January 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY MATTHEWS A/K/A STANLEY J. DESEIGNORN, A/K/A STANLEY J. DESEIGNORA, A/K/A STANLEY DESEIGNORE, A/K/A STAN DESIGNORA, A/K/A STAN MATTHEWS, A/K/A STANLEY J. DESIGNORA, A/K/A RIZ MATTHEWS,
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-07-0570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011 -
Before Judges A. A. Rodriguez and Fasciale.
After defendant's motion to suppress evidence that a bag of cocaine discovered by the police during an investigatory stop was denied, defendant pleaded guilty to third-degree possession of a controlled dangerous substance (CDS)(cocaine), N.J.S.A. 2C:35-10a(1). In exchange, the State agreed to recommend less than the maximum potential sentence and dismissal of all related charges. The judge imposed a four-year prison term. We affirm.
The following proofs were presented by the state at a hearing on the motion to suppress. At approximately 8:00 p.m. on July 2, 2009, while slowing his police vehicle to cross railroad tracks, Detective Ken Martin observed an individual standing on the tracks approximately 300 feet away. At the suppression hearing, Martin was the sole witness. He testified that after crossing the railroad tracks
I slowly started to go, and at that point [the individual] walked into . . . this path area and kind of just stood there and . . . I was basically at a crawl [a]nd he was just standing there. I could see him like looking out at me.
Detective Martin observed the individual "step back and away from [his] vantage . . . closer toward the wooded area."
The detective drove closer and recognized the individual as defendant, whom a reliable confidential informant had identified as distributing cocaine in the area. The detective then contacted nearby police officers for backup. At about the same time, three other police officers arrived at the scene.
Upon reaching defendant, the detective observed a second man, whom the detective recognized as a suspect in prior drug-related investigations. The detective told defendant that he believed defendant was making a drug transaction with the other man. Defendant did not respond. After one of the officers asked him if he would consent to being patted down, defendant immediately took several items from his pockets, including a cell phone. As he was setting the phone on the hood of the police car, he opened his hand slightly, dropped a clear plastic bag of cocaine on the ground, and attempted to hide it by stepping on it. Detective Martin retrieved the bag, and defendant stated that the cocaine was "for personal use," that "he put that on his blunt to smoke it," and that "he doesn't sell drugs."
The judge reviewed the testimony and found Martin credible. The judge denied the motion and stated his reasons on the record.
On appeal, defendant raises the following point:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S SUPPRESSION MOTION WHERE DEFENDANT'S ARREST WAS UNLAWFUL BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THEIR ACTIONS.
We begin by addressing defendant's contention that the "stop and detention were illegal, making the subsequent arrest, search and seizure illegal." He argues that he "was surrounded by four police officers and was not free to leave"; that the informant's statement was too old (one and a half years) to sustain a suspicion of CDS distribution; and that there were "a million legitimate reasons for anyone to be at that place on a summer evening." He contends that "[t]hese factors, either individually or together, do not create anything more than a 'hunch.'" We disagree.
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require police officers to obtain a warrant before searching a person's property. State v. DeLuca, 168 N.J. 626, 631 (2001); State v. Cooke, 163 N.J. 657, 664 (2000). The warrant requirement "limits the power of the sovereign to enter our homes and seize our persons or our effects." State v. Robinson, 200 N.J. 1, 3 (2009). Warrantless searches are presumptively invalid, unless the State proves that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
Police officers may make investigatory stops "'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. Williams, 192 N.J. 1, 9 (2007) (quoting Pineiro, supra, 181 N.J. at 20); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). However, an officer's "suspicion need not rise to the 'probable cause necessary to justify an arrest.'" Pineiro, supra, 181 N.J. at 20-21 (2004) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). Whether the officer acted reasonably depends upon "'the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "'[I]narticulate hunches'" and "subjective good faith" will not justify infringing a citizen's constitutional rights. Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906).
Reasonable suspicion is "'a particularized and objective basis for suspecting the person stopped of criminal activity.'" State v. Stovall, 170 N.J. 346, 356-57 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). "There must be 'some objective manifestation that the person [detained] is, or is about to be engaged in criminal activity.'" Pineiro, supra, 181 N.J. at 22 (alteration in original) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). Reasonable suspicion is a fact-sensitive inquiry, ibid. (citing Nishina, supra, 175 N.J. at 511), and a court must consider the "totality of the circumstances." Ibid. (citing State v. Davis, 104 N.J. 490, 504 (1986)). Furthermore, "[a]n officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Ibid. (citing Davis, supra, 104 N.J. at 504).
An informant's tip "may generate a reasonable and articulable suspicion justifying further investigation." State v. Johnson, 171 N.J. 192, 215-16 (2002) (citing State v. Zutic, 155 N.J. 103, 113 (1998)). We analyze the reliability of an informant's tip under the totality of the circumstances, considering the informant's veracity, which "can be established from past instances of reliability," id. at 216 (citing State v. Kurland, 130 N.J. Super. 110, 114-15 (App. Div. 1974)), and the informant's basis of knowledge, which "can be satisfied when an informant's tip expressly or clearly relates how the informant came to know of the criminal activity." Ibid. (citing State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)).
Our review of a denial of a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the motion judge's factual findings if "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). The motion judge is in a better position to determine credibility because he can observe the character and demeanor of the witness. State v. Locurto, 157 N.J. 463, 474 (1999); Elders, supra, 192 N.J. at 243-44. As such, we will not disturb his findings unless "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, we need not defer to his legal conclusions. State v. Brown, 118 N.J. 595, 604 (1990); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
At the suppression hearing, the judge made the following relevant findings:
Detective Martin observed the defendant, known through prior intelligence to be a . . . drug dealer, along the railroad tracks, attempting to hide when a police vehicle drove by. The defendant was in the area of the tracks at the time, known to Detective Martin as a high-crime or drug area. . . . . [The detective] recognized . . . the defendant as a result of prior police contacts, did understand the defendant to then be residing . . . with someone known to have CDS distribution involvement. . . . . [Detective] Martin, as a result, had sufficient, reasonable articulable suspicion to conduct the stop[.] . . . . [B]ackup was requested by Detective Martin only upon his arrival at . . . a position in relationship to the so-called suspect on the tracks, that he was able to identify an individual whom he recognized, whom he knew to have CDS-related involvement through the information provided by the [confidential informant.] So I'm not able to find that the de facto arrest, or . . . even the de jure arrest occurred at the point in time prior to the officers' arrival at or approximately to the location of the suspect and [the detective's] actual recognition . . . of the subject. I do find that that arrest . . . occurred at the point in time that Detective Martin observed the defendant standing on the tracks, recognized him, having seen him retreat toward a path and then come back out of the path, and then recognize[d] [the other man with known drug distribution involvement] to be . . . in the immediate area, if not in the direct presence of [defendant].
The judge also noted that the detective had nine and a half years of police experience and had participated in approximately two hundred drug-related investigations, including several in that particular area.
Here, we discern no reason to disturb the judge's findings, which are supported by sufficient credible evidence in the record and not at all "clearly mistaken." Elders, supra, 192 N.J. at 243, 244. The judge found that Detective Martin recognized defendant from a reliable confidential informant who had previously provided information leading to at least three separate arrests and had participated with police in purchases of controlled narcotics. The judge found that Detective Martin had "positive, reliable prior experiences" with the informant and that the detective "deemed that [confidential informant's] information as it relates to [defendant to be] reliable." The judge also found that "[the detective], himself, was familiar with the defendant [from] prior policing throughout the community [and] prior police contacts." Furthermore, the detective had substantial narcotics experience, the defendant avoided the detective's vehicle, and the defendant was standing in the high-crime, high-drug area where the confidential informant's tip had indicated defendant was distributing cocaine. We conclude that under the totality of the circumstances, the detective had reasonable articulable suspicion to justify an investigatory stop.
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