Opinion
DOCKET NO. A-5813-12T3
03-17-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. BRYAN F. MORTON, Defendant-Respondent.
Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Carroll.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-01-0035.
Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
By leave granted, the State appeals from a June 6, 2013 order granting defendant's suppression motion. For the reasons that follow, we reverse and remand this case to the trial court.
There is no dispute as to the facts. The trial judge found the testifying law enforcement officers credible and accepted all of their testimony as true. The issue in this case is whether, as the trial court concluded, that testimony established that the police arrested defendant based on a mere hunch, or whether they had probable cause to believe that defendant was participating in a scheme to buy a large amount of drugs.
These are the most pertinent facts. According to Special Agent Everton Campbell of the Federal Drug Enforcement Administration and Detective Kenneth Moyer of the State Police, their agencies were cooperating in an undercover operation in which a confidential informant (C.I.) offered to sell 5000 oxycodone tablets to the targets, Corey Glenn and Kristopher Williams. Campbell and Moyer already knew Glenn from prior investigations and knew that he drove a 2004 maroon Durango vehicle. The C.I., who was wearing a voice-transmitting device, arranged with Glenn to conduct the sale in the parking lot of a Starbucks cafe.
We refer to Moyer and Campbell collectively as "the detectives."
Prior to the planned sale date, the C.I. told the agents that Glenn was having some trouble raising the amount of money the C.I. had demanded for the drugs. Glenn told the C.I. that his usual financial sources were balking and he had located other financial backers, but those individuals were getting "nervous" and "jittered" because the transaction was taking so long to finalize. The C.I. specifically instructed Glenn that he only wanted to deal with him and Williams and that they should not bring anyone else with them to the transaction site. However, based on their considerable experience with these types of large-scale drug buys, Moyer and Campbell anticipated that Glenn's financial backers would be in the vicinity watching the deal occur, looking out for law enforcement presence and making sure Glenn did not flee with their money.
According to Campbell, they also had reason to believe Glenn had other accomplices, or backers, because he could not practicably "move 5,000 pills in the span of two to three days," as Glenn claimed he would, unless he had "a good distribution organization behind him." Hence, the detectives had a reasonable basis to believe that others besides Glenn and Williams would be involved and that those others would be in the vicinity of the deal when it occurred. Because the detectives expected Glenn's co-conspirators to "be conducting counter surveillance," they arranged for large numbers of law enforcement officers to be present in the vicinity of the planned drug deal.
Not long before the deal was due to occur, Moyer, who was in an unmarked vehicle across the road from the Starbucks, saw the maroon Durango pull into the parking lot of a Taco Bell restaurant diagonally across the road from the Starbucks. He saw a driver and three passengers in the Durango. The driver, later identified as Christopher Speziali, and another man, later identified as defendant, got out of the car. Moyer then saw one of the other passengers move into the driver's seat and drive the Durango across the road to the Starbucks lot. Defendant and Speziali remained at the Taco Bell location.
Positioning his own vehicle so that he could observe the Starbucks parking lot through the front windshield and could see the two men at the Taco Bell through the rearview mirror, Moyer observed defendant and Speziali briefly enter the Taco Bell and emerge with no food or drink in their hands. The two men then began what appeared to be an intense observation of the Starbuck's parking lot, even before the Durango arrived there. They continued to stare "intently" in the direction of the Durango after it arrived, talking to each other and talking on a cell phone. Moyer described the two men as appearing intent and nervous: "They just continued to stare in the direction [of the Starbucks], kind of shaking back and forth, and they . . . never broke their concentration from that corner of the Starbucks parking lot."
Meanwhile, the deal was occurring between Glenn and the C.I., who were now both sitting in the Durango. As soon as Glenn produced the money, the C.I., who was wearing a microphone, gave a pre-planned signal, and the police moved in and arrested Glenn and Williams. At that point, Moyer, watching defendant and Speziali's reaction, saw them appear "agitated" and confused. The two men then quickly entered the Taco Bell. Moyer radioed for back-up and entered the Taco Bell about thirty seconds after the suspects. He spotted the two men immediately. They were not buying food or sitting at a table, but were "[j]ust standing there" looking cornered. Moyer arrested defendant and Speziali. A search of defendant's pockets revealed Oxycodone, cocaine, and $5000 in cash.
In granting the suppression motion, the trial judge reasoned:
[T]here is not a sufficient basis to conclude that a well-grounded suspicion that a crime had been committed or was being committed by this defendant at the time when
the police moved in and arrested him. They had speculation, they had hunch, all of it was for a good reason, based on good police work, and in the end was probably true, but there was not, as the law defines it, . . . an objective basis for a well-grounded suspicion that a crime had been committed or was being committed relative to this defendant.
In reviewing a suppression motion, we defer to the trial court's factual findings so long as they are supported by sufficient credible evidence. State v. Handy, 206 N.J. 39, 44 (2011). However, we review de novo the legal conclusions that the court reaches based upon those facts. Id. at 45. The State contends that the trial court reached an incorrect legal result because it construed the evidence through too narrow a lens, instead of taking a "holistic" view of what occurred. We are constrained to agree.
Probable cause is a non-technical concept, which is to be applied practically and with common sense. See State v. Novembrino, 105 N.J. 95, 120 (1987).
Probable cause "eludes precise definition[.]" In general terms, it "means less than legal evidence necessary to convict though more than mere naked suspicion." Probable cause exists if at the time of the police action there is "a 'well grounded' suspicion that a crime has been or is being committed.""'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983) (citation omitted).
[State v. Sullivan, 169 N.J. 204, 210-11 (2001) (citations omitted).]
In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. . . . Probable cause, . . . is "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules."
[Florida v. Harris, ___ U.S. ___, ___, 133 S. Ct. 1050, 1055-56, 185 L. Ed. 2d 61, 67-68 (2013) (citations omitted).]
In evaluating whether probable cause exists, we give weight to the law enforcement officers' expertise and "to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of" that expertise. State v. Arthur, 149 N.J. 1, 10-11 (1997); State v. Ramos, 282 N.J. Super. 19, 22 (App. Div. 1995). That a defendant's actions may have an alternate, innocent explanation does not vitiate probable cause if, taken as a whole, the defendant's course of conduct would cause a reasonable person to infer guilt. Arthur, supra, 149 N.J. at 11.
Applying those legal standards to the evidence in this case, we conclude that there was probable cause for defendant's arrest. Viewed through the lens of the detectives' expertise in these types of transactions, and in light of the C.I.'s statements about Glenn's nervous financial backers, the detectives had a reasonable basis to expect that Glenn's accomplices would be in the vicinity of the planned drug deal, to protect their investment — i.e., watching Glenn to be sure he did not flee with their money, and watching for police activity.
And, on arriving in that vicinity, what did the detectives see? They saw Glenn's Durango arrive at a Taco Bell that was a likely vantage point for surveillance of the drug deal. They saw the driver and a companion get out, and they saw someone else get into the driver's seat, apparently for the sole purpose of driving the car across the road to the Starbucks. The fact that Speziali had driven the Durango to the Taco Bell could support a reasonable inference that he was exerting some control over the situation and that he had picked the surveillance spot.
The detectives then saw defendant and Speziali engaging in behavior that, to a trained officer, looked like they were nervously conducting surveillance of the Starbucks parking lot. They had no food or drink in their hands despite having briefly gone into the Taco Bell earlier. They had no obvious legitimate reason to be standing in the parking lot staring across the street at the Durango parked in the Starbucks lot. When Glenn produced the money and the C.I. gave the signal, the detectives had confirmation that there was a putative drug deal going on. And they knew that defendant and Speziali had engaged in what reasonable police officers could suspect was purposeful "look-out" or accomplice activity. At that moment, if not sooner, probable cause crystalized for defendant's arrest. Defendant's and Speziali's agitated response to seeing the arrest in progress, and their hasty retreat into the Taco Bell, only added to the probable cause calculus.
Of course, there could have been an innocent explanation for everything Moyer observed. But a reasonable detective in possession of all of these facts would have reasonable grounds to believe that defendant and Speziali were participants in the drug deal. Consequently, we reverse the suppression order and remand this case to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION