Opinion
DOCKET NO. A-3038-13T3
08-19-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. CHARLES FOSTER, Defendant-Respondent.
Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the briefs). Jason A. Coe, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-01-0201. Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Friedman, of counsel and on the briefs). Jason A. Coe, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief). PER CURIAM
After his arrest and indictment on drug charges, defendant filed a motion to suppress evidence. The State appeals from the order that granted defendant's suppression motion. We affirm.
The State presented one witness at the suppression hearing, Special Agent Michael Puskas of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In November 2012, Puskas was specially assigned to a gang unit project with the Newark Police Department (NPD). Puskas testified he was riding patrol with NPD Sergeant Joseph Conzentino on the evening of November 5, 2012, when Conzentino received information that an anonymous tip had been received on the narcotics hotline regarding an individual in the vicinity of 101 Treacy Avenue in Newark. As a result of additional information received by Lieutenant Gerry Guanci, they learned that the individual was an older gentleman wearing a dark-colored pea coat and glasses and that he would be holding a bag with approximately one kilogram of cocaine. There was no recording of the information received on the narcotics hotline.
Puskas testified that Sergeant Allen received the call on the hotline, gave the substance of the information to Guanci, who in turn shared the information with Conzentino and Puskas. A report authored by Conzentino stated that, at approximately 8:15 p.m.,
An anonymous caller advised Sergeant Allen that approximately 20 minutes from now an elderly black male wearing a black pea coat and wearing glasses would be standing on the front porch of 101 Treacy Avenue holding a kilo.
When Puskas and Conzentino drove past the location, they did not see anyone in the vicinity. They drove down the block, turned on to Clinton Avenue and then on to Farley Avenue, where they saw an older gentleman, defendant, walking down the street wearing glasses and a dark-colored pea coat. They pulled up and approached him on foot. Guanci joined them.
As they approached, Puskas heard defendant say on his cell phone, "[T]he police are here, the police are here." Conzentino asked him to hang up the phone, telling defendant they wished to speak with him for a minute. Defendant complied. Puskas testified that when Conzentino stated they were with the NPD, defendant "immediately took a yellow plastic bag from underneath his arm and said, 'He gave this to me. He went for the money and I've been set up.'" However, Puskas also testified that before defendant surrendered the bag, he asked him if he was carrying any weapons. Upon inspection, the bag was found to contain "at least a kilogram of cocaine," glassine vials, some baggies, razor blades and a small scale.
Defendant was arrested and transported to the police station, where he provided a statement after being advised of his Miranda rights. The statement was not recorded or memorialized in any police reports.
The State argued that the police action here was a field inquiry and never rose to the level of an investigative stop. The motion judge rejected this argument.
At the outset of his oral opinion, the motion judge noted the record reflected certain facts were proven and "some information that was avoided . . . or not recorded." First, defendant was on Farley Avenue, a block away from 101 Treacy Avenue and walking away from that location. Second, the police failed to follow defendant to determine whether he was engaged in illegal activity. Third, the area of the city was a quiet neighborhood. Fourth, defendant, who had no prior record, was unknown to the police. Fifth, upon approaching defendant, the police yelled, "We're the police, we want to talk to you." The judge distinguished the standards applicable to a field inquiry, in which the police need not have grounds for suspicion and the individual's right to move is not restricted, State v. Maryland, 167 N.J. 471, 483 (2001), and an investigatory stop, which must be based upon a reasonable suspicion of criminal activity. State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). The judge found that the police action here was an investigative stop designed to determine whether "criminal activity was [afoot]." He noted the police action consisted of two police vehicles physically confronting defendant "with headlights glaring in his face coupled with the immediate approach of uniformed officers flashing a badge and saying 'Newark Police,'" that Puskas demanded to know if defendant was carrying a weapon, and that the facts did not "remotely suggest" defendant was free to leave.
The judge also found that defendant's conduct in walking down the street, viewed in light of the information the police received, did not support a conclusion he was engaged in criminal activity. The judge supplemented his findings with a written decision, which included the following credibility findings regarding Puskas:
In applying the universal factors to determine credibility, the court finds that Agent Puskas's assertions were "not credible." The account of police actions described by Puskas were inconsistent with mandated police protocol as to the defendant's alleged statement and the factual account of the seminal confrontation and investigation are simply not worthy of belief. Moreover, the State did not introduce a scintilla of evidence to corroborate Puskas's testimony. Conspicuous by their omission were the testimony of the two Newark Police superior officers who witnessed and effectuated the seizure, search, and arrest. The authors of the arrest and incident reports, which defense counsel effectively utilized to impeach Agent Puskas, were similarly not made available.
