January 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM JAMES BUCKLEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-01602.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Skillman and Graves.
After his motion to suppress evidence without a warrant was denied, defendant William James Buckley pled guilty to third- degree possession of cocaine. He was sentenced to probation for two years. On appeal, defendant argues the trial court erred in denying his suppression motion because the two Neptune Township police officers who testified at the suppression hearing, "did not and could not articulate facts which gave rise to a reasonable suspicion of criminal activity." Based on our review of the record and the applicable law, we affirm the order denying defendant's motion to suppress.
Three witnesses testified during the suppression hearing: (1) Patrolman William Kirchner, who had been a police officer for twelve years; (2) Detective Philip Seidle, who had been a member of the Neptune Township Police Department for fourteen years; and (3) defendant testified on his own behalf. The officers testified they were in plain clothes in an unmarked police vehicle patrolling a "high intensity drug trafficking area," when they observed defendant engage in a hand-to-hand transaction which, based upon their experience, they believed was a narcotics transaction. Detective Seidle's testimony included the following:
[W]hen we come into that area, when we're patrolling, as part of our normal duties, we're looking around, observing things, looking for different cues that would indicate that something is awry.
And in this case, when I saw Mr. Buckley step to the car, the car pulled to the curb, I saw him step to the car, he looked both ways, and to me that was a cue that he was . . . looking around for police before he stepped to the car to do what he was going to do. . . . . . . .
Q: Okay. So, he stepped to the car. And once he steps to the car, what do you see?
A: I [saw] him lean into the window, he reaches in, and there's what appears to be some exchange or some type of transaction between the two people, the driver and Mr. Buckley. And then he leans out and the car immediately leaves the curb and goes east on Springwood Avenue, and makes a right onto Ridge Avenue and goes south.
Q: And based upon those actions that you've described, the hand movements, how did you believe that to be a hand to hand exchange transaction?
A: Just the brevity of it. And like I said, the location is just, it's typical. I mean, there's no better word to describe it. It's just typical. That's the type of behavior that we see consistently in that area.
[We] know . . . where the drug dealers tend to stand when we go into that area, where we look is on the corner right in front of Alpha Liquor, or in that . . . part of the block on the south side of the street, right where Mr. Buckley was. . . .
I [saw] him standing there when a car pulls to the curb. It's just the whole, it's the brevity. It's the fact that he approaches the car, and with very little or no conversation there's an exchange between the two. And then almost immediately he leans out of the window, he's looking both ways before he goes into the car. All of these things lead me to believe that it was a narcotics transaction that took place.
According to the police officers, as they exited their vehicle, defendant was walking toward the rear of the "Mr. Pizza" building. When defendant saw the police walking toward him, he attempted to enter a vehicle operated by an unidentified pizza delivery man, who told the police he did not know defendant. At that point, Officer Kirchner ordered defendant to stop so that the police could talk to him.
When defendant testified, he denied he engaged in a hand- to-hand narcotics transaction and denied he tried to enter a pizza delivery vehicle. According to defendant, he spoke to an acquaintance in a car while he was on his way to Mr. Pizza and, after a short conversation, they "slapped five" and "the car pulled off." Defendant testified the police arrived about "15 seconds later," and they grabbed him, handcuffed him, and searched him.
On July 23, 2007, the court found that the police officers were credible witnesses, and that Officer Seidle was "extremely credible." The court's supplemental findings on July 31, 2007, included the following:
[T]he officers had a reasonable suspicion. They were assigned to the Quality of Life Unit. They're in a high crime area. I credit their testimony that from where they were in their car they could see the . . . red car suddenly pull over. The defendant walk[s] out of the background right toward the car. There's a quick exchange. He walks off quickly, the car pulls away quickly. That's textbook hand to hand drug transaction. Are there other explanations, sure. But it certainly was reasonable suspicion to follow-up on, which is what they did in this case.
[T]he defendant's actions as described in trying to get into the delivery car, the indication that the driver of the car didn't know him, the walking along the side of the building to stay out of view, the pulling away from the officers, the putting the hand in the wasteband, that raised it considerably beyond a reasonable suspicion.
The Terry stop at that point would have required the Terry frisk, the pat down, for the officers' safety. And since [defendant] apparently appeared to be going for a weapon . . . [handcuffing] him at that point is perfectly appropriate. . . .
And as I said, I credited the way Officer Seidle described . . . a Code Orange, hand on the gun ready to use it, because he was that concerned about the way the suspect was acting.
[A]ccording to Officer Seidle, he went on the outside down. He was careful to go in the buttock area because he has had cases with weapons in the buttock area. And he's indicated he once recovered a small pistol in the buttock area. And that is when he felt the hard object which then became disengaged and fell to the ground. That being the crack cocaine.
So, I find it was a valid Terry search confined to the outer clothing of the defendant. I've credited Officer Seidle's testimony.
The officers weren't expecting the crack cocaine necessarily, they were [conducting] a Terry search. When this fell out they saw it. So this was not preplanned. The pat down was appropriate. And because of his experience Officer Seidle performed not just a pat down, but a feeling of the groin and the buttock area and found that crack cocaine substance.
As the trial court correctly noted, the standard necessary to justify a Terry*fn1 stop is lower than the standard of probable cause necessary to justify an arrest. "The police may conduct a Terry stop if the specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. O'Neal, 190 N.J. 601, 612 (2007) (citation and internal quotation marks omitted). "To determine whether the State has shown a valid investigative detention requires a consideration of the totality of the circumstances." State v. Elders, 192 N.J. 224, 247 (2007). "An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." State v. Pineiro, 181 N.J. 13, 22 (2004). Nevertheless, to justify an investigatory stop, the officer must be able to articulate "a particularized and objective basis for suspecting the person stopped of criminal activity." Ibid. An appellate court "should give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Consequently, findings by a trial court should not be disturbed by a reviewing court unless they are clearly mistaken "and so plainly unwarranted that the interests of justice demand intervention and correction." Id. at 162. This is not such a case. "We review the record on a motion to suppress to determine whether the findings are supported by credible evidence and the legal conclusions are valid." State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). In the present matter, we are satisfied the trial court's findings of fact are supported by sufficient credible evidence in the record, and the court correctly applied well-settled legal principles. The order denying defendant's motion to suppress is therefore affirmed substantially for the reasons stated by Judge Uhrmacher in her oral decisions on July 23, 2007, and July 31, 2007.