August 26, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
PABLO LOPEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-03-0797.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
Before Judges Waugh and Haas.
Defendant Pablo Lopez appeals his conviction, following a guilty plea, for third-degree possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10(a)(1). We affirm.
We discern the following facts and procedural history from the record on appeal.
On December 27, 2009, Camden Police Officer Daniel Pope was dispatched to investigate an anonymous tip, apparently received through a 9-1-1 call, that there were two males, one Hispanic and one black, parked in a gold-colored Cadillac in the area of 19th and Wayne Streets. Pope described it as an "extremely high crime area." The dispatcher informed Pope that the occupants were reported to be armed with handguns.
When Pope arrived at the specified area in his patrol car shortly after 5 p.m., he observed a parked vehicle with two males. Both the vehicle and its occupants fit the descriptions given to him by the dispatcher.
Pope pulled his patrol car behind the Cadillac and turned on his flashing lights. He observed the occupants looking up and then making furtive gestures in the vehicle. Based upon his training, knowledge of the area, and the information received from the dispatcher, the furtive actions caused him to be concerned about his personal safety. He used the patrol car's loudspeaker and ordered the occupants to keep their hands outside the windows so he could see them. He anticipated the imminent arrival of other patrol units.
Pope next observed the passenger exit the Cadillac. Although Pope ordered him to get back into the car, the passenger ran from the area. Pope then ordered the driver, who was later identified as Lopez, to get out of the vehicle and secured him in the patrol car pending further investigation. While standing next to the Cadillac, Pope observed a Ziploc bag containing what he believed to be narcotics in the car's cup holder. He placed Lopez under arrest. The bag contained heroin and cocaine.
The passenger was eventually stopped by another officer about a block away and returned to the location of the Cadillac and Pope's patrol car. Pope searched the passenger, who was identified as co-defendant Julius Ryan, and found bags of heroin and cocaine in his possession. No weapons were found on either defendant, in the vehicle, or elsewhere at the scene.
After Lopez was indicted, he moved to suppress the physical evidence, alleging that the search and seizure were unlawful. Following an evidentiary hearing on June 4, 2010, the motion judge denied the motion in a brief oral decision.
Pope subsequently accepted a plea offer under which he pled guilty and was sentenced to four years of probation. This appeal followed.
Lopez raises the following issue on appeal:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL DETENTION BASED SOLELY ON AN ANONYMOUS TIP WITHOUT ANY POLICE CORROBORATION OF THE "ASSERTION OF ILLEGALITY."
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J.Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J.Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id . at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]
Our review of the trial judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005); State v. Goodman, 415 N.J.Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389, 402 (1991)) (internal quotation mark omitted). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects . . . .'" Id . at 165 (quoting N.J. Const. art. I, ¶ 7).
The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring when a "police officer approaches a person and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878-79, 20 L.Ed.2d at 904.
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop 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) (quoting Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
In State v. Basil, 202 N.J. 570, 586-90 (2009), the Supreme Court explained that an anonymous tip is not a sufficient basis for a Terry stop because, in contrast to an oral report from an identified citizen, it is not sufficiently reliable. Here, however, we are satisfied that Pope's initial actions amounted to a field inquiry rather than a Terry stop. Pope found the described vehicle in the location he was given. It was parked, so there was no traffic stop involved. He had a sufficient basis to make further inquiry.
The fact that Pope pulled behind the Cadillac and turned on his lights did not raise his actions to the level of a Terry stop. In State v. Adubato, 420 N.J.Super. 167, 180-81 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012), we were unwilling to hold that a patrol officer's use of flashing lights when pulling behind a parked car at night turned a field inquiry into a Terry stop.
While [the police officer] could, of course, have pulled up behind Adubato without his flashers on, we are not willing to find that his decision to use his flashers when pulling up behind a stopped car late at night elevated his field inquiry into a Terry stop. We view the conduct as constitutionally ambiguous. The driver of such a car might be concerned that he or she was not free to drive away, Rodriguez, supra, 172 N.J. at 129 ("[A]s a practical matter, citizens almost never feel free to end an encounter initiated by the police"), but would also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions. The use of the flashing lights enhanced [the officer's] and his partner's safety, as well as Adubato's. Finally, common experience suggests that police officers routinely use their flashers when rendering roadside assistance.
[Ibid. (emphasis added).]
See also State v. Harris, 384 N.J.Super. 29, 45 (App. Div.), certif. denied, 188 N.J. 357 (2006) ("Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles.").
Before Pope could get out of his car to speak with the occupants, he observed that they were making furtive gestures and, for his own safety, directed them to keep their hands visible. Under the circumstances, he was justified in doing so. See State v. Otero, 245 N.J.Super. 83, 92-93 (App. Div. 1990). At that point, Ryan fled the scene and Pope secured Lopez pending the arrival of backup officers and further investigation.
Pope saw the subject narcotics in plain view in the Cadillac driven by Lopez while he was waiting for the backup officers to return with Ryan. There was no constitutional violation in such a plain view observation under the circumstances. See State v. Johnson, 171 N.J. 192, 206 (2002).
For these reasons, we affirm the motion judge's denial of the motion to suppress and Lopez's subsequent conviction based on his guilty plea.