STATE OF NEW JERSEY v. YOLANDA ANDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4640-07T44640-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

YOLANDA ANDERSON and DERRICK YARRELL,

Defendants-Respondents.

________________________________

 

Submitted: January 30, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3757.

Paula T. Dow, Essex County Prosecutor, attorney for appellant (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attor ney for respondent Yolanda Anderson (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Respondent Derrick Yarrell has not filed a brief.

PER CURIAM

We granted Plaintiff State of New Jersey leave to appeal from an interlocutory order granting the motion of defendants Yolanda Anderson and Derrick Yarrell to suppress evidence seized during a warrantless search of the automobile driven by Anderson. The State contends that the trial judge erred in granting the motion. We reverse and remand for trial.

Sometime after his shift began at 7 p.m. on August 17, 2007, Officer Jason West, a member of the Newark Narcotics Enforcement Team, received information from a confidential informer whom he had used previously, although infrequently. The informer advised him that there would be a drop off of her oin that night between 9:30 and 10:30 p.m. at the intersection of Hawthorne and Leslie Streets in Newark. The vehicle involved would be a black Cadillac Escalade with out-of-state license plates bearing the letters "KBC." The informer had previously supplied information leading to the arrest of other people for narcotics violations.

Officers set up undercover surveillance at that location and had a clear view of the intersection. As predicted, a black Escalade driven by Anderson with plates matching the tip pulled up and parked on Leslie Street. West, who was trav eling westbound on Hawthorne Avenue, had seen Anderson approaching him from the east while she was talking on her cell phone, and then saw her turn onto Leslie Street and park. Shortly thereafter, a white Mitsubishi Eclipse with three passengers pulled up and parked directly behind the Escalade. The driver of the Eclipse was later identified as Corey Bigelow. Yarrell exited the Eclipse from the rear passenger seat, ran up to the Escalade on the driver's side, and spoke with Anderson. Yarrell then ran back to the Eclipse and spoke with Bigelow. West observed Bigelow hand Yarrell an object, which Yarrell put in his right pants pocket. Yarrell returned to the Escalade and entered the front passenger seat.

At that point, West and two other officers decided to con duct a Terry stop. The officer in the vehicle occupied by West pulled their vehicle in front of the Escalade, blocking its path. Another officer pulled his vehicle in behind the Eclipse, preventing it from backing up. All three officers exited their vehicles and West identified himself as a police officer and displayed his badge. At this point, Yarrell, still in the front seat of the Escalade, ducked down out of sight and seconds later reappeared holding his hands up in the air. West, thinking that Yarrell may have secreted a weapon and concerned for his safety, immediately opened the car door and shined his flashlight inside. He observed five bricks of heroin sticking out from under the front seat. West, with the assis tance of another officer, removed Yarrell from the front seat of the Escalade.

In the meantime, Anderson got out of the Escalade and walked toward its rear. When Anderson saw the officers from the second unmarked vehicle approaching her, she turned back to her open driver's window and tossed her purse into the rear seat of the Escalade. One of the officers then detained Anderson.

After Yarrell was removed from the Escalade and arrested, West and another officer opened the rear doors of the Escalade. They saw that the contents of Anderson's purse had spilled out on the backseat, revealing eighty-nine envelopes of heroin and $1000 in currency, all bound together with rubber bands. Anderson was then arrested and $90 was recovered from her person.

Bigelow and the two other occupants in the Eclipse stated that they were from Massachusetts and were there to buy heroin. All three were arrested and charged with wandering for the purpose of buying drugs, contrary to N.J.S.A. 2C:33-2.1.

At police headquarters, it was determined that the drugs found in Yarrell's possession totaled 250 envelopes of heroin stamped "Sin City." A field test was positive for heroin. The drugs in Anderson's possession were also stamped "Sin City" and tested positive for heroin.

A six-count indictment was returned charging defendants with three counts each of the following offenses: third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), -5b(3); and third-degree possession of heroin with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. Defendant Yarrell filed a motion to suppress the evidence seized from the front of the Escalade and defendant Anderson joined in his motion, seeking to suppress the evidence seized from the back seat of the Escalade.

At the hearing on their motion to suppress, defendants, who did not testify, contended that the police did not have probable cause to search the Escalade; the informant's information was insufficient and not corroborated; the police had no legal basis for pulling their vehicle in front of the Escalade; defendant Yarrell's hands were in the air when the officers approached him, so there were no safety concerns; and West had no right to shine his flashlight into the Escalade. They argued that the evidence seized from defendant Yarrell should be suppressed and that the evidence seized from defendant Anderson should also be suppressed as the seizure resulted from the illegal search of Yarrell.

In granting the defendants' joint motion, the judge accepted the testimony of West and found that, once the police corroborated the information from the informant, they had a rea sonable suspicion to justify the Terry stop of the Escalade. The judge found, however, that West did not have a justifiable safety concern that permitted him to open the passenger side of the Escalade because defendant Yarrell reappeared with his hands in the air. Thus, he found there was no heightened danger, cit ing State v. Smith, 134 N.J. 599 (1994) (Smith I). He also found that there was no justification for ordering defendant Yarrell out of the Escalade and the officer had no right to open the door himself. As a consequence, he suppressed the contra band seized from defendant Yarrell. The judge also concluded that the contraband seized from defendant Anderson must be suppressed because it was the fruit of an illegal search.

The State contends on appeal that the judge erred in grant ing the joint motion to suppress "because the search and seizure was based on appropriate legal principles and was fully grounded in search and seizure law: investigatory stop, probable cause, exigent circumstances, plain view, and even the automobile exception." Defendant Anderson contends that the police lacked an articulable, reasonable suspicion to conduct the Terry stop and that the evidence seized from inside the Escalade must be suppressed because the police lacked probable cause to open the car door.

Because the facts are undisputed, we review the judge's decision to determine whether he correctly applied legal stan dards governing warrantless searches and seizures, a question of law subject to plenary review on appeal. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (citing State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001)), certif. denied, 182 N.J. 148 (2004); see also State v. Brown, 118 N.J. 595, 604 (1990); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

In order to conduct a Terry stop, probable cause is not required. See State v. Davis, 104 N.J. 490, 504 (1986). Rather, the standard for such a stop "is lower than the standard of probable cause necessary to justify an arrest." State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)) (internal quotations omitted).

The police may conduct a Terry stop if the "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 511] (citation and internal quotation marks omitted). That is, "would the facts available to the officer at the moment of the seizure or the search [justify a person] of reasonable caution in the belief that the action taken was appro priate?" Terry, supra, 293 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906 (citations and internal quotation marks omitted).

[Ibid.]

Here, it is abundantly clear that the officers had a par ticularized suspicion the defendants were engaged in a heroin transaction based on the informant's tip as corroborated by the officers' own observations. See Davis, supra, 104 N.J. at 504. No more was required to justify the Terry stops of both vehicles and the subsequent stop and frisk of defendant Anderson after she voluntarily exited her vehicle. Clearly, had defendant Yar rell voluntarily exited the Escalade, the police would have been justified in conducting a Terry stop and frisk of him.

We do not find Smith I dispositive of the propriety of police action vis- -vis defendant Yarrell simply because he did not voluntarily exit the Escalade. However, we discuss it in detail because it was central to the judge's decision on the motion to suppress in this case.

In Smith I, a New Jersey State Trooper performed a speedometer pace of a vehicle and determined that it was traveling at sixty-eight miles per hour on the New Jersey Turnpike. 134 N.J. at 604. The trooper activated his lights and the vehicle came to a stop. Ibid. As he did so, the trooper noticed the two passengers creating a commotion in the vehicle being driven by Smith. Id. at 604-05. Fearing for his and his partner's safety, the trooper determined to frisk the occupants of the vehicle. Id. at 605. First, Smith was ordered to step from the vehicle but the police found no weapons on his person. Ibid. Then, they ordered the front seat passenger out of the vehicle and searched her person. Id. at 605-06. A solid bulge proved to be crack cocaine rather than a weapon. Id. at 606. A subsequent search of the juvenile passenger produced drug paraphernalia on his person and a glass pipe was found in the vehicle's ashtray. Ibid. The adults were charged with drug offenses and moved to suppress the evidence. Id. at 607.

The "critical issue" was the reasonableness of ordering the passenger out of the vehicle. Id. at 609. Taking guidance from "the seminal case of Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977)," our Supreme Court adopted a balancing test to determine the reasonableness of ordering a passenger out of a vehicle. Smith I, supra, 134 N.J. at 614. On one side of the scale is a police officer's concern for safety, which the Court found to "unquestionably merit grave consideration." Id. at 614-15. On the other side is the passenger's liberty interest. Id. at 615. As to that interest, the Court found:

Ordering a passenger to leave the vehicle is distinguishable from ordering the driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle's stop. Although the State's interest in safety remains the same whether the driver or the passenger is involved, requiring a passenger to alight from a car in the course of a routine traf fic stop represents a greater intrusion on a passenger's liberty than the same require ment does on a driver's liberty. With respect to the passenger, the only justifi cation for the intrusion on the passenger's privacy is the untimely association with the driver on the day the driver is observed committing a traffic violation. Because the passenger has not engaged in culpable con duct, the passenger has a legitimate expec tation that no further inconvenience will be occasioned by any intrusions beyond the delay caused by the lawful stop. The intru sion on the passenger's privacy, therefore, is greater than it is on the driver's privacy.

[Ibid.]

The Court concluded that the balance of these two interests tipped against a per se rule that passengers may always be asked to step out of vehicles during routine traffic stops. Id. at 617. Rather, in order to justify removing a passenger,

the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.

[Id. at 618.]

Any subsequent pat-down search of the occupant would have to meet the requirements for an investigatory stop under Terry. Id. at 619.

We conclude that Smith I is not controlling here simply because West and the other officers were not making a routine traffic stop. Rather, they were acting on an informant's tip of a heroin transaction that was corroborated by the officers' own observations. That is, the predictive elements of the tip proved to be correct. As a result, the police had "specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of crimi nal activity." Nishina, supra, 175 N.J. at 511 (quotations and citation omitted); see also O'Neal, supra, 190 N.J. at 612.

Yarrell was no mere occupant of a vehicle stopped for a motor vehicle violation. Rather, he was the subject of the officer's reasonable suspicion that he was participating in a drug transaction that the officers interrupted when they pulled up in their vehicles. Thus, under Terry, the officers were entitled to remove defendant Yarrell from the vehicle as a sus pect in his own right and to conduct a pat-down search of his person. In preparation for doing so, the officers were cer tainly permitted to assure themselves that defendant Yarrell did not have a weapon on the floor beneath his feet that he could reach and use as he exited the vehicle. We see no constitu tional infirmity in West first shining his flashlight into the area beneath defendant Yarrell's feet. Furthermore, the offi cers had more than a reasonable suspicion based on the totality of the circumstances; they had probable cause to arrest and search the defendants.

The Fourth Amendment of the United States Constitution pro vides that "[t]he right of the people to be secure in their per sons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." U.S. Const. amend. IV. The corresponding section in the New Jersey Constitution, Article 1, Paragraph 7, is virtually identical. State v. Williams, 192 N.J. 1, 9 (2007). Probable cause is the standard for determining whether, with or without a warrant, a search is lawful. State v. Novembrino, 105 N.J. 95, 105 (1987).

"Probable cause for a search or arrest exists where a police officer has a well-founded suspicion or belief of guilt." State v. Foreshaw, 245 N.J. Super. 166, 172 (App. Div.) (quotation & citation omitted), certif. denied, 126 N.J. 327 (1991). It requires less evidence than is necessary for a conviction. State in re A.R., 216 N.J. Super. 280, 285 (App. Div. 1987). It also requires "a practical, com monsense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2232, 76 L. Ed. 2d 527, 548 (1983); Novembrino, supra, 105 N.J. at 117-18. It exists if the facts and circumstances known to a police officer warrant a pru dent man in believing that an offense has been committed. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949); State v. Esteves, 93 N.J. 498, 505 (1983).

There is no dispute that "search warrants are strongly favored under the Federal and [New Jersey] constitutions," State v. Malik, 221 N.J. Super. 114, 118 (App. Div. 1987), and "'[t]he requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed . . . .'" State v. Cooke, 163 N.J. 657, 664 (2000) (quoting State v. Alston, 88 N.J. 211, 230 (1981)). In fact, "[a] warrantless search is pre sumed invalid unless" the State can establish that the search fell "within one of the recognized exceptions to the warrant requirement." Ibid.; see also State v. Elders, 192 N.J. 224, 246 (2007); Williams, supra, 192 N.J. at 9. The State bears the burden to prove that the warrantless search falls within an exception. Elders, supra, 192 N.J. at 246 (citation omitted).

However, no anticipatory warrant, as in State v. Ulrich, 265 N.J. Super. 569, 574-76 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994), is required when a tip is unconfirmed. See Foreshaw, supra, 245 N.J. Super. at 170-71, 178-79 (search of vehicle at 4:30 p.m. based on informant's tip at 10:00 a.m. upheld because probable cause to search did not exist until police corroborated tip and assessed informant's veracity at 4:30 p.m.); State v. Probasco, 220 N.J. Super. 355, 356-57, 358-59 (App. Div. 1987) (search of vehicle at 9:00 p.m. based on informant's tip at 5:30 p.m. upheld because probable cause to search did not exist until police stopped the vehicle and corroborated the tip), certif. denied, 117 N.J. 72 (1989); State v. Bell, 195 N.J. Super. 49, 55, 58 (App. Div. 1984) (holding that police "did not act unrea sonably when they searched [an] automobile without an anticipa tory warrant" even though they were acting on a corroborated tip from a reliable informant because it is "well established that there is no requirement that the Government obtain[] a warrant at the first moment probable cause exists").

Whenever probable cause is supplied by an informant, the State must demonstrate that in light of the totality of the cir cumstances the informant's tip was reliable. Gates, supra, 462 U.S. 213 at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548; State v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998) (Smith II). Our Supreme Court first adopted the "totality of the circumstances" analysis under the New Jersey Constitution in Novembrino, supra, 105 N.J. at 122-23.

An informant's "veracity" and "basis of knowledge" are two highly relevant factors in this analysis. State v. Zutic, 155 N.J. 103, 110 (1998). In determining overall reliability, a deficiency in one of these factors may be offset by a strong showing as to the other or by some other indicia of reliability. Id. at 110-111. An informant's past reliability will bolster his veracity. Id. at 111; State v. Sullivan, 169 N.J. 204, 213 (2001). If the informant does not identify a basis of knowl edge, a reliable basis may be inferred from the level of detail and amount of hard-to-know information disclosed in the tip. Zutic, supra, 155 N.J. at 111.

The basis of knowledge is sufficient "if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Smith II, supra, 155 N.J. at 94. Alterna tively, if "the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source," then the basis of knowledge is satisfied. Ibid.

"Independent corroboration is necessary to ratify the informant's veracity and vali date the truthfulness of the tip" and is considered "an essential part of the deter mination of probable cause." Smith [II], supra, 155 N.J. at 95. However, if the informant's tip fails to demonstrate sufficient veracity or basis of knowledge, a search warrant issued on the basis of the tip may still pass muster if other facts included in a supporting affida vit justify a finding of probable cause. Sullivan, supra, 169 N.J. at 214; Novembrino, supra, 105 N.J. at 121-22, 519. "'[T]he task of the issuing magistrate is simply to make a prac tical, common-sense decision whether, given all the circumstances set forth in the affi davit before him, including the 'veracity' and 'basis of knowledge' of persons supply ing hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Smith [II], supra, 155 N.J. at 93 (quoting Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548).

[State v. Jones, 179 N.J. 377, 390 (2004).]

Of course, a court must give "sufficient weight to the officer's knowledge and experience and to rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10 (1997); see also State v. Caldwell, 158 N.J. 452, 461 (1999).

The informant in this case had proven to be reliable in the past because information he supplied had led to other narcotics arrests. West established the veracity of the informant during his testimony at the suppression hearing. However, the infor mant did not disclose the basis of his knowledge. As a conse quence, the State was required to establish, through the nature and details revealed in the tip, an inference that the informant's knowledge of the alleged criminal activity was derived from a trustworthy source. It did so.

The nature and each of the details supplied by the infor mant were corroborated by the police as events unfolded. Between 9:30 and 10:30 p.m. on August 17, 2007, a black Cadillac Escalade with out-of-state license plates bearing the letters "KBC" arrived at the intersection of Hawthorne and Leslie Streets in Newark, just as the informant predicted. The offi cers then observed activity on the part of defendant Yarrell from the time he exited the Eclipse until he ducked down inside the Escalade that was consistent with an illegal drug transac tion, just as the informant predicted. As a result, no warrant was required here to arrest defendants and search the Escalade.

The drugs found on the floor beneath defendant Yarrell's feet and the drugs that spilled from defendant Anderson's purse were also in plain view from the exterior of the Escalade. The officers had a right of access to the evidence they saw, the discovery of the plain-view heroin was inadvertent, and the incriminating nature of the evidence was immediately apparent to the officers. See Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2307, 110 L. Ed. 2d 112, 122-23 (1990); see also Coolidge v. New Hampshire, 403 U.S. 443, 446, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564, 583 (1971); State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

Finally, an observation of the interior of a car by an officer located outside the vehicle is not a search for Fourth Amendment purposes. State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) ("'There is no legitimate expectation of pri vacy, . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.'") (quoting Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1983) (holding that shining flash light to illuminate interior of car did not trench upon a right secured by the Fourth Amendment)). There is no legitimate expectation of privacy in that which is exposed to the public. See Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967). Any member of the public with a flashlight could have seen the packages of heroin on the passen ger front-seat floor and on the rear seat. Thus, no constitu tional expectation of privacy existed here and the evidence should not have been suppressed.

 
Reversed and remanded for trial.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

This last ground was not advanced before the motion judge and we will not consider it for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Even if it were controlling, we are satisfied that it was not correctly applied. Defendant Yarrell's behavior in ducking out of sight when the officers made the Terry stop of the vehicle would certainly warrant "a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering [Yarrell] to alight from the car." Smith I, supra, 134 N.J. at 618.

Even if there were such an infirmity, the heroin would inevitably have been discovered when defendant Yarrell stepped out of the vehicle in response to a police instruction to do so. Surely, the heroin would have been admissible under the inevitable-discovery exception to the warrant requirement. State v. Holland, 176 N.J. 344, 361-62 (2003) (quoting State v. Sugar, 100 N.J. 214, 238-40 (1985)).

(continued)

(continued)

19

A-4640-07T4

 

April 1, 2009