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State v. Rosado


September 28, 2009


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-08-1385.

Per curiam.


Submitted September 14, 2009

Before Judges Baxter and Fall.

By leave granted, the State appeals from a March 6, 2009 order that granted defendant's motion to suppress the cocaine found on his person. The judge concluded that the police-citizen encounter at issue here was an investigatory stop, for which reasonable suspicion of criminal activity was required, and was not merely a field inquiry. The judge concluded that the uncorroborated anonymous tip upon which police relied did not satisfy the reasonable-suspicion standard, and he therefore granted defendant's motion to suppress. We conclude that the judge's findings of fact and credibility determinations are amply supported by the record, his legal conclusions are sound, and affirm.


At the suppression hearing, the State presented a detective employed by the Union City Police Department, who testified that he received an anonymous tip, relayed by a dispatcher, that a Hispanic male was "possibly engaged in the selling of narcotics" at the bar in question, located on New York Avenue in Union City. The anonymous tipster described the suspect's clothing as a dark sweatsuit with a red stripe, and reported that the male was accompanied by a tall, blonde, white female.

The detective testified that when he arrived at the bar, he waited for a uniformed officer to arrive as backup before entering, because he was dressed in plain clothes, although a police badge was visible around his neck. The two officers entered the small bar together, and, after the detective observed a man matching the tipster's description sitting next to a tall, blonde woman, he gestured with his hand for the man, later identified as defendant, to follow the officers outside. Defendant complied. The detective testified that if defendant had not walked out of the bar voluntarily, he would have "done nothing." Before directing defendant to exit the bar, neither the detective nor the uniformed officer conducted any surveillance or made any observations of defendant engaging in conduct that was suggestive of criminal activity.

According to the detective's testimony, he and the uniformed officer engaged in a five-minute conversation with defendant, while defendant stood ten feet away from them. When asked to describe the content of that five-minute conversation, the detective was unable to recall anything other than asking defendant his name and "how he was doing." He described the tone of that five-minute encounter as "conversational," explaining that the questions were neither "harassing" nor "overbearing." He denied ever accusing defendant of engaging in illegal behavior or restricting defendant's freedom of movement.

During the conversation, defendant "became very nervous, . . . intranquil, . . . moving from side to side[,] . . . putting his hands in his pocket and . . . he began perspiring." Defendant ignored the detective's command to remove his hands from his pockets. Believing that defendant had a weapon in his pocket, the detective began to approach defendant "to conduct a protective pat down over his clothing." As the detective approached, defendant stated, "listen, don't arrest me, I'll get rid of the stuff, just let me go." Concluding from defendant's statements that defendant had "something illegal in his clothing," the detective handcuffed defendant and arrested him. The ensuing search of defendant's person yielded a large quantity of cocaine.

In a detailed oral opinion, Judge Kracov concluded that the officer's testimony was not credible. The judge explained:

The [c]court cannot credit the officer's statement that the defendant exited the bar voluntarily and that the officer would have done nothing if the defendant had not left the bar. I found in assessing the officer's credibility that he appeared to be an aggressive person who was there to find a drug dealer. His demeanor and manner of testifying and the inconsistencies in his testimony led me to conclude that he testified to try to justify his actions and that he had an interest in the outcome and would say what was necessary to sustain the stop and arrest.

The judge supported his findings concerning the detective's lack of credibility with the observation that he could not believe, and found incredible, the detective's testimony that he could not remember anything of the five-minute conversation other than asking defendant his name and "how he was doing." The judge found that the officer "conveniently forgot" what he said to defendant after he ordered him out of the bar "because his words were accusatory and authoritative." Consequently, the judge rejected the officer's claim that the tone of the interaction was "conversational," and concluded that the officer's denial of a "harassing" or "overbearing" posture was "lacking in credibility."

The judge also pointed to the detective's changing descriptions of what happened when he approached defendant. The judge observed that the detective first testified that he never touched defendant before defendant pled with him to "just let [him] go," but then contradicted himself and testified that when he approached defendant, he grabbed defendant's hand and it was only then that defendant said "don't arrest me." Finally, the judge rejected the detective's testimony that he stayed ten feet away from defendant for safety reasons, observing that "it would have been more logical and safer to be closer to the person you are having a supposed non-confrontational conversation with so that you could stop that person from placing his hand in his pocket if you were concerned for your safety[.]" Consequently, the judge found that the detective "chose to testify" he was ten feet away "to somehow convince the [c]court that he was not being coercive." According to the judge, "[t]his officer knew the right things to say to try to sustain the search. However, I don't have to believe self-serving statements that are not credible."

The judge concluded that the detective's encounter with defendant was not "a mere field inquiry" because "even if the initial demand to [step] outside [the bar] could be characterized as part of a proper field inquiry, the testimony and reasonable inferences therefrom indicate[] that the five-minute encounter outside was not the benign conversation allowed in a field inquiry." The judge also concluded that because no reasonable person in defendant's situation would have believed he could ignore the officer's hand command to exit the bar, the encounter was an investigative stop, which requires, at its outset, reasonable suspicion of criminal activity.

The judge determined that the detective and the uniformed officer did not possess such reasonable suspicion. In particular, Judge Kracov observed that the officers had made no observations of criminal activity, nor had they conducted any investigation to corroborate the anonymous tip before they directed defendant to exit the bar. The judge also concluded that the State could take no refuge in the anonymous tip because the tip: contained no predictive behavior which was corroborated. It had no indicia of reliability or basis for the tipster's knowledge. It said the defendant was probably selling or possibly selling drugs. It mentioned no weapon. The tip, therefore, was not enough for a valid [investigatory] stop or a protective search.

Finally, the judge reasoned that defendant's alleged nervousness was not sufficient to convert a field inquiry into an investigatory stop in the absence of some other evidence creating objectively reasonable suspicion. Thus, having concluded that defendant was subjected to an improper investigatory stop because the drugs were seized without reasonable suspicion, the judge granted defendant's motion to suppress the evidence.


On appeal, the State maintains that the order in question should be reversed because: 1) the judge's factual findings are not supported by credible evidence in the record; 2) the stop of defendant was a proper field inquiry; 3) the detective had reasonable suspicion to make an "investigatory detention"; 4) the arrest of defendant was lawful; and 5) the drugs were properly recovered during a search incident to a lawful arrest.

We turn first to the State's contention that we should reject Judge Kracov's findings of fact. Ordinarily, a reviewing court should defer to a trial judge's credibility findings because they are "substantially influenced by his opportunity to hear and see the witness[] and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We will disturb a trial judge's findings of fact only where such findings are clearly mistaken or "so plainly unwarranted that the interests of justice demand intervention . . . ." Ibid. However, a trial judge's findings of fact are not entitled to any "special deference" where those findings "'rest[] upon a determination as to worth, plausibility, consistency, or other tangible considerations apparent from the face of the record with respect to which [s]he is no more peculiarly situated to decide than the appellate court.'" State v. Brown, 118 N.J. 595, 604 (1990) (quoting Dolson v. Anastasia, 55 N.J. 2, 7 (1969)).

The State argues that the judge's factual findings are "so wide of[] the mark" that we should reject them, adding that the judge's "bias[]" against the detective prevented the judge from affording him "the benefit of the doubt in making errors, or in judging his demeanor." The record does not support the State's claim.

Rather, Judge Kracov observed the manner in which the detective testified, identified inconsistencies in that testimony, and assessed whether the testimony was reasonable and "comports with common sense and reasonable life experiences."

Only after doing so did he reject the detective's testimony as lacking credibility. Under those circumstances, we defer to his findings. Locurto, supra, 157 N.J. at 470-71.

The judge's conclusions of law are equally unassailable. Unquestionably, warrantless searches and seizures are presumptively invalid, and the State has the burden of demonstrating that the search falls within one of the recognized exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13, 19 (2004). A field inquiry, which is "the least intrusive" constitutionally permissible encounter between police and citizens, id. at 20, "'is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted without grounds for suspicion.'" State v. Nishina, 175 N.J. 502, 510 (2003) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)).

Such an encounter, however, forfeits its status as a field inquiry whenever the questions are "'harassing, overbearing, or accusatory in nature.'" Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 510)). Moreover, if the individual's "movement or ability to leave" is restricted in any way, the encounter will be deemed an investigatory stop, not a field inquiry. State v. Williams, 381 N.J. Super. 572, 582 (App. Div. 2005), reversed on other grounds, 192 N.J. 1 (2007).

The record amply supports Judge Kracov's conclusion that defendant was not free to leave and that the questioning was "overbearing or accusatory in nature." Pineiro, supra, 181 N.J. at 20. That being so, Judge Kracov correctly treated the encounter as an investigatory stop.

We likewise conclude that because the encounter was an investigatory stop, a reasonable suspicion of criminal activity was required. Nishina, supra, 175 N.J. at 510-11. Here, because police conducted no investigation and made no observations of any conduct even remotely suggestive of criminal activity before directing defendant to exit the bar, the only possible basis for a finding of the "reasonable suspicion" Nishina requires lies in the anonymous tip.

As Judge Kracov correctly held, an anonymous call "may provide the factual predicate to justify an investigatory stop [only] when there is corroboration of the information furnished." State v. Zapata, 297 N.J. Super. 160, 173 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998). An anonymous tipster's accurate description of a subject's obviously observable location and appearance is not sufficient. State v. Rodriguez, 172 N.J. 117, 127 (2002). "To justify action based on an anonymous tip, the police . . . must verify that the tip is reliable by some independent corroborative effort." Ibid.

Here, the record supports Judge Kracov's finding that no such independent investigation or corroborative effort was undertaken, and therefore the investigatory stop at issue here was based upon nothing other than the uncorroborated anonymous tip. That being so, the stop and ensuing search was unreasonable and the granting of defendant's motion to suppress was correct. Ibid.



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