Opinion
DOCKET NO. A-1742-14T3
04-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIELLE M. BOLSTAD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-04-0746. Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After her motion to suppress the heroin found in her purse was denied following a testimonial hearing, defendant pled guilty to third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). The remaining charges against her, disorderly conduct, N.J.S.A. 2C:33-2(a), and possession of drug paraphernalia, N.J.S.A. 2C:36-2, both disorderly persons offenses, were dismissed and she was sentenced to two years of probation and permitted to retain her driver's license. See N.J.S.A. 2C:36-16(a). Defendant appeals from the November 7, 2014 conviction, arguing that her motion to suppress the warrantless search was improperly denied. We affirm.
Defendant and Freehold Township Officer Andrew Galaydick testified at the suppression hearing concerning the events of November 8, 2013 at 3:30 a.m. Officer Galaydick, a fifteen-year law enforcement veteran, testified that on that morning he was on patrol in the residential area of Ticonderoga Boulevard. He saw a car with its headlights on in a driveway. He observed a passenger exit the car quickly, and turned his patrol car around to observe the car. He could not see where the passenger went, but he saw defendant smoking a cigarette in the driver's seat. A short time later, Officer Galaydick saw defendant flash her headlights, which he found to be suspicious behavior in light of the numerous burglaries reported in the area. Officer Galaydick pulled his car closer to the driveway where defendant was parked to observe defendant more closely, at which time defendant exited her car and "started yelling and screaming" while approaching Officer Galaydick. Officer Galaydick "contacted dispatch" and left his car to talk to the woman who was approaching him. He testified that defendant was shouting, "you have no reason to be sitting here. You can't be following me. Police are harassing me. You . . . need to leave. I didn't do anything wrong."
Officer Galaydick responded with a calm demeanor, and at that point he told her "she needed to calm down because she [was] becoming disorderly." Officer Galaydick requested that defendant provide identification and asked if she lived in the home. Defendant responded that she did not live there and was waiting for a female friend to return. Officer Galaydick asked for the name of the friend, but defendant "kind of hesitated" and did not provide a name. Officer Galaydick stated that "when she presented her driver's license . . . [defendant] dropped it on the ground, money fell out, she was fumbling with the document. She was very talkative. Very excited, grinding her teeth which to me was indicative of [drug] use as well." Officer Galaydick warned defendant a few more times that she was becoming disorderly and would be placed under arrest if she did not calm down. He explained that he was going to "check her license and investigate further," and proceeded to his car to conduct a warrant search.
While Officer Galaydick was running defendant's information through the computer at his squad car, Officer Davis arrived on the scene. Officer Galaydick heard defendant screaming at Officer Davis, and approached her, warning defendant that she would be arrested if she did not "stop yelling and screaming" and allow the officers to complete their investigation. Officer Galaydick asked defendant, "[I]s there something illegal I need to be aware of[?]" Defendant responded "no," and "took her purse and moved it in an abrupt manner and a burnt glass vial fell out of her purse." Officer Galaydick explained that he picked up the vial and identified it as a glass pipe that was "commonly used to ingest [a] certain kind of drugs," was four or five inches long, and had burn marks on it indicating prior use. After confiscating the glass pipe, Officer Galaydick arrested defendant and then searched her purse, finding "bundled wax fold envelopes with stamping and markings on it with a white powder residue inside, commonly known as heroin." At the police station, Officer Galaydick searched defendant's winter coat and found, in an inner pocket, an additional sixty-six bags of heroin labeled "Showtime" and "Block Party."
Defendant testified that she was taking her girlfriend to her house on Ticonderoga Boulevard and, after her girlfriend left the car, defendant remained in the driveway in her car to charge her phone. While attempting to charge her phone, defendant noticed a patrol car do a U-turn and "it just was sitting there with its headlights off watching, and at some point it turned its headlights on." Once the headlights were turned on and defendant realized her phone was not properly charging in the car, she abandoned her attempt to charge the phone and left the car to go into her friend's home. Defendant explained that once she left the car, "[Officer Galaydick] started approaching [her], up the lawn, on the grass, and [defendant] asked what [she] was doing wrong, what did [she] do?" As defendant left her car, "cash fell out of [her] purse . . . she kept dropping [her] stuff and [Officer Galaydick] was asking [her], why do you keep dropping your money, why do you keep dropping your money?"
Defendant testified that Officer Galaydick requested identification and she provided it. At this point, defendant was left with Officer Davis while Officer Galaydick returned to the squad car to check defendant's information. While alone with Officer Davis, he inquired if she was in the area to purchase drugs and if she had any drugs in her possession. He also requested that defendant show him what she had in her purse. Defendant denied having any drugs in her possession and refused to allow Officer Davis to inspect her purse.
At that point, according to defendant, "[Officer Galaydick] came out, came over to [her], restrained [her] arms behind [her], put his right foot on [her] right Achilles heel, and said that [she was] under arrest." After placing defendant in handcuffs, Officer Galaydick removed her purse by unclasping it from a cross-body position under her unzipped jacket and searched it, and patted her body down inquiring as to whether defendant was in possession of any syringes.
The motion judge found the officer's testimony more believable, stating:
The Court finds that the testimony of Officer Galaydick was clear and convincing. He's faulted for the fact that he couldn't remember the details of the purse, but his testimony was that it wasn't he who was making the stop or that he has some suspicion when he saw the flashing lights that perhaps there was a risk that there was some sort of casing or a burglary in process because of the reports of burglary.
. . . .
In any event, the Court finds credible that it was the defendant who got out of her car and approached the police officer. While it was clear that the officer politely asked for her driver's license, which she politely gave back to him, there was no concerns on her part and, in fact, there
were no findings that there was anything wrong with her driver's license status or that there were any warrants out for her [arrest]; but in the course of this, the officer testified that the pipe as well as the money fell to the ground during the course of the excited conversation by the defendant.
The defendant's version was, however, that it was Officer Davis who, in fact, unhooked, through a series of clasps . . . the bag itself, that it was Officer Davis who searched through the bag and found the pipe.
As I indicated, one of the faults was [Officer Galaydick] could not identify the bag, taking pictures of the handbag that contained the pipe. His testimony, which the Court finds reasonable and credible; that it was the pipe that fell out of the bag as the money fell out of the bag in the excited state that the defendant was in. Once he observed the pipe on the ground, he couldn't remember, too, whether the pipe fell onto the driveway, the grass, or the curb area of the driveway.
He indicated that he was parked about a car length away from the entrance to the driveway and that the car itself was parked somewhere between five or six car lengths into the driveway because when he stopped from the street at night, he was not able to run the license plate, couldn't see the license plate clearly enough so he did not run the license plate off the car that was stopped. He just simply, because of distance, couldn't see it . . . .
I am satisfied by the preponderance of the believable credible evidence that the totality of the circumstances here were reasonable, that the pipe fell on the ground, that at that point Officer Galaydick had the legal right, under New Jersey law, to place the defendant under arrest and the heroin that was found back at headquarters
as a result of that arrest was lawfully seized.
Defendant raises the following issues on appeal:
POINT I: THE MOTION COURT ERRED IN DENYING MS. BOLSTAD'S MOTION TO SUPPRESS THE EVIDENCE AS THERE WAS INSUFFICIENT PROBABLE CAUSE TO SUPPORT HER DETENTION AND SEARCH. U.S. Const. Amends. IV, XIV; N.J. Const. Art. I, ¶7.
POINT II: THE MOTION COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE COURT ESSENTIALLY PRESUMED THE STATE'S VERSION OF THE FACTS TO BE CORRECT AND IMPROPERLY PLACED ON THE DEFENDANT A BURDEN OF UNDERMINING THE STATE'S TESTIMONY.
We accord a deferential standard of review to the factual findings of the trial court. State v. Rockford, 213 N.J. 424, 440 (2013). It is well settled that "[a]n 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." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). When reviewing a motion to suppress evidence, we must uphold the judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." Rockford, supra, 213 N.J. at 440 (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). We defer to a trial judge's credibility findings given the trial judge's ability to hear and assess the witnesses. State v. Locurto, 157 N.J. 463, 474-75 (1999).
Defendant argues that the State failed to demonstrate under United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989), the "articulable reasons" or "particularized suspicion" necessary for finding "reasonable suspicion of criminal activity" necessary to stop an individual. Citing State v. Arthur, 149 N.J. 1, 7 (1997), defendant asserts that "[t]his standard is an objective one and must be based on facts known to the police officer prior to the stop." Accepting Officer Galaydick's testimony as credible, as we must, he had sufficient indicia of criminal activity to engage defendant in conversation and check her identification. He knew that burglaries had been previously reported in the area, and saw suspicious activity at 3:30 in the morning; someone leaving a car that had pulled into a driveway, and another individual in the car then flashing the car's high beams. Officer Galaydick did not actually stop defendant; rather, she left the car and walked toward the officer. After defendant approached Officer Galaydick, he noticed that she appeared to be under the influence, was speaking in a loud, confrontational tone and was grinding her teeth. The brief investigative interruption in defendant's activities caused by the police checking her identification was fully justified by the suspicious activities seen by Officer Galaydick.
Once the glass pipe, a type of drug paraphernalia, fell out of her purse, defendant was properly arrested. See N.J.S.A. 40A:14-152 (permitting an arrest if a disorderly persons offense is committed in view of a police officer). Defendant does not dispute that the subsequent search was valid if the arrest was appropriate. Accepting Officer Galaydick's testimony as credible, the glass pipe fell out of defendant's purse prior to any search. Whether the officer remembered what the purse looked like or what the ground looked like where the glass pipe fell is not material. The motion judge found Officer Galaydick credible. The judge properly placed the burden of proof on the State and found that the State met that burden. The judge's determination is supported by substantial credible evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION