DOCKET NO. A-3644-12T1
Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, Attorney; Ms. do Outeiro, of counsel and on the brief). Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-05-00872. Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, Attorney; Ms. do Outeiro, of counsel and on the brief). Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
Defendant Tyshaun L. Dawson was indicted by a Monmouth County Grand Jury on one count of third degree possession of cocaine. N.J.S.A. 2C:35-10a(1). By leave granted, the State appeals the ruling of the trial court granting defendant's motion to suppress the cocaine seized from defendant's possession by Asbury Park Police Officer Frank Sangi. The court based its decision on the evidence presented by the parties at a N.J.R.E. 104 hearing at which both Officer Sangi and defendant testified and provided conflicting versions of the key event that led to defendant's arrest.
The motion judge, however, accepted as credible Officer Sangi's testimony that defendant "actually turned the drugs over once he saw Officer Sangi." Despite this critical finding, the judge relied on State v. Rodriguez, 172 N.J. 117 (2002) to conclude Officer Sangi did not have a reasonably justifiable basis to have "detained" defendant prior to the discovery of the cocaine. After reviewing the record developed at the motion hearing, and deferring to the credibility determinations made by the motion judge, we reverse. The motion judge misapplied the Court's holding in Rodriguez in concluding Officer Sangi violated defendant's constitutional rights when Officer Sangi seized the cocaine defendant voluntarily turned over to him.
The New Jersey and Federal Constitutions guarantee the rights of persons to be free from unreasonable searches and seizures. N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV.
The following facts derived from the record developed before the motion judge will inform our legal analysis.
At approximately eight o'clock in the evening on December 22, 2011, Officer Sangi received a radio transmission from a police dispatcher informing him that a 9-1-1 operator had received a call about a particular multifamily complex in Asbury Park from a man who identified himself only by his first name "Zack." The dispatcher told Officer Sangi that Zack had reported "possible drug activity throughout the whole building." The dispatcher also gave Officer Sangi Zack's "call back [telephone] number." Finally, in response to Officer Sangi's inquiry for more specific information, the dispatcher indicated Zach reported seeing "a lot of people pulling up in a car . . . and then leaving."
An audio recording of the dispatcher's interactions with Officer Sangi was included as part of the appellate record. In the recording the dispatcher specifically mentions the street address and name of this multifamily building. We have decided not to include this information here to provide a measure of privacy to the residents of this building.
Officer Sangi was very familiar with this particular location, which he described as a four-story "white concrete building" with east and west wings. Although he did not know the exact number, he believed the building contained approximately thirty apartments. The main entrance to the building is through a courtyard in the front. According to Officer Sangi, the main entrance door leading to the inside common areas of the building is "supposed" to be locked, requiring non-residents to be "buzzed in." Officer Sangi testified, however, that this door is "[u]sually . . . not locked, which is a problem."
As a six-year veteran of the Asbury Park Police Department, Officer Sangi knew this particular building as an established location for narcotics activities. He estimated to have been dispatched to this building "maybe 20" times, in response to calls reporting the sale of illicit drugs. He testified that apartment number five, located on the second floor, had been the center of recent illicit narcotic activities. In fact, the night before the December 22, 2011 incident that is the subject of this appeal, Asbury Park Police Officers responded to an "anonymous caller" reporting narcotic activities in apartment five.
A police incident report admitted into evidence at the motion hearing indicates that at approximately 1:33 a.m. on December 21, 2011, officers responded to reports of disorderly conduct and gained entrance, by consent, to apartment five. The apartment was "filled with smoke at the time." Defendant and another individual were found inside the apartment. A check for open warrants revealed defendant and the other individual had pending arrest warrants. The officers at the scene took both men into custody.
One of the arresting officers included the following notation on the incident report documenting defendant's arrest on December 21, 2011:
While processing Dawson at headquarters, I felt a small bulge in his waist band. Further inspection of the waist band revealed a clear knotted bag containing an off white rock like substance suspected to be CDS crack cocaine. Dawson was released on bail on the warrant and placed on a summons for the CDS charge.
Against this backdrop, we now return to the incident involved in this case. Officer Sangi gave a detailed, "blow by blow" explanation of how he encountered defendant outside the door of apartment five, in the hallway area of the building. Officer Sangi emphasized that he at no time searched defendant prior to his arrest, nor did he make any gesture that could have been construed by defendant as menacing or threatening. His fellow narcotic task force partners, Officers Finkelstein and Warraich, stood behind him at all times while he asked defendant whether he had any weapons on his person.
The following exchange captures the key parts of Officer Sangi's testimony that describes the event that led him to arrest defendant:
Q. And just tell us what Mr. Dawson did in response to your request.
A. Well, when he had his hand in his pants, obviously he had something in there. Being it wasn't a weapon I asked him if he had any narcotics on him, and he said he did.
Q. Okay. And then what did he do - - when he said that, did you put your hands on him at that point?
Q. So what did you tell him to do?
A. I asked him to turn it over.
Q. And what did he do?
A. He complied.
Q. And after he did - - what did he give you?
A. Crack cocaine.
Q. Do you recall how it was packaged or?
A. It was in a clear plastic bag, I believe.
Q. You kind of indicated it was twisted at the top?
At this point, we pause to emphasize that defendant's account of the events that led to his arrest is significantly different. Defendant testified that Officer Sangi searched him for weapons. According to defendant, Officer Sangi also searched defendant's friends, who were with him at the time. Defendant claimed Officer Sangi accused him of hiding drugs and aggressively searched his pants pockets without his consent long after Officer Sangi had patted him down to confirm he was not carrying any weapons. Of particular importance, defendant denied he ever made any gestures around his waistband.
Despite the irreconcilable versions of events provided by Officer Sangi and defendant concerning how the cocaine was discovered, the motion judge made clear that he found Officer Sangi's testimony to be credible, and specifically rejected defendant's testimony as not credible. The following excerpt from the motion judge's factual findings illustrates this significant point:
Going to the actual situation where Officer Sangi recovered the - - the drugs in this case, the crack cocaine, I don't - - I don't believe the - - I believe that his testimony was the credible version that - - in that -
- that the - - the Defendant herein actually turned the drugs over once he saw Officer Sangi.
I do - - and I do believe he was - - probably was startled once he saw him in the hallway. He had just been arrested the night before, there's no reason why he wouldn't have been, but I don't believe the - - the - - the testimony and I don't find it credible with regard to the fact of - -
of how Officer Sangi threatened him and then said he was going to put him out in the hallway, and - - and basically somewhat of a strip search is basically how it was characterized. I don't believe that that happened.
The motion judge nevertheless suppressed the evidence defendant "turned over" to Officer Sangi because the "anonymous tip" that caused Officer Sangi to confront defendant on the second floor hallway of this building lacked sufficient reliability.
We begin our analysis mindful of the applicable standard of review with respect to factual findings. In reviewing a grant or denial of a motion to suppress, we are bound to uphold factual findings, supported by sufficient credible evidence in the record, which underlie the trial court's decision. State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Such deference "is required because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
To reach the legal conclusion that the evidence seized by Officer Sangi warranted suppression, the judge reviewed a line of cases that discussed the indicia of reliability necessary to permit a law enforcement officer to detain and ultimately search an individual based only on information received from an anonymous source. The motion judge specifically cited and discussed the Court's holding in Rodriguez, supra, as the basis for his conclusion that Officer Sangi's actions here violated defendant's constitutional rights under the Fourth Amendment of the United States Constitution and under the analogous provision of our State Constitution. A close reading of the facts in Rodriguez reveals the motion judge misapplied the Court's holding in Rodriguez to the salient and controlling facts in this case.
The Court in Rodriguez was asked to determine "whether the police subjected [the] defendant to an investigative detention prior to their search of his person and, if so, whether they had a sufficient basis to justify that conduct." Rodriguez, supra, 172 N.J. at 121. As was the case here, the controlling facts reviewed by the Court in Rodriguez were derived from an evidentiary hearing conducted by the trial court to adjudicate the defendant's motion to suppress. Ibid. In our view, that is where the similarity between these two cases ends.
In Rodriguez, a New Jersey Transit (NJT) Police Officer was patrolling the Atlantic City bus terminal at about 2:15 p.m. on July 14, 1998, when he received "a telephone call from an unknown male" informing him that two men had gone from Ocean City to Philadelphia "to purchase narcotics and that they would be returning that same day via Atlantic City." Ibid. The Court gave the following description of the specific information the anonymous caller gave to the NJT Officer concerning the alleged suspects:
The caller described one man as a thin, Hispanic male, about five feet, ten inches tall, wearing white shorts, a white tee shirt, and gold-rimmed glasses. The caller described the second man as a white, heavyset male, six feet tall, with a receding hairline and mustache, wearing a black tank top and dark shorts.
The anonymous caller also said that the men were traveling by bus. Although he did not provide a time that the two men would pass through Atlantic City, the informant did indicate the time that they had left Ocean City. Based on that information, [the NJT Officer] estimated that the men would arrive in Atlantic City sometime between 3:30 and 5:00 o'clock that afternoon. The officer testified that the informant "didn't want to tell me his name."
[Id. at 121-22 (emphasis added).]
After reporting this call to his Sergeant supervisor, the NJT Officer and his Sergeant decided to survey all passengers arriving on buses from Philadelphia. Id. at 122. Based on the timeline provided by the anonymous caller, they decided to start this surveillance operation at 3:30 that afternoon. Ibid. At 4:45 p.m., the NJT Officer who received the anonymous call saw two men who fit the caller's description step off a bus and walk right by him and his Sergeant and head toward a public telephone. Ibid. The officers decided to approach the two men as one of them began to use the telephone. Ibid.
What today would be an anachronistic reference, was in 1998 a ubiquitous communication device, especially in transportation centers like the Atlantic City bus station.
At the NJT Officers' request, both men agreed to talk to the officers and further agreed "to accompany the officers back to the terminal's patrol office," which was located approximately thirty feet from the public telephone. Id. at 122-23. The "outer door" of the patrol office locked automatically once it was closed. As the Court noted, "once a person is inside, [the door] can be opened only with a swipe card or a key." Id. at 123. At this point, we also make clear that the NJT Officers were attired and equipped in the same manner as any other uniformed police officer.
The Court specifically noted that both NJT officers were "[d]ressed in police uniforms, [and] both officers carried weapons, handcuffs, mace, and radios at the time of the encounter." Id. at 123.
As soon as the suspects entered the NJT patrol office, they were separated and placed in different rooms, although the door between the two rooms was left "ajar." Ibid. However, the NJT Officer who received the anonymous call testified that the suspects were separated "to prevent either man from hearing what the other was saying." Ibid. When asked "if they had anything on them they shouldn't have," they both answered "no." Ibid. The NJT Officers learned their names only after they produced identification documents at the interrogating officer's request. Ibid.
The NJT Sergeant asked each man independently if he was willing to consent to a search of his person. Ibid. The Sergeant informed both men that they had the right to refuse to consent, gave each one a copy of the written consent form, and summarized the content of the form orally. Ibid. However, he did not read the form word for word out loud. Ibid. The NJT Officer who received the anonymous called testified "that this was his first experience with a situation involving a consent to search." Ibid.
The Court noted that the defendant signed "the consent to search form at 4:55 p.m., approximately ten minutes after the police saw him exit the bus." Id. at 124 (emphasis added). The NJT Sergeant testified that he had not questioned the defendant from the time he saw him and his companion by the public telephone, to the time the defendant signed the consent to search form. Ibid. Of particular relevance to the issue at hand in this case, "the sergeant further indicated that he had not received any additional information to corroborate the original tip." Ibid. (Emphasis added).
The search of the defendant's person in Rodriguez revealed "one blue packet of what proved to be heroin in [the] defendant's left sock, one packet of heroin in the coin pocket of his shorts, fifty-nine packets of heroin in the Gap bag (along with two empty packets), a hypodermic syringe, and over $630 in cash." Ibid. After the trial court denied the defendant's motion to suppress, he pled guilty to third degree possession of heroin with intent to distribute within 1000 feet of a school. N.J.S.A. 2C:35-7. Ibid. This court affirmed the trial court's decision to deny the defendant's motion to suppress in a published opinion. State v. Rodriguez, 336 N.J. Super. 550 (App. Div. 2001) rev'd 172 N.J. 117 (2001). We determined that the NJT officers had engaged in merely a field inquiry, and thus were not required to have any suspicion that the defendant was involved in criminal activity to justify the actions they took. Id. at 560.
The defendant was indicted on three counts related to the possession of heroin. Id. at 124.
The Supreme Court granted the defendant's petition for certification, 170 N.J. 84 (2001), and unanimously reversed our decision. Rodriguez, supra, 172 N.J. at 125. The Court began its analysis by explaining the difference between a field inquiry and an investigatory stop. Id. at 126-27. In particular:
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 is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.
[Id. at 127 (alteration in original) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
Against this analytical backdrop, the Court emphasized that an uncorroborated "anonymous tip . . . is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Ibid. The Supreme Court expressly rejected this court's characterization of the NJT Officers' interaction with the defendant as merely a field inquiry, holding instead that the officers had detained the defendant to investigate the uncorroborated information received from the anonymous caller. Id. at 128. As the Court explained:
Once inside the patrol office, the police separated [the] defendant from [his companion], and after that separation, an officer questioned [the] defendant in a manner that presupposed criminal activity. For the bulk of the encounter, [the] defendant was isolated from his traveling partner and was asked questions in a closed-door, police-dominated atmosphere. We conclude that an objectively reasonable person in [the] defendant's position would not have felt free to leave the patrol office under those circumstances.
The controlling facts in Rodriguez render that case analytically distinct from the present case, especially given the controlling facts found by the motion judge here. Unlike the defendant in Rodriguez, here defendant turned over the illicit drugs in his waistband to Officer Sangi while he was in a public common area of the building. The motion judge specifically found defendant "turned over the crack cocaine" in response to Officer Sangi asking him "if he had any narcotics on him." The judge found that neither Officer Sangi nor the two fellow officers who were at the scene with him engaged in any improper or coercive conduct against defendant.
There is nothing in the record before us here to suggest that defendant was not free to walk away from these officers at any time before he voluntarily "turned over" the illicit drugs he had concealed in his waistband. The facts predicating the Supreme Court's holding in Rodriguez are thus clearly distinguishable from the salient facts in this case. The Constitutional concerns animating the Court's holding in Rodriguez are equally inapplicable here.
Notwithstanding these clear analytical distinctions, we pause to emphasize the factual distinctions as well. Here, the 9-1-1 caller gave a first name and a call back telephone number. Officer Sangi and his fellow task force members were not specifically seeking to find defendant when they entered the building, or anyone who looked or dressed like him. The building was well-known to the responding officers as a center for illicit narcotics activities. Indeed, the Asbury Park Police Department had responded to a call of disorderly activity at apartment five in this building the previous night, and as a result had arrested defendant and another individual based on open arrest warrants and for possession of illicit drugs. Finally, the arresting officer was lawfully investigating the allegations made by the 9-1-1 caller of illicit narcotics activity when he entered the hallway area of the building and encountered defendant exiting apartment five.
In State v. Smith, 37 N.J. 481 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963), our Supreme Court upheld the warrantless arrest of a defendant based on the arresting police officer's observation of criminal activity. Specifically, the arresting officers in Smith were in "the common hallway to the third floor" of a building following up on "a lead" that two particular individuals were involved in narcotics activities. Id. at 490. At this point, the officers looked
through a crack at the molding of the door (although one officer could not recall whether he looked through that opening or through the keyhole), they saw [a man] in the living room, with a tourniquet around his arm and a hypodermic needle in his hand. They immediately broke in and arrested the individuals we have mentioned. The needle was found on the floor of that room and packets of heroin, in plain view on a table in the same room, were seized. The tourniquet had already been secreted. It was later produced by Smith. The police officers at the rear door were admitted by a woman who also was in the apartment.
Writing for a unanimous Court, Chief Justice Weintraub noted:
[H]ere the officers entered a common hallway and from that area saw the criminal event. Whether the officers were technically "invitees" of the owner of the house is of no moment. Rather the question is whether there was an invasion of the privacy of the owner or tenant as to which the defendant might assert a derivative interest. As to the owner, surely a policeman does not trespass when he enters the common areas in discharge of his duties. And as to the tenant (defendant's mother), it cannot be
said that she was in possession of the passageway. Thus the presence of the detectives at the door to the apartment itself involved no misconduct or invasion of the rights of anyone. A policeman is not out-of-bounds when he is in the common passageway of a multi-family house in the furtherance of an investigation.
[Id. at 496 (emphasis added).]
Although written more than a half of century ago, Chief Justice Weintraub's holding in Smith remains a legally binding constitutional interpretation by our State's highest court. See State v. De La Paz, 33 7 N.J. Super. 181, 191 n.2 (App. Div.), certif. denied, 168 N.J. 295 (2001). The controlling facts here, as found by the motion judge, are analytically indistinguishable from the salient facts in Smith. The trial court's decision to suppress the crack cocaine defendant turned over to a police officer who was lawfully present in the common hallway of a building cannot be reconciled with long established constitutional principles articulated by our Supreme Court.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION