March 25, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RALPH JAMES, SHELTON JAMES AND GREGORY O'NEAL, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-1412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Carchman and Lihotz.
By leave of court, the State appeals from an interlocutory order of the Law Division granting defendants Shelton James, Ralph James and Gregory O'Neal's motion to suppress evidence seized from a vehicle driven by O'Neal as a result of an allegedly unlawful search. The evidence supported an indictment against defendants charging them with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and possession of heroin with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. We reverse.
These are the facts adduced at the motion to suppress. On January 2, 2008, New Jersey State Trooper Paul Kochis interviewed a confidential informant (CI), who, in the Trooper's presence, allegedly contacted an individual identified as "Rock" and set up the purchase of two bricks of heroin.*fn1 The transaction was scheduled for a location on Schley Street in Newark, and Kochis, together with three other officers, proceeded to the location where they observed the CI's vehicle parked in front of 290 Schley Street. The officers parked their vehicle approximately three or four car-lengths away.
Five to ten minutes later, at approximately 1:30 p.m., a black Buick pulled up and parked behind the CI's vehicle in front of 290 Schley Street. O'Neal was driving while Ralph James and Shelton James were passengers. Kochis testified that he was in an elevated SUV-type vehicle, used binoculars to enhance his vision and had an unobstructed view of both the CI's car and the black Buick.
Kochis saw the defendant O'Neal reach into the ceiling upholstery of his car and pull out two packages that appeared to the trooper to be glassine envelopes of heroin packaged as bricks. O'Neal then looked in the direction of the police surveillance vehicle and appeared "startled, just surprised." O'Neal immediately drove away.
Without losing sight of O'Neal's car, the officers followed O'Neal through several streets in Newark until they stopped his car in a parking lot at a McDonald's restaurant located at the intersection of Route 22 and Long Avenue in Hillside. Kochis waited for O'Neal's car to clear the heavily congested residential area around Schley Street before activating his car's lights and sirens. All three followed the officers' orders to exit the car and then were placed in handcuffs.
Kochis looked into the car and saw some suspected heroin on the front passenger side floor. Kochis then entered the car and seized what turned out to be 49 decks of heroin. He then reached into the ceiling upholstery of the car and seized another four bricks of heroin.
Prior to this investigation, Kochis had arrested the CI for drug offenses and registered the CI with the New Jersey State Police. Before this incident, Kochis used the CI several times with the information leading to arrests.*fn2 Kochis testified that the CI provided information with the understanding that he would receive leniency on his pending criminal matter.
In her opinion suppressing the evidence, the judge found Kochis to be credible but concluded that there was no probable cause to search and detain defendants. She determined that there were no facts that the CI was credible or reliable and stated that "[t]he tip itself does not provide any intimate details of the criminal operation that would be hard to know." She also noted the absence of details as to Rock and the storage facility in the car as well as the fact that Kochis did not hear the CI's conversation with Rock. As the judge said:
The trooper did not overhear anything that Rock allegedly said when dialed by the confidential informant. The confidential informant did not give.... them Rock's cell phone numbers so that they could conduct any further investigation to corroborate the tip.
How did the troopers know who the confidential informant called? How do they know that he did not dial information or dial for a weather forecast? Based on the testimony the answer is they could not know and did not know.
Trooper Kochis didn't testify to any fact that would indicate the informant's base of knowledge of the criminal event. For example, the informant did not indicate that he or she had seen Rock selling nor was he asked or did he or she volunteer that he or she had previously purchased heroin from Rock.
[F]actual information that was related to Trooper Kochis by the confidential informant does not confirm any personal knowledge of the criminal or the criminal enterprise. Therefore, in the instant case in a totality of the circumstances analysis without any showing of the informant having personal knowledge of intimate details of the criminal operation [and] without any factual basis for the court to conclude that [the] informant is credible and reliable, this court finds there was no probable cause based on the informant's tip that would support the seizure of the defendants and the subsequent search of the automobile....
The judge further found that there were no exigent circumstances warranting the police entry into the vehicle to seize the heroin absent a search warrant.
On appeal, the State argues:
THE TRIAL COURT UNJUSTIFIABLY REQUIRED THE STATE TO MEET AN ONEROUS BURDEN OF PROOF BY REQUIRING A RELIABLE TIP FROM A CONFIDENTIAL INFORMANT TO SHOW "INTIMATE DETAILS OF THE CRIMINAL OPERATION." PROBABLE CAUSE EXISTED WHEN THE INFORMANT'S TIP WAS CORROBORATED BY THE TROOPER'S OBSERVATION OF ONE DEFENDANT RETRIEVE HEROIN FROM A SECRET AREA IN THE CAR IN THE PRESENCE OF THE TWO OTHER DEFENDANTS AND A DEFENSE WITNESS PLACING THE DEFENDANTS IN THE AREA AT THE TIME OF THE SALE.
THE SEARCH OF THE DEFENDANTS' CAR FELL WITHIN THE PLAIN VIEW AND AUTOMOBILE EXCEPTIONS TO THE WARRANT REQUIREMENT. THE HEROIN WAS IN PLAIN VIEW ON THE CAR'S FLOOR AND IN THE CAR'S STASH AREA. EXIGENT CIRCUMSTANCES WERE PRESENT BECAUSE IT WAS NOT FEASIBLE TO GUARD THE CAR, STOPPED IN A PARKING LOT OF A FAST FOOD RESTAURANT WITH A STEADY STREAM OF CUSTOMERS, WHILE OFFICERS TRIED TO SECURE A SEARCH WARRANT.
A. The police saw the drugs in the defendants' car while lawfully in the area from where they made their observations.
B. Exigent circumstances existed because anyone could have gained access to the car stopped in the parking lot of a fast-food restaurant with a steady stream of customers.
Our standard of review of search and seizure appeals is simply stated.
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.... [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction. [State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).]
We will intervene, however, where the legal conclusions based on those factual findings are in error. State v. Elders, 192 N.J. 224, 252 (2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1991)).
The focal point of the motion judge's decision was that the CI, whose information prompted the investigation and ultimately the search, was not established to be a reliable basis so as to establish probable cause.
Although we later consider whether consideration of the CI's reliability should have prompted suppression of the search, we briefly address the relevant factors for determining reliability. The reliability of a CI must be considered by indicia of his veracity and his basis of knowledge. State v. Keyes, 184 N.J. 541, 555-56 (2005). Veracity and basis of information are two factors in determining the totality of the circumstance. State v Zutic, 155 N.J. 103, 110-11 (1998). In determining veracity, a court must consider past reliability, while basis of knowledge may be premised on the level of detail and information provided by the CI. Keyes, supra, 184 N.J. at 555-56.
Here the CI's veracity was established by Kochis' confirmation that the CI's past information had resulted in three or four arrests. While Kochis later contradicted that information by indicating that he did not know of any arrests, that fact does not end the inquiry. In terms of the CI's basis of knowledge, the CI indicated that he had purchased from Rock in the past, and on this occasion, he was able to establish both the time and place of Rock's arrival as well as the presence of heroin in the vehicle.
Our difficulty with the judge's analysis is her over-reliance and concern on the bona fides of the CI. The flaw in the reasoning is that the CI's tip and information did not create the probable cause; simply stated, it brought the officers to the scene. The judge found the officers to be credible, and while the CI's reliability based on past information may not have been established, his reliability and veracity as to the present information was confirmed by the events that transpired at the scene. The CI provided the previews of what ultimately became the main event. What the officers observed on a legitimate stakeout, prompted by the CI's information or at best, a tip, established at least reasonable suspicion if not probable cause to proceed further in the investigation ultimately leading to the arrest of defendants.
Kochis went to Schley Street with information of a pending sale of heroin to the CI. Shortly after arriving, Kochis saw a Buick pull up behind the informant's car and then saw O'Neal reach into a storage area cut from the Buick's roof upholstery and take out bound, glassine envelopes, commonly used to package heroin. He observed what he believed to be the elements a drug transaction. Later, after stopping the car and detaining the occupants, Kochis saw glassine envelopes lying on the floor of the car. The trooper made a "practical, common-sense decision... given all the circumstances [that] there is a fair probability that contraband or evidence" of a drug crime would be found in the car and that the defendants committed the crime. State v. Johnson, 171 N.J. 192, 214 (2002).
The trial judge overlooked Kochis's observation of the packaged heroin that O'Neal took from the roof upholstery of the car while Shelton and Ralph James were present. Although she mentioned Kochis's observations in her summary of the testimony, she failed to include any analysis of those observations in her findings of fact. Kochis never contradicted himself when testifying about what he saw, and Officer Spivey's testimony corroborated Kochis's testimony as to the time of day and length of time that defendants were on Schley Street.
Applying a totality of the circumstances analysis, Kochis' direct observations, combined with the information provided by the CI, support a finding of, at a minimum, reasonable suspicion to stop the vehicle and ultimately, probable cause to arrest defendants and search the vehicle. Courts must look at the totality of the circumstances when determining whether probable cause exists in a warrantless search and seizure case. State v. O'Neal, 190 N.J. 601, 612 (2007). An informant whose inherent reliability has not been shown can nevertheless be relied upon where the veracity of the informant's information is bolstered by the totality of the circumstances, which include the observations of the police during an investigation. State v. Zapata, 297 N.J. Super. 160, 172 (App. Div. 1997) (citing State v. Probasco, 220 N.J. Super. 355, 358 (App. Div. 1987), certif. denied, 117 N.J. 72 (1989)), certif. denied, 156 N.J. 405 (1998). Kochis' observations of the defendants' conduct on Schley Street, including the presence of a stash area in the car, corroborated the informant's information about a pending drug sale.
As defendants concede, the trial judge, in her decision, makes little mention of the events that transpired when Kochis observed O'Neal reach up in the vehicle and extract what appeared to be contraband. While they suggest that such findings were implicit, we disagree. We find nothing in the judge's findings relevant to a precipitating basis for the officers following the vehicle and ultimately stopping it in the parking lot of a fast-food restaurant.
This case is similar to State v. Birkenmeier, 185 N.J. 552, 555-56 (2006), where police's observations corroborated the confidential informant's information that the defendant, at a specified time, would make a delivery of drugs that would be carried in a laundry bag using a particular make and model of car. The police then pulled over the defendant's car, saw a bag on the passenger seat and smelled marijuana emanating from the car. Id. at 556-57. The Court held that the police's observations corroborating the tip and the smell of marijuana gave to a reasonable suspicion to stop and ultimately, probable cause to arrest the defendant and search the car. Id. at 561-63.
In State v. Williams, 364 N.J. Super. 23, 37 (App. Div. 2003), there was less evidence corroborating a confidential informant's tip than in this case, and we held that the evidence generated a reasonable ground of suspicion justifying an investigatory stop of the defendant. In Williams, an informant arranged a drug buy with a man named Andre. An officer accompanied the informant to the train station where she used a public telephone to call Andre, "confirmed that she was known to him and placed an order for delivery to the train station by him of two twenty-dollar 'pieces.'" Id. at 28. The officer overheard this conversation.
Within fifteen minutes, a green Mazda arrived at the train station and parked. The informant identified the passenger of the car as Andre. No other information, such as a description of Andre, his clothes, his mode of transportation or the presence of companions, corroborated the identification. Ibid. The defendant exited the car, walked and looked around, but did not engage in any suspicious activity before re-entering the car. As the driver sought to drive off, the police boxed the car with their own vehicles and then detained the defendant Williams and the driver. The driver consented to the search of the car, where the police recovered two foil packets of cocaine. The police arrested both men. Id. at 28-29.
We held that the informant's on-scene identification of the defendant, along with the fact that the officer overheard the informant's conversation with the defendant proposing a drug transaction, sufficiently met the reasonableness standard required for an investigatory stop. We reached the conclusion even though the informant was seeking favorable treatment on a drug matter of her own. Id. at 37.
As in Williams, because Kochis overheard the conversation setting up the drug sale, "the imminence of criminal conduct was not substantially in question." Ibid. Additionally, like the informant in Williams, the CI's veracity in this case was increased because he expected leniency regarding his pending charges. It is "inconceivable" that the CI would have "consciously misidentified" the defendant, when the informant knew that Kochis would not assist him with his pending charge if he lied. We recognize that both Birkenmeier and Williams are reasonable suspicion cases, yet here, Kochis' observations of what appeared to be part of a drug transaction, provided stronger indicia of criminal activity.
Following the apprehension of the vehicle in the restaurant parking lot, the officers observed what appeared to be heroin on the front passenger's seat and observed 49 bags of heroin on the floor of the vehicle. They then arrested defendants, entered the vehicle and conducted a search, discovering another four bricks of heroin. The judge concluded that a search warrant was necessary, focusing on the lack of exigent circumstances.
The New Jersey Supreme Court has made it clear that under Article I, para. 7 of the State Constitution, a separate finding of exigent circumstances is required in addition to the existence of probable cause for the lawful search of an automobile. State v. Pena-Flores, 198 N.J. 6 (2009); State v. Cooke, 163 N.J. 657, 670-71 (2000).
The court reaffirmed the automobile exception to the warrant requirement, including the requirement that the State prove exigent circumstances to justify a warrantless search pursuant to that exception. In Pena-Flores, supra, the Court held:
[I]n accordance with "our unwavering precedent," the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle. [198 N.J. at 28 (citations omitted).]
Whether or not exigency exists to justify a warrantless search is determined on a case-by-case basis in light of "the totality of circumstances," but the critical issues for consideration remain "officer safety and the preservation of evidence." Id. at 28-29. Explaining further, the Court detailed a non-exclusive set of circumstances for consideration in determining exigency, including: for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk. As we have previously noted, "[f]or purposes of a warrantless search, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain any form of warrant." [Id. at 29-30 (citations omitted).]
While the trial judge found no exigency, we disagree. There were three defendants (and four officers in one vehicle) present at the scene in a McDonald's Restaurant parking lot during lunch hour at 1:30 in the afternoon. The restaurant is located on Route 22, a heavily trafficked thoroughfare, and the circumstances of the stop, location and persons in the area are fraught with dangers, both known and unknown. The stop resulted from a chase, albeit not at high speeds but through an urban area, after police observed defendants in the initial stages of participate in a drug transaction. We have little doubt that the totality of these circumstances create an exigency envisioned by the Court in Pena-Flores. The circumstances here were too dynamic to conclude otherwise. We are satisfied that the warrantless search of the vehicle was proper.
We conclude that the trial judge erred in granting the motion to suppress.