STATE OF NEW JERSEY v. TREVOR SIMMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2023-03T32023-03T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TREVOR SIMMS,

Defendant-Appellant.

 

Submitted November 2, 2005 - Decided

Before Judges Fall and Grall.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Number 02-09-1881.

Mark E. Roddy, attorney for defendant.

Peter C. Harvey, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Trevor Simms appeals from a final judgment of conviction entered following his plea of guilty to a crime of the second degree contrary to N.J.S.A. 2C:39-7. The specific charge was that defendant possessed a firearm after being convicted of possessing a controlled dangerous substance with intent to distribute. N.J.S.A. 2C:39-7b(1). On appeal defendant challenges the denial of his motion to suppress evidence seized at the time of his arrest. Because the motion judge's findings are supported by credible evidence and his legal conclusions are valid, we affirm. See State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990).

The grand jurors for Atlantic County charged defendant with third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of cocaine with intent to distribute in a quantity of one-half ounce or more, contrary to N.J.S.A. 2C:35-5a(1), -5b(2) (count two); third-degree possession of cocaine with intent to distribute in a school zone, contrary to N.J.S.A. 2C:35-7 (count three); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count four); fourth-degree possession of a defaced firearm, contrary to N.J.S.A. 2C:39-3d (count five); second-degree possession of a weapon while in the course of committing the crime of possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:39-4.1 (count six); and second-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7 (count seven).

Following denial of his motion to suppress evidence, defendant plead guilty to count seven. The plea was entered pursuant to the State's agreement to dismiss the remaining counts of the indictment and recommend a sentence of incarceration of five years, with no possibility of parole, to be served concurrently with a sentence defendant was serving in the State of New York. Five years is the mandatory minimum term of parole ineligibility for a person who possesses a firearm after having been convicted of violating N.J.S.A. 2C:35-5. N.J.S.A. 2C:39-7b(1). Defendant was sentenced in accordance with the agreement, and the remaining charges were dismissed.

The motion judge's decision on suppression was based on the following evidence. On August 19, 2002, at approximately 10:30 p.m., Detective Robert DeGaetano of the Atlantic City Police Department received a telephone call from a confidential but not anonymous informant, who had never before provided information. DeGaetano was assigned to the Special Investigation Section, Narcotics Unit and had worked for the Atlantic City Police Department for approximately ten years. He had specialized training in the investigation of drug-related offenses.

DeGaetano described the information he was given as follows:

. . . [A] male was coming to [Atlantic City] with drugs and a gun. The informant described the male as -- goes by the name of Heavy, and described hi[m] as being approximately [] six foot, 360 pounds or more, and [being] so big, you can't miss him.

The informant described him as being a light-skinned black male, driving a shiny red pick-up truck with dual tires in the rear, a black tarp over the bed, and stated that he would be bringing cocaine into the beach block of Iowa to do a drug deal at approximately 22:55 hours [10:55 p.m.].

The informant described the cocaine as being . . . packaged in a sock and would be kept either in his pocket, pants pocket, the driver's side door compartment, or in a magazine pouch behind the driver or the passenger seats.

The informant also stated that [the man] usually carrie[d] a gun and described it as a .9mm, shiny chrome color with a dark colored handle, and that he [kept] it wrapped up in a white towel in the trunk.

The informant warned that the suspect might be driving a black Mercedes with neon lights or a teal colored Ford station wagon instead of the truck, explaining that he primarily drove the pick-up but could be driving any of the three. DeGaetano noted that dual-axle pickup trucks are uncommon in Atlantic City.

Based upon the informant's tip, DeGaetano arranged to set up surveillance around the beach block of Iowa Street. Approximately five minutes after the time indicated by the informant, the detectives saw a shiny red pick-up with dual-back tires and a black tarp over the back. DeGaetano watched and confirmed that the driver was a "large, light-skinned black male." He was driving slowly and looking toward the beach block of Iowa.

DeGaetano radioed a request and officers in a patrol car stopped defendant's truck in the parking lot of a Dunkin' Donuts. DeGaetano alerted them that defendant could be armed.

When DeGaetano arrived, defendant was in the driver's seat and resting his hands on the window. DeGaetano asked him to step out of the vehicle, and defendant complied. DeGaetano conducted a pat down search but did not find a weapon. Looking through the windows of the truck, none of the officers saw anything out of the ordinary.

DeGaetano told defendant that he had received information that he had drugs and a weapon and asked for his consent to search the truck. Defendant refused.

Detective Christopher Barber, also of the Narcotics Unit, arrived. Barber had special training and experience working with dogs trained to detect illegal drugs. He had access to a dog that had been certified in detection of marijuana, cocaine, crack cocaine, heroin, methamphetamines, and ecstasy. The dog was trained to signal the presence of drugs by behavior such as barking, scratching, whining or licking. The dog had monthly in-service training and was tested annually by the USPCA. Barber's dog had scored one-hundred percent on his most recent test. When defendant declined Barber's request for consent to search the truck, Barber left to get the dog. At that point, defendant had been detained for approximately five minutes; in approximately ten minutes Barber returned with the dog.

Barber gave the dog a command to find and fetch and walked the animal around defendant's vehicle. When the dog reached the front passenger door, Barber noticed a change in its breathing pattern. The dog then cast his nose, propped his paws up against the door, and breathed intensely. This behavior, called a "head spin," indicated to Barber that the dog was detecting the odor of drugs but had not pinpointed the source. Based on the dog's behavior and the information DeGaetano had conveyed about the informant's tip, Barber opened the truck door.

Barber explained that this was necessary to allow the dog to pinpoint the source of the odor. The dog jumped into the back, whined and leapt at the back of the passenger seat. Believing the dog had located the drugs, Barber investigated. He removed a sock from behind the mesh netting in the passenger seat. The dog was extremely excited and tried to bite at the sock. Barber emptied the sock and found "numerous ziplock bags that contained a white powdery substance." The vehicle was searched, and Detective Mary Grace Ingram found a .9mm pistol wrapped in a towel. Defendant was arrested.

The motion judge "accept[ed] the totality of the testimony of the Police Officers," and found:

[T]he information given by the confidential informant was as articulated by Detective DeGaetano. I think that it is . . . noteworthy . . . that this was . . . a confidential informant whose reliability is not established.

The detail, and [the informant] does give considerable detail, is essentially of innocuous conduct. That is to say there was nothing facially criminal or of a criminal nature, simply the fact that the description of the car, the description of the

driver. . . . [T]here's nothing about the information provided on its face that would suggest criminality, other than the conclusory statement by the informant that this person would be delivering drugs. As far as the detail which would be available to the police for corroboration, all of that is innocuous.

The observations of the police do corroborate all of that innocuous conduct in rather great detail, with the exception that they see something which I think does allow their suspicions to be piqued, and that is the driving in the fashion he did up and down the streets, slowly and looking in certain areas. It would bespeak, in my view, suspicious behavior, together with the information they have. Certainly I think the police are armed with a reasonable basis to be suspicious.

I, therefore, find the stop of the motor vehicle itself was reasonable. That they had an articulable reasonable suspicion to believe that criminal activity was afoot that warranted further investigation.

. . . .

We then have the detention at the scene and the retrieval of a dog or a drug sniffing dog. Under the circumstances, I find that that intrusion was rather minimal in nature. It took . . . only ten minutes for him to leave and return with the dog. Detaining the defendant for that period of time, under those circumstances, I do not find to have been unreasonable. And if the police are to be allowed any leeway in exhausting the purpose of an investigative stop, which I find was reasonable and lawful, then I think that it was certainly not pushing the envelope to say that this was a reasonable detention, given the time, place and so forth.

We now get to the point where the dog is brought back to the scene and sniffs around the car. . . . I think the law is well settled that that does not constitute a search, both on Federal and State levels.

There does, however, come the time when the door is opened . . . and now the dog goes into the car.

I don't know how that is functionally different than the officer himself looking in the car or going into the car and looking at things. So at that point, I believe a search is taking place. And I would also find, based upon that now-added feature to all the information the police already have, that there is probable cause.

The motion judge reserved decision to give further consideration to the question whether the officers could conduct the search without first obtaining a warrant in light of the Supreme Court's decision in State v. Cooke, 163 N.J. 657 (2000).

In a written decision dated December 10, 2002, the motion judge concluded that exigency justified the warrantless search. He explained:

Here the police received information about the suspect and his vehicle only one-half hour before the encounter occurred. As has been already found, probable cause that there were drugs did not exist until the drug-sniffing dog reacted positively outside the motor vehicle. Once inside the car and the police recovered the CDS in a sock, the police had now corroborated in almost every detail the information provided by the confidential informant. Accordingly, there was then and there probable cause to believe there was also a handgun in the car as reported by the informant. "Exigent circumstances" have been also defined as those ". . . that make it impracticable to obtain a warrant." State v. Colvin, 123 N.J. 429, 437 (1991)(cited with approval [in] State v. Cooke, 163 N.J. 657, 667 (2000)). Given the time of day (11:00 p.m.), the presence of the car in a public area, and the suspected presence of a gun in the car, I am satisfied that exigent circumstances such as contemplated by the Court in Alston and Cooke required the swift action on the part of the police to search without a warrant. The search is, therefore, found to have been reasonable.

With the exception of finding that exigency and probable cause also supported the search that occurred when Barber opened the truck door to allow the dog to enter, we affirm substantially for the reasons stated by the motion judge.

Defendant raises five issues on appeal. He argues:

I. THE FACTS AVAILABLE TO DETECTIVE

DeGAETANO DID NOT ESTABLISH REASONABLE

SUSPICION SUFFICIENT TO JUSTIFY THE

MOTOR VEHICLE STOP IN THIS CASE.

II. WITHOUT RECOGNIZED AND APPROVED

STANDARDS BY WHICH A DRUG DETECTION

DOG'S QUALIFICATIONS CAN BE JUDGED, ANY

CONCLUSION THAT A DOG'S ACTIONS MIGHT

ESTABLISH PROBABLE CAUSE FOR A SEARCH

OF A VEHICLE CANNOT PASS CONSTITUTIONAL

MUSTER.

III. IN THAT THE DOG IN THIS CASE DID NOT

"ALERT" TO THE PRESENCE OF DRUGS,

PROBABLE CAUSE WAS NOT ESTABLISHED TO

SEARCH THE VEHICLE.

IV. BOTH THE DUE PROCESS AND SEARCH AND

SEIZURE PROVISIONS OF THE NEW JERSEY STATE CONSTITUTION SHOULD REQUIRE THAT ALL DRUG DOG SEARCHES BE VIDEOTAPED BEFORE BEING ADMISSIBLE INTO EVIDENCE.

V. THE FAILURE OF THE POLICE TO OBTAIN A

SEARCH WARRANT BEFORE SEARCHING TREVOR

SIMMS' TRUCK RENDERS THE SEARCH

INVALID.

We address defendant's arguments together. The controlling legal principles are well-established.

Preliminarily, this court does not review the record on a motion to suppress to determine how it would decide the matter as a court of first instance. State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990). Our review is limited to determining whether the judge's findings are supported by credible evidence and the legal conclusions are valid. Ibid. We give deference to findings influenced by the "judge's opportunity to hear and see the witnesses and to have the `feel' of the case." Ibid.

A motor vehicle stop is a seizure within the meaning of the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. U.S. Const. amend. IV; N.J. Const. art. I, 7; see Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979); State v. Dickey, 152 N.J. 468, 475 (1998). Because it is minimally intrusive, a stop need not be supported by probable cause so long as it is based upon "an articulable and reasonable suspicion that the driver" has committed or is committing an offense. State v. Locurto, 157 N.J. 463, 470 (1999).

Suspicion is reasonable if predicated 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, 126-27 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). The "objective justification" must be adequate to ensure that the stop was based on "something more" than the officer's "inchoate and unparticularized" hunch. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); see State v. Pineiro, 181 N.J. 13, 20 (2004); State v. Nishina, 175 N.J. 502, 511 (2003). The officer "'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" State v. Arthur, 149 N.J. 1, 16 (1997) (quoting Terry, supra, 392 U.S. at 21); see State v. Stovall, 170 N.J. 346, 356 (2002). The assessment is based upon the totality of the circumstances known to the officer at the time. Stovall, supra, 170 N.J. at 356.

A reliable informant's tip may generate a reasonable articulable suspicion. See Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301, 310 (1990); Rodriguez, supra, 172 N.J. at 127-28. A tip is reliable if under the totality of the circumstances, there is a "sufficient basis" for crediting the tip. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Smith, 155 N.J. 83, 92, certif. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998); State v. Novembrino, 105 N.J. 95, 111, 122 (1987). That determination requires "a practical, common-sense decision whether, given all the circumstances . . . including the 'veracity' and 'basis of knowledge' of" the informant, there is an articulable basis for reasonable suspicion. Smith, supra, 155 N.J. at 93 (quoting Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548).

Where, as here, there is no evidence of veracity based upon the informant's past performance, reliability may be established by a strong showing that the informant has a sound basis of knowledge about the matters reported. Id. at 94; Novembrino, supra, 105 N.J. at 113. When, as in this case, the informant does not report how the information was acquired, "the nature and details revealed in the tip may [be adequate to] imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source" and not based upon mere rumor or the individual's general reputation. Smith, supra, 155 N.J. at 94; see State v. Perry, 59 N.J. 383, 392-93 (1971) (holding "that an informant's tip detailing that 'Monies, jewelry, doctor's bag and narcotics' were in a particular location contained the type of detail that was probably known from personal knowledge").

Similarly, the informant's prediction of "hard-to-know future events" that are confirmed by subsequent observation can contribute to a finding of reliability by implying the informant was either a witness or has access to a reliable source of information. Smith, supra, 155 N.J. at 95 (discussing Draper v. United States, 358 U.S. 307, 309, 79 S. Ct. 329, 331, 3 L. Ed. 2d 327, 329-30 (1959), where informant described the means and time of the suspect's arrival, provided a description of his physical appearance, clothing, bag and gait). In such cases, "the mere allegation that such future events will occur is sufficient to infer that the informant is at least claiming to be relying on a reliable source." Ibid.

An inference of access to reliable information is warranted especially where, as here, the officer knows the identity of the informant. One can assume an informant would not knowingly give false information to an officer who would be in a position to take appropriate action upon learning of the deception. See Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254, 270 (2000); State v. Sibilia, 330 N.J. Super. 496, 500-01 (App. Div. 2000).

In this case, independent police observation corroborated a tip from a known but untested confidential informant that was sufficiently detailed and predictive to suggest reliability and adequately creditable to give rise to a reasonable suspicion of criminal activity necessary to stop defendant's car. The informant knew defendant's vehicles, including his vehicle of preference. The informant knew how defendant carried his gun, wrapped in a towel, and that he carried his drugs in a sock. The informant knew the site of the drug deal and the scheduled time. This detailed, predictive information all suggested a source with intimate knowledge of defendant's habits and plans that would be hard-to-know. The police were able to corroborate enough details to give additional credence to the informant's report -- the vehicle, the physical description of defendant and his destination and arrival time.

Moreover, the officers independently observed suspicious conduct on defendant's part as they watched while he engaged in the activity the informant predicted. DeGaetano saw defendant slowly drive in the area of the site for the drug-deal while looking toward the spot designated for the transfer.

The tip and these developing circumstances, viewed in their totality, were more than adequate to give rise to a reasonable suspicion that defendant possessed drugs and a gun. When DeGaetano radioed for uniformed officers to stop defendant's truck, the request was supported by articulable facts not a "hunch."

The officers' subsequent conduct was reasonably related to ensuring the officers' safety while they took action necessary to dispel or confirm the reasonable suspicion that justified the stop. Dickey, supra, 152 N.J. at 478. The demand for defendant to leave the truck and the pat-down search were reasonable given the informant's tip. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977); State v. Thomas, 110 N.J. 673, 677-78 (1988). The request for consent to search was supported by reasonable suspicion, as was the brief detention necessitated by the wait for the arrival of the certified dog. See Illinois v. Caballes, ___ U.S. ___, ___, 125 S. Ct. 834, 838, 160 L. Ed. 2d 842, 847 (2005); State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174 N.J. 351 (2002).

Defendant claims that the dog-sniff is equivalent to the use of thermal imaging devices that was found violative of the Fourth Amendment in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). The Supreme Court has rejected an identical claim. Caballes, supra, ___ U.S. at ___, 125 S. Ct. at 838, 160 L. Ed. 2d at 848.

We accept the factual findings underlying the motion judge's conclusion that the dog's behavior, combined with the informant's tip, gave the officers probable cause to believe that the truck contained illegal drugs. This dog had passed its most recent qualifying examination with a perfect score. The motion judge had an opportunity to observe Detective Barber, the dog's experienced and trained handler, as he testified about the dog's reaction to defendant's truck. Barber's testimony, if believed, established that the dog's conduct outside verified the informant's detailed tip that the were drugs inside the truck. With that verification, there were sufficient creditable and articulable facts to elevate reasonable suspicion of criminal activity to probable cause to believe that defendant's truck contained drugs and a gun, as the informant has advised.

Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548; State v. Johnson, 171 N.J. 192, 214-15 (2002).

We recognize that the officer's opening of the truck door to permit entry of the dog amounted to a search of the interior of the truck that was not authorized by a warrant. It was, however, justified by "exigency," an exception to the warrant requirement. Cooke, supra, 163 N.J. at 667 (2000).

In the context of an automobile search, exigency requires a court to consider whether it is "impracticable to obtain a warrant when the police have probable cause to search [a] car." Ibid. As the Supreme Court stressed in Cooke, "'it may be impracticable' to require police officers, while awaiting a warrant, to guard vehicles stopped on an open highway or parked on a public street." Id. at 674 (quoting State v. Colvin, 123 N.J. 428, 435 (1991).

When officers cannot readily and practically secure evidence pending acquisition of a warrant, especially evidence like a firearm or an illegal drug that is dangerous by nature, the inherent mobility of a car and its accessibility to others justifies a finding of exigency. Id. at 672; State v. Alston, 88 N.J. 211, 233 (1981). A "deadly weapon poses a special threat to both the public and police . . . [that] is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003).

We agree with the motion judge that in this case, as in Cooke, "'it would [have been] unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant once they [had] probable cause to search'" this truck for drugs. Id. at 674 (citation omitted). The vehicle was parked in the lot of a donut shop in a major city. It was reasonable to expect that at least one person, defendant's would-be purchaser, would be both looking for the car and aware of its contents. Obvious exigency supported an immediate search under these circumstances.

There is no merit to the contention that the officers should have obtained an anticipatory warrant. Because the officers did not have probable cause to search the vehicle until the dog reacted, this is not a case in which it would have been appropriate for the officers to obtain a warrant in advance. See State v. Ulrich, 265 N.J. Super. 569, 574-75 (App. Div. 1993); certif. denied, 135 N.J. 304 (1994); State v. Foreshaw, 245 N.J. Super. 166, 175 (App. Div.), certif. denied, 126 N.J. 327 (1991).

We reject as without sufficient merit to warrant discussion, R. 2:11-3(e)(2), defendant's claim that courts should establish standards for the training and certification of drug-sniffing dogs or a requirement that dogs be videotaped while sniffing a car. See State v. Cook, 179 N.J. 533, 539 (2004) (discussing reasons for declining to impose a requirement for videotaping of confessions without notice to law enforcement and proper consideration of the implications). In this case, Detective Barber gave thorough and complete testimony about this dog's monthly training and annual certification by a recognized agency; he also gave full testimony about the dog's reaction in this case. Defendant had full opportunity to cross-examine the officer. The motion judge was in a position to determine what weight, if any, to give to the officer's testimony when he explained that the dog's conduct indicated the presence of drugs inside the truck but not the precise location in the vehicle.

Accepting the judge's finding on credibility, we conclude that the State met its obligation to establish that this search was lawful. Pineiro, supra, 181 N.J. at 19.

 
Affirmed.

(continued)

(continued)

20

A-2029-03T3

December 1, 2005