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State v. Flores

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE A. FLORES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 05-04-0507.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2007

Before Judges Seltzer and C.L. Miniman.

After his motion to suppress evidence obtained by a warrantless search was denied, defendant pled guilty to charges relating to possession of a controlled dangerous substance with intent to distribute. Defendant does not attack the sentences imposed and, on this appeal, challenges only the denial of his motion to suppress. See R. 3:5-7(d). We affirm.

The evidence relating to defendant's motion to suppress was developed at a testimonial hearing conducted on September 16 and September 19, 2005. Officer Amilcar Colon of the Elizabeth Police Department testified that he was assigned to a unit charged with taking "care of any drug trafficking problem," had "received . . . training in the area of narcotics investigation" and had been involved in "[m]ore than hundreds" of narcotic-related arrests. On January 9, 2005, Colon received information from a citizen informant who live on East Jersey Street, an area known to be a "high narcotic trafficking area, high crime area," "that a[n] Hispanic male was selling narcotics in the area of . . . 539 East Jersey Street." The informant described the individual and the clothes he was wearing. Colon, accompanied by two other officers, drove to the address given to them and observed an individual matching the description provided by the informant standing in front of 539 East Jersey Street. He was the only person at that location.

Colon and his partners exited their vehicle displaying badges that identified them as police officers. Defendant, upon seeing them, turned and ran into 539 East Jersey Street. The police followed, gaining admittance through the first floor residence. Although the record is not clear, it appears that one of the officers remained outside the building. The downstairs resident testified that more than three officers entered the building, but we take the number of officers to be irrelevant to our decision. The police went up the stairs leading to the second-floor apartment, having been told that there were no other living quarters. They intended to investigate the situation.

Colon knocked at the door and was able to determine that defendant was "running towards the rear of the apartment." He radioed to the officer who had remained outside and was informed that defendant had been seen throwing "a black plastic bag onto the adjacent property." Defendant then answered the door. When the door was opened, Colon was able to see a kitchen table containing a plastic bag of "a green leafy substance, suspected marijuana from our experience." Colon testified that he recognized the substance as marijuana as the result of the "[h]undreds, thousands probably" of times that he had seen marijuana. Colon also saw "small Ziploc bags commonly used for packaging of CDS marijuana" and "a digital scale and rubber bands, also commonly used for packaging marijuana."

Defendant testified. He claimed that he was in the apartment when he received a telephone call informing him that police were outside the apartment. Before answering a knock at the door, he threw drugs from the rear of the apartment. When he opened the door, he was tackled by "12, 14 cops." Although he admitted having marijuana in the apartment, he claimed it could not be seen from the front door.

The judge accepted Colon's testimony as credible and accepted his recitation of the events of January 9, concluding that when defendant fled, the police had a duty to investigate, they had a duty to interview him, they had a duty to find out what was going on, and when he ran away and hid behind a door they had a duty, also, to investigate, at that point, and not wait to get . . . a search warrant while the defendant flushes the drugs down the toilet.

The judge found that "the marijuana and the scale, the other evidence in the apartment" were in plain sight and that the drugs thrown out of the apartment had "been abandoned by the defendant. He had no interest in it." Accordingly, he denied the motion to suppress.

The judge's resolution of the factual dispute and his consequent findings are supported by substantial credible evidence in the record; they are binding on appeal. See State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom. State v. Terry, 58 N.J. 595 (1971).

Defendant does not attack the factual findings but claims that "defendant's motion to suppress the CDS found in the backyard and inside the apartment should have been granted, because those items were the fruits of an investigative detention without reasonable and articulable suspicion, based only on an uncorroborated tip." We disagree.

The police may initiate a "field inquiry," which consists simply of "approaching an individual on the street, or in another public place, and 'by asking him if he is willing to answer some questions[.]'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Davis, 104 N.J. 490, 497 (1986)). Accordingly, Colon was entitled to drive to defendant's location for no reason at all and was entitled to do so "'without grounds for suspicion.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). See also State v. Nishina, 175 N.J. 502, 510 (2003). Given the State's appropriate concession that admission by the downstairs neighbor conferred "the right to be in . . . the common hallways of [the] apartment building and do an investigation," we conceive that the common hallways of an apartment are legally identical to the public place referenced in Rodriguez. Accordingly, knocking at defendant's door was nothing more than a field inquiry requiring no suspicion. The evidence was therefore not tainted.

Even if we accept defendant's characterization of the approach by the police to the apartment as an investigative detention, the result would remain unchanged. Such a detention requires only "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 126 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)).

Here, as the judge found, there were sufficient "specific and articulable facts" suggesting criminal activity. "Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." Nishina, supra, 175 N.J. at 511 (citing State v. Stovall, 170 N.J. 346, 368 (2002); State v. Citarella, 154 N.J. 272, 279-80 (1998)).

Here, police action was initiated upon receipt of information obtained from a citizen informant. Such information is assumed to have "sufficient veracity and require no further demonstration of reliability." Stovall, supra, 170 N.J. at 362 (citing Davis, supra, 104 N.J. at 506). The information provided by the informant was verified by observation. The area involved was known to be a "high narcotic trafficking area." When the police exited their vehicle, defendant fled. While flight alone does not create the reasonable suspicion needed for an investigatory detention, State v. Dangerfield, 171 N.J. 446, 457-58 (2002) (citing State v. Tucker, 136 N.J. 158, 169 (1994)), here there were more than sufficient additional circumstances. See State v. Doss, 254 N.J. Super. 122 (App. Div.), certif. denied, 130 N.J. 17 (1992). The judge's conclusion that the police were authorized to approach defendant's apartment was correct.

Once defendant voluntarily opened his door, the evidence of a crime was in plain sight and exigent circumstances clearly existed.*fn1 We are also satisfied that the throwing of the heroin out the back constituted an abandonment justifying the warrantless seizure of the bag. See State v. Carroll, 386 N.J. Super. 143, 160-61 (App. Div. 2006).

Affirmed.


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