STATE OF NEW JERSEY v. ANGEL AROCHO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0313-05T20313-05T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANGEL AROCHO,

Defendant-Respondent.

 

Submitted March 15, 2006 - Decided March 27, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 4424-11-04-I.

Vincent P. Sarubbi, Camden County Prosecutor, attorney for appellant (Leo Feldman, Assistant Prosecutor, of counsel and on the brief).

Michael W. Kahn, attorney for respondent.

PER CURIAM

Pursuant to leave granted, the State appeals from an order granting defendant Angel Arocho's motion to suppress. We reverse.

The witness at the August 4, 2005 suppression hearing was Camden City Police Officer Melvin Fuentes, who had been on the force for approximately ten years. He had narcotics training at the police academy and had taken classes and seminars since that time. He also had made over one hundred drug arrests.

At approximately 10:20 a.m. on September 7, 2004, Fuentes was driving a marked police vehicle. He received a dispatch that a tip had been provided by an area resident that two suspicious males, one Hispanic wearing a white tee shirt and blue shorts, and the other a heavyset black male wearing a white tee shirt and black shorts, were selling drugs in the area of 648 York Street. Fuentes and another officer, Officer Colon, responded to the scene in separate cars; they arrived at approximately the same time. Fuentes observed both suspects at the given address. He testified that "[t]he heavyset black male was sitting on the steps in front of the address and the Hispanic male was leaning into a vehicle parked in right in front of the address. . . . Just leaning forward inside the driver's side window talking to the driver at the scene." Their clothing matched the description given by the informant. The officers parked their cars in such a fashion that made it impossible for the parked vehicle to leave.

Fuentes recognized the heavyset black male, who he was able to identify by name, as a person he believed he had "locked . . . up before . . . for C.D.S." He had previously "come across" him in the same neighborhood, which was a "very high drug trafficking area." Fuentes had made "well over seventy" arrests in that neighborhood.

Fuentes testified that when the Hispanic male, who was leaning into the parked car, saw him, "he began to . . . run forward." Fuentes believed the individual was "going to make a run for it at that time." But, he did not. Instead, he "ran all the way around the vehicle and jumped inside the passenger side door." In his report of the incident, Fuentes indicated that the Hispanic male "observed police and quickly walked around the vehicle . . . and entered inside the front passenger door." When the Hispanic male got into the car, Fuentes approached the front passenger door and Colon approached the driver's front door. Fuentes identified defendant as the driver.

From outside the vehicle, Fuentes observed "a brick-shaped package, wrapped up in newspaper" sitting on the center console. When he saw the package, he believed it to be "[n]arcotics packaging, possible heroin." He had come across the "same brick just two months prior . . . on Vine Street in a vacant vehicle." It had "the same wrapping, newspaper in the form of a brick. And [he] found ten bundles of heroin inside that brick . . . on Vine Street." He had also observed similar packaging on another occasion. When he asked the car occupants what the package was and who it belonged to, "the driver [defendant] admitted it was his." At that point, both defendant and the passenger were placed under arrest.

During cross-examination, Officer Fuentes admitted that the clothing descriptions provided by dispatch "pretty much" matched most of the population in that age group. He related, however, that when he arrived at the scene, the two individuals "were the only two males in that particular area." It was a school day, during school hours, and the "kids were in school." He believed the individuals were curfew violators, sixteen or seventeen years of age. He became suspicious when the Hispanic male "turned around and looked at [him], [and] started to run." Fuentes acknowledged that he did not see anyone selling drugs prior to the arrest; and, after he observed the package, he did not Mirandize either of the individuals before asking them what was in it.

Individuals are protected against unreasonable search and seizures by the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. State v. Johnson, 171 N.J. 192, 205 (2002); State v. Morrison, 322 N.J. Super. 147, 151 (App. Div. 1999). To be valid, a search must be conducted pursuant to a warrant issued on probable cause. Johnson, supra, ibid. A warrantless search is presumed to be illegal unless it falls within one of the recognized exceptions to the warrant requirement. Ibid. The plain view exception is applicable here. Under that exception, the officer must be lawfully in the viewing area, discover the evidence "inadvertently," and have probable cause to believe that the items in plain view were evidence of a crime. Id. at 206-08 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971); State v. Bruzzese, 94 N.J. 210, 236-38 (1983) (specifically requiring probable cause to satisfy third element), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). The first question, then, is whether the officers were lawfully in the viewing area when Officer Fuentes observed the narcotics packaging in the parked car. In other words, did the officers conduct a lawful investigatory stop of the vehicle? We conclude that they did.

An investigative stop may be made on less than probable cause. State v. Williams, 317 N.J. Super. 149, 155 (App. Div. 1998), certif. denied, 157 N.J. 647 (1999). "An officer does not need a warrant to make [an investigatory] stop 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." State v. Birkenmeier, 185 N.J. 552, 561-62 (2006) (quoting State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968))). Reasonable suspicion requires "some minimal level of objective justification for making the stop. . . . Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." State v. Nishina, 175 N.J. 502, 511 (2003).

Here, based on the totality of the circumstances, the arresting officers had a reasonable and articulable suspicion of criminal activity so as to justify the initial investigative stop of defendant's vehicle. In other words, the State has proved, by a preponderance of the evidence, that the investigative stop was based on sufficient particular facts to support a reasonable suspicion that defendant was engaged in a drug transaction. We arrive at this conclusion for the following reasons.

First, the informant said that two males were selling narcotics at a specific address in Camden. While the tip, coming from an anonymous area resident, standing alone was insufficient to establish a reasonable articulable suspicion of criminal activity, it is a factor that may be considered. The tip had a degree of trustworthiness the detail included by the tipster gave the race of the individuals, their location and mode of dress. See generally, State v. Keyes, 184 N.J. 541, 555-56 (2005) (information police receive from informant may, under limited circumstances, serve as basis for probable cause to issue warrant); see also, In re J.B., 284 N.J. Super. 513, 519 (App. Div. 1995) (anonymous telephone call, insufficient in itself to effect an arrest, provided officer "with a reason to conduct an investigation").

Next, the informant's information was corroborated by the officers at the scene. See Keyes, supra, 184 N.J. at 556 (corroboration necessary to ratify informant's veracity and validate truthfulness of the tip). Fuentes was an experienced police officer who had made over one hundred drug arrests. He had made over seventy arrests in that neighborhood, which he described as a high crime area. When he arrived, he observed two males, a Hispanic male and a black male, dressed as described by the informant. Simply because many of the individuals who live in the area may dress similarly, does not mean the description was worthless as is argued by defendant. While both suspects were wearing white tee shirts, their shorts were different colors and matched the description of their shorts given by the informant. The informant described one male as Hispanic and the other as black. That too was corroborated by the police officers. And, the men were the only ones present in the general are where the informant said they would be found.

Significantly, Fuentes recognized one of the individuals described by the informant as a person he believed he previously arrested for illegal narcotics activities. While that person was not defendant, that factor lent credibility to the informant's tip.

When he spotted the police, the Hispanic male, who had been leaning inside the driver's side window of defendant's car, began to run, or walk quickly, around the vehicle and jump inside the front passenger side door. While evidence of flight is not in itself sufficient to establish a reasonable suspicion, it is a factor that adds to the totality of circumstances the officer considered. See Morrison, supra, 322 N.J. Super. at 153-54; State v. Doss, 254 N.J. Super. 122, 127-30 (App. Div.) (flight coupled with additional suspicious factors sufficient to cause officer to think persons fleeing had engaged in criminal conduct), certif. denied, 130 N.J. 17 (1992). The arrest took place in what the officer described as a high crime area, which, while not in itself sufficient to satisfy the government's burden, may be considered as a factor contributing to the totality of the circumstances to justify the officer's suspicion. See State v. Richards, 351 N.J. Super. 289, 306-07 (App. Div. 2002) (presence in high crime area a factor to support reasonable suspicion); Doss, supra, id. at 127.

Given all of these circumstances, while each factor may "seem innocent when reviewed in isolation," taken together they were sufficient to support an objectively reasonable belief by Officer Fuentes that the collective circumstances were "consistent with criminal conduct" so as to justify the investigative stop of defendant's vehicle. See Nishina, supra, 175 N.J. at 511.

Consequently, the first prong of the plain view doctrine has been met; Fuentes was lawfully in the viewing area when he observed the narcotics packaging on the center console of defendant's car.

The next question is whether he inadvertently discovered the brick-shaped package while standing outside the vehicle. He did. He did not know in advance where the evidence was located nor did he intend beforehand to seize it. See Bruzzese, supra, 94 N.J. at 236.

Finally, Fuentes had probable cause to believe that what he observed was evidence of a crime. He had seen that type of packaging containing narcotics on two previous occasions, the most recent being approximately two months earlier. It was not necessary that he observe the contraband directly; just that he reasonably believed that what he observed was commonly used to package narcotics. See Texas v. Brown, 460 U.S. 730, 742-43, 103 S. Ct. 1535, 1543-44, 75 L. Ed. 2d 502, 514 (1983); Johnson, supra, 171 N.J. at 219 (same). Given his training and prior experience, Fuentes had probable cause to believe the brick-like packaging contained heroin and he properly seized it.

We reverse the order of suppression. We remand to the trial court for further proceedings consistent with this opinion.

 
Reversed and remanded.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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10

A-0313-05T2

March 27, 2006