STATE OF NEW JERSEY v. BRIAN CRAMMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3641-08T43641-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BRIAN CRAMMER,

Defendant-Respondent.

_________________________________________________

 

Submitted September 2, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No. 08-10-2312.

Luis A. Valentin, Monmouth County

Prosecutor, attorney for appellant

(Carey J. Huff, Assistant Prosecutor,

of counsel and on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Stephen W. Kirsch,

Assistant Deputy Public Defender, of counsel

and on the brief).

PER CURIAM

The State appeals from an order of the trial court suppressing evidence, consisting of heroin, marijuana and drug paraphernalia, seized by the police without a warrant from a car being driven by defendant, Brian Crammer. On appeal, the State makes the following arguments:

POINT I

SUPPRESSION OF THE EVIDENCE WAS NOT WARRANTED BECAUSE THERE WAS REASONABLE SUSPICION TO STOP THE VEHICLE.

A. The Stop Of Defendant's Vehicle For A Motor Vehicle Violation Was Lawful.

B. The officers Had Reasonable Suspicion To Conduct An Investigatory Stop Of The Defendant's Vehicle Based On The Corroboration Of The Anonymous Source's Tip.

POINT II

SUPPRESSION OF THE EVIDENCE SEIZED WITHOUT A WARRANT WAS NOT WARRANTED BECAUSE THE OFFICERS' COMMENTS DID NOT CONVERT THE INVESTIGATIVE DETENTION INTO A CUSTODIAL INTERROGATION.

POINT III

SUPPRESSION OF THE EVIDENCE WAS NOT WARRANTED BECAUSE THERE WAS SUFFICIENT EXIGENCY TO SUPPORT A SEARCH PURSUANT TO THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT.

Tinton Falls Officer Joseph Schuler and Sergeant Gerald M. Turning, Jr. testified at the suppression hearing. Schuler stated that, while off duty, he had received a telephone call from a confidential source, known to him, who reported that a silver Honda Civic or Acura bearing New Jersey plates with a number that the informant specified would shortly be transporting narcotics from Asbury Park to the Martin Motel, located at 4 236 Highway 33. The source stated additionally that the car had tinted windows with lettering on them, and that it was to be driven by a white male in his mid-twenties. The car would contain a black male passenger. The source did not give the names of either of the car's occupants.

Upon receiving the tip, Schuler went to police headquarters and informed Turning of what had taken place. The two men determined that Schuler would position his marked police vehicle on Highway 33 and Route 66, approximately one mile from the motel. Turning would drive his unmarked vehicle to a spot across Highway 33 from the motel. Turning, a K-9 officer, would have his drug-detecting dog with him.

At approximately 6:45 p.m., the officers positioned themselves as planned. Schuler soon saw a car that matched the description given by the informant traveling westbound on Highway 33 near Route 66, and he determined that it was being driven by a white driver and was occupied by a black passenger. Schuler notified Turning of those facts and, at approximately 7:10 p.m., Turning observed the vehicle enter the motel's parking lot, where the black male exited. Neither police officer followed the black male, but instead, continued to focus on the car and its driver.

After dropping off the passenger, the driver of the silver car proceeded to leave the parking lot, but in doing so, made an improper left turn. He also failed to heed the stop sign at the intersection with the highway and thus failed to yield to an oncoming vehicle, requiring that vehicle to switch lanes and sound its horn. Turning followed the suspect's car to Tinton Falls Road, where he conducted a motor vehicle stop, informing Schuler of his location.

Turning then advised the driver of the nature of his motor vehicle violations and obtained his credentials. While Turning was in his vehicle performing a mobile data terminal check, Schuler arrived, spoke briefly to Turning, and was instructed to question the driver regarding the information provided by the informant. Schuler described what happened next in the following terms:

I then proceeded to approach the vehicle and advise Mr. Crammer of my observations, the information that had been related to me as well.

I advised Mr. Crammer well, I asked Mr. Crammer, I'm sorry, where he was headed or where he was coming from, and he advised me he was coming from his girlfriend's house in Neptune. I asked him who he dropped off at the Martin Motel. He pretty much had no answer. I advised him that he dropped off a guy at the Martin Motel, and he said, "What guy?"

I I just reiterated exactly what I told Mr. Crammer and my observations, and I advised him that there were that there was information given to me about narcotics being transported from Asbury Park to the Martin Motel. And if there were any type of narcotics in the vehicle, you know, I informed him that Sergeant Turning was our K-9 unit, and that if there were any type of narcotics in the car, they were going to be detected by the K-9.

Mr. Mr. Crammer then became extremely honest. He advised me that, you know, the drugs that the supposed drugs were stuffed down into the right side of his seat, in between the center console and the driver's seat.

Schuler confirmed that "Sergeant Turning was still in his vehicle listening to county dispatch to come back with the transmission that he was requesting" at the time that these events occurred.

Schuler testified that he then ordered the driver to exit the vehicle, and he conducted a pat-down search. At that point, Sergeant Turning approached, and Schuler advised him first that there was something tucked between the driver's seat and the console, and then that the "something" was heroin. According to Schuler, the driver then gave his consent for Turning to retrieve the drugs. After doing so, Turning asked if other drugs were present. The driver responded that there was a bag of marijuana in a sunglass case located in the console, and he gave his consent to its retrieval, as well. Marijuana and drug paraphernalia were found. The driver was then arrested and transported to headquarters. The driver prevailed upon the officers not to issue any tickets, and not to tow his car, but rather, to park it in a nearby driveway.

On cross-examination, Schuler stated that he knew the informant by a street name and that he had met him face-to-face several times. He had not been used as a confidential informant in the past. Schuler testified that he had "gained information" previously from the informant, but that he had not "necessarily used information."

Schuler additionally testified that he had not considered getting a warrant to search the car, because the department's "manpower is too short to do so." He conceded that Sergeant Turning had stated to the driver: "The dogs are going to tear the car up," noting that "[t]he dog scratches when it detects the scent of any type of narcotics." Likewise, Turning acknowledged the comment, stating that he had made it after he had found the heroin but before the driver had acknowledged the presence of the marijuana. Turning testified:

After I found the initial heroin under the front seat, if I were to use my dog to conduct an exterior or interior search on the car, the dog is trained to actively alert, which means he bites and scratches at the area where the CDS was located. If there was something else in the car I wanted to give the defendant an opportunity to just tell us rather than potentially damage his car. My dog is pretty pretty driven, pretty intense.

When asked why he did not obtain a warrant, Turning responded:

There are two reasons. A, he voluntarily admitted there was there was CDS inside. I took that verbal consent and I went in and got it. I also believe that we had probable cause obviously, based on his statement that there was CDS inside, plus the information given to us by the caller to Patrolman Schuler. I believe we had exigent circumstances to go in the car without a warrant under the motor vehicle exception, based on where the car was parked, the time of night, the traffic. We work in a town that has 17 square miles and we have 16,000 people on [sic] it. At that time, I represented one-fourth of our of our manpower. To tie a car an officer up and secure that car on the side of the road would have taken me off the road for an extended amount of time, taken my dog off the road.

It just seemed like I was on firm ground, based on the motor vehicle exception, added to his consent to go in and get what he told me was in there.

At the conclusion of the evidence, the judge rendered an oral opinion. He found that the car had been legally stopped, that the length of the stop was reasonable, and that the officers were credible. However, the judge found additionally that, as the result of Schuler's confrontation of defendant with the facts contained in informant's tip and his questioning of defendant regarding the veracity of the tip, as well as the threat, which the judge inferred had been made by Schuler as well as Turning, that the K-9 would not only find drugs but also damage defendant's car if drugs were present, Schuler's interrogation of defendant was custodial in nature, and that Miranda warnings should have been administered. Because they were not, defendant's admission to drug possession had to be suppressed. Further, the judge found that defendant had not validly consented to the search of his vehicle. The judge found that "[h]is will was overborne in speaking to the officers" and, additionally, he was not informed of his right to refuse. While not deciding the issue, the judge observed that he was "not even certain that lack of manpower is an exigent circumstance" that would otherwise render the search valid.

Our review of the record and the trial court's opinion satisfies us that defendant's vehicle was lawfully stopped as the result of defendant's motor vehicle violations, and that defendant's detention in connection with the stop, albeit a seizure, was permissible. State v. Carty, 170 N.J. 632, 639-40, mod. on other grounds, 174 N.J. 351 (2002). The issues that must be resolved are: (1) whether Schuler's questioning of defendant regarding his potential criminal conduct and threat to use the K-9 rendered defendant's interrogation custodial, thereby requiring Miranda warnings; and (2) if not, whether the subsequent search of defendant's vehicle met constitutional requirements.

In reaching the conclusion that Miranda warnings were required in this case, the trial judge distinguished the facts before him from those of State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000) and State v. Toro, 229 N.J. Super. 215 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), observing that in those reported decisions, the police's suspicions were aroused following the stop of a motor vehicle for vehicle-related infractions as the result of answers to routine questions at the scene or observations made after the stop had occurred. In contrast, in the present case, Schuler had information that suggested defendant's guilt prior to the commencement of the interrogation, and that interrogation was undertaken for the specific purpose of confirming that information, not furthering the purposes of the initial stop.

As we observed in State v. Baum,

When the officer's stop is justified at its inception, the question becomes whether the ensuing investigation is "reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968). At a traffic stop, an officer may seek a driver's license, as well as proof of ownership and insurance. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994), cert. denied, 514 U.S. 1134, 115 S. Ct. 2015, 131 L. Ed. 2d 1013 (1995). The officer may also ask "routine" questions of the vehicle's occupants, such as where they are going and coming from and for what purpose. Ibid.

* * *

If during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances "give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions." [State v.] Dickey, 152 N.J. [468,] 479-80 [(1998)] (citing United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 133 L. Ed. 2d 245 (1995) (quoting United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993)).

During this broadened inquiry, the questioning may be accusatory and designed to elicit incriminating responses, Hickman, supra, 335 N.J. Super. at 631, however, the officers must pursue a means of investigation that is "likely to confirm or dispel their suspicions quickly." Dickey, supra, 152 N.J. at 476 (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 615-16 (1985)); see also State v. Davis, 104 N.J. 4990, 504 (1986) (framing the inquiry as "whether the officer used the least intrusive investigative techniques reasonably available to verify or dispel his suspicion in the shortest period of time reasonably possible.").

[ 393 N.J. Super. 275, 286-87 (App. Div. 2007), aff'd as modified, 199 N.J. 407 (2009).]

We find the distinction made by the trial judge to have been valid. Moreover, we are in agreement with the judge's conclusion that independent grounds for the stop and subsequent investigation did not exist as the result of the confidential informant's uncorroborated tip, and we find that fact to be dispositive in this case because it transformed what otherwise would have been an investigation permitted by Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968) into one that was not.

In this regard, the case closely resembles State v. Rodriguez, 172 N.J. 117 (2002), in which the Supreme Court held that the investigative detention of the defendant on the basis of a tip that two men, whose appearance was described, had left Ocean City, were traveling to Philadelphia to purchase drugs, and would be returning by bus to Atlantic City violated the Fourth Amendment under principles established in Terry. In reaching this determination, the Court concluded from its review of the totality of the circumstances that the uncorroborated facts provided by the anonymous informant were insufficient to give rise to a reasonable articulable suspicion of criminal activity. Rodriguez, supra, 172 N.J. at 129-32. The Court characterized the information regarding the men's appearance and their journey, although seemingly true, as "benign elements of the informant's tip," id. at 131, and it noted that the tip "provided no explanation of how or why" the tipster arrived at the conclusion that the men were engaging in drug trafficking the aspect of the tip "most critical to the analysis" of its reliability. Ibid.

In the present matter, unlike Rodriguez, the tipster was to an extent known by Schuler, who had seen him face to face more than once and knew his street name. However, as in Rodriguez, the tipster's veracity, reliability and the basis for his knowledge that illegal activity was to occur were largely conjectural. The uncorroborated information provided by the tipster regarding the appearance of the car and its occupants and regarding the car's destination were the type of benign facts that the Rodriguez Court found to be insufficient to establish the constitutionality of an investigative detention under Terry. As a consequence, a stop based solely upon the information provided by the confidential informant in this case would have been unconstitutional. We find no legal support for a claim that, because the stop could be independently justified, during its course it was constitutionally permissible for the police to conduct an unrelated investigation of defendant's alleged drug-related activity.

In summary, we conclude that defendant was illegally detained for the purpose of questioning him regarding his drug-related activity, and this unduly intrusive purpose rendered the detention a de facto arrest under principles discussed by the Court in State v. Dickey, 152 N.J. 468, 477-79 (1998). In these circumstances, questioning of defendant without advising him of his Miranda rights violated the Fifth Amendment. We thus affirm the suppression of his inculpatory statements and likewise affirm the suppression of the evidence seized, finding it to have been fruit of the poisonous tree. Rodriguez, supra, 172 N.J. at 132.

Given our conclusion, we need not reach the issues surrounding the police threat of K-9 use or the voluntariness of defendant's consent.

 
Affirmed.

During Turning's direct examination, the statement was expressed as: "My dog is going to tear this car up."

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

(continued)

(continued)

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A-3641-08T4

September 15, 2009