April 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
MAURICE LOATMAN, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-03-0233.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 13, 2010
Before Judges Lihotz and Ashrafi.
By our leave, the State appeals from an order of the Law Division dated September 21, 2009, suppressing all evidence seized from defendant Maurice Loatman's car. The State seeks to present the evidence in defendant's prosecution for possession of cocaine and heroin with intent to distribute. Although the evidence was discovered pursuant to a search warrant, the Law Division concluded that the police violated defendant's Fourth Amendment rights because they detained him and his car without sufficient reasonable articulable suspicion before they obtained a warrant. We disagree with that conclusion and reverse.
On a suppression motion, we defer to the findings of fact and credibility determinations of the trial court. State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)); State v. Locurto, 157 N.J. 463, 474 (1999); State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S.Ct. 1929, 16 L.Ed. 2d 1022 (1966); State v. Johnson, 42 N.J. 146, 161 (1964). However, we need not defer to the trial court's legal conclusions reached from the established facts, see State v. Loyal, 164 N.J. 418, 452 (2000), in particular, "[i]f the trial court acts under a misconception of the applicable law[.]" State v. Brown, 118 N.J. 595, 604 (1990). The trial court's understanding and application of the law is subject to plenary review on appeal. See State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
In this case, there is no dispute about the relevant facts, but the Law Division erred in its application of the law. It failed to apply the holding of State v. Birkenmeier, 185 N.J. 552 (2006), and other cases addressing what constitutes sufficient reasonable suspicion to stop and detain a motor vehicle for purposes of investigating a crime.
On January 8, 2009, at about 4:30 p.m., Detective Cruz of the Vineland Police Department received a call from a reliable confidential informant whom the Vineland Police had frequently used during the prior two years, including for a wiretap investigation that resulted in multiple arrests and charges. Altogether, the informant had provided reliable information leading to about twenty arrests and had made controlled buys of illegal drugs on about ten to fifteen occasions. The informant did not have a criminal record.
The informant told Detective Cruz that he had just observed a drug transaction involving two cars in the area of Third and Chestnut. He described the seller of the drugs as a man known as "Snoop" wearing a red baseball cap and white shirt with red sleeves. He described Snoop's car as a white Infinity G-35 and said that the Infinity headed east on Chestnut Avenue after the drug transaction. The informant said that Snoop was usually in possession of a handgun and dealt in large quantities of heroin. Before the call from the informant, the Vineland Police had no information about a man named Snoop selling drugs.
Detective Cruz and other detectives immediately pursued the informant's tip. A few minutes after the call, Detective Cruz spotted a white Infinity G-35 stopped at a traffic light on Chestnut Avenue. The clothing of the driver matched the description the informant had given. The Infinity pulled into and parked in a gas station. When backup detectives arrived, Detective Cruz and another police car pulled into the gas station and blocked the Infinity so that it could not be moved.
Defendant Loatman was the only occupant of the car. An officer ordered him out, and he complied. The police frisked him, finding no weapon on his person. When asked for motor vehicle credentials, defendant could not produce a driver's license but directed Detective Cruz to other identification in the center console of the car. Defendant denied being known as Snoop, but several people walking to the mini-mart at the gas station greeted him by that name.
At defendant's suggestion, the police searched his person more completely for evidence and found none. When the police asked for consent to search the car, defendant refused.*fn1 Within about thirty minutes, a police officer arrived with a drug-sniffing dog. The dog was walked around the Infinity and reacted positively, indicating the presence of illegal drugs in the trunk. The police seized the car and held it overnight at their headquarters. They released defendant.
Early the next morning, the police obtained a search warrant for the car. In the trunk, they found crack cocaine and heroin, drug paraphernalia including a scale and baggies, cash, and counterfeit money. No weapon was found anywhere in the car.
Defendant was indicted on charges of possession of cocaine and heroin and possession of the same with intent to distribute. He moved to suppress the evidence found in his car.
The Law Division judge accepted the veracity of the informant and his tip that he had witnessed a drug transaction. But the judge concluded that the police lacked reasonable suspicion to stop and detain defendant and his car because "the basis of knowledge that the defendant was, again at the time of the stop in possession of narcotics, is nowhere to be found in this tip or in the record or in the testimony today." The judge concluded that the tip only established that defendant had "completed a transaction," not that "he was still in possession of narcotics."
In suppressing the evidence, the judge erroneously applied the probable cause standard to determine the lawfulness of limited temporary detention of defendant for purposes of investigation. The amount of information the police need to detain a suspect and investigate the potential commission of an offense is less than that needed to make an arrest or to conduct a search.
The Fourth Amendment of the United States Constitution and article 1, paragraph 7 of the New Jersey Constitution protect the public against unreasonable search and seizure by governmental authorities. State v. Pena-Flores, 198 N.J. 6, 18 (2009). "Warrantless searches [or seizures] are presumptively unreasonable and thus are prohibited unless they fall within a recognized exception to the warrant requirement." Ibid. (citing State v. Wilson, 178 N.J. 7, 12 (2003)). The State has the burden of proving that a seizure without a warrant falls within a recognized exception. State v. Maryland, 167 N.J. 471, 489 (2001).
Among the exceptions to the warrant requirement is a temporary police detention for purposes of investigation, as recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968). The police may stop a motor vehicle and detain its occupants temporarily while they investigate a criminal or traffic offense. See, e.g., United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed. 2d 604, 610 (1985); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 673 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580, 45 L.Ed. 2d 607, 616-17 (1975); Locurto, supra, 157 N.J. at 470; State v. Dickey, 152 N.J. 468, 477 (1998). Our Supreme Court has stated that such investigatory detentions do not require a warrant because they are "minimally intrusive" restraints on the person's freedom. Dickey, supra, 152 N.J. at 478.
To subject a person to investigatory detention, the police must have reasonable and articulable suspicion of conduct that violates the law. Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906; Hensley, supra, 469 U.S. at 229, 105 S.Ct. at 680, 83 L.Ed. 2d at 612; Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 21-22 (2004); State v. Rodriguez, 172 N.J. 117, 126 (2002). Reasonable articulable suspicion requires less evidence than probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed. 2d 301, 309 (1990); Rodriguez, supra, 172 N.J. at 127; State v. Stovall, 170 N.J. 346, 356 (2002). Reasonable suspicion has been described as "a particularized and objective basis for suspecting the person stopped of criminal activity." Ibid. (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661, 134 L.Ed. 2d 911, 918 (1996)). On the other hand, a showing of probable cause requires "a 'well-grounded' suspicion that a crime has been or is being committed." State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). The trial court in this case sought evidence beyond that needed to prove reasonable articulable suspicion. Several Supreme Court precedents illustrate the level of proof required.
In Birkenmeier, supra, 185 N.J. at 555-56, an informant who had previously provided information leading to two seizures of marijuana told the police that the defendant was engaged in the sale of large amounts of marijuana and gave the defendant's name and physical description and a description of his car. Subsequently, the informant called the police and said the defendant would be leaving his house at a certain time with a laundry bag containing marijuana. The police set up surveillance and observed a man fitting the description provided leaving a residence with a laundry bag and driving in a car as described. The police stopped the vehicle, conducted a warrantless search, and found marijuana in the laundry bag.
In an unreported opinion, we concluded that the stop of the car violated the defendant's constitutional rights. See id. at 560. As the Law Division did in this case, we criticized the absence of evidence to establish the basis of the informant's knowledge that the defendant would be carrying marijuana at the time of the motor vehicle stop and detention. See ibid. Consequently, we found that the State had not demonstrated reasonable articulable suspicion to stop the defendant's car, and we suppressed the evidence. See ibid.
The Supreme Court disagreed with our reasoning and reversed. The Court said that reasonable suspicion is "some minimal level of objective justification for making the stop." Id. at 562 (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). In the circumstances presented, "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." Ibid.
Similarly in this case, the informant's tip corroborated by the Vineland police provided sufficient reasonable suspicion to detain defendant and his car and to conduct an investigation of his reported involvement in selling drugs.
The Law Division judge was concerned that the tip only established a past drug offense, not that defendant was still in possession of drugs after completing the transaction. But the police can detain and investigate both the seller and buyer after a completed drug transaction without direct evidence that the seller still has contraband in his possession. In State v. Arthur, 149 N.J. 1, 5 (1997), for example, the police personally observed what they believed to be a hand-to-hand drug transaction. After the transaction was completed, the two individuals went in different directions, and separate police officers stopped each one. The Court held that the police had reasonable suspicion to stop and question the two individuals, although the police observations did not establish probable cause to conduct a warrantless search. Id. at 15. Nothing in the record suggested the alleged seller's continuing possession of drugs, but nevertheless, the police had sufficient reasonable suspicion to stop his car and to detain and investigate him.
Id. at 12, 15.
Applying the holding and reasoning of Arthur in this case, the police did not need information, such as the informant's direct knowledge, that defendant continued to possess illegal drugs in order to have reasonable suspicion to detain him and his vehicle for further investigation. Although the informant's tip, together with the limited corroborating observations, did not rise to the level of probable cause to arrest defendant at the gas station and to search his car without a warrant, that information was enough to detain him and investigate. See Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed. 2d 612, 617-18 (1972) (informant's unverified tip not sufficient to constitute probable cause to arrest defendant or search his car but "carried enough indicia of reliability to justify" investigatory stop); State v. Zutic, 155 N.J. 103, 113 (1998) (informant's tip and police corroboration "generated... reasonable articulable suspicion to justify an investigative stop" although they did not establish probable cause to search defendant for contraband). The positive reaction of the drug sniffing dog subsequently provided the additional evidence needed for probable cause to obtain a search warrant for the car.
Defendant cites State v. Caldwell, 158 N.J. 452 (1999), as a decision supporting the Law Division's ruling. The holding of Caldwell, however, does not apply to this case because the facts there were quite different. In Caldwell, a reliable informant told the police that "Curtis Stuart, who was wanted on a warrant, was standing in front of a multi-unit dwelling." Id. at 454-55. The informant could not give a physical description and only knew that Stuart was a black male. Id. at 455. Three detectives went to the location. Standing alone in front of the address given was a black man who turned out to be defendant Eric Caldwell, not Curtis Stuart. Upon seeing the police, Caldwell ran into the building. The police pursued, ordering him to stop. Caldwell tossed an object aside, which the police recovered and determined contained cocaine. Id. at 455-56.
The Supreme Court held that the informant's tip was not sufficient to stop and detain Caldwell because the State could show no basis for the informant's knowledge about Curtis Stuart, which turned out to be erroneous, in particular, because the warrant for Curtis Stuart had been earlier discharged. Id. at 460-61. Here, the information given by the informant to the Vineland police was much more specific than the vague reference to a black male given in the Caldwell case. The informant had personally witnessed a drug transaction, indicating the basis of his knowledge that a crime had been committed. In addition, the police had a description of defendant's clothing and car. This case is controlled by the holdings of Birkenmeier, supra, 185 N.J. at 561; Zutic, supra, 155 N.J. at 113; and Arthur, supra, 149 N.J. at 15. The Law Division did not apply those holdings to the facts developed in the suppression hearing.
Reversed and remanded for trial.