STATE OF NEW JERSEY IN THE INTEREST OF F.N.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4888-04T24888-04T2

STATE OF NEW JERSEY

IN THE INTEREST OF F.N.

___________________________

 

Submitted November 29, 2005 - Decided

Before Judges Kestin, Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part,

Monmouth County, FJ-13-2327-05W.

Luis A. Valentin, Monmouth County

Prosecutor, attorney for appellant

(Christopher J. Decker, Assistant

Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Diane Toscano,

Assistant Deputy Public Defender, of counsel

and on the brief).

PER CURIAM

The State appeals, on leave granted, from an order suppressing evidence obtained as the result of a warrantless search. Because we believe the motion judge took an unduly restrictive view of an officer's ability to search under the circumstances presented here, we reverse.

The facts are not in substantial dispute. On January 18, 2005, Asbury Park Patrolman Jeffrey White was in uniform and on duty in an area which he described as notorious for open air narcotic activities. He saw the juvenile, F.N., in the area and noticed what appeared to be "hand to hand transactions." Because White did not know F.N., he sought information about him from a confidential informant who had previously provided reliable information. The informant related that F.N. "routinely sold crack cocaine" and that he was then in possession of a substantial amount of the drug, which he had secreted in his waistband area. The confidential informant also told White that F.N. had a single-edged razor utilized to cut smaller pieces of the cocaine.

Shortly after receiving this information, White saw F.N. enter Sheffield's Market. White exited his patrol vehicle and entered the market, observing that F.N.'s fly was open and that F.N. both turned away from White in an evasive manner and walked away. As he did so, F.N. grabbed for a bag of chips with his right arm while reaching toward his groin area with his left hand. White then approached F.N. and told him to keep his hands where White could see them.

At this point, White told F.N. what he had learned from the confidential informant and what he had observed. F.N. admitted that he had a razor blade, which he claimed was used for protection, and gave the blade to White. An off-white residue was immediately apparent on the razor and White, from his training and experience, was able to identify the residue as crack cocaine. Patrolman White then searched the waistband of F.N. and discovered a "large, hard, rock-like object" which, when retrieved, was determined to be crack cocaine. He also obtained a clear plastic bag containing several large pieces of crack cocaine, and $198 in small denominations. It was only after this search that F.N. was arrested.

F.N. moved to suppress the evidence obtained as a result of this search. The judge conducted a hearing at which the facts we have just recited were developed. He then granted the motion to suppress, reasoning:

The Officer indicated that the razor, he did not feel, ... in any way threatened him or placed him in a dangerous situation. He said he wasn't in jeopardy in any way, which does raise some difficult issues when we get to the analysis of the search.

Because the first thing, I'll cover it, but this was not a Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed 2d, 889 (1968)] stop search based on the officer's own testimony. He was not patting the juvenile down for weapons.

. . . .

The inference that there is to take from his own testimony was, he was doing the pat down for CDS evidence, not for weapons so that even if it went from an investigatory stop to a Terry stop, the Terry stop is for weapons only.

That doesn't end the review because the State argues, as I would expect that irrespective of whether it was an investigatory stop or a Terry stop, it's main reliance was on probable cause to arrest in a search incident to arrest.

. . . .

The real issue here again goes back to what was the intent of Ptlm. White at the time of the search. The Supreme Court has indicated in State v. Simms, 75 N.J. 337, 353 (1978) that "for a search to be justified as incidental to a valid arrest, there must have been an intention on the part of the officers to arrest on the information possessed by them prior to the search without regard to what the search might disclose."

. . . .

It's clear in my mind that under a standard probable cause review, based on what the officer says that he observed throughout the course of the day, and based on his training that they were hand to hand transactions, substantiated by the information that the juvenile had, that there could have been arrest based on probable cause on that alone. For whatever reason, the officer determined not to do that and in his own mind, perhaps he needed something more.

. . . .

So then the real issue was what was the purpose for the search at that point because he didn't arrest the juvenile until after the search was conducted. So it wasn't a search incident ... [to an] ... arrest because he hadn't been arrested yet.

. . . .

Having come to that conclusion, [I] reluctantly . . . suppress the evidence . . . .

We believe that, although the judge was clearly correct as far as he went, he prematurely terminated his analysis when he determined that the search producing the evidence was neither a Terry search nor one incident to a lawful arrest. Our Supreme Court has explained the various encounters that occur between a police officer and a potential defendant and has described the circumstances under which warrantless searches of the person may be conducted. See State v. Nishina, 175 N.J. 502 (2003). We summarize that explanation here.

The least restrictive encounter is the so-called "field inquiry." This is "a limited form of police investigation that, except for impermissible reasons such as race, may be conducted 'without grounds for suspicion'." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). There is no claim here that Officer White was prohibited from approaching F.N. or that his initial contact with F.N. was in any way impermissible.

A field inquiry will escalate to a detention "when an objectively reasonable person feels that his or her right to move has been restricted." State v. Nishina, supra, 175 N.J. at 510 (quoting State v. Rodriguez, supra, 175 N.J. at 126). Such a stop need not be accompanied by a warrant "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." Id. at 511 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). There is no dispute that the initial investigatory stop had become a Terry stop once Patrolman White obtained the razor from F.N., but that razor, and the residue it hosted, provided the reasonable suspicion necessary to sustain the detention.

Defendant argues that the stop was custodial as soon as the patrolman told defendant to keep his hands in plain sight. Even were this so, there is no doubt that the information received from the confidential informant, the behavior of the defendant witnessed earlier that day, the movements of defendant's hand toward his groin in conjunction with the open fly all provided "a reasonable suspicion of criminal activity."

Once there is a "reasonable suspicion of criminal activity," and a resulting detention, Terry authorizes an officer "to pat down a citizen's outer clothing" when the facts "give rise to an objectively reasonable suspicion that a suspect is armed and dangerous." State v. Thomas, 110 N.J. 673, 679 (1988). The motion judge here determined that Officer White's "pat down" of F.N. was not motivated by a fear for his safety and was not, therefore, authorized by Terry. He reasoned further that, since there had been no arrest, the search could not be authorized as one incident to a valid arrest. See State v. Doyle, 42 N.J. 334, 344-45 (1964). The motion judge believed that this terminated the analysis and granted the motion to suppress. We disagree.

In similar circumstances, our Supreme Court has had occasion to explain that, even in the absence of a lawful arrest or a Terry search, the analysis must, nevertheless, continue.

Although warrantless searches outside of Terry are "presumed invalid," State v. Cooke, 163 N.J. 657, 664, 751 A.2d 92 (2000), our courts have permitted them in narrow circumstances. One such circumstance is when an officer has probable cause to believe that a crime has been or is about to be committed and the officer is faced with exigent circumstances. State v. DeLuca, 168 N.J. 626, 632-33, 775 A.2d 1284 (2001). When that exception to the warrant requirement is claimed, "the burden is on the State to prove that its search was permissible." Id. at 632, 775 A.2d 1284;

[State v. Nishina, supra, 175 N.J. at 515.]

We have no doubt that both probable cause to believe a crime had been committed and exigent circumstances existed here. "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." State v. Nishina, supra, 175 N.J. at 515 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). At the time of the search, Patrolman White knew that defendant possessed a razor on which there was a residue of crack cocaine. That is direct evidence of criminal activity and exceeds the lower threshold for probable cause.

Similarly, there can be no doubt that Officer White was faced with exigent circumstances. He "certainly had no time in which to procure a warrant to search defendant because the evidence very well could have been consumed, hidden, or sold by the time such a warrant was issued." State v. Guerrero, 232 N.J. Super. 507, 512 (App. Div. 1989).

In almost identical circumstances, we have held a warrantless search valid. State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995) involved a search of a person, not yet arrested, who was found by the police on a porch from which emanated a strong smell of marijuana. That odor was sufficient to justify a search. The situation here, of course, is even stronger because the contraband itself, and not just evidence of the contraband, was known to the searching official. Accordingly, because Officer White's conduct with the juvenile was unexceptionable and resulted in a search justified by both probable cause and exigent circumstances, the search was constitutionally permissible. The motion to suppress was, therefore, improperly granted.

 
Reversed and remanded.

(continued)

(continued)

9

A-4888-04T2

RECORD IMPOUNDED

December 22, 2005