April 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS A. FILUPEIT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-10-01989.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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. After a few minutes during which Filupeit was repeatedly told to keep his hands on the vehicle, Muller noted that Filupeit appeared "very nervous."
Buble received word over her radio that a motor vehicle matching the description she had given was apprehended on Route 36. She drove to that location with Clapp with the intention of having Clapp make an identification. When they arrived, and Clapp observed Filupeit, "he said that he was not 100 percent sure that this was the person, but the jacket looked similar to the one that he saw on his front porch." On the other hand, Buble remarked to Muller, "that was the vehicle in question . . . that fled from the scene."
Buble advised Filupeit of his Miranda*fn1 rights and then asked him if he would consent to a search of the PT Cruiser. She testified that "[she] advised him that he had the right to stop the search at any time, and that he was going to be present during the search, and [she] had him sign a form." Buble expressly noted that she actually read the consent form to Filupeit. Filupeit signed the consent to search. Buble and Muller conducted the search. Muller recounted that "[o]n the floor . . . in between the passenger seat and the door, there was a folded-up piece of paper with a map on it and directions to  Cyprus Street." Subsequently, Filupeit was arrested.
Filupeit's testimony contradicted the officers' version of events. He indicated that when he was removed from the vehicle, he was "really nervous" and he left behind his reading glasses on the dashboard. He was patted down for weapons; he said he was consuming a banana because "[he] was hungry." Filupeit testified that Muller handcuffed him for approximately twenty minutes until Buble arrived at the scene.
When given the consent to search form, Filupeit claimed that he was unable to read it because he did not have his reading glasses, but he signed it nevertheless, after being assured by Buble that "it's a standard form to search [his] car and she said [he] [had] to sign it." Filupeit contended that Buble never read the form to him, never advised him of his right to refuse the search, but did tell him that he could stop the search at any time. She also refused to retrieve Filupeit's reading glasses from the PT Cruiser's dashboard so he could read the form for himself.
Judge Perri determined that Muller's testimony concerning the motor vehicle stop was credible. Although the judge did not give a lengthy exposition on the validity of the motor vehicle stop itself, she did note that the two Sheriff's Officers were aware that the vehicle in question that had been observed by Officer Buble leaving the scene of the alleged attempted, or presumed attempted burglary was a white PT Cruiser with New York tags. This not being the State of New York, that makes the identification more secure in the Court's mind.
She further held, "I find that the officers under those circumstances did have a reasonable . . . suspicion to conduct a search, a Terry[*fn2 ] type search, to remove [Filupeit] from the vehicle to pat him down for their own safety."
Judge Perri also stated that she had "a lot of difficulty reconciling some of [Filupeit's] testimony," including his claim of being very nervous at the scene of the motor vehicle stop. Furthermore, after reviewing the circumstances surrounding the consent to search form, Judge Perri found the following:
Officer Buble was very [confident] in her testimony that she read the form to [Filupeit], and that would be entirely consistent with [Filupeit's] own testimony that he told Officer Buble that he needed his glasses and that he had . . . trouble reading without them.
I think the most logical and reasonable inference to draw from those aspects of the testimony is that Officer Buble prepared the form, she handed it to [Filupeit]. He told her he needed his glasses, she then said, well, I'll read it to you, and [she] read the form to him in its entirety.
[Filupeit] was fully aware not only of his right to refuse, but his right to stop the search at any point in time.
There was no testimony at all that [Filupeit] was threatened in any way, that he was coerced, that he was forced to sign that form. He was asked to sign it, he engaged in a weighing process in his own mind of whether or not to sign it.
[T]here is no question in my mind that [Filupeit] executed that form knowingly and intelligently, and he knew exactly what he was doing at the time. So, on that basis, I find that his consent was freely and voluntarily given.
Consequently, Filupeit's motion to suppress was denied. After pleading guilty and being sentenced, this appeal followed.
An investigatory stop or detention is constitutional only 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 (2002) (citation and internal quotation marks omitted). Essentially, an investigative stop may be justified "if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). The suspicion necessary to justify an investigative detention is a lower standard than probable cause and has been described as "some minimal level of objective justification" for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989). "'Such a determination can be made only through a sensitive appraisal of the circumstances in each case.'" State v. Pineiro, 181 N.J. 13, 27 (2004) (quoting State v. Davis, 104 N.J. 490, 504-05 (1986)). These include the officer's knowledge, experience, and expertise. State v. Citarella, 154 N.J. 272, 279 (1998).
Here, the motion court properly found that on April 2, 2009, the sheriff's officers had a reasonable and articulable suspicion that the white PT Cruiser and its driver were involved in criminal activity based on the totality of the circumstances. These officers had seen Buble at the crime scene running towards the rear of the property and immediately heard a speeding automobile exit the rear apartment complex. Without delay, they further learned that a white PT Cruiser with New York license plates was the escape vehicle, which was headed north. When a vehicle matching that description was seen driving towards the Garden State Parkway in the ensuing minutes, those law enforcement officers would have been derelict in their duties if they had not stopped the car and made further inquiries. What happened afterwards, between Filupeit and Buble when she arrived at the scene, did nothing to dissipate the validity of the sheriff's officers' motor vehicle stop.
In like vein, we discern nothing in the manner or duration of Filupeit's detention at the side of the road while the sheriff's officers awaited Buble that trampled Filupeit's rights. Filupeit claims that the conduct of the law enforcement officers was "not conducted with the least intrusive means possible." This was because he was supposedly handcuffed, not free to leave, and had to wait for upwards of thirty minutes for Buble and the putative crime victim to arrive.
The touchstone of the Fourth Amendment is reasonableness, Terry, supra, 392 U.S. at 37-38, 88 S. Ct. at 1888, 20 L. Ed. 2d at 915-16, and reasonableness, in turn, is measured in objective terms by examining the totality of circumstances. Davis, supra, 104 N.J. at 504. In any given case, the reasonableness of the investigatory detention is a function of the degree and kind of intrusion upon the individual's privacy balanced against the need to promote governmental interests. Ibid.
An investigative stop may become a de facto arrest when "'the officers' conduct is more intrusive than necessary for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F. 2d 633, 636 (8th Cir. 1985), cert. denied, 474 U.S. 837, 106 S. Ct. 113, 88 L. Ed. 2d 92 (1986)). Although there is no bright line test to determine when an investigative stop becomes a de facto arrest, courts have identified several considerations relevant to the determination, including, most significantly, the temporal duration of the stop. An important concern in this regard "is whether the officer used the least intrusive investigative techniques reasonably available to verify or dispel his suspicion in the shortest period of time reasonably possible."
Davis, supra, 104 N.J. at 504. "'Another factor is the degree of fear and humiliation that the police conduct engenders.'" Dickey, supra, 152 N.J. at 479 (quoting United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994), cert. denied, 514 U.S. 1113, 115 S. Ct. 1970, 131 L. Ed. 2d 859 (1995)).
Here, there is no indication that Filupeit was subjected to unnecessary delay or was detained any longer than the short period required to complete the show-up. Similarly lacking is any proof that Filupeit -- understandably nervous over being stopped, questioned, and frisked -- was fearful of the officers or either embarrassed or humiliated while awaiting Buble to arrive. Although Judge Perri never made a finding whether Filupeit was handcuffed or not, her credibility conclusions strongly suggest that Filupeit was not restrained. However, even if he had been, it would have been in the interest of the officers' safety and is incapable of transforming a reasonable law enforcement/citizen interchange into an unreasonable one.
Turning to Filupeit's last grievance, the validity of his consent, we are satisfied that Judge Perri did not err. A consent search is constitutional only if consent was voluntarily given and was "not the result of duress or coercion, express or implied." State v. Johnson, 68 N.J. 349, 352 (1975). Judge Perri's findings that Filupeit's consent was voluntarily given is amply supported in the record.*fn3
In sum, we conclude that the denial of Filupeit's suppression motion was proper. No constitutional rights were violated when his PT Cruiser was stopped, when he was detained awaiting Buble, and when he voluntarily assented to a search of his car.