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State of New Jersey v. Thomas A. Filupeit

April 12, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS A. FILUPEIT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-10-01989.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2012

Before Judges Graves and J. N. Harris.

Defendant Thomas Filupeit pled guilty to third-degree attempted burglary, N.J.S.A. 2C:5-1 and 18-2, after his motion to suppress was denied. At sentencing, the court imposed a four-year probationary sentence. Filupeit appeals, arguing the following:

POINT I: BECAUSE THE SEIZURE OF DEFENDANT HERE WAS ILLEGAL, THE FRUITS OF THAT SEIZURE MUST BE SUPPRESSED.

We affirm.

I.

Three witnesses testified at the suppression motion: Long Branch Police Officer Kristie Buble, Monmouth County Sheriff's Officer Henry Muller, and Filupeit. At the conclusion of the hearing, Judge Jamie S. Perri rendered an oral decision denying Filupeit's motion. The judge found, among other things, that

(1) the stop of Filupeit's motor vehicle was valid, (2) the conditions of his detention were reasonable, (3) the consent to search the motor vehicle was given knowingly and voluntarily, and (4) the evidence seized from Filupeit's person and motor vehicle would not be suppressed.

On April 2, 2009, Buble was dispatched to a single-family dwelling on Cyprus Street in Long Branch to investigate a possible burglary. When Buble arrived, she parked her police vehicle in front of the residence and began walking towards the building. As she proceeded, sounds of "footsteps running in -- towards the backyard" were heard. She immediately ran towards the sounds and observed a person running to "a white PT Cruiser with New York [license] plates pulling out of the parking lot [of an apartment complex behind the house]." Buble immediately issued a radio broadcast of what she observed noting that the white PT Cruiser was last seen driving northbound on Myrtle Avenue in towards Joline Boulevard.

As she returned to the front of the Cyprus Street residence, Buble saw "a dark-colored pillow case, a black piece of cloth, and pair of orange cable cuffs." She then spoke with the resident, Donald Clapp, who had called the police. Clapp told Buble that "he heard a noise on his front porch, and he looked outside and no one was there. He said he went back inside, he saw the doorknob turning, and that's when he called the police."

Meanwhile, Muller and another Sheriff's Officer were executing arrest warrants in Long Branch when they heard a radio transmission concerning events on Cyprus Street. They proceeded to that neighborhood just in time to see Buble running towards the rear of the property. Muller testified that he "heard the . . . car door slam, and then a vehicle sped away, peeling [its] wheels, leaving the adjacent [apartment complex] property behind [] Cyprus."

As Muller was leaving Cyprus Street, he received Buble's description of the white PT Cruiser. In short order, Muller observed the described vehicle on Route 36 near the Eatontown/Tinton Falls border traveling towards the Garden State Parkway. The sheriff's officers stopped the vehicle and identified the driver as Filupeit, who was eating a banana. Filupeit was ordered to exit, walk to the rear of the car, and place his hands on the back of the vehicle. Muller noted that initially, Filupeit did not appear to be nervous or agitated, and he was still eating the banana. ...


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