The State made a motion for reconsideration, advised the court that a subpoenaed Newark police officer did not appear at the suppression hearing due to a conflicting child care issue and requested an opportunity to produce that testimony. The court declined the request and denied the motion for reconsideration.
In its appeal, the State argues the motion judge abused his discretion in finding there was an investigatory stop; failing to note the drugs were abandoned when defendant handed the bag to the officers, which was an intervening act; and that the defendant's statement should be admissible.
In reviewing a suppression motion, "we do not second-guess the trial court when sufficient credible evidence in the record supports its findings." State v. Brown, 216 N.J. 508, 517 (2014). We must defer to the trial court's findings that "are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964); see also State v. Mann, 203 N.J. 328, 336-37 (2010).
The State challenges the factual underpinnings for the motion judge's conclusion that an investigatory stop occurred. Specifically, the State contends: only one of the police vehicles was a marked police vehicle; the fact the headlights were on was unremarkable because it was night time; although the headlights were facing north as defendant was walking south, there was no evidence the headlights were glaring in defendant's face; although Puskas testified he and Conzentino were wearing modified tactical uniforms, which included vests marked "police," there was no evidence Guanci was wearing a uniform; and the flashing of badges was the proper and customary way a law enforcement officer identifies himself to preclude misunderstanding as to his identity. The State argues that the facts, even as found by the motion judge, do not support the conclusion that an investigatory stop occurred.
It is evident that the motion judge's findings were substantially influenced by his determination that the sole witness produced by the State was not worthy of belief. Even if we accept the State's challenges, the judge's remaining findings include the following: defendant was one block away from the identified location and walking away from it in a quiet neighborhood when Puskas and Conzentino pulled their marked vehicle up to him, flashed their badges, announced they were police, told him to get off his cellphone and asked if he had any weapons. Puskas admitted he did not observe defendant do anything suspicious.
Generally, a field inquiry is initiated when a police officer approaches an individual in a public place, and asks "'him if he is willing to answer some questions.'" Rodriguez, supra, 172 N.J. at 126 (quoting State v. Davis, 104 N.J. 490, 497 (1986)). "An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted." Ibid. (citing Davis, supra, 104 N.J. at 498). Elements of an officer's demeanor will be particularly relevant to the belief formed by an objectively reasonable person. In Davis, the Supreme Court observed:
"[T]he critical inquiry would be whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens." Thus, an officer would not be deemed to have seized another if his questions were put in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature.
[Davis, supra, 104 N.J. at 497 n.6 (quoting 3 Wayne R. LaFave, Search and Seizure § 9.2 at 5.3 (1978)).]
If three private citizens approached a pedestrian by pulling two automobiles up to him, walking up to him, displaying some evidence of authority, ordering him to get off his cellphone and asking if he had any weapons, there is little doubt that the pedestrian would find the conduct offensive. Moreover, Puskas acknowledged the officers' purpose in approaching defendant was based upon the anonymous tip that they deemed worthy of looking into. This admission confirmed the motion judge's description of the officers' purpose as investigating to determine whether there was criminal activity afoot.
We therefore conclude that the motion judge's findings have an adequate basis in the record and support the conclusion that the action here was an investigatory stop rather than a field inquiry.
The State also argues that the motion judge erred in failing to acknowledge that defendant abandoned the drugs. We are unpersuaded by this argument.
In State v. Johnson, 193 N.J. 528 (2008), the Court held that personal property is abandoned for standing purposes "when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property." Id. at 549. The pivotal inquiry here is whether defendant voluntarily relinquished any interest in the bag, to which we apply a totality of the circumstances analysis. State v. Carvajal, 202 N.J. 214, 227 (2010). Some of the factors relevant to this analysis are "the nature and degree of the questioning, the clarity and certainty of the responses, and any restraint on the defendant's freedom of movement." Ibid.
As we have noted, the police conduct here would lead an objectively reasonable person to believe he was not free to leave. The questioning was focused on determining whether defendant was involved in the criminal activity described in the anonymous tip. Unlike cases in which abandonment has been found, see, e.g., id. at 218, defendant here did not disclaim any association with the bag. Instead, he acknowledged he had been given the bag to hold. As opposed to breaking the causal chain, the surrender was a product of the chain of events. We therefore conclude the bag was not abandoned by defendant, but rather surrendered in response to the exercise of authority by the police.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).