Opinion
DOCKET NO. A-4520-14T4
04-26-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JOSE M. TEJEIRO, Defendant-Respondent.
Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-12-1841. Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Respondent has not filed a brief. PER CURIAM
Middlesex County Indictment No. 12-12-1841 charged defendant Jose Tejeiro with a number of drug offenses, including possession, possession with intent to distribute, and distribution of cocaine. Co-defendant Raphael Rodriguez was separately charged in the indictment with possessing two bags of cocaine that he allegedly bought from defendant on September 15, 2012. Defendant and Rodriguez jointly moved to suppress the drug evidence. In a written decision, the trial court suppressed the two bags of cocaine seized from Rodriguez, but denied the motion to suppress the cocaine recovered from defendant's vehicle.
This appeal presents the issue of whether the State can use the suppressed evidence found on Rodriguez at defendant's trial, on the theory that it is probative of defendant's guilt on the distribution and possession with intent to distribute charges. The State argues that defendant lacks standing to challenge the seizure of the cocaine found on Rodriguez, and that defendant abandoned the drugs when he sold them to Rodriguez. We disagree with the State's contentions, and affirm the trial court's in limine order barring use of the suppressed evidence at defendant's trial.
To place the issue in context, we incorporate the facts found by the judge in his detailed written opinion on the joint suppression motions, as follows:
Prior to September 15, 2012, the Perth Amboy Police Department received information from a confidential informant that [d]efendant, Jose Tejeiro, also known as "Bebe," was selling cocaine out of a brown Mazda,. . . . The confidential informant has provided reliable information in the past resulting in arrests.
On September 15, 2012, at approximately 9:00 p.m., Detective Mabner Terron, Detective Carlos Rodriguez, and Sergeant Carmelo Jiminez of the Perth Amboy Police were conducting surveillance in an unmarked car and observed [Tejeiro] operating a 1993 Mazda Protégé. The officers observed the vehicle turn onto Gifford Street and pull halfway into [a] driveway [on] Gifford. Officers saw [] Tejeiro making a hand-to-hand transaction with co-defendant, Raphael Rodriguez. Specifically, police observed [d]efendant Rodriguez receive a small item from [] Tejeiro, place the item in his pocket, and hand [] Tejeiro U.S. currency.
After observing what officers believed to be a hand-to-hand transaction, police exited the vehicle, identified themselves as police officers with their badges displayed, and approached the defendants. Detective Terron approached [d]efendant Rodriguez and recovered two small bags of cocaine from [Rodriguez's] pants pocket. Defendant Rodriguez was placed under arrest.
Meanwhile, Detective Rodriguez approached [] Tejeiro who said in Spanish "you have no right to be here," and then drove further into the driveway, striking lawn furniture and narrowly missing a parked vehicle. Detective Rodriguez repeatedly yelled at [] Tejeiro to stop the vehicle and advised him that he was under arrest. However, Detective Rodriguez became pinned between [Tejeiro's] car and another vehicle as [] Tejeiro continued to drive forward. Detective Rodriguez observed [] Tejeiro holding U.S. currency and reaching with his right hand between the center console and his seat. Detective Rodriguez testified that he feared for his safety, believing that [Tejeiro] may be reaching for a weapon, so he unholstered his weapon. The driver's side window was down so Detective Rodriguez began to pull [] Tejeiro out of the vehicle
as Sergeant Jimenez entered the passenger side of the vehicle and pushed [] Tejeiro out of the vehicle. Detective Rodriguez holstered his weapon, wrestled [] Tejeiro on the ground and placed him under arrest.
After pushing [] Tejeiro out and while still in the vehicle, Sergeant Jimenez observed a black nylon bag, which looked like a sunglasses case, in plain view where [] Tejeiro had been reaching his hand between the center console and the driver's seat. Sergeant Jimenez touched the black nylon bag and could feel loose[] knotted plastic bags inside. He testified that given his training and experience, he immediately believed the black nylon bag contained CDS.
Thirty—six knotted bags of cocaine were inside the black nylon bag. The two plastic bags of cocaine recovered from defendant Rodriguez's pocket matched the other bags of cocaine found in [] Tejeiro's vehicle. Detective Rodriguez recovered $40 from the front of the vehicle. Police also recovered $1513 from [] Tejeiro's front right pants pocket.
In ruling on the suppression motions, the judge found that the "confidential informant's [] tip coupled with the police officers' observations established probable cause to arrest Tejeiro." The court found that Jimenez was lawfully in defendant's car when he observed the black nylon bag, and that the search and seizure of the bag and the drugs contained therein fell within the "plain view" and "plain feel" exceptions to the warrant requirement. Accordingly, the court denied defendant's motion to suppress the drug evidence seized from his vehicle.
As to Rodriguez, the judge "[found] persuasive [his] argument that police suspicion did not rise to the level of probable cause to substantiate his search and arrest." Relying on State v. Pineiro, 181 N.J. 13 (2004), the judge concluded that "the officers' belief based on their training and experience that a narcotics transaction took place between suspected drug dealer [] Tejeiro and [] Rodriguez was only enough to raise reasonable suspicion to approach defendants and conduct an [investigatory] stop." Accordingly, since Rodriguez's arrest was invalid, the search incident thereto was likewise invalid, and Rodriguez's motion to suppress the cocaine found in his pocket during the search was granted.
The State did not appeal the order suppressing the drug evidence found on Rodriguez, and the charges against him were dismissed. Instead, the State moved in limine to admit the two bags of cocaine recovered from Rodriguez in evidence at defendant's trial. The State argued that the suppressed evidence, which matched the bags of cocaine found in defendant's vehicle, was relevant to establish defendant's guilt on the distribution and possession with intent to distribute charges. Citing State v. Bruns, 172 N.J. 40 (2002), and State v. Alston, 88 N.J. 211, 219 (1981), the State additionally contended that defendant lacked standing to contest the seizure of the drugs from Rodriguez.
In a written opinion, the judge denied the State's motion. The judge rejected the State's dual contentions that defendant lacked standing to challenge the admissibility of the evidence, and that defendant had abandoned the drugs when he sold them to Rodriguez. Pursuant to leave granted, the State now appeals.
As it did in the trial court, the State argues that defendant lacks standing to challenge the admissibility of the suppressed evidence because he had no participatory interest in the two bags seized from Rodriquez's pocket. Moreover, the State contends that defendant abandoned the two bags of cocaine when he sold them to Rodriguez, and that he relinquished his expectation of privacy in the two bags at the time of the sale.
We begin by noting that "a trial court's evidentiary rulings are entitled to deference absent a showing of an abuse of discretion, i.e., [that] there has been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). "Although the ordinary 'abuse of discretion' standard defies precise definition, it arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted). On the other hand, "[a] trial court's 'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" State v. Buckley, 216 N.J. 249, 260-61 (2013) (quoting State v. Handy, 206 N.J. 39, 45 (2011)).
We first address the State's argument that defendant lacks standing to challenge the admissibility of the suppressed evidence. "[O]ur standing rule is intended to safeguard the privacy rights of our citizens and to deter the police from conducting unreasonable searches and seizures . . . ." State v. Brown, 216 N.J. 508, 529 (2014) (quoting State v. Johnson, 193 N.J. 528, 548 (2008)). Our Supreme Court has recently stated:
New Jersey has retained the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled by United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Under the automatic standing rule, virtually all defendants have standing to contest a search or seizure by police where they have either "a proprietary, possessory or participatory interest in either the place searched or the property seized," or if "possession of the seized evidence at the time of the contested search is an essential element of guilt." Alston, supra, 88 N.J. at 228. In this way, our courts have construed the New Jersey Constitution as affording New Jersey citizens greater protection against
unreasonable searches and seizures than accorded under the United States Constitution. [Johnson, supra, 193 N.J. at 541].
The conclusion that a defendant has standing to challenge a search on state constitutional grounds is independent of and unrelated to whether that defendant has a reasonable expectation of privacy in the place searched or item seized. Alston, supra, 88 N.J. at 225-27; see State v. De La Paz, 337 N.J. Super. 181, 193 (App. Div.) (holding that absence of evidence at suppression hearing regarding defendant's status and his expectation of privacy in place searched does not preclude determination of whether defendant's state constitutional rights were violated by warrantless search), certif. denied, 168 N.J. 295 (2001). The rule's purpose is to avoid the need to sacrifice a defendant's Fifth Amendment rights and admit to criminal activity in order to assert his Fourth Amendment rights to challenge the search or seizure. Johnson, supra, 193 N.J. at 551.
[State v. Lamb, 218 N.J. 300, 313-14 (2014).]
Here, defendant clearly had a possessory interest in the property seized. Alston, supra, 193 N.J. at 551. Possession of cocaine is an essential element of several offenses faced by defendant, most notably the possession with intent to distribute charge. Moreover, even if defendant no longer had a possessory interest in the drugs he allegedly sold to Rodriguez, he certainly had a participatory interest in them by virtue of his purported role in the drug transaction. Such a participatory interest allows an individual to assert a state constitutional challenge if he or she had some "culpable role, whether as a principal, conspirator, or accomplice, in a criminal activity that itself generated the evidence." State v. Mollica, 114 N.J. 329, 340 (1989). Accordingly, we conclude that defendant has standing to challenge the admissibility of the suppressed evidence.
We agree with the State's contention that a defendant has no standing to challenge the warrantless search or seizure of abandoned property. Brown, supra, 216 N.J. at 527; Johnson, supra, 193 N.J. at 548. Under search-and-seizure analysis, "personal property is abandoned for standing purposes 'when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.'" Brown, supra, 216 N.J. at 529-30 (quoting Johnson, supra, 193 N.J. at 549). Thus, for example, in State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), we found abandonment where defendant, after being approached by the police in an airport, dropped his suitcase and started to run away, aff'd o.b., 89 N.J. 378 (1982). See also State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (defendant on a bicycle held to have abandoned a container filled with bags of cocaine, because he threw the container against a curb when he noticed a police car approaching, and then continued to bicycle another fifty feet away), certif. denied, 149 N.J. 410 (1997).
In the present case, defendant's actions do not meet the test for abandonment. Even under the State's theory, defendant did not abandon the drugs, but instead he sold them to Rodriguez.
Perhaps we would have decided Rodriguez's suppression motion differently. However, that is not the issue we are asked to decide. We again note that the State did not appeal the suppression of the drugs found on Rodriguez. The State posits, without any record support, that the reason it did not do so was because it was "confident" that it could introduce the suppressed evidence as part of its case against defendant. We find no authority for the State's use of an in limine motion as the vehicle to seek introduction of the suppressed evidence at defendant's trial, nor does the State cite any. Because we reject the State's contentions that defendant lacks standing to challenge the search and that he abandoned the drugs by selling them to Rodriguez, we are compelled to affirm the trial court's in limine order barring use of the suppressed evidence at defendant's trial.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION