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State v. Pineiro

August 02, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE R. PINEIRO, A/K/A PINARO, DAVID PINEIRO AND JOSE A. PINEIRO, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

[NOTE: This is a companion case to State v. Gregory Moore (A-2-2003) also decided today.]

In this appeal the Court decides whether the State had reasonable suspicion to make an investigatory stop and whether the State had probable cause to conduct a search.

Wildwood Police Officer Elias Aboud was the sole witness at the suppression hearing. On December 8, 2000, at around 6:15 p.m., he was in his patrol vehicle in the area of Roberts and Pacific Avenue in Wildwood. Aboud characterized this area as a high drug, high crime area.

Aboud observed Jose Pineiro and co-defendant Jorge Rodriguez standing on the corner, with a bicycle nearby. Aboud recognized both individuals. He previously had encountered Pineiro while clearing corners in that same area, and had received intelligence reports indicating Pineiro way a suspected drug dealer. Aboud had arrested Rodriguez for child support and possibly for possession of CDS. He also was aware that Rodriguez was a drug user.

The overhead lights in the area allowed Aboud to observe Pineiro give Rodriguez a pack of cigarettes. Aboud was aware that a cigarette pack sometimes is used to transport drugs. Neither man was smoking at the time. Immediately after the transfer, the two men noticed Aboud. They looked at him with shock and surprise and turned to leave the area. Pineiro walked down Pacific Avenue while Rodriguez mounted the bicycle and started riding down Roberts Avenue. Aboud called for assistance to detain Pineiro while he pursued Rodriguez.

Aboud overtook Rodriguez and detained him. Aboud informed Rodriguez that he believed he had just purchased drugs. Rodriguez began to cry and denied any drug involvement. Aboud asked Rodriguez for the cigarette pack, and upon receipt of it, looked inside and found a baggie containing three smaller light blue baggies of suspected heroin.

Concurrently, other Wildwood police officers stopped and arrested Pineiro. The record does not reveal that any evidence was seized from Pineiro.

The trial court found there was probable cause to arrest Rodriguez and Pineiro for their involvement in a drug transaction. The Appellate Division agreed, finding probable cause based on: Aboud's specialized knowledge that cigarette packs are used to conceal drugs, his knowledge of Rodriguez's drug involvement, his prior observation of Pineiro in that same high crime area, and the men's reaction upon seeing the officer.

The Supreme Court granted Pineiro's petition for certification.

HELD The totality of the circumstances failed to support a finding of probable cause to search Pineiro's co-defendant without a warrant.

1. Warrantless seizures and searches are presumptively invalid as contrary to the United States and New Jersey Constitutions. When no warrant is sought, the State has the burden to demonstrate that the search falls within one of the few well-delineated exceptions to the warrant requirement. A field inquiry is the least intrusive of police encounters, and occurs when a police officer approaches an individual and asks if the person is willing to answer some questions. The next type of encounter, an investigatory stop, or Terry stop, is valid if based on specific and articulable facts which, taken together, give rise to a reasonable suspicion of criminal activity. The suspicion need not rise to the probable cause necessary to justify an arrest. The last type of encounter is that occasioned by the probable cause standard. It requires a well-grounded suspicion that a crime has been or is being committed. (pp. 4-7)

2. The State seeks to justify the initial stop of Pineiro as an investigatory stop, which requires a showing of reasonable and articulable suspicion. The determination is fact sensitive, and requires consideration of the totality of the circumstances. An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test. The totality of the circumstances present here - Aboud's knowledge that drugs were sometimes carried in cigarette packs, that he had not observed either of the men smoking, and Aboud's familiarity with both men - established a reasonable and articulable suspicion of criminal activity justifying an investigatory stop. (pp. 8-16)

3. The next issue is whether the facts supported probable cause to seize and search Rodriguez. Although the Court recognizes that this is a close case, the circumstances fall short of probable cause. Although the observations by Aboud raised a reasonable and articulable suspicion that criminal activity was occurring, more is required to support a probability that contraband or evidence of a crime would be found in the cigarette pack. After all, the passing of the cigarette pack just as easily could have been nothing more than a transfer of a cigarette pack between two adults. Although the nervousness and crying of Rodriguez may have further raised the officer's suspicions, the Court does not find that those factors, even when considered with the other circumstances, reached the level of probable cause. Moreover, the Court need not determine whether a pat-down search would have been reasonable, since Aboud never testified that he thought either man might be armed or that he needed to conduct a protective pat-down search. (pp. 16-19)

Judgment of the Appellate Division is REVERSED.

JUSTICE ALBIN has filed a separate, concurring opinion, expressing the view that the passing of a cigarette pack from one person to another without the exchange of money in a high crime area by people with suspected drug backgrounds does not provide a reasonable and articulable suspicion to stop and detain the individuals.

JUSTICE LaVECCHIA, joined by JUSTICE ZAZZALI, has filed a separate opinion, concurring in part and dissenting in part, expressing the view that the totality of the circumstances established probable cause and exigent circumstances to justify the officer's search of the cigarette pack.

CHIEF JUSTICE PORITZ and JUSTICE VERNIERO join in JUSTICE WALLACE's opinion. JUSTICE ALBIN filed a separate, concurring opinion. JUSTICE LaVECCHIA, joined by JUSTICE ZAZZALI, filed a separate opinion, concurring in part and dissenting in part. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Wallace

Argued January 21, 2004

In this search and seizure case, following the denial of his motion to suppress evidence, defendant pled guilty to possession of drugs based on evidence seized after a warrantless arrest. As in State v. Moore, also decided today, ___ N.J. ___ (2004), we review whether the State had reasonable suspicion to make an investigatory stop and whether the State had probable cause to search defendant. The trial court and the Appellate Division both answered that question in the affirmative. We disagree in part. We conclude that although there was a reasonable and articulable suspicion to stop defendant and investigate, the totality of the circumstances failed to support a finding of probable cause to search defendant without a warrant.

I.

Wildwood Police Officer Elias Aboud was the sole witness at the suppression hearing. On December 8, 2000, around 6:15 p.m., he was on routine patrol in the area of Roberts and Pacific Avenues in Wildwood, New Jersey. Aboud characterized this area as a high drug, high crime area. While in his patrol vehicle Aboud observed defendant Jose R. Pineiro and co-defendant Jorge Rodriguez standing on the corner of Roberts and Pacific Avenues. There was a bicycle nearby.

Aboud recognized both individuals. He previously had encountered defendant "while clearing the corners" in that same area, and he had received intelligence reports indicating defendant was a suspected drug dealer. Aboud knew Rodriguez, having arrested him for child support and possibly for possession of a controlled dangerous substance (CDS). He also was aware that Rodriguez was a drug user.

The overhead lights in the area allowed Aboud to observe defendant give Rodriguez a pack of cigarettes. Aboud was aware that a cigarette pack sometimes is used to transport drugs. Neither man was smoking at the time. Immediately after the transfer, the two men noticed Aboud. They looked at him with shock and surprise and turned to leave the area. Defendant walked down Pacific Avenue while Rodriguez mounted the bicycle and pedaled westbound on Roberts Avenue. Aboud called for assistance to detain defendant while he pursued Rodriguez. He overtook Rodriguez and detained him. Aboud informed Rodriguez that he believed he had just purchased drugs. Rodriguez began to cry and denied any drug involvement. Aboud asked Rodriguez for the cigarette pack, and upon receipt of it, looked inside and found a baggie containing three smaller light blue baggies of suspected heroin.

Concurrently, other Wildwood police officers stopped and arrested defendant. The record does not reveal that any evidence was seized from defendant.

The trial court found there was probable cause to arrest Rodriguez and defendant for their involvement in a drug transaction. The Appellate Division agreed, finding that Aboud's specialized knowledge that cigarette packs are used to conceal drugs, his knowledge of Rodriguez's drug involvement, the officer's prior observation of defendant in that same high crime area, and the men's reaction upon seeing the officer established probable cause. We granted defendant's petition for certification, 177 N.J. 489 (2003), and now reverse.

II.

Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions. State v. Patino, 83 N.J. 7 (1980). Both constitutional standards require that such seizures or searches be conducted pursuant to a warrant issued upon a showing of probable cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.

There is a constitutional preference for a judicial determination of whether there is probable cause to issue a warrant. State v. Demeter, 124 N.J. 374, 381 (1991). This preference accounts for the difference in result in a "marginal case [where] a search with a warrant may be sustainable [and] where a search without a warrant would fail." Ibid.

When no warrant is sought, the State has the burden to demonstrate that "'[the search] falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Maryland, 167 N.J. 471, 482 (2001) (alteration in original) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed. 2d 854, 858 (1973)). Thus, we evaluate the evidence presented at the suppression hearing in light of the trial court's findings of fact to determine whether the State met its burden. "[T]he State ...


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