," when analyzed under the totality of the circumstances, their cumulative effect can support probable cause. State v. Moore, 181 N.J. 40, 46 (2004).
We agree with the trial court's view of the totality of the circumstance in this case. Pichette arrested defendant after receiving reliable information about defendant conducting "dip sales" of PCP and observed defendant making two of these sales. Although he did not see an exchange of money, he observed much more than merely "[h]anding someone a cigarette," as defendant characterizes it. Cf. State v. Pineiro, 181 N.J. 13, 28 (2004) (holding that "merely a transfer of a cigarette pack under circumstances that had both innocent and suspected criminal connotations," with nothing more than "the officer's prior general narcotics training and experience, and his conclusory testimony that he knew that cigarette packs are used to transport drugs because he had seen that type of activity before," while "a close case, . . . fall[s] short of probable cause"). Rather, Pichette witnessed the actual "dipping" of a cigarette on more than one occasion and defendant giving the cigarette to another individual under circumstances consistent with the information provided to him by a reliable CI, all occurring in an area known as one of the most active areas in Camden for illegal drug sales.
Probable cause clearly existed. As a result, the court properly denied defendant's motion to suppress.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION