DOCKET NO. A-1167-13T1
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-02-0157. Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Following the denial of his motion to suppress evidence obtained in a warrantless search and seizure, defendant Dante Webber entered a guilty plea to charges for possession of a controlled dangerous substance (CDS), reserving his right to appeal. See R. 3:5-7(d) (allowing for the appeal of an order denying suppression, notwithstanding a conviction based upon the entry of a guilty plea). On appeal, he argues:
WHEN THE OFFICERS APPROACHED [DEFENDANT] AND INFORMED HIM THAT THEY HAD INFORMATION THAT HE WAS SELLING DRUGS, THE FIELD INQUIRY INSTANTLY ESCALATED INTO AN INVESTIGATORY STOP, NOT SUPPORTED BY REASONABLE SUSPICION.
We have considered this argument, in light of the record and applicable law. We affirm.
The facts are taken from the evidence presented during the suppression hearing conducted by Judge Stuart A. Minkowitz. The arresting plain-clothes officer, Patrolman Brett Smith of the Morristown Police Department's Anti-Crime Unit, was the sole witness.
On the afternoon of October 20, 2011, Officer Smith received a tip from a confidential informant that defendant was arriving by train to a nearby public housing complex to sell heroin. This information matched intelligence Officer Smith previously received from two other independent informants. Officer Smith knew the housing complex was a high crime area, as he regularly patrolled the area over the past fourteen years. He also knew defendant from prior drug arrests made in 2002 and 2006 in the same neighborhood. Officer Smith and his partner drove to the designated location.
Upon arrival, police saw defendant walking with a woman along the sidewalk. They parked their vehicle, exited, displayed their badges, and approached defendant. Officer Smith said, "What's up, Dante?" Defendant turned and walked toward him returning the greeting, saying, "What's up, Brett."
Officer Smith related he received information defendant was selling heroin. Defendant replied, "I don't do that anymore. . . . I'm out of the game." As defendant spoke, Officer Smith noticed defendant's hands and lips shaking. He then noticed the blue and red "top of a Ziploc bag" protruding from the waistband of defendant's underwear.
Officer Smith asked, "[W]hat's that?" Without responding, defendant "tried to run across the street." Officer Smith grabbed him and placed him under arrest. Defendant began "going crazy, just fighting [with police] trying to get away. . . . [H]e was flailing his arms, kicking, doing everything he could to get out of our hold." The officers suffered minor injuries during the scuffle. The search incident to defendant's arrest yielded twenty folds of heroin in two bundles, a bag of cocaine, and $62 in cash.
Moving to suppress the evidence seized during the warrantless search, defendant challenged the underlying information purportedly provided by informants. He argued the informants merely related defendant's location without facts to support the basis of the allegations of criminal activity. Therefore, the encounter with defendant was an unconstitutional investigatory stop, tainting all evidence recovered and rendering it inadmissible. The State defended the police action as a field inquiry, arguing the reliable informants' tips, combined with observations made by the officers at the scene, provided reasonable suspicion to believe defendant was engaged in drug transactions.
In reviewing defendant's motion to suppress the seized physical evidence, Judge Minkowitz found Officer Smith credible. He related his testimony regarding the three informants and the conversation initiated by police with defendant. Judge Minkowitz highlighted Officer Smith's past reliable interactions with each informant and his past experience with defendant's drug dealing activities in the same neighborhood. He concluded the police officer's "common law right to inquire" evolved to an investigatory stop when Officer Smith saw the plastic bag protruding from defendant's underwear. These facts, coupled with his police experience, knowledge of defendant's past criminal activities, and defendant's changed demeanor, followed by his attempted flight, provided probable cause that a crime was being committed. Thereafter, the search of defendant's person and seizure of physical evidence was incident to a lawful arrest. Accordingly, Judge Minkowitz denied defendant's motion to suppress the contraband seized.
Defendant pled guilty to two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), pursuant to a negotiated plea agreement. The State moved to dismiss all other charges and the judge imposed a five-year Drug Court probationary sentence. This appeal ensued.
Defendant's Fourth Amendment challenge argues the judge erred in characterizing the moment defendant was seized as a field inquiry. Rather, defendant maintains the investigatory stop was unconstitutional, as police lacked the requisite level of suspicion. See State v. Coles, 218 N.J. 322, 343 (2014). We disagree.
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 and internal quotation marks omitted). The legal determinations which flow from those findings, however, are afforded no deference and are subject to our de novo review. Coles, supra, 218 N.J. at 342.
"The police do not violate the Fourth Amendment by 'merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering as evidence in a criminal prosecution his voluntary answers to such questions.'" State ex rel. J.G., 320 N.J. Super. 21, 28 (App. Div. 1999) (quoting State v. Davis, 104 N.J. 490, 497 (1986)). See also State v. Maryland, 167 N.J. 471, 483 (2001) (holding field inquiries are not seizures and do not implicate the protections of the warrant requirement); State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983) ("Police may . . . make an 'inquiry' without any grounds for suspicion."), certif. denied, 96 N.J. 267 (1984). "Thus, a field inquiry, without more, by a police officer does not involve 'detention' in the constitutional sense so long as the officer does not deny the individual the right to move." J.G., supra, 320 N.J. Super. at 28 (quoting State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973)).
A field inquiry ends and becomes an investigative stop when "the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest." State v. Adubato, 420 N.J. Super. 167, 177 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012). "Even a brief detention can constitute a seizure." State v. Stovall, 170 N.J. 346, 355 (2002) (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L.Ed. 2d 889, 903 (1968)).
Certain investigatory stops, although conducted without a warrant, may be constitutionally permissible if, "based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." Stovall, supra, 170 N.J. at 356 (citing Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). See also State v. Rodriguez, 172 N.J. 117, 126 (2002) (holding an investigatory stop is constitutional where "specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity" (citation and internal quotation marks omitted)); State v. Tucker, 136 N.J. 158, 165 (1994) (noting whether persons are seized "depends on an objective analysis of all the circumstances of their encounter" with police).
Here, the series of events unfolded quickly, estimated by Officer Smith as "about thirty seconds." Officer Smith and defendant greeted each other by name; in fact defendant was described as walking toward the officers. Officer Smith conversed with defendant about information he received from several informants suggesting defendant was present in the area to engage in drug activity. As defendant denied undertaking any illicit activity, both his hands and lips began to shake. Police also saw the top of a Ziploc bag sticking out from his underwear.
We agree with Judge Minkowitz's conclusion the objectively reasonable facts police observed formed a reasonable and particularized suspicion defendant was in the neighborhood to sell drugs. Defendant was identified by name from several reliable informants. Perhaps the tips were insufficient to serve as the sole basis for effectuating an investigatory stop. See Rodriguez, supra, 172 N.J. at 127. However when coupled with defendant's observed nervous demeanor, as well as the baggie sticking out from his underwear, an area acknowledged as common for concealing narcotics, reasonable suspicion was sufficiently proven. State v. Privott, 203 N.J. 16, 29 (2010) (considering the defendant's nervous actions as a factor supporting reasonable suspicion); State v. Citarella, 154 N.J. 272, 280 (1998) (holding "courts are to give weight to the officer's knowledge and experience as well as rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." (citation and internal quotation marks omitted)). Further, Officer Smith knew defendant previously engaged in the distribution of CDS, State v. Valentine, 134 N.J. 536, 547 (1994) (finding the "knowledge of a suspect's criminal history," as a relevant factor toward forming the suspicion grounds), especially in that location, noting it as a high crime area, State v. Pineiro, 181 N.J. 13, 26 (2004) (considering an area's reputation for crime a relevant factor when assessing reasonable suspicion). Once defendant attempted to flee, police had sufficient probable cause to place him under arrest. Tucker, supra, 136 N.J. at 167-69 (concluding flight, when combined with other evidence of criminal activity, can justify a suspect's detention or arrest).
Defendant suggests the judge erred in failing to fully evaluate the reliability of the informants. He believes little weight should attach to the confidential information because the informants had provided so few tips that, even if accurate, the information related did not lead to convictions. Also, there was no information establishing the basis of each informant's knowledge. We are unpersuaded.
Officer Smith detailed his longstanding relationship with each informant. The informants had all previously provided reliable information and several tips were corroborated and ultimately led to multiple arrests during Officer Smith's fourteen-year career. The veracity of the informants' correct statements was supported by past reliability, that is, the provision of reliable information in prior investigations. State v. Smith 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998); State v. Novembrino, 105 N.J. 95, 123 (1987). Under this standard, the informants were properly found reliable.
More important, although the officers went to the neighborhood after receiving tips, defendant's detention and arrest were not grounded solely on the informants' reports of his purported activities. Rather, defendant's conduct, when approached by police, along with all other information received, reasonably supported police suspicion of his criminal conduct and justified the investigatory detention.
The search yielding drugs and cash was conducted incident to defendant's lawful arrest, a recognized exception to the warrant requirement. State v. Gibson, 218 N.J. 277, 293 (2014); State v. Moore, 181 N.J. 40, 45 (2004). We conclude suppression was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION