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State v. Burstein

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 11, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STUART BURSTEIN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-06-1264.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 18, 2007

Before Judges Skillman and Winkelstein.

Defendant was indicted together with co-defendants Phillip Pauls and Patrick Malone for possession of marijuana, in violation of N.J.S.A. 2C:35-10a(3); possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(10)(a); second-degree conspiracy to possess marijuana with the intent to distribute, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(a); and being a leader of a narcotics trafficking network, in violation of N.J.S.A. 2C:35-3.

Defendant filed a motion, in which co-defendant Malone joined, to suppress the evidence against him. After a three-day evidentiary hearing, the trial court denied the motion.

Defendant then entered into a plea agreement under which he agreed to plead guilty to second-degree conspiracy to possess marijuana with the intent to distribute, and the State agreed to dismiss the other charges, recommend a five-year term of imprisonment, waive the mandatory period of parole ineligibility applicable to this offense, and not oppose defendant's application for admission into the Intensive Supervision Program.

The trial court sentenced defendant in accordance with the plea agreement to a five-year term of imprisonment without any period of parole ineligibility.

Defendant appeals from the denial of his motion to suppress.

The evidence upon which defendant's conviction rests emanates from a telephone call received by the Neptune Police Department on January 14, 2004 from Detective Joe Cargel of Chula Vista, California. Cargel informed Sergeant Burst of the Neptune Police Department that he had been told by Peggy Pauls, the wife of a burglary suspect, Phillip Pauls, that her husband had been paid $5,000 to drive cross-country in a white van, and that she believed "he may have been involved in illegal activity," specifically the transportation of drugs. Cargel also stated that Mrs. Pauls told him her husband was currently staying in room 202 in the Days Inn motel in Neptune.

Based on this information, Sergeant Burst sent two officers, Patrolman Brock and another officer, to the Days Inn motel to determine whether Pauls was in room 202 and whether there was a white van with California license plates in the parking lot. The officers confirmed by checking with the room clerk that Pauls was registered in room 202 and had indicated on his room card that he was driving a Dodge van with California license plates. The officers then located a van in the parking lot with California plates, although the van was silver rather than white.

After receiving this information, Sergeant Burst instructed Patrolman Brock to go with another officer, Scott Cox, to Pauls' room to speak with him concerning the information received from Detective Cargel. The officers knocked on the door, and when a man fitting Pauls' description opened the door, the officers informed him they were looking for a Phillip Pauls. The man responded that he was Phillip Pauls. The officers told Pauls they had received information "he was involved in possibly transporting a controlled dangerous substance from California to the east coast." Pauls then asked the officers to come into the room and talk to him. Pauls "sat on the bed, . . . kind of sighed a little bit, dropped his head," and asked whether he could smoke a cigarette. The officers responded affirmatively and then administered Miranda warnings.

Pauls agreed to talk to the officers and told them that he was in Neptune "to follow a subject by the name of Woody who would be transporting at least 50 pounds of marijuana to the Pennsylvania border." Pauls also told the officers Woody and another person, who was identified to Pauls as "Stuart Whitman," had been in his room earlier that day in possession of two bags of marijuana. Pauls added that the person called "Woody" was driving a late model red vehicle with California license plates and was also staying at the Days Inn.

Officer Brock then returned to the motel office, where he located a registration card for a Pat Malone that indicated he was driving a red Ford Tempo with California license plates. After locating the red Ford in the motel parking lot, Brock reported this information to his supervisor, who dispatched additional officers to the motel. The officers maintained surveillance of Malone's room while other officers conducted criminal history checks on Malone and Pauls.

At this point, Pauls was transported to police headquarters, where he was questioned further. In a written statement given in the early morning hours of January 15, 2004, Pauls indicated that a person he knew as Stewart had asked him if he wanted to make some money by driving from California to New Jersey. Pauls agreed, and Stewart sent him a $800 money order "for travel expenses." On the way from California, Stewart instructed defendant to check into the Days Inn in Neptune. After he arrived there, Stewart and Woody came to his room with two bags of marijuana and told him they would pay him $1,500 to follow Woody, who did not have a valid vehicle registration, to Pennsylvania.

In a second written statement given that evening, Pauls admitted transporting marijuana from California to New Jersey in a secret compartment of the van. He also admitted receiving a total of $2,800 for this activity before arriving in New Jersey. Stewart paid him an additional $1,000 while in the motel room and told him he would have to travel to Harrisburg, Pennsylvania to obtain $3,500 more from Malone. Pauls also identified a photograph of defendant as the person he knew as Stewart Whitman.

Following Pauls' initial written statement, a member of the Neptune Police Department prepared an application for a warrant to search Malone's motel room and both Malone's and Pauls' vehicles. Before the search warrant was issued, Malone left his room around 10:30 a.m. on January 15, 2004. As Malone approached the red Ford, he was intercepted by two Neptune police officers and placed under arrest. The warrant for the search of Malone's room was obtained approximately a half hour later. The search revealed a black equipment bag containing twenty-five bags of marijuana and a blue and a green bag containing two bags of marijuana.

Defendant appeals from the denial of his motion to suppress, presenting the following arguments:

I. THE POLICE REQUIRED REASONABLE SUSPICION TO DETAIN AND INTERROGATE MR. PAULS. THE INFORMATION RECEIVED FROM CALIFORNIA, TOGETHER WITH THE INITIAL SURVEILLANCE OF THE NEPTUNE TOWNSHIP POLICE, DID NOT CREATE REASONABLE SUSPICION TO BELIEVE THAT A CRIME WAS COMMITTED. THUS, THE POLICE OFFICERS COULD NOT DETAIN MR. PAULS AT THE DOORSTEP OF HIS HOTEL ROOM AND QUESTION HIM.

II. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT UNDER N.J.R.E. 104(c) THAT MR. PAULS RECEIVED, UNDERSTOOD AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS. THEREFORE, ANY STATEMENTS HE MADE SHOULD HAVE BEEN SUPPRESSED AND ANY INVESTIGATION FROM THOSE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AS WELL UNDER THE FRUITS OF THE POISONOUS TREE DOCTRINE.

III. THE PANTS OF MR. PAULS IN ROOM 202 WERE IMPROPERLY SEARCHED AS A VALID CONSENT TO SEARCH SAME WAS NOT OBTAINED FROM HIM. THUS, THE EVIDENCE OBTAINED FROM THAT SEARCH SHOULD HAVE BEEN SUPPRESSED.

IV. A FAIR INFERENCE WAS CREATED THAT ROOM 308 WAS SEARCHED BEFORE THE SEARCH WARRANTS WERE SIGNED AUTHORIZING A SEARCH OF THAT ROOM. THE STATE FAILED TO CALL ANY WITNESSES IN REBUTTAL TO THAT FAIR INFERENCE. THEREFORE THE SEARCH OF ROOM 308 SHOULD HAVE BEEN SUPPRESSED.

We reject these arguments and affirm the denial of defendant's motion to suppress substantially for the reasons set forth in Judge Chaiet's January 20, 2006 oral opinion. Judge Chaiet's findings of fact regarding the administration of Miranda warnings to defendant, the waiver by defendant of his rights to counsel and to remain silent, defendant's consent to the search of his motel room, and the police search of Malone's motel room only after a warrant was obtained, must be sustained because they are supported by substantial, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

The arguments presented under Points II, III and IV of defendant's brief do not have sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2). The only arguments that warrant supplemental discussion are the ones presented under Point I of defendant's brief.

Initially, we note that the State's answering brief argues that defendant lacked standing to challenge the admissibility of Pauls' incriminating statements, which resulted in discovery of the other evidence supporting the charges against defendant. We have no need to consider this argument because we conclude that, even assuming defendant had standing to challenge the admissibility of Pauls' statements and the physical evidence obtained as a result of those statements, the trial court properly denied his motion to suppress.

Defendant argues that the police entry into Pauls' motel room, which resulted in his incriminating statements, constituted an unlawful investigative detention, and therefore, those statements and the other incriminating evidence the State gathered based on those statements must be suppressed.

A police officer may knock on the door of a residence and ask the occupant non-accusatory questions without reasonable suspicion of criminal activity. See State v. Domicz, 188 N.J. 285, 302-03 (2006). However, if police questioning would lead an objectively reasonable person to believe that his or her freedom of movement has been restricted, such questioning constitutes an investigative detention (sometimes referred to as a Terry stop), which requires "reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002).

Even assuming Officers Brock's and Cox's initial action in knocking on the door to Pauls' motel room and indicating that they were looking for a Phillip Pauls was only a field inquiry that could have been conducted without reasonable suspicion of criminal activity, the officers' encounter with Pauls was transformed into an investigative detention when they informed him they had information he was involved in possibly transporting drugs from California and administered Miranda warnings to him. At that point, a reasonable person in Pauls' position would not have believed he was free to break off the encounter with the officers and tell them to leave his motel room. Therefore, the question is whether Officers Brock and Cox had "reasonable suspicion" that Pauls was engaged in criminal activity "based on 'specific and articulable facts . . ., taken together with rational inferences from those facts.'" Ibid. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)).

"The 'reasonable suspicion' necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Id. at 127 (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). In determining whether police suspicion of criminal activity is reasonable, a court must consider the "totality of [the] circumstances." State v. Davis, 104 N.J. 490, 504 (1986).

In cases where an investigative detention is based on information about alleged criminal activity provided by an informant, a court must consider the informant's "'veracity,' 'reliability' and 'basis of knowledge[.]'" Alabama v. White, 496 U.S. 325, 328, 100 S.Ct. 2412, 2415, 110 L.Ed. 2d 301, 308 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed. 2d 527, 543 (1983)). In considering these factors, a distinction is drawn between cases where the informant is anonymous and cases where the informant is a known, reliable source. See Davis, supra, 104 N.J. at 505-06; State v. Lakomy, 126 N.J. Super. 430, 434-36 (App. Div. 1974). A lesser degree of corroboration is required for information about criminal activity provided by a known reliable source than where the source is anonymous. Davis, supra, 104 N.J. at 506.

In addition, in evaluating an informant's "basis of knowledge," the court "must consider whether 'the information was obtained in a reliable way.'" Stovall, supra, 170 N.J. at 362 (quoting State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1988)). "In making this determination, courts look to the tip itself, as 'the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source.'" Ibid. (quoting Smith, supra, 155 N.J. at 94).

In this case, the source of information that Pauls might be engaged in the transportation of drugs from California to New Jersey was Pauls' wife. Moreover, the information was very specific. Mrs. Pauls told Officer Cargel that her husband had been paid $5,000 to drive a car from California to New Jersey. She also told Cargel the type of car her husband was driving and that he was currently staying in a specific room in the Days Inn Motel in Neptune, New Jersey. The Neptune police could reasonably infer that the source of Mrs. Pauls' information, particularly regarding Pauls' presence in the Days Inn in Neptune, was Pauls himself, since Mrs. Pauls was in California. Furthermore, the Neptune police corroborated the information provided by Mrs. Pauls regarding her husband's presence in Neptune and the car he was driving (except for the color) before knocking on the door to his motel room. Based on this information, the Neptune police had an objectively reasonable suspicion that Pauls was engaged in transporting drugs from California to New Jersey before they entered his motel room.

This reasonable suspicion was reinforced by Pauls' response to the officers' initial statements that they had information he was involved in possibly transporting drugs. Instead of denying this accusation, Pauls sat on the bed, sighed, hung his head and asked whether he could smoke a cigarette.

Therefore, the trial court properly denied defendant's motion to suppress the statement Pauls gave to the police in the motel room and the other evidence the police gathered based on that statement.

Affirmed.

20071011

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