Opinion
DOCKET NO. A-0628-15T4
01-05-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RUBEN RODRUIGUEZ a/k/a EDUARDO DELEON, RUBEN FIGUEROA, WILFREDO GOMEZ, CHINO RODRIGUEZ, RIBIN RODRIGUEZ, RUBEN RODRIQUEZ, RIBIN RODRIQUEZ, RUBIN FIGUEROA, REUBEN RODRIGUEZ, CHINO, REUBEN RODRIQUEZ, RUEBEN RODRIQUEZ, RUEBEN FIGUEROA, REUBEN ARROYO, GHINO RODRIGUEZ, and RIBI RODRIQUEZ, Defendant-Appellant.
Rebecca Gindi, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Susan Brody, Deputy Public Defender, of counsel; Ms. Gindi, on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-09-2867. Rebecca Gindi, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Susan Brody, Deputy Public Defender, of counsel; Ms. Gindi, on the brief). Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief). PER CURIAM
After his pretrial motion to suppress evidence of narcotics recovered after a warrantless police search was denied, defendant conditionally pled guilty to a third-degree offense for the possession with the intent to distribute heroin in a school zone, N.J.S.A. 2C:35-7. He was sentenced to a four-year custodial term with a two-year parole disqualifier, consistent with the plea agreement.
The central issue defendant raises on appeal is that the trial court erroneously denied his motion to suppress the seized narcotics. The State presented a single witness at the suppression hearing, Camden County Police Officer Keith Hogle. Hogle had worked for another police department for at least three years prior to joining the Camden County police force, where he worked for over a year prior to this incident. At the time of the incident in question, at about 7:00 p.m. on June 12, 2014, Hogle was patrolling in the City of Camden on foot in an area known for drug transactions. The weather was clear and it was still light out.
Through binoculars, Hogle saw defendant in the front-side passenger seat of a car that appeared to be without license plates, parked in a vacant lot. The passenger side door was open. Hogle observed a white female walk up to the passenger side of the parked car. The woman handed the occupant what appeared to be cash, and took in return one or more small objects.
Officer Hogle then radioed another patrolman in the area, an Officer Vail, instructing him to pick up the female. Vail did so and placed her in his patrol car. Officer Vail then drove the female over to where Officer Hogle was located. She got out of the car and Hogle patted her down, but found no drugs on her. Hogle went over to the car where defendant was parked, removed him from the vehicle, and placed him under arrest. After removing defendant from the car, Hogle saw in plain view a small bag of what appeared to be drugs in the seat where defendant had previously been sitting. Hogle patted defendant down and found $162 in cash on his person.
The defense presented no witnesses at the suppression hearing. The trial court reserved decision and issued an oral opinion about a month later on February 9, 2015. The judge concluded that Officer Hogle had probable cause to arrest defendant because of his observations of what appeared to be a hand-to-hand drug transaction in a high crime area. As part of her oral ruling, the judge noted that "Officer Hogle testified that when he removed the co-defendant [the female] from the rear of Officer Vail's patrol vehicle, Officer Hogle located several bags of -- bags of suspected narcotics in that vehicle's back seat, where she had been sitting." The judge later repeated that interpretation about the sequence of events, noting that "[Officer Hogle] removed the co-defendant from the rear of the vehicle and in doing so, observed several bags of narcotics in that vehicle's backseat, where she had been seated."
Defendant now appeals the suppression ruling, pursuant to Rule 3:5-7(d). In his brief, he raises the following points for our consideration:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE IT PREMISED ITS FINDING OF PROBABLE CAUSE TO ARREST ON A MISTAKEN FACTUAL FINDING AND ON FLAWED LEGAL ANALYSIS.
A. The Court's Factual Finding that the Officer Seized Heroin Attributed to the Co-defendant Prior to Arresting Mr. Rodriguez is Clearly Mistaken.
B. An Exchange of Money for Small Objects Coupled With A Fruitless Search of The Suspected Buyer Falls Short of Probable Cause to Arrest the Suspected Seller.
C. The Drugs and Money Found As A Result of the Unlawful Arrest of Mr. Rodriguez Must Be Suppressed.
POINT II
EVEN IF THE COURT DEFERS TO THE TRIAL COURT'S FACTUAL FINDINGS, THERE WAS STILL NO PROBABLE CAUSE TO ARREST MR. RODRIGUEZ BECAUSE THE TRIAL COURT RELIED ON TAINTED EVIDENCE.Having carefully considered these arguments in light of the record and the applicable law, we affirm.
A. There Was No Probable Cause For The Arrest Of The Co-defendant Based Solely On Officer Hogle's Observation Of The Exchange Of Money For Small Objects.
B. The Court's Reliance On Heroin Attributed to Ms. Swinney As A Basis For Arresting Mr. Rodriguez Was Improper Because The Heroin Was the Fruit of Her Unlawful Arrest.
C. The Single Exchange of Money For Small Items In A High-Crime Neighborhood Did Not Justify Arrest Of Mr. Rodriguez And Evidence Found As A Result Of The Arrest Must Be Suppressed.
We begin our discussion with a recognition that, under the Fourth Amendment of the United States Constitution and under Article 1, 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)). In the present case, the State principally relies on the exception for warrantless searches made incident to the arrest of a suspect when supported by the presence of probable cause to make that arrest. See State v. Sims, 75 N.J. 337, 352 (1978). Such probable cause exists when a police officer has "a well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003) (internal citations omitted). The analysis of probable cause entails an assessment of the "totality of the circumstances" presented to the law enforcement official at the time the arrest is made. State v. Moore, 181 N.J. 40, 46 (2004).
In evaluating a trial judge's ruling on a suppression motion guided by these constitutional standards, we afford considerable deference to the judge's role as a fact-finder. Our review of the judge's factual findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999). We must defer to those factual findings "so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015) (internal citations omitted). As part of that deference, we particularly must respect the trial judge's assessments of credibility, given the judge's ability to have made "observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474 (internal citations omitted).
However, we owe no deference to the trial judge's conclusions of law. See State v. Hinton, 216 N.J. 211, 228 (2013) (internal citations omitted). Nor are we "obliged to defer to clearly mistaken findings . . . that are not supported by sufficient credible evidence in the record." State v. Gibson, 218 N.J. 277, 294 (2014).
Defendant argues that the trial judge was clearly mistaken in her interpretation of the testimony provided by Officer Hogle at the suppression hearing. In particular, he contends that the judge erroneously concluded or presumed that the discovery of what appeared to be drugs in Officer Vail's patrol car -- near the spot the female arrestee had been seated in that car -- occurred before, not after, Officer Hogle arrested defendant. Defendant asserts this alleged mistake about the chronology is important because the discovery of the apparent drugs in Vail's car was a factor cited by the judge in ruling that Hogle had probable cause to arrest defendant.
We recognize that the phrasing used in the questions posed to Officer Hogle and in his responses leaves some ambiguity about the precise timing of the discovery of drugs in Vail's squad car. During Hogle's direct examination by the prosecutor, he testified that the female was arrested after the observed apparent hand-to-hand drug transaction, in which she was the perceived buyer. Hogle stated, "I didn't find anything on her, but I did find several packets -- or bags in the rear seat of the vehicle [of Officer Vail]." The prosecutor attempted to clarify that testimony with the following question: "The rear seat of what vehicle?" Hogle responded, "The patrol vehicle she was sitting in, after I removed her out." (Emphasis added). At that point the judge interjected, and confirmed with Hogle that "Your testimony is there was several bags in the rear police vehicle of -- was she." Hogle interrupted, "[where she] was sitting[,] Yes, ma'am." The judge then responded: "Okay."
On cross-examination of Hogle, defense counsel attempted to further clarify the officer's account. He asked Hogle, "when she [the female] came back to your location, I believe you said on direct, you didn't actually find any drugs on her at that point?" Answer: "No, I did not." Question: "Okay. Then after you pat her down, you didn't find any drugs, you placed her in your patrol vehicle? Is --" Answer: "Yes." Question -- "that correct?" "And then at that point you went up, you removed [defendant] from the car and arrested him, correct?" Answer: "Correct."
We recognize these excerpts of Officer Hogle's testimony do not make totally certain what he precisely meant by the word "after" in describing when he found the apparent drugs in the back seat of Officer Vail's car. The judge interpreted the testimony to signify that the officer meant that he had found the drugs at or about the same time he removed her from Vail's vehicle, i.e., before he patted her down and then went to arrest defendant. Her interpretation of the record is reasonable.
We acknowledge a plausible contrary interpretation of the testimony, advocated by defendant on appeal, is that Hogle did not discover what were perceived to be drugs left behind by the female on the seat in Vail's car until after he had already arrested defendant. However, that contrary interpretation is not definitively established by the record. Given the lack of such conclusive support for defendant's position, we cannot conclude that the trial judge was "clearly mistaken" in her interpretation of the evidence. Indeed, it would have been entirely logical for the police officers at the scene to observe the area in Vail's car where the female had been seated as she was being removed from the car, rather than wait to look at that area until a later point in time after defendant's arrest. The judge made a fair inference of the sequence of events based upon the evidence presented.
Defendant further stresses that the record contains no laboratory test results confirming that the items the female left behind in Vail's squad car indeed were narcotics. That is inconsequential to the analysis. Hogle's field perception of the items' contraband nature, regardless of whether it was ultimately confirmed in a laboratory, lends at least some rational support for his on-the-spot assessment that criminal activity had been occurring.
In any event, even if we ignore the items found in Vail's car in the calculus, there is ample other evidence in the record that independently supports the court's finding that the police had probable cause to believe a hand-to-hand drug sale had taken place. The judge repeatedly stated that she found Officer Hogle's testimony about what he observed and did at the scene to be credible. We have no reason to second-guess her credibility findings. Locurto, supra, 157 N.J. at 470.
Many factors in the record support the trial court's finding of probable cause. The events took place in a neighborhood, which Officer Hogle walked on a regular basis, where drug transactions were known to occur frequently. See State v. Johnson, 171 N.J. 192, 217 (2002) (recognizing that "the high-crime character of an area, as part of the totality of the circumstances . . . may be used in determining probable cause"). Defendant's vehicle was suspiciously parked in a vacant lot, and had no visible license plates. He was seen in the passenger seat of the car, with the door open. That is a position consistent with using the vehicle as a place for drug sales, and one far less consistent with defendant using the car (having no visible license plates) as a mode of transportation. The vacant nature of the lot adds to the suspicion of criminality, as it was not a place where defendant or others would be likely residing. There is no indication that the lot was being used at the time for lawful business activities or recreation.
Office Hogle's direct observation of the apparent hand-to-hand transaction between defendant and his female customer is especially supportive of the court's finding of probable cause. As he credibly testified before the trial court, the officer saw defendant handed currency in exchange for several small items. Based on his training and experience, which included several years with multiple police departments, repeated days patrolling the streets of Camden, and several narcotics interdiction courses, Hogle reasonably perceived from defendant's brief encounter with the female that he had seen a hand-to-hand drug transaction.
Similarly, in State v. Moore, supra, 181 N.J. at 43, 47, the Court found that probable cause existed where an experienced narcotics officer had observed a transaction in a vacant lot where money was exchanged for small objects. The circumstances here may be contrasted with State v. Pineiro, 181 N.J. 13 (2004), a case cited by defendant, in which a police officer merely observed the defendant give the co-defendant a pack of cigarettes, where no money was observed and the testifying officer had no particular basis to infer that the cigarette pack contained drugs.
In sum, even if we were to disregard the discovery of the apparent drugs in the back seat of Vail's patrol car, there is more than ample other evidence in the record to support the trial court's finding of probable cause and its conclusion that the warrantless search and seizure of narcotics here was valid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION