September 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IAN LAO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-11-1655.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued September 4, 2008
Before Judges Messano and Chambers.
Following the trial judge's denial of his motion to suppress evidence, defendant Ian Lao pled guilty to count four of Middlesex County Indictment #06-11-01655 charging him with possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, and count seven charging him with possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. Pursuant to the plea agreement he struck with the State, defendant was sentenced to four years imprisonment, with an eighteen-month period of parole ineligibility.
Defendant's appeal is limited solely to the denial of his motion to suppress. In this regard, he raises the following arguments for our consideration:
THE MOTION TO SUPPRESS WAS IMPROPERLY DENIED, BECAUSE DEFENDANT'S VEHICLE WAS STOPPED WITHOUT REASONABLE SUSPICION.
A. EVEN IF DETECTIVE ABRAMS' TESTIMONY IS ACCEPTED, REASONABLE SUSPICION TO STOP THE CAR WAS NOT ESTABLISHED.
1. THERE IS INSUFFICIENT DETAIL TO ESTABLISH THAT THE KNOWLEDGE HAS BEEN DERIVED FROM A TRUSTWORTHY SOURCE.
2. THERE WAS NO CORROBORATION OF HARD TO KNOW PREDICTIONS.
B. THE TRIAL COURT ALSO ERRED IN FINDING THAT DETECTIVE ABRAMS WITNESSED A NARCOTICS TRANSACTION.
C. THE SUBSEQUENT SEARCHES WERE FRUITS OF THE POISONOUS TREE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
At the hearing on defendant's motion, the State called detective Jeffrey J. Abrams, Jr., of the Edison Township Police Department as its sole witness. After detailing his experience and training in the area of narcotics investigations, Abrams testified that his attention was first drawn to defendant by the receipt of "an anonymous letter . . . stating that [defendant] was distributing quantities of CDS from his residence and maybe possibly from his vehicle[.]" Abrams then "r[a]n [defendant's] name for a driver's license and his pedigree and  did several drive-bys on his house to confirm the address and the vehicles[.]"
Abrams then spoke to a "concerned citizen" who told him that defendant was distributing drugs from "his residence and from his vehicle." The citizen provided the same address for defendant's residence, 277 Savoy Avenue in Edison, as was contained in the anonymous letter. After meeting with this citizen, Abrams and other officers set up a surveillance of defendant's home. Defendant was observed leaving his home in the Acura and the officers followed in unmarked police vehicles. Abrams saw defendant enter another "residence on Woodland Avenue" and leave after "two to three minutes[.]" The officers also observed a second unidentified male, later identified as Mayur Patel, leave Lao's residence in a car, drive to another home on Summit Avenue, and leave shortly thereafter to return to defendant's house. Abrams testified that this pattern of activity was "consistent with narcotics activity and distribution."
Abrams then received further information from "a reliable confidential informant" that defendant "would be traveling to South Edison to distribute a quantity of cocaine" to a woman. This informant had provided Abrams with information in the past that led to arrests for narcotics activities on eight occasions. Once again, at about 9:30 p.m., the officers followed defendant as he drove from his residence, this time with Patel in the car.*fn1
Abrams saw defendant stop his car alongside a pickup truck and observed a "hand-to-hand transaction between [defendant] . . . and the operator of the pickup truck[,]" in which that driver handed currency to defendant and defendant "reach[ed] his hand out . . . up and towards the driver" of the pickup truck. As defendant drove away, Abrams and the other officers involved effectuated a motor vehicle stop. As he approached defendant's car, Abrams "observed him shoving something . . . a black object, down between the driver's seat and the center console." After asking defendant for his credentials repeatedly, Abrams removed him from the vehicle and defendant was "patted down . . . for weapons and Mirandized." The police seized cocaine and heroin from defendant's pocket, and "additional cocaine[,]  [a] scale[,]" and single tablet of Ecstasy from the "black shaving kit type bag" between the front seat and console of defendant's car.*fn2
Defendant testified at the suppression hearing. He acknowledged leaving his house earlier in the day prior to his arrest, but contended he went to a hobby shop for fifteen minutes and then returned home. He also acknowledged that Patel was at his home, and that the two were contemplating becoming roommates and renting an apartment together. Defendant claimed that when Patel left the house earlier in the day, he went to pick up a check that the two of them had tendered as a down payment on the apartment.
Defendant also acknowledged that he pulled alongside the pickup truck just prior to his arrest, but claimed that he did so only to greet his friend, Frank Cucaro, who was driving the truck, and that he did not sell him any drugs. Defendant claimed he was on his way to a friend's house to have his hair cut at the time. Lastly, defendant contested Abrams' version of the traffic stop, claimed another officer actually stopped him, denied he refused to tender his driving credentials, and admitted the black case contained drugs.
Several days later, the judge heard oral argument on defendant's motion and made the following findings of fact and conclusions of law. The judge found Abrams' "testimony to be credible in terms of his forthrightness, his demeanor." To the contrary, the judge "d[id] not find [defendant's] testimony to be credible." He concluded [W]hat the police did was reasonable, they had information, they followed [defendant], they saw this hand-to-hand transaction, they had the right to stop him, they had the right to arrest him, they had a right to g[i]ve him his Miranda*fn3 warnings, they had a right to search him incident to arrest, they had a right to seize the property inside . .. his car. They'd seen him with furtive activity trying to push it down on the console that contained C.D.S. So, the motion is denied.
Pursuant to our standard of review, we defer to the factual findings made by the motion judge to the extent they are supported by sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 472 (1999). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474 (citations omitted). Therefore, to the extent defendant argues that Abrams' testimony was incredible, we find the argument unavailing. Likewise, as to defendant's argument that the motion judge erred in finding Abrams had witnessed a drug transaction between defendant and the driver of the pickup truck, we conclude such a finding was entirely consistent with the logical inferences to be drawn from the credible testimony as found by the judge.
Of course, no special deference is accorded to the judge's legal conclusions. State v. Ventura, 353 N.J. Super. 251, 258 (App. Div. 2002). Defendant argues that the State failed to demonstrate the "reasonable suspicion" necessary to legitimatize Abrams' warrantless stop of the car. In particular, defendant contends that the State never demonstrated the informant was reliabile because it never adduced proof that the tip was based upon personal knowledge, was derived from a trustworthy source of information, or contained information about future events that were difficult to predict. State v. Williams, 364 N.J. Super. 23, 34-35 (App. Div. 2003)(citing State v. Smith, 155 N.J. 83, 94-95 (1998)).
This argument fails to address the critical evidence in the case. The State concedes that until Abrams witnessed the hand-to-hand transaction, he lacked both a reasonable and articulable suspicion that a crime had occurred, as well as probable cause to arrest defendant. Rather, the State contends that given the totality of circumstances known to Abrams, including the hand-to-hand transaction with the driver of the pickup truck, there existed a reasonable suspicion that defendant had committed a crime. Therefore, defendant's contentions regarding the unreliability of the informant's knowledge miss the point.
We essentially agree with the State's position. The Supreme Court has explained that a reasonable suspicion justifying a motor vehicle stop requires some minimal level of objective justification for making the stop. Its application is highly fact sensitive and, therefore, not readily, or even usefully, reduced to a neat set of legal rules. 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.
[State v. Nishina, 175 N.J. 502, 511 (2003) (citations and quotation marks omitted).]
In State v. Birkenmeier, 185 N.J. 552 (2006), the Court upheld the warrantless stop of the defendant's automobile based upon an informant's tip and the police officers' subsequent corroboration of the tip through surveillance. Id. at 561. The Court held "[a]pplying Nishina's 'collective circumstances' test here, the confidential informant's tip, once corroborated by the observations made by the police, provided sufficient reasonable suspicion to detain and conduct an investigatory stop of defendant and, therefore, the initial stop of defendant's car was proper." Id. at 562.
Defendant seeks to distinguish Birkenmeier by claiming that there the observations made by the police corroborated the informant's tip, whereas here the observations made by the police did not corroborate the informant's tip. He claims that because the officers stopped defendant's car before it arrived in South Edison and before he met with a female, as predicted by the informant, there was insufficient corroboration of the details of the tip, and therefore no reasonable suspicion.
This, of course, overlooks the fact that Abrams reasonably believed he observed defendant make a drug sale from his car. In our opinion, this provides a more significant totality of circumstances justifying the stop than those that existed in Birkenmeier. Once defendant's car was stopped, his conduct justified both his removal from the vehicle and the officer's search of the black bag. Defendant does not contend otherwise.
Because we find the stop of defendant's vehicle was based upon a reasonable and articulable suspicion that criminal activity was afoot, and the subsequent searches of his person and the automobile were justified, we need not consider defendant's final "fruit of the poisonous tree" argument.