July 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KEITH BOWENS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 7, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-06-1142.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney, Mr. Blum, of counsel and on the brief).
Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Vando Cardoso, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Graves and Guadagno.
Defendant Keith Bowens pled guilty to second-degree possession of a handgun by a prohibited person, N.J.S.A. 2C:39-7(b), and third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10A(1), after his motion to suppress physical evidence was denied. The court sentenced defendant in accordance with the plea agreement to a seven-year prison term with five years of parole ineligibility for the weapons offense, and to a concurrent seven-year term with forty-two months of parole ineligibility for the drug offense. The court also imposed mandatory penalties and assessments. Defendant appeals from the March 29, 2010 order denying his suppression motion. For the reasons that follow, we affirm.
During the suppression hearing on March 5 and 19, 2010, the State presented the testimony of Sergeant Thomas McVicar and Officer Dwayne Dowell of the Jersey City Police Department. McVicar testified he met with a confidential informant (CI) on January 18, 2009. The CI advised McVicar that:
[A]n individual known . . . as Weefy was engaged in the distribution of CDS, specifically heroin, and that he was using, and he lived [on] Woodlawn Avenue. He used a maroon minivan that was registered to his girlfriend to make these deliveries. And that . . . Weefy was in possession of a handgun which was in a black case that the confidential informant had seen on at least two occasions inside of [the home].
The CI also told McVicar that "Weefy kept drugs in the home." Based on this information, the police conducted a "background investigation" and "set up surveillance" of the home on Woodlawn Avenue. On cross-examination, McVicar acknowledged "the confidential informant had prior criminal matters that the confidential informant was working off."
On February 18, 2009, McVicar observed defendant leave the house on Woodlawn Avenue and get into a maroon minivan. McVicar said he instructed officers to stop the minivan to corroborate that the driver was "Keith Bowens a/k/a Weefy":
We were conducting [an] investigation and we observed him. Part of the information was that he was operating that minivan. We stopped [it] to confirm that the person operating the minivan was indeed the Keith Bowens a/k/a Weefy who we had been provided information about.
And it goes to . . . corroborating the confidential informant's information that Keith Bowens lives [on] Woodlawn Avenue [and] operates this minivan. We stopped it to insure and to corroborate the CI's information that it was indeed Keith Bowens operating that minivan.
On March 3, 2009, McVicar was again contacted by the CI with additional information. McVicar learned that defendant "was going to be leaving . . . to make some deliveries of CDS" in the area of Ocean Avenue and Martin Luther King Jr. (MLK) Drive. The officers "established visual surveillance" of the home and observed defendant enter the minivan. Dowell testified he followed the minivan from Woodlawn Avenue to the area of MLK Drive and Ocean Avenue.
Dowell further testified he saw defendant pull his car over at the corner of Virginia Avenue and MLK Drive and "observed another male walk up to [defendant's] vehicle and they conducted a hand to hand transaction." According to Dowell, an unidentified black male approached defendant's vehicle with "green currency and as he approached the vehicle [Dowell] observed [defendant] reach across to the passenger side and hand the black male a white object." Based on his training and experience, Dowell believed that he had just observed a "hand-to-hand narcotics transaction."
Dowell initiated a motor vehicle stop and placed defendant under arrest for the sale of CDS. After performing a search incident to the arrest, Dowell found defendant to be in possession of "about ten glassine vials, bags of heroin." The officers also found defendant's keys and cell phone in his pocket, but did not take them from him. While transporting defendant to police headquarters, Dowell saw defendant "with his cell phone attempting to make a phone call or text message." Dowell was concerned that defendant was attempting to contact someone to dispose of evidence, so he took the cell phone, and contacted McVicar, who instructed several officers to respond to the home on Woodlawn Avenue.
McVicar used defendant's keys to enter the home, because he wanted to make sure "no message or anything had been communicated to somebody" inside the home, and he wanted to secure the home while the police applied for a search warrant. No search was conducted prior to the issuance of the search warrant on March 4, 2009, at 12:58 a.m.
Defendant neither testified nor presented any witnesses. The trial court denied defendant's motion, reasoning as follows:
Here, the law enforcement authorities had reason to believe that the defendant [was] engaged in drug trafficking. And transferring drugs from his apartment to the site of the drug sales approximately one block away. The police saw defendant drive from his apartment to the area where the drug sale took place, and distribution took place. The police saw him hand a package that appeared to be illegal drugs to a person engaged in the drug buy. Further, police recovered illegal drugs from his person and saw the defendant attempt to make a phone call after his arrest.
The circumstances surrounding the search at . . . Woodlawn Avenue create a substantial degree of urgency. The warrant request for premises at [defendant's residence], took place immediately after the arrest of the defendant [and his] attempt to place a phone call from the police car. Officers testified that they believed evidence would be destroyed if [they] did not secure the premises. It was therefore reasonable for the police to believe that others could possibly return and destroy any drugs or contraband that may have been located at . . . Woodlawn Avenue.. . . .
. . . In this instance, the facts contained in the [affidavit for the] search warrant clearly establish the necessary probable cause to believe evidence of criminality would be found in the location to be searched. As previously explained the confidential informant provided the police [with] reliable information . . . . Further the police verified the informant's details witnessing the defendant leave his apartment and witness[ing] the defendant engage in a suspect[ed] drug transaction.. . . .
The arrest and search of defendant and his apartment [conform to] the protections of the Fourth Amendment [and Article I paragraph 7 of the New Jersey Constitution, ] therefore the defendant's motion is denied.
Defendant presents the following arguments on appeal:
AN UNCONSTITUTIONAL TRAFFIC STOP OF BOWENS REQUIRES SUPPRESSION OF ALL POISONED FRUITS AND A REMAND TO THE TRIAL COURT. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
A. THE TRAFFIC STOP ON FEBRUARY 18 WAS UNSUPPORTED BY REASONABLE SUSPICION BECAUSE THE POLICE TEAM'S SOLE MOTIVATION WAS TO CHECK BOWENS'S LICENSE AND IDENTIFY HIM, AND THE EVIDENCE IDENTIFYING BOWENS SHOULD HAVE BEEN SUPPRESSED.
B. IF BOWENS HAD NOT BEEN IDENTIFIED IN THE UNCONSTITUTIONAL TRAFFIC STOP, HIS ARREST AND THE SEARCH OF HIS HOME ON MARCH 3-4 WOULD NOT HAVE OCCURRED, AND THE POISONED EVIDENCE SEIZED AS A RESULT SHOULD HAVE BEEN SUPPRESSED.
We conclude from our review of the record and the applicable law that these arguments are without merit, Rule 2:11-3(e)(2), and require only the following discussion.
"A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense . . . has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979)), modified by 174 N.J. 351 (2002); see also United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 616 (1975) (applying Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to automobile stops). "[T]he level of reasonable suspicion necessary to justify an investigatory stop is 'something less than the probable cause standard needed to support an arrest.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988)).
In this case, the officers received specific information from a reliable CI that defendant was residing at a certain address and using a maroon minivan to distribute drugs. Based on their surveillance and their ongoing investigation, the police had a reasonable suspicion that defendant was involved in the sale of drugs, and there was sufficient justification for the police to stop him while driving the maroon minivan on February 18, 2009, to corroborate the information provided by the CI.
Moreover, even if we were to assume the February 18, 2009 stop was improper, we would not agree with defendant that the evidence seized from him on March 3, 2009, and the evidence recovered from his residence on March 4, 2009, should be suppressed. Generally, the remedy "for police seizure of evidence in disregard of the warrant requirement is suppression of the evidence obtained improperly." State v. Smith, 212 N.J. 365, 388 (2012), cert. denied, U.S., 133 S.Ct. 1504, 185 L.Ed.2d 558 (2013). "The exclusionary rule, however, is not absolute. One exception is the independent-source rule. . . . [T]hat exception 'allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.'" State v. Holland, 176 N.J. 344, 354 (2003) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377, 387 (1984)); see also State v. Hunt, 91 N.J. 338, 349 (1982) ("If the subsequently obtained evidence was acquired from an independent source unrelated to the illegal search . . . then such evidence is admissible."). The State must satisfy the following three-prong test when relying on the independent-source rule:
First, the State must demonstrate that probable cause existed to conduct the challenged search without the unlawfully obtained information. It must make that showing by relying on factors wholly independent from the knowledge, evidence, or other information acquired as a result of the prior illegal search. Second, the State must demonstrate in accordance with an elevated standard of proof, namely, by clear and convincing evidence, that the police would have sought a warrant without the tainted knowledge or evidence that they previously acquired or viewed. Third, regardless of the strength of their proofs under the first and second prongs, prosecutors must demonstrate by the same enhanced standard that the initial impermissible search was not the product of flagrant police misconduct.
[Holland, supra, 176 N.J. at 360-61.]
In this case, the State has satisfied the three prongs by clear and convincing evidence. Based on the information supplied by the CI, the officer's investigation and surveillance, and the hand-to-hand drug transaction observed by Dowell, it is clear that the police had sufficient probable cause to search defendant and his home independent of the February 18, 2009 motor vehicle stop. It is equally clear that normal police investigatory procedures would have prompted the police to obtain a search warrant for defendant's residence, and the motor vehicle stop was not a product of flagrant police misconduct.
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Consequently, findings by a trial court should not be disturbed by a reviewing court unless they are clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction." Id . at 162. This is not such a case.
"We review the record on a motion to suppress to determine whether the findings are supported by credible evidence and the legal conclusions are valid." State v. Smith, 374 N.J.Super. 425, 430 (App. Div. 2005). In the present matter, we are satisfied the trial court's findings of fact are supported by sufficient credible evidence in the record, and the matter was correctly decided. We therefore affirm the order denying defendant's suppression motion.