Opinion
DOCKET NO. A-3271-14T4
05-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICKY LABEGA a/k/a RICKEY LABEGA, RICKY O. LABEGA, and RICKY LEBEGA, Defendant-Appellant.
Elyse S. Schindel argued the cause for appellant (Hobbie, Corrigan & Bertucio P.C., attorneys; Edward C. Bertucio, of counsel and on the briefs; Ms. Schindel, on the briefs). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-06-0799. Elyse S. Schindel argued the cause for appellant (Hobbie, Corrigan & Bertucio P.C., attorneys; Edward C. Bertucio, of counsel and on the briefs; Ms. Schindel, on the briefs). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
After the denial of his motion to suppress evidence, defendant Ricky Labega entered a guilty plea to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (2). Pursuant to the negotiated plea agreement, on February 20, 2015, he was sentenced as a third-degree offender to a term of four years imprisonment subject to two years of parole ineligibility. The judge dismissed those counts of the indictment that remained which charged defendant with other offenses. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm.
At the suppression hearing, Perth Amboy Detective Mabner Terron testified that on April 2, 2013, he received a tip from a reliable confidential informant (CI) from whom he had obtained information in the past. The officer said the CI had provided information on four or five other occasions and that events usually develop "in the manner the [CI] says it's going to happen." The CI informed Terron that defendant was a high-level cocaine dealer from the Aberdeen area and that he used his co-defendant, Torries Thomas, as a mid-level distributor. The CI referred to the men by their nicknames, "Wise" and "Beef." According to the CI, that day Thomas would be waiting for defendant to pick him up either in the late afternoon or evening in order to make a delivery of a large amount of cocaine.
Thomas joined in defendant's motion to suppress evidence and to reveal the identity of the confidential informant. The latter application was also denied, although not appealed. As of this time, Thomas has not appealed the decision. --------
Terron was familiar with both men from prior contacts and arrests. Therefore, he drove to the vicinity of Thomas's home and watched as Thomas stood outside for some period of time, occasionally using his cell phone. Eventually, as it was beginning to get dark, defendant arrived in his Honda Pilot sports utility vehicle (SUV) and Thomas got into the passenger seat.
Terron, in an unmarked car, pulled up alongside the SUV at a red light and noticed that defendant was not wearing a seatbelt. He called for backup in a marked vehicle to conduct a motor vehicle stop, which occurred at around 8:20 p.m. Once the SUV was pulled over, Terron walked across the street towards the driver's side and saw a third man in the rear. As he approached, Thomas and the unknown man raised their hands up in the air. As Terron stood approximately a foot away, defendant was engaged in "some activity towards his right and [he] saw an item get tossed towards the back seat of the vehicle." At that point, Terron asked the occupants to step outside and he flashed his light into the interior to make sure "there was nobody else in there." When he did so, he saw a small Swiss Miss French Vanilla carton with a "pretty big bag . . . almost like spilling out of it." The bag contained a white substance Terron immediately recognized as cocaine. As he continued to flash his light into the rear of the SUV, the back seat passenger ran off. Terron gave chase, but that individual was never found.
Thereafter, Terron obtained search warrants to search the vehicle and to search the cell phones found in the possession of defendant and Thomas. The search warrant affidavit states, among other things, that Terron was given a tip by a reliable CI as to the transfer of a large amount of cocaine between the two men, and that in arranging the exchange, the two had communicated via cell phone. The application also described the seizure of the drugs found in the carton and the subsequent arrest of the two suspects.
By way of written decision, the judge denied the motion to suppress physical evidence. He found Terron's testimony credible that he could see, when alongside defendant at a stop light, that he was not wearing his seatbelt. This alone, he concluded, provided him with reasonable and articulable suspicion for the stop. Additionally, he reasoned that Terron had reasonable and articulable suspicion based on the reliable CI's tip. Because the stop was lawful, the officer's plain view observation of the tipped over carton warranted seizure of the drugs. Finally, he held that the subsequent search warrant application established ample probable cause in light of the initial tip, subsequent arrest and seizure of contraband, and the co-defendants' use of cell phones to communicate. He therefore ruled the issuance of the search warrants was lawful as well.
On appeal, defendant now raises the following points:
POINT I
THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE PHYSICAL EVIDENCE.
A. THE MOTOR VEHICLE STOP WAS UNLAWFUL.
1. THE MOTOR VEHICLE STOP CANNOT BE BASED ON THE CONFIDENTIAL INFORMANT'S TIP.
2. THE MOTOR VEHICLE STOP CANNOT BE JUSTIFIED BY AN ALLEGED SEATBELT VIOLATION.
B. THE PLAIN VIEW EXCEPTION DOES NOT APPLY IN THIS CASE.
C. THE SEARCH OF THE VEHICLE WAS UNLAWFUL PURSUANT TO STATE V. PENA-FLORE[S].
D. THE SEARCH WARRANTS WERE NOT SUPPORTED BY PROBABLE CAUSE AND ANY EVIDENCE SEIZED AS A RESULT OF THE UNLAWFUL SEARCH MUST BE SUPPRESSED.
In reviewing a motion to suppress, we defer to the trial court's factual and credibility findings, so long as they are supported by the record. State v. Handy, 206 N.J. 39, 44 (2011). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (alteration in original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We disregard a trial court's factual and credibility findings only if clearly mistaken. State v. Hubbard, 222 N.J. 249, 262 (2015). The legal conclusions of the trial court, however, are reviewed de novo. Id. at 263.
Defendant's first point is that the motor vehicle stop was unlawful because the CI's tip was inadequately investigated, and because Terron failed to testify as to the specifics that led him to conclude the CI was reliable. We do not agree.
It is well established that pursuant to the Fourth Amendment of the United States Constitution and Article I, Paragraph 2 of the New Jersey Constitution, all citizens are protected from unreasonable searches and seizures. It is equally clear that as a result "[t]here is a constitutional preference" for law enforcement officers to obtain a warrant from a neutral magistrate before conducting a search or seizure. See State v. Piniero, 181 N.J. 13, 19 (2004). However, an investigatory stop of a motor vehicle falls into a separate category.
Investigatory stops, such as the one in this case, do not require full-blown probable cause. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) ("[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment."). Less than probable cause is necessary to justify an investigatory stop of a motor vehicle. State v. Amelio, 197 N.J. 207, 211 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2000).
Terron had two reasons to investigate suspected illegal activity. He had a reliable CI's tip, corroborated by his own surveillance of Thomas and defendant's meeting with Thomas at the anticipated time. He also saw defendant driving while failing to use a seatbelt. Once having observed defendant's failure to use his seatbelt, as well as the reliable CI's tip corroborated by surveillance, reasonable and articulable suspicion existed. The investigatory stop did not violate Fourth Amendment protections.
Once having decided that the stop is lawful, we turn to Terron's observation of the drugs in the back seat and subsequent seizure of them. We disagree with defendant's interpretation of Terron's testimony to mean that he opened the SUV door and partially entered the vehicle and only then saw the box lying on the back seat. Terron unequivocally stated he flashed his light onto the back seat in the area where he thought the object defendant had thrown was likely to have fallen, and saw the carton immediately. That Terron may have expected the vehicle to contain drugs does not, in some unspecified fashion, make his observation a violation of Fourth Amendment principles.
Under the plain view doctrine, a warrant is not required to perform a search when police are: (1) lawfully in the viewing area, (2) the officer's discovery of evidence in plain view is inadvertent, and (3) it is "immediately apparent" to the officer that the items are contraband. State v. Johnson, 171 N.J. 192, 206-07 (2002). But the plain view doctrine, which may justify the warrantless search of a vehicle, need not be reached in this case. Terron's act of flashing his light into the interior of the SUV was not a search. See, e.g., State v. Jessup, 441 N.J. Super. 386, 391 (App. Div. 2015); accord State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.) (an officer's illumination of the rear of a vehicle does not make the observation a search), certif. denied, 216 N.J. 367 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014). Since Terron did not physically intrude into a constitutionally protected area, his observation from outside the vehicle was not a search.
Defendant next argues that in any event, State v. Pena-Flores, 198 N.J. 6 (2009), overruled by State v. Witt, 223 N.J. 409 (2015), makes the warrantless seizure of the drugs unlawful. The motion to suppress hearing was conducted on April 22, 2014. Our Supreme Court had not yet modified Pena-Flores and returned to the present standard making a warrantless search of an automobile lawful when police have probable cause to believe it contains contraband, and the circumstances are unforeseen and spontaneous. See Witt, supra, 223 N.J. at 447. Hence Pena-Flores is the governing law on this claim of error.
In order for the State to establish the seizure was lawful, we must be satisfied that the totality of the circumstances supported a finding of exigency making the requirement of a warrant unnecessary. See Pena-Flores, supra, 198 N.J. at 28. In our view, the totality of the circumstances in this case supported such a finding.
This was a nighttime stop on a public highway. Although the record does not suggest the area had any unusual characteristics, it is undisputed that a third unknown individual fled from the scene. The risks associated with keeping the vehicle secure until such time as it could either be towed or a warrant obtained created an exigency that satisfied the standard found in Pena-Flores. Thus the totality of the circumstances, including the time and place of the stop and the missing third person, warranted the prompt seizure of the carton containing cocaine.
Finally, defendant contends that the warrants authorizing the search of the cell phones and the SUV issued in error. Defendant argues that because the stop and subsequent seizure were unlawful, the information conveyed to the magistrate was fruit of the poisonous tree. Defendant also asserts that Terron gave the magistrate such scant detail that his affidavit failed to establish probable cause.
Applications for search warrants "must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). A court is required to consider the totality of the circumstances in order to determine whether probable cause exists. State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). In our view, the application made in this case readily met this test.
Terron's affidavit included a description of the initiating circumstances, namely, a corroborated tip from a reliable CI. He specified that the CI's information that a transfer of a significant amount of cocaine was to occur that late afternoon or evening was borne out by subsequent events. This included the fact that Thomas was seen speaking on his cell phone before defendant's arrival. Terron also stated that, as the CI predicted, the two men met at the anticipated hour while transporting cocaine. Terron's statement thus established ample probable cause for a further search of the SUV and a search of the cell phones. Defendant has the burden to show the absence of probable cause and has failed to do so in this case. See Keyes, supra, 184 N.J. at 554.
Probable cause exists where the facts and circumstances warrant a person of reasonable caution to believe an offense has been or is being committed. See State v. Moore, 181 N.J. 40, 46 (2004). Terron's statements established such facts and circumstances.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION