Opinion
DOCKET NO. A-4390-14T3
02-03-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ERNESTO ROSABAL, Defendant-Respondent.
Esther Suarez, Hudson County Prosecutor, attorney for appellant (Priscilla Gabela, Assistant Prosecutor, on the brief). Dennis D.S. McAlevy, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-03-0390. Esther Suarez, Hudson County Prosecutor, attorney for appellant (Priscilla Gabela, Assistant Prosecutor, on the brief). Dennis D.S. McAlevy, attorney for respondent. PER CURIAM
We granted the State's motion for leave to appeal from an April 30, 2015 order granting defendant's motion to suppress heroin seized without a warrant. We defer to the extensive findings of fact made by Judge Bernadette N. DeCastro and affirm.
A grand jury indicted and charged defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). The judge conducted a two-day suppression hearing at which defendant and a Kearny police officer testified. We discern the following facts from the hearing.
At approximately 1:30 p.m., the officer and his partner were stopped in an unmarked police vehicle in the middle lane at a traffic light in Newark. The officer noticed a car to his right also waiting for the light to turn green and recognized defendant, from prior arrests, seated in the passenger seat. Defendant's eighty-five-year old father was driving the vehicle in which defendant was a passenger.
After defendant's vehicle turned right at the light, the officer pulled into a nearby store parking lot and watched defendant. During direct examination, the officer testified he observed defendant exit the vehicle, approach a male, hand what appeared to be money to the male in exchange for an unknown object, and place the object in a phone case. The interaction between defendant and the male took approximately fifteen to twenty seconds, and the officer observed the alleged transaction from approximately eighty feet away.
The officer and his partner did not approach defendant after the officer made his observations. Instead, they followed defendant's vehicle out of Newark as it proceeded into Kearny. The officer explained he did this because Newark police are too busy and the paperwork is easier to complete in Kearny. The officers stopped defendant's vehicle in Kearny; the officer approached the passenger side of the vehicle and his partner walked to the driver's side.
Defendant and the officer testified differently about what happened next. The officer stated that defendant voluntarily removed the drugs from a phone case and handed the drugs to the officer. Defendant indicated that the officer ordered him out of the car, brought him to the rear of the vehicle and said "I know you got the stuff on you . . . give me the stuff or I'm going to lock you [and your father] up . . . and impound [the] car." Defendant testified that he then gave the officer the heroin, which he insisted he obtained prior to driving to Newark with his father.
The judge listened to the testimony, made credibility findings after assessing the demeanor of the witnesses, and rendered her written decision stating:
The [c]ourt finds defendant's testimony credible that the officer threatened to lock up defendant's elderly father if he did not comply[,] based upon the demeanor and manner
that the officer testified as to his past experience with defendant and his knowledge that defendant was a drug user and had arrested him [seven to eight] times in the past. Additionally, the [c]ourt found the officer's ability to observe the defendant purchase drugs from [eighty] feet away in the area he described as an "open air drug market" incredible based upon his admission that he actually did not see the black phone case[,] but surmised defendant had one as a result of seeing it on defendant when he was stopped.
. . . .
Here[,] there were insufficient facts to support a reasonable and articulable suspicion of criminal activity in light of the totality of the circumstances. [The officer] saw defendant seated in the passenger side of a car driven by defendant's elderly father and he recognized him because he had arrested defendant in the past. He knew defendant was a drug user. Defendant was in Newark, where according to [the officer] Kearny residents go to purchase drugs. His job was to keep drugs out of Kearny. Therefore, he had a mere hunch or suspicion that defendant was going to purchase drugs. . . . The officer saw defendant approach[] a black male and he assumed they had a conversation after which defendant handed the unknown male money and he received an object which defendant [allegedly] placed in his phone case. Thus[,] all the officer had were assumptions and hunches that defendant may have purchased drugs.
Much of what motivated this [vehicle] stop was the [officer's] assumption that defendant was engaged in a narcotics transaction. This supposition of illegal drug activity was based on nothing more than a prior arrest history of defendant and
being in an area of Newark, which the officer believed was a drug market. The officer had no anonymous tip that defendant was in the area to purchase drugs or that defendant was a drug dealer. Defendant was not at the "open air" drug market late at night. In fact, it was a weekday afternoon in a business area of Newark. He did not try to hide his interaction with the unknown black male nor did he meet him in an alley or out of the sight of any possible witnesses. Defendant made no furtive gestures as he got into the car. He was not carrying any suspicious packages. Moreover, the car he was driving in did not commit any motor vehicle infractions.The judge then concluded that the stop was unjustified and suppressed the warrantless seizure of drugs.
The primary reason that [the officer] stopped the car was for a pretextual drug investigation. An officer may not rely on mere hunches or assumptions not based upon the reasonable and particular facts that what he observed was criminal activity.
On appeal, the State argues primarily that the judge's decision is not based on credible evidence; the judge refused to consider defendant's criminal record; and the police had probable cause to arrest defendant.
We uphold the factual findings underlying the trial court's disposition on a motion to suppress "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Thus, appellate courts should reverse only when the trial court's determination is "so clearly mistaken that the interests of justice demand intervention and correction." State v. Lamb, 218 N.J. 300, 313 (2014) (citation omitted). The legal determinations which flow from those findings, however, are afforded no deference and are subject to our de novo review. State v. Coles, 218 N.J. 322, 342 (2014).
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7; State v. Bruzzese, 94 N.J. 210, 216 (1983) (explaining that "[t]he language of the Fourth Amendment of the federal constitution and of Article I, paragraph 7 of our state constitution is virtually identical"), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Both require a neutral and detached magistrate to find probable cause before an officer may conduct a search, subject to limited exceptions. State v. Patino, 83 N.J. 1, 7 (1980). Thus, warrantless searches and seizures are presumptively invalid under Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution. See Bruzzese, supra, 94 N.J. at 216-18. Automobile stops constitute seizures of persons under the Fourth Amendment. State v. Baum, 199 N.J. 407, 423 (2009). The State contends that the officer had a basis to pull over defendant's vehicle and perform an investigatory stop.
As a general rule, people "are free to go on their way without interference from the government. . . . [T]he police may not randomly stop and detain persons without particularized suspicion." State v. Shaw, 213 N.J. 398, 409 (2012) (citing Terry v. Ohio, 392 U.S. 1, 9, 27, 88 S. Ct. 1868, 1873, 1883, 20 L. Ed. 2d 889, 898-99, 909 (1968)).
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he [or she] is faced."A police officer must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906). Specific and articulable facts are more than a police officer's "'inchoate and unparticularized suspicion or "hunch[.]"'" State v. Privott, 203 N.J. 16, 29 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).
[State v. Rodriguez, 172 N.J. 117, 127 (2002) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
The State maintains that the judge ignored portions of the officer's testimony, including that the officer stopped the vehicle because of his personal observations of what he believed to be a drug transaction in Newark, not solely because of defendant's criminal history or because the officer observed defendant in a high crime area. We are not persuaded.
The judge, who sat through a two-day suppression hearing, found defendant more credible than the officer. We conclude that the judge's findings, which were based on her observations of the witnesses, are not "so clearly mistaken that the interests of justice demand intervention and correction." Lamb, supra, 218 N.J. at 313 (citation omitted). Here, the findings are supported by sufficient credible evidence in the record. The judge determined that the officer threatened to lock up defendant's elderly father if defendant failed to turn over the drugs. The judge also found the officer's claimed ability to see "incredible" based in part on the officer's "admission" that he did not "actually . . . see the black phone case but surmised defendant had one" only after the officer saw it as a result of the stop. The judge correctly considered the totality of the circumstances, and we have no basis to disturb her factual findings.
Applying these facts, it is clear that the officer had no particularized suspicion that "defendant 'ha[d] been [engaged] or [was] about to engage in criminal wrongdoing.'" State v. Nishina, 175 N.J. 502, 512 (2003) (alterations in original) (quoting State v. Davis, 104 N.J. 490, 504 (1986)). As the judge correctly noted, the officer had no reason to suspect defendant was involved in illegal activity simply because the officer knew defendant from previous arrests and the defendant happened to be driving through a certain area in Newark. Defendant engaged in the meeting with the unknown male in broad daylight and did not attempt to conceal the interaction.
In sum, looking at the totality of the circumstances, Davis, supra, 104 N.J. at 504, there was no suspicious activity that would reasonably warrant a stop of defendant, other than the fact that the officer knew defendant and had a "hunch" that defendant may be in possession of drugs. Privott, supra, 203 N.J. at 29 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909); see also State v. Valentine, 134 N.J. 536, 547 (1994) (explaining knowledge of a suspect's criminal record alone is insufficient to justify an initial stop or a subsequent frisk).
After considering the record and the briefs, we conclude that the State's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION