Opinion
DOCKET NO. A-4033-13T4
11-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM L. PITTMAN, a/k/a WILLIAM J. HARRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-06-0994. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). We affirm.
After a grand jury indicted and charged defendant with committing this drug offense, defendant moved to suppress cocaine that had been seized from his person. The judge conducted a hearing and denied the motion. Subsequently, defendant pled guilty to the drug charge. We discern the following facts from the record on appeal.
At the motion to suppress hearing, Detective Jeffrey Abrams Jr. testified that he received a tip from confidential informants that drug transactions were occurring at a parking lot near a Burger King. As a result, he conducted surveillance of that area from inside an unmarked police vehicle. Two other detectives made observations from vantage points located around the perimeter of the parking lot, but they did not testify at the hearing.
Detective Abrams observed defendant enter the parking lot and begin pacing back and forth. He saw defendant raise up his hands to "flag down a vehicle." Based on his extensive experience and training in drug-related investigations, Detective Abrams recognized this tactic as commonplace among drug dealers.
Although defendant was unable to immediately attract the attention of a driver, Detective Abrams observed defendant raise up his hand a second time while defendant walked closer to the road. This time, a driver looked towards defendant and pulled into the parking lot, at which point defendant approached the vehicle and entered into the rear passenger seat. Detective Abrams testified that he then observed defendant
lean forward between the . . . passenger seat and the driver's seat. [He] observed both the passenger and the driver . . . turn around to face [defendant] in the middle of the vehicle.While Detective Abrams could not see a hand-to-hand drug transaction, he testified that he
could see [defendant] leaning forward with both of his arms towards the center armrest and [he] could see that . . . the front seat passenger and the driver, were both leaning around towards [defendant] in a very excessive manner. They were turned way around to look straight backwards.Defendant remained in the vehicle for "[l]ess than one minute." Defendant exited the vehicle, which immediately sped away from the parking lot at a high rate of speed. Defendant then walked away from the parking lot.
Detective Abrams followed defendant, parked his police vehicle, and approached defendant on foot. He identified himself as a police officer and asked defendant his name and general questions about where he was going. Defendant indicated that he was going home, which the detective concluded was untrue because defendant was traveling in the opposite direction of his stated residence.
Defendant then made additional false statements to the detective. Responding to the detective's questions, defendant stated he had entered the Burger King restaurant and denied entering a car. Detective Abrams knew from his observations these responses were untrue. During the detective's brief questioning of defendant, the detective noticed defendant "continuously" shoving his hand in his pocket, "manipulating something inside of his pants closer to his groin area."
Detective Abrams suspected that defendant had been involved in a drug transaction and instructed defendant to place his hands on the police vehicle. As defendant leaned forward, the detective observed money stashed in defendant's sock. Detective Abrams testified that based on his training and experience, placing money in that location was a common practice among drug dealers. Detective Abrams then seized $259 cash in small denominations from defendant's sock. According to the detective, carrying money in small denominations was also common among drug dealers. He searched defendant and found "a bulge in the front of [defendant's] pants in his groin area[,]" which was later discovered to be crack cocaine. The police arrested defendant.
In support of his motion to suppress the cocaine, defendant argued that Detective Abrams lacked sufficient particularized suspicion to effectuate the Terry stop and subsequent search of defendant. At the end of the motion to suppress hearing, the judge found Detective Abrams to be a credible witness. The judge rejected defendant's arguments, concluding there was reasonable articulable suspicion to effectuate a Terry stop, there was probable cause to arrest defendant, and the detective properly seized the cocaine incident to the arrest. As a result, the judge denied the motion, issuing an oral opinion.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The judge later sentenced defendant in accordance with the negotiated plea agreement. The judge sentenced defendant to 180 days in the county jail, imposed a three-year probationary term, and issued appropriate fines and penalties.
On appeal, defendant raises the following arguments:
POINT I
THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT WAS IN COMPLIANCE WITH THE FEDERAL AND STATE CONSTITUTIONS.
A. THE TRIAL COURT RELIED ON AN ERRONEOUS LEGAL STANDARD TO REACH ITS DECISION.
B. THE STATE FAILED TO PROVE THAT THE POLICE HAD REASONABLE SUSPICISION TO JUSTIFY THE DETENTION.
C. A PAT-DOWN SEARCH FOR DRUGS REQUIRES PROBABLE CAUSE.
D. THE STATE FAILED TO PROVE THAT THE POLICE HAD PROBABLE CAUSE TO ARREST AND SEARCH THE DEFENDANT.
E. THE TRIAL COURT'S FINDINGS OF REASONABLE SUSPICION AND PROBABLE CAUSE ARE MIXED QUESTIONS OF LAW AND FACT THAT ARE SUBJECT TO PLENARY REVIEW.
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
Applying these standards, we conclude that the police properly performed a field inquiry, conducted a valid Terry investigatory stop, correctly determined that there was probable cause to arrest defendant, and performed a valid warrantless search incident to the arrest. We have also determined that the inevitable discovery doctrine would have been an alternate basis to deny defendant's motion to suppress the cocaine. As a result, we conclude that the judge did not err by denying defendant's motion to suppress the cocaine.
I.
We begin by addressing defendant's assertion that the police unjustifiably detained him. Here, the detective initially conducted a valid field inquiry, which escalated to a proper Terry stop. Consequently, we reject defendant's contention that he was detained illegally.
(a).
"A 'field inquiry' is the least intrusive" form of police encounter, occurring "when a police officer approaches an individual 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).
The brief initial encounter between the detective and defendant was not coercive and the questioning about defendant's name and where he was going was not "overbearing or harassing in nature." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). There is no indication that Detective Abrams denied defendant's right to move at this point; in fact, the detective's testimony reflects that he asked defendant if he could speak with him, and defendant voluntarily complied. Nishina, supra, 175 N.J. at 510 (explaining that "a police officer properly initiates a field inquiry by approaching an individual on the street, or in another public place, and by asking him if he is willing to answer some questions") (citation and quotation marks omitted). Thus, Detective Abrams executed a proper field inquiry, which may be undertaken without the level of suspicion necessary to effectuate a Terry stop. Ibid.
(b).
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). A police officer may 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).
Detective Abrams had the requisite particularized suspicion that "defendant 'ha[d] been [engaged] or [was] about to engage in criminal wrongdoing.'" Nishina, supra, 175 N.J. at 512 (quoting Davis, supra, 104 N.J. at 504). He observed defendant raise his hands in the parking lot to flag down a vehicle, which his training had taught him was suggestive of criminal activity; defendant lied to the detective regarding where he had been, where he was going, and whether he had entered the Burger King or a vehicle; and defendant continuously shoved his hands in his pockets, manipulating something in his groin area.
As a result, the detective was justified in performing the Terry stop. See Nishina, supra, 175 N.J. at 512 (concluding that a defendant's suspicious "explanation [of his activities] buttressed the officer's initial suspicion that defendant was not on school property for an authorized purpose, warranting further investigation"). Thus, defendant was not illegally detained.
II.
We agree with defendant that Detective Abrams lacked a particularized suspicion to conclude that defendant was armed and dangerous. As a result, the detective was unauthorized to perform a Terry search of defendant's person.
A Terry stop and frisk are two separate constitutional events. State v. Thomas, 110 N.J. 673, 678-79 (1988) (explaining that "[u]nder the Terry rule, whether there is good cause for an officer to make a protective search incident to an investigatory stop is a question separate from whether it was permissible to stop the suspect in the first place"). A "Terry search" allows an officer "to pat down a citizen's outer clothing when the officer 'has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.'" Nishina, supra, 175 N.J. at 514-15 (citations omitted).
The reasonableness of a Terry search is measured objectively. Thomas, supra, 110 N.J. at 679. The officer conducting the search must "point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Ibid. (citation and internal quotation marks omitted). In the context of searching for narcotics, the United States Supreme Court explained that "[n]othing in Terry can be understood to allow a generalized 'cursory search for weapons' or, indeed, any search whatever for anything but weapons." Ybarra v. Ill., 444 U.S. 85, 93-94, 100 S. Ct. 338, 343, 62 L. Ed. 2d 238, 247 (1979).
In terms of drug-related offenses, courts reviewing protective searches "are influenced by the seriousness of the suspected drug offense in determining whether officers were reasonable in believing the suspect was armed and dangerous." Thomas, supra, 110 N.J. at 681. However, "[e]ven when officers have reason to believe a suspect is engaged in drug dealing, courts frequently require more to justify a protective search." Id. at 682; see also State v. Arthur, 149 N.J. 1, 29 (1997) (indicating that the officer's "observation of a possible drug transaction between two people could not by itself justify a protective search"). In Arthur, the officers did not believe that the suspect was armed. Id. at 28-29.
Here, there is no indication Detective Abrams feared that defendant was armed or dangerous. Defendant was not a large-scale drug dealer or kingpin. The evidence suggests that defendant was a low-level street dealer. Defendant repeatedly buried his hands in his pockets; however, there is no credible evidence suggesting that he possessed a weapon. There are no "particular facts from which [the detective] reasonably inferred that [defendant] was armed and dangerous." Thomas, supra, 110 N.J. at 679. The fact that Detective Abrams suspected he engaged in a sale of narcotics is insufficient on its own to warrant a Terry search. Id. at 682.
The inability to perform a Terry search does not mean, however, that the judge erred by denying defendant's motion to suppress the cocaine. The detective had probable cause to arrest defendant. Therefore, the warrantless search is justified as a search incident to the arrest.
Warrantless arrests are presumptively invalid, and the State bears the burden of proving the validity of the arrest by a preponderance of the evidence. State v. Walker, 213 N.J. 281, 290 (2013). The State must show that the arresting officer had probable cause. State v. Gibson, 218 N.J. 277, 293 (2014). "Probable cause has been defined as 'a well[-]grounded suspicion that a crime has been or is being committed[.]'" Id. at 292 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). A probable cause determination "requires nothing more than a practical, common-sense decision whether, given all the circumstances[ ]there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Dangerfield, 171 N.J. 446, 456 (2002) (citations and internal quotation marks omitted).
Here, because no warrant was sought for the search and arrest of defendant, the State bears the burden of showing that the warrantless seizure "falls within one of the few well-delineated exceptions to the warrant requirement." State v. O'Neal, 190 N.J. 601, 611 (2007) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). "The State has the burden of proof to demonstrate by a preponderance of the evidence that the warrantless seizure was valid." Ibid. (citing Pineiro, supra, 181 N.J. at 20).
One exception to the warrant requirement is a search of persons incident to their lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969). When a police officer has probable cause to arrest prior to a search, it is not unlawful to search the individual, like here, prior to the arrest. O'Neal, supra, 190 N.J. 601, 614. "It is 'the right to arrest,' rather than the actual arrest that 'must pre-exist the search.'" Ibid. (quoting State v. Doyle, 42 N.J. 334, 342 (1964)).
The O'Neal Court reasoned that "'the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent.'" O'Neal, supra, 190 N.J. at 614 (quoting State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Thus, the Court held that since the officers objectively had the probable cause necessary to arrest the defendant prior to the search, it was not unlawful to search the defendant before placing him under arrest. Id. at 615.
Here, there existed probable cause to arrest defendant. The detective conducted surveillance at a particular location based on tips from reliable confidential informants; the detective observed defendant flag down a vehicle, enter into the rear seat, lean forward in between the driver and front-seat passenger, all suggesting, based on the detective's training, that defendant was involved in a drug transaction; defendant then exited the vehicle, which sped away at a high rate of speed; the detective stopped defendant on foot, who lied about where he was going and whether he had entered the restaurant and vehicle; and the detective saw money stashed in defendant's sock when defendant leaned against the police vehicle. All of these facts, taken together, establish probable cause to arrest. As a result, seizing the cocaine was proper as a search incident to the arrest.
Under the facts of this case, it is of no moment that the search occurred prior to the arrest. O'Neal, supra, 190 N.J. at 614. We note that "the search incident to arrest exception is focused on the arrestee himself and on eliminating his potential to endanger the police or destroy evidence." State v. Pena-Flores, 198 N.J. 6, 19-20 (2009) (citation omitted)
In State v. William L. Witt, ___ N.J. ___ (2015), our Supreme Court addressed warrantless searches of automobiles under the automobile exception overruling Pena-Flores. Witt applies prospectively. Id. at ___ (slip op. at 53). --------
III.
Finally, the inevitable discovery doctrine would have been an alternate basis to deny defendant's motion to suppress the cocaine.
Under the exclusionary rule, evidence obtained in violation of an individual's constitutional rights will be excluded as "fruit of the poisonous tree." State v. Faucette, 439 N.J. Super. 241, 266 (App. Div.), certif. denied, 221 N.J. 492 (2015). However, the inevitable discovery doctrine is an exception to the exclusionary rule, allowing illegally obtained evidence to be admitted despite a constitutional violation where the State shows, by clear and convincing evidence, that
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[State v. Sugar, 100 N.J. 214, 238 (1985).]
Here, were the search of defendant found to be unconstitutional, we conclude Detective Abrams had sufficient evidence to support a finding of probable cause by a neutral and detached magistrate. Our Supreme Court has adopted the federal standard set forth by the United States Supreme Court in determining probable cause, namely "a totality-of-the-circumstances" test. State v. Novembrino, 105 N.J. 95, 122 (1987); Illinois v. Gates, 462 U.S. 213, 238-239, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983) (explaining that "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place").
Here, such a "fair probability" existed based on the cumulative weight of the evidence. Looking at the facts and giving due weight to Detective Abrams's professional insight and observations, there was sufficient evidence to warrant a finding of probable cause. In fact, the judge himself stated that based on the facts he heard at the suppression hearing, "if the police officer came to me and said this is what I saw, Judge. I saw exactly what this witness [Detective Abrams] testified, will you sign a search warrant. Would I sign it? I would. I would think there is probable cause to search."
Thus, the inevitable discovery rule would apply because had Detective Abrams not searched defendant on the scene, he could have and likely would have sought a warrant to search defendant, which would have led to the discovery of the evidence uncovered during the search.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION