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State v. Rosario

Superior Court of New Jersey, Appellate Division

October 9, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
ALCY ROSARIO, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 20, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-03-0441.

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Theresa Richardson, attorney for respondent.

Before Judges Graves and Simonelli.

PER CURIAM

By leave granted, the State appeals from the January 9, 2013 Law Division order, which granted defendant Alcy Rosario's motion to suppress evidence seized without a warrant. Because we conclude that the police had a reasonable and articulable suspicion to detain defendant, we reverse.

Prior to November 18, 2011, David Ortiz (Ortiz), the certified loss prevention officer at the K-Mart store in Hazlet, investigated a customer's report of unauthorized purchases made with her credit card. Using the customer credit card information, Ortiz determined the date, time and location of the unauthorized purchases. He then reviewed surveillance video of the purchases and saw two men jointly purchasing electronics items using three different credit cards, each of which was declined, before successfully completing the unauthorized purchases with the customer's credit card.

On November 18, 2011, Ortiz saw a man in the store's electronics department making a purchase that mirrored the transactions on the surveillance video of the prior unauthorized purchases. Ortiz saw the man use three different credit cards, each of which was declined, before successfully completing the purchase with a fourth credit card. Ortiz believed that the man resembled one of the two men he had seen in the surveillance video.

After the man purchased the item and left the store, Ortiz began monitoring the electronics department via the store's closed-circuit television system to see if the second man he had seen on the surveillance video would appear. While doing so, he also reviewed the surveillance video of the prior unauthorized purchases. Shortly thereafter, he saw a person who resembled the second man, later identified as defendant, enter the electronics department and order a "high-priced" video-game system. Defendant waited at the cash register while the cashier went to the stockroom to get the item defendant had ordered.

Believing that defendant was about to make an unauthorized credit card purchase, Ortiz called the Hazlet Township Police Department. He advised the dispatcher about his prior investigation of unauthorized credit card purchases, that the person he now saw in the store may be the same person who was involved in the prior transactions, and that this person was in the electronics department attempting to purchase electronic items. Ortiz also gave a description of the individual.

The dispatcher advised Police Officer Adam Cullen that Ortiz, K-Mart's loss prevention officer, had called and reported that there was an individual in the store's electronics department attempting to make a purchase with a fraudulent credit card. The dispatcher gave the officer the same description of the individual that Ortiz had given the dispatcher.

Officer Cullen, who was in uniform, arrived at the K-Mart approximately three minutes after receiving the dispatch, where he met Sergeant Lynch. The two officers entered the store and went to the electronics department, where Ortiz met them. Ortiz pointed out defendant to the officers as the person he had reported to the dispatcher and told the officers that defendant was attempting to purchase some electronic items with a fraudulent credit card. Ortiz did not advise Officer Cullen of his prior investigation.

Officer Cullen saw that defendant matched the description the dispatcher provided and approached defendant to ask "what was going on." When the officer asked for identification, defendant produced a New York driver's license bearing his name. Officer Cullen called dispatch to confirm if the license was valid and determine if defendant had any outstanding warrants. The officer testified that at this point, defendant was free to leave if defendant had asked or tried to leave because he "had nothing at the time . . . no reason to detain [defendant]." Officer Cullen also indicated that he would have returned defendant's license if defendant had requested its return or defendant could have left without it.

Within five minutes of Officer Cullen's call, the dispatcher reported that defendant had an outstanding warrant from New York. The officer then placed defendant under arrest, searched him, and found in his wallet a New York driver's license bearing the name "Eduardo Medina" and eight credit cards bearing the name of either "Eduardo Medina" or "Jose Estevan."

Officer Cullen transported defendant to police headquarters, where he confirmed that the warrant was valid and discovered that New York's motor vehicle database had no record of a driver's license in the name of Eduardo Medina. A grand jury subsequently indicted defendant for fourth-degree possession of a simulated document, N.J.S.A. 2C:21-2.1d, and third-degree credit card theft, N.J.S.A. 2C:21-6c(5).

Defendant filed a motion to suppress. Following a hearing, the trial judge found that Officer Cullen and Ortiz were credible witnesses; Ortiz was an ordinary citizen informant known to the dispatcher and Officer Cullen as K-Mart's loss prevention officer; Officer Cullen had conducted a proper field inquiry when he first approached defendant; and the field inquiry converted to an investigative detention during the short time the officer took and retained defendant's driver's license, which effectively prevented defendant from leaving. Although the judge found that the information Ortiz provided "was of sufficient reliability and [veracity] for Office Cullen to rely upon as a basis for reasonable suspicion to justify an investigative detention, " the judge concluded that the investigative detention was improper because it was based exclusively on the information Ortiz provided to the dispatcher about his prior investigation, which was never communicated to Officer Cullen. Thus, the judge concluded that Officer Cullen lacked an objective basis for a reasonable suspicion that defendant was engaged or about to engage in criminal activity because he lacked knowledge of the basis for Ortiz's suspicion that defendant was attempting to use a fraudulent credit card. This appeal followed.

On appeal, the State contends that the brief investigative detention of defendant was supported by a reasonable and articulable suspicion that he was about to engage in criminal activity. We agree.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "'so long as [they] are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (alteration in original) (quoting Robinson, supra, 200 N.J. at 15). Additionally, we afford deference to a trial judge's findings that "are 'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Robinson, supra, 200 N.J. at 15). We do not, however, defer to a trial judge's legal conclusions, which we review de novo. Ibid. We also review de novo mixed questions of law and fact. In re Malone, 381 N.J.Super. 344, 349 (App. Div. 2005).

A police officer may stop and briefly detain an individual if, based on the totality of the circumstances, there exists an objectively reasonable and articulable suspicion that the individual "has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002). "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). "Reasonable suspicion" is "less than proof . . . by a preponderance of the evidence, " and "[a] less demanding [standard] than that for probable cause, " but must be something greater "than an 'inchoate and unparticularized suspicion or hunch.'" U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989) (quoting Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909).

The court must look to the totality of the circumstances to determine whether an investigative detention was supported by reasonable and articulable suspicion and view those circumstances from the standpoint of an objectively reasonable police officer. Stovall, supra, 170 N.J. at 357, 361. The analysis is an objective one, and the officer's subjective intent or motivation is irrelevant. State v. O'Neal, 190 N.J. 601, 613-14 (2007).

Under the "collective knowledge" doctrine or "fellow officer" rule, a police officer responding to a call may lawfully conduct an investigative stop and detention in reliance on evidence gathered or observations made by another officer or police dispatcher cooperating in the investigation. United State v. Hensley, 469 U.S. 221, 229-33, 105 S.Ct. 675, 681-83 L.Ed.2d 604, 612-15 (1985). This is so even though the responding officer is not personally aware of all the facts objectively supporting a reasonable and articulable suspicion to stop and detain a suspect, so long as the other officer or dispatcher, on whose instructions or information the responding officer relied, possessed specific and articulable facts supporting reasonable suspicion to stop and detain the suspect. Ibid.

"Information possessed by a dispatcher [is] imputed to the responding police officers, and that dispatcher's knowledge, not responding officers', [is] essential for determining" whether the investigatory stop and detention was supported by reasonable and articulable suspicion. See State v. Crawley, 187 N.J. 440, 457 cert. denied, 549 U.S. 1078, 127 S.Ct. 704, 166 L.Ed.2d 563 (2006). If the dispatch upon which the responding officer relied was based on information from an informant, the court must assess the informant's reliability and the adequacy of the information the informant provided in order to determine whether the dispatch, and therefore the investigative stop, was supported by reasonable and articulable suspicion. Id. at 457-58.

Information provided to the police by a reliable informant may generate the reasonable suspicion necessary for an investigatory stop. State v. Davis, 104 N.J. 490, 506 (1986); State v. Williams, 317 N.J.Super. 149, 156-57 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). An informant's tip is reliable if, under the totality of the circumstances, there is a sufficient basis for crediting the tip. State v. Smith, 155 N.J. 83, 92 (1998). Ordinary citizen informers are presumed to be reliable. State v. Basil, 202 N.J. 570, 586 (2010).

Here, there was no reason to doubt the reliability and adequacy of the information Ortiz provided to the dispatcher. Ortiz identified himself to the dispatcher as K-Mart's loss prevention officer, and provided information based upon his personal knowledge and observations that led him to report that defendant was about to engage in criminal activity. Thus, the dispatcher had specific and articulable facts supporting a reasonable suspicion to stop and detain defendant, which were imputable to Officer Cullen. Ibid. This information gave Officer Cullen a reasonable and articulable suspicion to conduct an investigative detention of defendant.

Reversed.


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