STATE OF NEW JERSEY v. CHRISTOPHER SLATER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5857-08T45857-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CHRISTOPHER SLATER AND

ROBERT LANE,

Defendants-Respondents.

______________________________________

Argued May 10, 2010 - Decided May 27, 2010

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-11-1055.

Cathryn E. Wilson, Assistant Prosecutor, argued the cause for appellant (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; James O. Turner, Jr., Assistant Prosecutor, of counsel and on the brief).

Thomas Connelly, Designated Counsel, argued the cause for respondent Christopher Slater (Yvonne Smith Segars, Public Defender, attorney; Mr. Connelly, on the brief).

Ruth Bove Carlucci, Assistant Deputy Public Defender, argued the cause for respondent Robert Lane (Yvonne Smith Segars, Public Defender, attorney; Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from a June 18, 2009 order suppressing evidence. We reverse and remand this case to the trial court.

I

The following evidence was presented at the hearing on the suppression motion. Detective Harold Duffield of the Millville Police Department testified to his expertise in investigating cases involving narcotics and prostitution. He testified that in his experience as a police officer, he had observed certain behavior typical of customers or "johns" looking to pick up prostitutes. This included

The brake lights flashing as they drive by the prostitutes. The prostitutes waving.

The johns honking their horns as they drive by. Driving by and pulling over right away. Stopping, waiting.

At about 11:30 p.m. on April 30, 2008, he and two other officers were in an undercover vehicle in the center of Millville. He later indicated that this was an area known for prostitution activity. They observed a woman whom they had previously arrested several times for prostitution. They watched her walk to the corner of Columbia Avenue and Vine Street. When she reached the corner "a black car went by south on Columbia Avenue and as he rode by, [Duffield saw] brake lights from the car go on." The car tapped its brake lights, which Duffield believed from his experience was an attempt to get the prostitute's attention. The car then "continued down Columbia and essentially went around the block . . . came back by the corner she was [at] and entered an entrance off of Vine Street into [a] parking lot and parked." When they observed the woman crossing the street and heading for the black car, the officers "essentially said hey, something's not right here. She's going to that car. Let's go investigate and see what's going on." Accordingly, they drove their car over to the parking lot and "pulled directly behind the [black] car."

Duffield approached the car and asked the driver why he had flashed his brake lights and whether he was trying to "pick up" the prostitute. The driver, who identified himself as Robert Lane, denied any interest in the woman and claimed that he had parked because he had dropped his cell phone and wanted to retrieve it. The passenger in the car identified himself as Christopher Slater. While Duffield was speaking to Lane, he "smelled an odor of raw marijuana." At that point, another officer had arrived on the scene, and they asked Lane and Slater to step out of the car. After the two men exited the car, the police retrieved two baggies of crack cocaine from the front console area, where they had been in plain view.

On cross-examination, Duffield initially stated that the prostitute was fifteen to twenty feet from the black car when the officers first concluded that she was heading for defendants' car. He later stated that she was "about 25 feet" away from defendants' car when they first put their police vehicle in motion and "10 or 15" feet away when they parked behind defendants' car. According to Duffield:

We let her leave [the street corner]. Once they drove by, circled around, drove by again and pulled in the lot, she started walking towards them so we waited a short amount of time as she got closer to the vehicle.

And that's when we left our spot and came around and parked behind theirs.

At the same time that Duffield stopped in back of defendant's car, another officer approached the prostitute to question her. On cross-examination, Duffield testified that after the two men were arrested, the police found a bag of marijuana in Slater's jacket pocket. The bag contained, in the officer's estimation, more than fifty grams of marijuana; however he later corrected his testimony to indicate that when weighed, it proved to be approximately twenty-eight grams, or about an ounce. The judge indicated his understanding that in a closed car, that amount of raw marijuana would give off a smell.

In answer to the judge's question, Duffield admitted that if defendant had dropped his cell phone, that could explain why he tapped his brakes. He also indicated that there was very little traffic on the street at that time of night. Duffield also admitted that people sometimes park their cars overnight in the parking lot, and that he later learned that Lane lived in the neighborhood on Columbia Avenue. However, he did not know that at the time he was conducting the investigation. He saw the black car pull into the parking lot, park, and have its lights turned off. Duffield testified that the car "wasn't directly into the parking stall . . . . [It] was kind of on an angle." Duffield denied that he pulled behind the black car to block it in. He testified that defendants' car was pulled in at an angle, and he also "pulled towards the back on an angle."

According to Duffield, the parking lot was in a triangular shape, formed by Vine Street running east and west, Buck Street running north and south, and Columbia Avenue running on an angle. The car pulled into the lot from Vine Street and pulled into a space facing Columbia Avenue. In response to the court's question, Duffield indicated that his purpose in pulling up behind defendants' car was that he "was attempting to find out what was going on with the circumstances that I had leading up to it." He also explained the tactical reasons for parking his car in such a way that he could drive away quickly or take cover behind the car, if "something bad happens." He explained that based on what he had seen, if the prostitute had continued to approach the black car, and the car had pulled away as his police vehicle approached it, he would have stopped the black car to investigate.

At the end of the second day of the hearing, the judge indicated that he found Duffield to be an entirely credible witness, but that he preliminarily concluded that the officer had not presented justification for an investigatory stop.

On the third day of the hearing, the State presented testimony from Detective Jody Farabella. Based on his ten years of experience, Farabella testified that johns often solicited prostitutes by using a headlight or brake light and circling the area, sometimes circling multiple times. He corroborated Duffield's testimony that the black vehicle passed the prostitute and "hit his back brakes." The officers then saw "that vehicle circle the block, pass her again and then pulled into the Morris View Plaza parking lot." Like Duffield, Farabella believed that when the black car tapped its brake lights, that was a signal to the prostitute. According to Farabella, when the black car passed her "a second time," it entered the parking lot. The police then saw the woman "walking closer to the car" and thought "she was going to approach the vehicle." At that point the police "moved in." They saw her get within fifteen feet of the black car and they then pulled their car directly behind the black car. Duffield approached the driver's side, spoke to the driver and Farabella approached the passenger side. "Within seconds," a bicycle officer arrived and Duffield told Farabella "that he smelled raw marijuana."

The bicycle officer, Vinzinski, asked the passenger to exit the car, while Farabella observed. He saw both occupants of the car "kind of huddled together in the vehicle, like crouched over the center console areas when they were in the vehicle." When they exited the car, Farabella saw what he believed to be cocaine in plain view on the front console. At that point, both defendants were arrested, and marijuana was found on Slater's person.

On cross-examination, Farabella confirmed that after seeing the black car tap its brake lights and circle the block "twice" he concluded that the occupants were attempting to solicit the woman for prostitution. This was further confirmed when she started walking toward the parked vehicle. Farabella agreed that when Duffield pulled the car behind defendants' car, the defendants were "not free to leave." He also explained that he and his partners were engaged in "proactive" or preventive policing. That would include trying to eliminate prostitution by deterring johns from picking them up. In this case, they were trying to "deter johns from picking up [the prostitute]."

In an oral opinion placed on the record on May 28, 2009, the motion judge found Farabella and Duffield to be credible witnesses. He found that the police had grounds for a field inquiry; however, he found that they conducted an investigatory stop for which they did not have enough evidence. He found as facts that the police were watching a known prostitute and saw a black vehicle approach the area where she was located, saw it "slow down as it neared [her], flash its brake lights as it passed by. Circle the block, pass [her] a second time and pull into a nearby parking lot." The officers believed such behavior was consistent with persons attempting to solicit prostitutes. He found that

[w]hen the vehicle pulled into the parking lot, [the prostitute] allegedly began walking toward the black vehicle. At that . . . time . . . the officers moved in and pulled their vehicle, an unmarked car, behind the black vehicle. . . .

It's important to note that [she] never got closer than approximately fifteen feet of the vehicle. So the officers were never sure that she was actually going to the vehicle.

However, the judge concluded that the officers did not have grounds for an investigatory stop, because they "were never sure that she was actually going to the vehicle," and they did not wait "long enough . . . to determine factually that there was actually [a] Solicitation of Prostitution [that was] going to occur." The judge also found that the five minutes during which Duffield spoke with Lane was "more than, . . . a field inquiry." The judge did believe that during this questioning Duffield "could smell [a] strong odor of marijuana emanating from the vehicle." He also found as fact that Farabella observed the two plastic bags of cocaine in plain view. However, the judge concluded that the police had no "legitimate purpose to tell [defendants] to get out of the vehicle, so that has to be suppressed."

The judge acknowledged that the police may rely "on behavior that is consistent with innocence as well as guilt in finding reasonable and articulable suspicion to conduct an investigatory stop." (quoting State v. Pineiro, 181 N.J. 13, 25 (2004)). However, he considered that the vehicle was circling the block in what turned out to be defendant's neighborhood, and it was parking in a lot where neighborhood residents parked overnight. He also found that blinking the brake lights could be explained if Lane dropped his cell phone. In essence, the judge found that the police "didn't wait for this crime to show itself enough to be sure that it was actually was going to occur or did occur."

