STATE OF NEW JERSEY v. JULIUS BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3909-03T43909-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIUS BROWN,

Defendant-Appellant.

_______________________________

 

Submitted September 26, 2005 - Decided

Before Judges Alley and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 02-10-2227-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jeffrey R. Yablonski, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted on a charge of third-degree possession of heroin, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1).* The trial court held a hearing on defendant's motion to suppress the heroin seized from him, and after it denied the motion defendant pled guilty to the charge. The court imposed a sentence of probation for a term of three years, together with statutory assessments and penalties. This sentence was consistent with the plea agreement.

Defendant appeals from the denial of his motion to suppress. He summarizes the contentions in his brief by asserting that because the trial court "erred in finding that Officer Leach had probable cause to arrest Mr. Brown, the evidence gathered to justify Mr. Brown's arrest must be suppressed."

The charge against defendant arose out of a surveillance operation by the Jersey City Police Department in the East District beginning on May 11, 2002, during the 5:00 p.m. to 1:00 a.m. shift, as a result of which the officers concluded that defendant had purchased cocaine from a dealer. The officers stopped defendant and, after he withdrew the drugs he had in his jacket pocket and handed them over to one of the officers, they arrested him. The trial court denied defendant's motion to suppress, and we affirm.

Among the pertinent evidence shown by the record at the motion hearing was that the officers were conducting their observations in the vicinity of 20-22 Seidler Street in Jersey City in the late afternoon and early evening of May 11, 2002. They observed a man later identified as defendant approach a known drug dealer named Crandall in front of that address. One of the officers had personally participated in three of Crandall's numerous prior arrests. The basis for the officers' arrest of defendant, as set forth in the State's own brief (record citations omitted), also included the following:

The officers watched as defendant and Crandall separated themselves slightly from the group and momentarily spoke to one another. During that interaction, defendant handed Crandall currency. After Crandall accepted the money, the two men entered the shared vestibule of 20-22 Seidler Street.

Both men emerged from the vestibule a minute later. As he emerged, Crandall looked around. Apparently satisfied that there was no law enforcement presence in the area, Crandall exited and remained in front of 20-22 Seidler Street. Defendant departed, retracing his steps, heading north on Seidler, crossing over to the west side, and heading west on Clinton Avenue. Crandall returned to the front of 20-22 Seidler Street and remained there.

Officer Pastrana believed, consistent with his prior experience, that he had seen the two men retreat to an unobservable stash location to complete a drug transaction. He further believed that defendant had visited 20-22 Seidler Street for the sole purpose of making a drug transaction. The facts from which he drew his conclusion included: defendant's brief conversation with Crandall, the exchange of currency, defendant and Crandall's retreat into the vestibule, their quick exit from the vestibule, Crandall's furtive glancing about to be sure the area was clear, and the fact that Crandall again positioned himself in front of 20-22 Seidler when the apparent transaction had concluded.

Office Pastrana contacted officers who had been standing by in perimeter units. Pastrana described defendant's apparent drug transaction, provided the waiting officers with defendant's physical description, and stated that he was heading westbound on Clinton Avenue on foot. Officer Pastrana asked the perimeter units to stop defendant.

At approximately 6:00 p.m., plain clothes officers Joseph Leach and Vinny Romano responded to Officer Pastrana's request. They drove their unmarked car to the area described by Pastrana. As they drove down Oxford Avenue, they saw defendant, who matched the description Pastrana had earlier provided, walking south on Sackett Street, heading towards Oxford Avenue. Both officers were aware that the intersection of Oxford Avenue and Sackett Street was also an area characterized by a high level of narcotics crime.

Leach and Romano exited their unmarked vehicle with their badges exposed. They approached defendant on the sidewalk at the corner of Oxford Avenue and Sackett Street. Leach and Romano identified themselves as police officers and told him the reason for their interest. Specifically, Leach told defendant that officers had observed him entering 20-22 Seidler Street and that they were aware that he had purchased something.

Defendant immediately and calmly removed a cigarette box from his right jacket pocket and handed it to Leach. Leach opened the box saw that it contained 10 bags of apparent heroin. Each bag was marked with a "Best Buy" logo. Officer Leach knew from his training and experience that this was consistent with the packaging of heroin in Jersey City.

At this point, Officer Leach told defendant that he was no longer free to leave, advised him of his Miranda (footnote omitted) rights, and placed him under arrest.

There may be some doubt as to whether the officers had probable cause to stop defendant but we are convinced that the drugs obtained from defendant were properly admitted into evidence because the evidence was procured as a result of defendant's response to a valid inquiry by the police officers. This flowed from what was either an initial field inquiry, or a Terry protective search, or both, which then evolved into a factual setting that led to further legitimate acts on behalf of the police. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Our Supreme Court recently explained in State v. Pineiro, 181 N.J. 13, 20-21 (2004), that in addition to a stop justified by probable cause, there are two other "constitutionally permissible forms of police encounters with citizens. Id. at 20. The Court stated

A "field inquiry" is the least intrusive encounter, and occurs when a police officer approaches an individual and asks "if [the person] is willing to answer some questions." [State v. Nishina, 175 N.J. 502,] 510 (citation and internal quotation marks omitted). A field inquiry is permissible so long as the questions "[are] not harassing, overbearing, or accusatory in nature." Ibid. "The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." [State v. ]Maryland, 167 N.J. [471,] 483 [(2001)] (quoting Florida v. Royer, 460 U.S 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)). Cf. Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 159 L. Ed. 2d 292, 124 S. Ct. 2451 (2004) (upholding state "stop and identify" statute requiring detainee to disclose his name to officer under suspicious circumstances).

The next type of encounter, an investigatory stop, sometimes referred to as a Terry (footnote omitted) stop, is valid "if it 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." Nishina, supra, 175 N.J. at 510-11 (citation and internal quotation marks omitted). The suspicion need not rise to the "probable cause necessary to justify an arrest." Id. at 511. We have explained:

The standards by which the reasonableness of police conduct involving an investigatory stop of a person or an automobile [are evaluated] originate with Terry v. Ohio . . . . In Terry, the United States Supreme Court . . . stated that the reasonableness of the police conduct in conducting an investigatory stop in light of the Fourth Amendment could be generally assessed by "'balancing the need to search (or seize) against the invasion which the search (or seizure) entails.'" The facts used in that balancing test are to be judged objectively: "would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" When determining if the officer's actions were reasonable, consideration must be given "to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Neither "inarticulate hunches" nor an arresting officer's subjective good faith can justify an infringement of a citizen's constitutionally guaranteed rights. Rather, 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, 7-8, 691 (1997) (citations omitted) (second alteration in original).]

[Pineiro, supra, 181 N.J. at 20-21.]

In the circumstances of this case, when defendant was approached by the police following what they believed to be his purchase of illegal drugs, they had sufficient facts to engage in a legitimate field inquiry of him, or to make a valid Terry stop.

Thus, the actions of the police rested on more than mere hunch. Indeed, the information they possessed provided the legitimate basis for a field inquiry or Terry stop.

Defendant was not searched when stopped. He was not required to produce the drugs. He was merely questioned, and his reaction was to hand over the drugs from his jacket pocket. Because he did so in response to a valid inquiry, made during a permissible field stop or Terry stop, the motion to suppress was properly denied.

 
Affirmed.

* This opinion supersedes our opinion herein filed October 25, 2005, which is hereby withdrawn. The State's motion for reconsideration thereof is granted by separate order.

(continued)

(continued)

8

A-3909-03T4

December 15, 2005