STATE OF NEW JERSEY v. MICHAEL BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5288-03T45288-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BROWN,

Defendant-Appellant.

_______________________________________

 

Submitted February 16, 2006 - Decided May 5, 2006

Before Judges Fall, Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment Nos. 02-07-1570, 02-07-1586,

03-05-0903, 03-05-0905.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gregory R.

Mueller, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

Defendant Michael Brown appeals from a final judgment of conviction and sentence. Defendant was tried to a jury and convicted of possession of heroin in violation of N.J.S.A. 2C:35-10a(1), a crime of the third degree. The judge granted the State's motion to sentence defendant as a persistent offender to a discretionary extended term, N.J.S.A. 2C:44-3a. He sentenced defendant to the maximum extended term, ten years, five of which must be served without possibility of parole. The judge also imposed a $50 VCCB assessment, a $75 SNSF assessment, a $30 LEOTEF penalty, a $1,000 DEDR penalty and a $50 lab fee.

Prior to trial, the judge denied defendant's motion to suppress heroin seized at the time of his arrest. The judge decided that motion prior to the Supreme Court's decisions in State v. Pineiro, 181 N.J. 13 (2004) and State v. Moore, 181 N.J. 40 (2004). Because Pineiro requires suppression of the heroin, we reverse and remand.

In the early afternoon on June 29, 2002, Sergeant Sam Dickson, a twenty-seven year member of the Atlantic City Police Department, was conducting a surveillance in an area of the City known as "Shore Park" or "The Virginia Avenue Courts." The area is open and bordered by apartments that form a horseshoe-shaped barrier around a courtyard. Dickson knew the courtyard as a common location for drug transactions and the site of daily arrests for drug crimes. He had conducted 5,000 drug-surveillance operations during the ten years that he was assigned to the Department's Narcotics Unit and had made "probably over five thousand arrests" during that period. According to Dickson his Department "always" receives complaints about the area, and Dickson had conducted similar operations in this area on numerous occasions.

Approximately fifteen minutes after he arrived at the site, Dickson saw defendant enter the courtyard. According to the officer, defendant "kept looking around" as if he were looking for someone. In Dickson's experience, "people buying CDS . . . will come in and look around for a particular person that they have dealt with in the past and somebody that they know sells drugs." Defendant walked to the front of an apartment unit on Mediterranean Avenue where two men were sitting on the steps. According to Dickson, during other surveillances dealers seated in that area had met buyers and made transactions.

Defendant had a brief conversation with one of the men, who pointed to the Maryland Avenue side of the courtyard. Defendant left and walked in that direction for a distance of about thirty feet. "Just before going up the steps" and onto the porch of the apartment unit, defendant removed "currency" from his pocket. Dickson could not see the denominations or the number of bills, just the green of currency in defendant's right hand as he walked up the steps. "Once on the porch, he was out of [Dickson's] view." According to Dickson, that particular porch is very hard to see unless you are in the complex. Dickson had made twenty to twenty-five arrests of persons who had been on that porch.

Once Dickson lost sight of defendant, the man who had directed defendant left his seat on the steps and walked to the porch. Before he went up the steps, he lifted up the front of his shirt from the waistband area. Dickson lost sight of him when he reached the porch and did not see him take anything from under his shirt. In Dickson's experience, when he had seen people lift their shirts in the past, they had drugs concealed in the front of their pants. He had made hundreds of arrests in which drugs were concealed in the front of an offender's pants.

For about forty-five seconds after the man left Dickson's range of vision, he saw nothing. Then defendant came down the steps. His right hand was closed, as if he were carrying something. He opened his hand, looked at the palm and put his hand in the right pocket of his jacket. He walked away.

Dickson acknowledged that defendant could have been holding the same currency that he saw in his hand when he walked up the steps or something other than drugs. He could not see what was in his hand. The prosecutor asked Dickson whether he had seen other individuals open and close their palms and what he had found when he had; Dickson said he had seen such behavior in the past and had found drugs.

As defendant walked from the courtyard area, Dickson contacted members of his team stationed in the area by radio. He described defendant's path and told them he believed that defendant had drugs in his right coat pocket. Dickson did not see the arrest, and the arresting officers did not testify at the hearing on defendant's suppression motion. Dickson did not see the man who directed defendant to the porch again.

The judge concluded that Dickson had probable cause to believe that defendant had engaged in a drug transaction. He credited the officer's testimony about his experience, the high volume of drug traffic and complaints, and his testimony about other transactions that were completed on the porch in question. Considered in light of Dickson's experience, the judge concluded that his observations established probable cause. The judge relied on the following: defendant entered the courtyard and looked around as if looking for someone or something; he went to a porch that had been used for other transactions after receiving directions from another man; he took money out of his pocket as he walked up the steps; a minute later the man who directed defendant went to the same porch; forty-five seconds later defendant left the porch with his fist clenched, looked at the palm of his hand and put it in his jacket pocket.

"We review the record on a motion to suppress to determine whether the findings are supported by credible evidence and the legal conclusions are valid." State v. Smith, 374 N.J. Super 425, 430 (App. Div. 2005). We give "deference to those findings 'influenced by the judge's opportunity to hear and see the witnesses and to have the "feel" of the case . . . .'" Ibid. (quoting State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990)).

The Supreme Court addressed probable cause to arrest based on police observations of conduct in a high-crime area in Pineiro, supra, 181 N.J. at 18-19 and Moore, supra, 181 N.J. at 43-44, which were both decided after the suppression motion in this case. We rely on those decisions.

"Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions. Both constitutional standards require that such seizures or searches be conducted pursuant to a warrant issued upon a showing of probable cause." Pineiro, 181 N.J. at 19 (citations omitted). When there is no warrant, the State has the burden to demonstrate by a preponderance of the evidence that the search "falls within one of the few well-delineated exceptions to the warrant requirement" and is supported by probable cause. Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

The State contends that this search and seizure were valid because conducted incident to a lawful arrest. Moore, supra, 181 N.J. at 45. We conclude that this search is not valid unless it meets that exception to the warrant requirement. Accordingly, the question is "whether the facts found by the trial court provided probable cause to arrest defendant." Ibid.

We conclude that this search, like the search in Pineiro, cannot be sustained. There was a basis for a "reasonable and articulable suspicion to stop defendant and investigate, [but] the totality of the circumstances failed to support a finding of probable cause to [arrest] defendant." Pineiro, supra, 181 N.J. at 18.

In Pineiro, the Court distinguished reasonable suspicion sufficient to warrant a brief investigatory detention and probable cause sufficient to justify a search or arrest.

[A]n investigatory stop, sometimes referred to as a Terry 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." The suspicion need not rise to the "probable cause necessary to justify an arrest."

. . . .

[In contrast, t]he probable cause standard [requires] "'[] a well-grounded suspicion that a crime has been or is being committed.'" "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."

[Pineiro, supra, 181 N.J. at 20-21 (citations omitted).]

The evidence in Pineiro was similar to the evidence in this case. Dickson, like the officer in Pineiro, did not observe a drug transaction. In Pineiro, Officer Aboud was on patrol in an area of Wildwood known for a high volume of drug crime. Id. at 18. He saw Pineiro and Rodriguez, his co-defendant, standing on a corner, and he recognized both men. Ibid. Aboud had "received intelligence reports indicating [Pineiro] was a suspected drug dealer." Ibid. He knew Rodriguez was a drug user. Ibid. Aboud had moved Pineiro from the corner on which he and Rodriguez were standing in the past. He saw Pineiro give Rodriguez a cigarette pack and knew that "a cigarette pack sometimes is used to transport drugs. Neither man was smoking at the time." Ibid. When the men saw Aboud, Pineiro walked away and Rodriguez left on a bicycle. Ibid. Aboud "called for assistance to detain [Pineiro] while he pursued Rodriquez." Ibid. Aboud stopped Rodriquez and told him that he believed he had just purchased drugs. Ibid. Rodriguez "began to cry and denied any drug involvement." Id. at 19. At the officer's request, Rodriguez gave him the cigarette pack, which contained three small bags of heroin. Ibid. Meanwhile, other officers had stopped and arrested Pineiro. There was no evidence about the circumstances of that arrest.

On these facts, the Court held that "even though standing alone each factor may not have been sufficient, the totality of the circumstances, as viewed by a reasonable officer with [this officer's] experience, established a reasonable and articulable suspicion of criminal activity, justifying an investigatory stop." Id. at 25. However, the Court found the evidence inadequate to establish probable cause to arrest Rodriguez before the cigarette pack was seized. Id. at 27-28.

In explaining that the evidence was inadequate to support probable cause, the Court distinguished the facts of Pineiro and Moore, a case in which the Court found the information adequate to establish probable cause for arrest. That explanation informs our decision:

Today in Moore we found probable cause based on the law enforcement officers' observations in a high crime area, which included observing the defendant and a companion walk away from a group of people to the back of a vacant lot, and hand a third man currency in exchange for small unknown objects believed to be drugs. Here, unlike in Moore, there was no observation of currency or anything else exchanged, rather, there was merely a transfer of a cigarette pack under circumstances that had both innocent and suspected criminal connotations. Moreover, there was no proof of "regularized police experience that objects such as [hard cigarette packs] are the probable containers of drugs." The sum of the evidence was merely the officer's prior general narcotics training and experience, and his conclusory testimony that he knew that cigarette packs are used to transport drugs because he had seen that type of activity before. The evidence did not even include the number of times the officer had encountered the use of cigarette packs to exchange drugs or what percentage of observed cigarette packs held drugs.

Although we recognize that this is a close case, in our view the totality of the circumstances here fall short of probable cause. The activity observed by Aboud was the passing of a cigarette pack in a high crime area between a known felon and a suspected drug dealer. Aboud apprehended Rodriguez and accused him of having been involved in a drug transaction. After Rodriguez began to cry and denied he had any drugs, Aboud asked if he would voluntarily surrender the cigarette pack and Rodriguez did so. We conclude that the observations by Aboud raised a reasonable and articulable suspicion that criminal activity was occurring, but more is required to support a fair probability that contraband or evidence of a crime would be found in the cigarette pack. After all, the passing of the cigarette pack just as easily could have been nothing more than the transfer of a cigarette pack between two adults. Although nervousness and crying by Rodriguez may have raised the officer's suspicions, we do not find that those factors, even when considered with the other circumstances, reached the level of the elusive concept of probable cause.

[Id. at 28-29 (citations omitted).]

The cumulative information in this case was no greater than that in Pineiro. It was sufficient to warrant a stop but inadequate to demonstrate probable cause for arrest. Unlike the officer in Moore and like the officer in Pineiro, Dickson did not see a transaction in a high drug crime area.

Dickson saw conduct giving rise to a suspicion that a drug transaction could occur: a communication between defendant and a man who pointed him toward apartment units; defendant taking money from his pocket as he walked up the steps of the porch in the vicinity indicated; the man who pointed approaching the same porch and lifting his shirt. He did not see the man remove something from his pants, which, in Dickson's experience, would have suggested delivery of drugs.

Dickson saw subsequent conduct that added to his suspicion by indicating that a transaction had occurred: defendant leaving moments after the other man arrived; defendant holding his hand closed, opening it and looking in the palm; and defendant putting his hand in his coat pocket. He could not see what defendant had in his hand and acknowledged that it could have been money. He did not see any conduct by the other man that would support the conclusion that the two met on the porch. After defendant left, the man did not retake his seat on the steps to await another buyer. Dickson did not see him again.

There were no observations of any contact between the men after their brief conversation before defendant went to the porch. There was no evidence about what defendant or the other man did on the porch. There was no evidence as to the number of dwellings accessible from that porch, and Dickson did not know whether either man had entered one of the apartments.

With the benefit of his extensive experience, Dickson believed that a crime had taken place. He knew the porch to which defendant had been directed had been used for twenty to twenty-five drug deals that had resulted in arrests. But with all of his experience in this courtyard, Dickson did not recognize either defendant or the man, and there was no basis for him to have any reason to believe that either of them would know that the porch was a good spot for drug deals. Dickson had not seen any similar episodes that day. If his prior arrests involving drug transactions on that porch, or other porches, involved a similar pattern -- dealer pointing to the porch and later meeting buyer -- Dickson did not say so. He did not observe any nervous or cautious behavior by defendant or the other man. To the contrary, Dickson saw what he described as suspicious conduct -- defendant taking money from his pocket and the man lifting his shirt -- before either had reached the security of the porch.

We are satisfied that the information viewed cumulatively by an officer with Dickson's experience gave rise to a reasonable and articulable suspicion of criminal activity. Pineiro, supra, 181 N.J. at 21-22. The facts were sufficient to warrant a brief stop and further inquiry, but the information was not sufficient to support a well-grounded suspicion -- a fair probability -- that a drug transaction had occurred. Id. at 21-22, 29.

Absent probable cause for arrest, the warrantless search of defendant's pocket was unlawful, and the evidence must be suppressed. Because reversal of this conviction is required, we do not address defendant's objections to the prosecutor's closing argument or to the sentence imposed.

 
Reversed.

On the day he was sentenced, pursuant to an agreement with the State, defendant entered guilty pleas to three separate charges of theft in the third degree, which were included in three separate indictments. On each count, the judge sentenced defendant to a term of five years; the terms are concurrent with one another and with the extended term for possession of heroin.

Although defendant's notice of appeal references all four indictments, the arguments presented to us are limited to defendant's conviction and sentence for possession of heroin. Because defendant presents no argument pertaining to the convictions or sentences imposed as a consequence of his guilty pleas, we deem those appeals abandoned. See Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

(continued)

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A-5288-03T4

May 5, 2006