II

We must defer to the trial judge's findings of fact, so long as they are supported by substantial credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 470-74 (1999). However, we are not bound by the judge's interpretation of the law applied to those facts. State v. Drury, 190 N.J. 197, 209 (2007). In this case we are convinced that the judge incorrectly applied the law to the facts as he found them.

We begin by considering well established law concerning investigatory stops.

A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity. . . .

Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest.

[State v. Stovall, 170 N.J. 346, 356 (2002).]

Further, the court must consider the totality of the circumstances, including the officer's experience.

A determination of reasonable suspicion is fact-sensitive. The totality of the circumstances must be considered in evaluating whether an officer had a reasonable suspicion to conduct a brief investigatory stop. An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test.

[State v. Pineiro, supra, 181 N.J. at 22 (citations omitted).]

We agree with the trial court that the police made an investigatory stop. However, we cannot agree that the stop was unjustified. The police do not have to wait for a crime to occur before making an investigatory stop. See State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616-17 (1972)). Moreover, the facts must be viewed from the perspective of a reasonable police officer observing those facts at the time, and not viewed in hindsight based on the defendants' perspective. See State v. Pineiro, supra, 181 N.J. at 25; State v. Citarella, 154 N.J. 272, 280-81 (1998).

In this case, as Farabella explained, the police were attempting to prevent a crime from happening. One way to do that was to deter johns from patronizing the prostitute, by stopping and questioning them before the transaction actually occurred. Based on the facts, as the judge found them, reasonable officers could have readily concluded that defendants were in the process of procuring the prostitute's services. They slowed down as they passed her and blinked the brake lights; they circled the block twice, passing her both times; they then pulled into a parking lot from the Vine Street entrance and drove across the lot so that their car was facing the corner of Columbia where she was standing. Instead of parking in a stall, they parked sloppily at an angle across a stall. The woman then left her corner and headed across the street toward defendants' car. When she was about fifteen feet away from that car, the police started their vehicle and "moved in" to block defendants' car.

The facts, as observed at the time, were more than sufficient to cause a reasonable police officer patrolling a high prostitution area to believe that defendants were about to patronize a known prostitute. There was no objectively observable legitimate reason for the black car to tap its brake lights just as the car passed the prostitute, or for the car to circle the block twice in the middle of the night in this neighborhood. The car was then driven across the parking lot from the entrance on Vine Street to a location directly facing her corner on Columbia. And there was no explanation why a neighborhood resident looking to park a car for the night would park on an angle instead of pulling into a parking slot. Further, after observing all of this, the police watched the prostitute cross Columbia Avenue and approach the parking lot to within fifteen feet of defendants' car. Only then did they put their vehicle in motion and "move in" to question defendants.

The Fourth Amendment does not require the police to be blind or na ve. See Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616-17 (1972). They are required to act when they observe events that, to their trained eyes, signal a crime about to take place:

[P]olice officers are trained in the prevention and detection of crime. Events which would go unnoticed by a layman ofttimes serve as an indication to the trained eye that something amiss might be taking place or is about to take place. The police would be derelict in their duties if they did not investigate such events.

[State v. Davis, 104 N.J. 490, 503-04 (1986) (quoting State v. Gray, 59 N.J. 563, 567-68 (1971)).]

Moreover, the test is not whether there may be an innocent explanation for what the police observe, but whether the totality of what they observe would justify a reasonable officer in suspecting that a crime is about to occur. "Even if all of the factors were susceptible of `purely innocent' explanations, a group of innocent circumstances in the aggregate can support a finding of reasonable suspicion." State v. Stovall, supra, 170 N.J. at 368.

We conclude that as a matter of law, what Duffield and Farabella observed gave rise to a reasonable and articulable suspicion that a crime was about to occur, and hence justified an investigatory stop. Pineiro, supra, 181 N.J. at 25. Defendants' reliance on State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986), and State v. L.F., 316 N.J. Super. 174, 179 (App. Div. 1998), is misplaced. In Kuhn, and L.F., the officers did not observe any activity specifically associated with a crime. Here, the officers were observing a known prostitute and were able to articulate specific acts that led them to believe defendants were about to solicit an illegal transaction with her.

Once Duffield began questioning Lane and smelled raw marijuana, the officers had a justifiable basis to require both defendants to exit the car. When the defendants were no longer hunched over the center console and were out of the car, Farabella was able to see the two bags of cocaine in plain view on the console. Defendants do not question the right of the police to seize the contraband in plain view, so long as the police were lawfully in a position to view it.

We therefore reverse the order suppressing the evidence seized from the car and from Slater's person.

 
Reversed and remanded.

(continued)

(continued)

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