February 22, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DIRON WRIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Fisher and Espinosa.
Defendant Diron Wright pled guilty to possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2), a second degree offense, pursuant to a plea agreement. He appeals from the denial of his suppression motion and his sentence. We affirm.
At the motion hearing, Detective Thomas Nuccio testified that he became employed by the Monmouth County Prosecutor's Office in September 2004. Prior to that, he was employed by the Red Bank Police Department for over eighteen years. During his employment in Red Bank, he was involved in several criminal investigations that entailed contact with defendant. On one occasion, he executed a search warrant at defendant's home that resulted in the recovery of narcotics.
After joining the Monmouth County Prosecutor's Office, Detective Nuccio was assigned to the major crimes unit and dispatched to the tactical narcotics team (TNT Unit) working in Asbury Park. A few weeks before February 17, 2006, he received information that defendant was involved in the sale and distribution of cocaine. The source of this information was an informant who had provided reliable information in the past. Detective Nuccio testified that he had worked with this informant in another investigation "where his information [had] been right on point and everything was on the up-and-up." In addition, he knew of two other detectives in his office who had obtained arrests resulting in narcotics convictions after using information provided by this informant.
The informant told Detective Nuccio that defendant was involved in the distribution of powder cocaine from an unidentified location in the area of Bergh Street in Asbury Park. The informant advised that defendant was working for Contemporary Motor Cars in Little Silver; that he drove a burgundy color sport utility vehicle (SUV); and that he resided at a specific street address ("the residence") with his fiancee and children. Detective Nuccio was able to corroborate defendant's employment as well as the description of the car driven by defendant. Surveillance conducted at the residence resulted in observations of the SUV at that address and of defendant coming in and out of the residence on several occasions. Further investigation disclosed that the SUV was registered to defendant's girlfriend.
On February 17, 2006, the informant provided specific information about defendant's activities for the day. According to the informant, defendant would go to his residence after work and take his son to get a haircut. Afterward, defendant would go to a location on Bergh Street with a quantity of cocaine to "set up shop" and sell the cocaine.
Detective Nuccio set up surveillance at defendant's residence. Detective Nuccio followed defendant and his son to the barber shop and maintained surveillance while they got haircuts. He contacted other law enforcement officers to assist him. A black female left the residence, drove the burgundy SUV to the barbershop, picked up defendant and his son, and the three returned to the residence. Within fifteen minutes, defendant left the residence and was picked up by a cab.
Detective Nuccio maintained surveillance of the cab and, as it turned onto Bergh Street, he instructed two members of the surveillance team to stop the cab. The overhead lights of a police vehicle were activated. Before the cab stopped, defendant jumped out of the rear passenger door and ran. Detective Nuccio observed defendant tossing items with both hands as he ran. While other officers pursued defendant on foot, Detective Nuccio retrieved the items discarded by defendant. He recovered a digital scale that had a "white powdery residue all over the top of it," and shouted to the other officers what he had picked up. In addition, he recovered a cell phone and keys. Detective Nuccio was able to see other officers tackle defendant, who flailed about on the ground before he was secured and handcuffed.
Detective Nuccio confronted defendant and advised him of the investigation he had been conducting for the last few weeks. He conducted a search of defendant at the scene and found eleven plastic baggies in one pocket, a cell phone in another pocket and a bag of approximately thirty grams of cocaine inside defendant's jacket pocket.
Detective Nuccio read Miranda*fn1 warnings to defendant, who agreed to waive his rights and answer questions. Detective Nuccio told defendant that, based upon information he had received, he believed that defendant had additional drugs at his house and asked if he would consent to a search of the residence. Defendant stated that he did have drugs at his home and was willing to cooperate and turn the drugs over to the police. Detective Nuccio also reviewed a consent to search form with defendant. Defendant indicated that he understood and initialed the form to reflect his waiver of various rights but declined to waive his right to be present while the search was conducted. Defendant signed the consent to search form. Defendant was transported to his residence, where he surrendered two additional packages of cocaine.
An indictment was returned against defendant, charging him with possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); and resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count five).
Pursuant to a plea agreement, defendant pled guilty to count two, a second degree offense. At the time of plea, defendant admitted that he had the intent to distribute the cocaine he possessed. The plea form explicitly noted that defendant was pleading as an extended term offender and that the plea was pursuant to Brimage*fn2 guidelines. In exchange, the State agreed to recommend an extended term of fourteen years with sixty-nine months of parole ineligibility and to dismiss the remaining counts of the indictment. It was also agreed that defendant would remain free on bail until sentencing. Consistent with this agreement, defendant was sentenced to a custodial term of fourteen years with a minimum period of parole ineligibility of sixty-nine months along with appropriate fees, fines and penalties.
In this appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FOURTEEN-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
Defendant argues that the evidence here should have been suppressed as the fruit of an unlawful stop and seizure. Defendant agrees that the applicable question is whether the facts and rational inferences known to the police officers rose to the level of a reasonable, objective and particularized suspicion necessary to justify an investigative stop. See State v. Nishina, 175 N.J. 502, 511 (2003). "An officer does not need a warrant to make [an investigatory] stop if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). "[Reasonable suspicion requires] some minimal level of objective justification for making the stop." Nishina, supra, 175 N.J. at 511. An "inchoate and unparticularized suspicion or hunch" is insufficient. State v. Stovall, 170 N.J. 346, 357 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed. 2d 1, 10 (1989)).
The 'articulable reasons' or 'particularized suspicion' of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom. [State v. Davis, 104 N.J. 490, 504 (1986)].
In assessing the weight of the information known to the police, the first factor to be considered is its source. A tip from an anonymous source, standing alone, "seldom demonstrates the informant's basis of knowledge or veracity[.]" Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed. 2d 254, 260 (2000) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110, L.Ed. 2d 301, 308 (1990)). In contrast, a known informant's "reputation can be assessed and [he/she] can be held responsible if [his/her] allegations turn out to be fabricated." Ibid.; see Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 1923-24, 32 L.Ed. 2d 612, 617 (1972). It is significant that the source here was an informant who was known personally to Detective Nuccio and who had provided information that led to convictions in the past.
The level of detail in the information provided is also a significant factor as the details afford police the ability to evaluate the information through independent corroboration. As the analysis turns on the totality of the circumstances, more information will generally be required to establish reasonable suspicion where the source has a "relatively low degree of reliability," such as an anonymous tip, than is required if the source is more reliable. See Rodriguez, supra, 172 N.J. at 127.
The level of tested reliability and detailed information in this case is strikingly similar to that in State v. Birkenmeier, 185 N.J. 552 (2006), where a reliable informant provided a defendant's name, the make, model and license of his car, a description of a bag containing drugs and the time defendant would be leaving his home. The Supreme Court found that these facts, corroborated by police observation, constituted reasonable suspicion that justified an investigative stop of defendant. Id. at 562.
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.
[Ibid. (quoting Nishina, supra, 175 N.J. at 511).]
See also State in Interest of A.R., 216 N.J. Super. 280 (App. Div. 1987) (tip from reliable informant of imminent criminal activity coupled with suspects' presence in high-narcotic-activity area justified stop of suspects).
In contrast, the vagueness of the informant's tip in State v. Caldwell, 158 N.J. 452 (1999) was evident. The informant advised police that a black male standing in front of a multi-unit apartment building was wanted on an outstanding warrant. The apartment building was located in a predominantly African-American community. No distinguishing characteristics such as height, weight or clothing were provided. Because this information could "theoretically [be used to] conduct wide-ranging seizures on the basis of vague general descriptions," id. at 460, the tip was too vague to justify an investigative stop. Under these circumstances, the inability to independently evaluate the informant's knowledge and veracity rendered the source of the information no more reliable than an anonymous tip. See, e.g., J.L., supra, 529 U.S. at 271-72, 120 S.Ct. at 1379, 146 L.Ed. 2d at 261 (finding no reasonable suspicion to justify investigatory stop based on uncorroborated tip from anonymous caller that young black male standing at bus stop and wearing plaid shirt was carrying gun); Rodriguez, supra, 172 N.J. at 121-25, 131 (finding that police did not have reasonable suspicion to conduct investigatory stop based on anonymous phone tip describing drug couriers expected to arrive at bus terminal because tip was solely corroborated by "innocent details of defendant's appearance" at terminal).
The facts provided by the informant here did not suffer from such vagueness. The informant identified defendant by name, place of employment, residence, and the type and color of vehicle that he drove. That the informant had access to details personal to defendant was evident from his knowledge that defendant's plans for the evening included the innocent and mundane chore of taking his son for a haircut. The informant also advised that defendant would travel to Bergh Street to "set up shop" to sell drugs. Moreover, as in Birkenmeier, the police were able to corroborate all of these facts. It was as defendant arrived at Bergh Street that they initiated the investigative stop. At that point, the police had corroborated every detail of the information short of an actual drug sale.
In sum, the totality of the circumstances facing the police officers here included the knowledge that a search warrant at defendant's residence had resulted in the recovery of drugs in the past; facts provided by the informant regarding defendant's ongoing drug activity as well as the location of such activity and defendant's plan to sell drugs that evening; and the officers' corroboration of defendant's anticipated movements prior to defendant's arrival on Bergh Street. These facts and the rational inferences to be drawn from them constituted articulable reasons to support objective justification for making the stop. See Nishina, supra, 175 N.J. at 511; Davis, supra, 104 N.J. at 504; Rodriguez, supra, 172 N.J. at 127-28 ("[C]courts have found no constitutional violation when there has been independent corroboration by the police of significant aspects of the informer's predictions[.]").
We need not address whether the information could have justified any further investigative conduct in light of defendant's conduct when the police effected a stop of the cab.*fn3
Defendant's flight added weight to the already existing, reasonable articulable suspicion. See State v. Pineiro, 181 N.J. 13, 26 (2004); State v. Citarella, 154 N.J. 272, 281 (1998). Additional police action was warranted based upon his flight and conduct in discarding items, including a scale with a white powdery residue, as he fled from the police presence. Defendant's attempt to disassociate himself from the scale upon the arrival of the police supports a rational inference that the scale, a device commonly used in weighing drugs for distribution, was not possessed for any innocent reason. These facts provided compelling corroboration for the informant's statement that defendant was en route to a residence on Bergh Street with a quantity of cocaine to "set up shop" and sell the cocaine. The totality of the circumstances, including the details provided by the informant, the corroboration provided through surveillance and investigation and defendant's conduct at the scene constituted probable cause to arrest defendant. Therefore, the motion to suppress was properly denied.
Defendant was sentenced pursuant to the terms of his plea agreement. He acknowledges that he was eligible for sentencing to an extended term for his second drug offense, N.J.S.A. 2C:43-6(f), and that the trial court was required to impose a period of parole ineligibility, the length of which was governed by Brimage guidelines. Nonetheless, he argues that the trial court abused its discretion in failing to sentence him to a term of imprisonment lower than the fourteen years recommended in the plea agreement. We are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).