STATE OF NEW JERSEY IN THE MATTER OF J.S A. Juvenile

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6297-08T4

STATE OF NEW JERSEY IN

THE MATTER OF J.S.,

A Juvenile.

_____________________________________________

May 3, 2011

Submitted March 16, 2011 - Decided

Before Judges Nugent and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1556-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The juvenile, J.S., was fifteen years old when arrested and charged with an act, which if committed by an adult, would have constituted third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). The juvenile moved to suppress the partial tablet of Hydrocodone found inside a cigarette pack and a statement that he made misidentifying the drug as "Oxy," i.e., Oxycodone. Defendant pled guilty to third-degree possession of the CDS charge after the court denied his motions, but preserved his right to appeal. The court sentenced the juvenile, without a predisposition report, but with the juvenile's consent, to one-year probation on the condition that he have a substance abuse evaluation and follow any recommendations. If he completed probation successfully, the court would then convert the probationary term to a deferred disposition.

On appeal, the juvenile raises the following issues for our consideration:

POINT I

THE SEARCH OF THE JUVENILE'S CIGARETTE PACK AND CONSEQUENT DISCOVERY AND SEIZURE OF A FRAGMENT OF A PRESCRIPTION PILL WAS CONTRARY TO THE FEDERAL AND STATE CONSTITUTIONAL PROSCRIPTIONS OF UNREASONABLE SEARCHES AND SEIZURES.

POINT II

THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS THE JUVENILE'S STATEMENTS AT THE SCENE OF HIS ARREST.

POINT III

THE TRIAL COURT'S SENTENCING DISPOSITION WAS EXCESSIVE AND CONTRARY TO THE REHABILITATIVE FOCUS OF THE NEW JERSEY CODE OF JUVENILE JUSTICE.

After consideration of the arguments presented in the briefs in light of the record, we reject them and affirm.

The relevant facts may be summarized as follows. At 2:15 a.m. on September 29, 2008, then Officer Shannon Hyman (now Detective) was on patrol in the Borough of Keyport in the area of Beers Street. Police explorer Briana Hedges, an eighteen-year-old woman, accompanied the officer in the patrol car.1 While patrolling, Officer Hyman observed J.S. and his fourteen- year-old cousin, R.S., walking near the intersection of Beers Street and Walling Terrace. She noticed J.S. peer into the passenger-side of a parked motor vehicle. Aware that section of Keyport was a high-crime area, Officer Hyman pulled up behind the parked vehicle without activating the patrol car's lights or sirens and approached the two juveniles.

Initially, Officer Hyman asked the juveniles their ages, why they were out so late, and whether their parents knew where they were. She received conflicting answers because R.S. stated that he was going to stay at his cousin J.S.'s house and his parents knew about the overnight. J.S. acted suspiciously and appeared increasingly nervous while fumbling in his pants pocket. He blurted out that he had been stopped "a million times before" and arrested for possession of CDS. J.S. indicated he had nothing to hide and invited the officer to search his pockets. J.S. then took a pack of cigarettes out of his pocket and began to shake the pack to discard its contents. Officer Hyman directed J.S. to hand her the cigarette pack. She then illuminated it with a flashlight and saw that it contained a white pill. She dumped the contents into her hand and asked J.S. what the pill was. He replied, "Oxy."

At the suppression hearing, Officer Hyman testified to the facts as just related. R.S. testified that there were no other vehicles in the area where they were stopped. Upon being stopped, Officer Hyman, according to R.S., reached into J.S.'s pocket, pulled out the cigarette pack, and searched it. J.S. also produced Dennis Fotopoulos, a resident, who was awakened by the incident on the street in front of his house. He stated that he did not recall any other cars on the street, other than two police cars. Lieutenant George Casaletto testified that in general the location was a high-crime area, but there were no other arrests in the exact location where this arrest took place.

The trial judge primarily based his decision on credibility findings, finding Officer Hyman credible, and J.S.'s cousin's testimony not credible. The trial judge found that an initial field inquiry escalated into an investigatory stop based on J.S.'s actions and statements, with the juvenile shaking the cigarette pack to discard its contents, whose contents could have been forever lost if not immediately seized. Officer Hyman had a reasonable basis to seize the cigarette pack and identify its contents.

The trial court also found that the statements made at the scene were not made during a custodial interrogation, but blurted out by the juvenile. The juvenile's response to what kind of tablet was found in the cigarette pack was not the kind of questioning that required the Miranda2 warning.

The juvenile asserts that Officer Hyman's initial interaction with him was an investigatory detention without reasonable and particular suspicion of criminal activity. The juvenile further argues that the warrantless search of the juvenile's cigarette pack and seizure of a fragment of a prescription pill constituted an unreasonable search and seizure. The juvenile contends that exigent circumstances did not exist which would justify the officer opening the cigarette pack, illuminating its interior with a flashlight, and observing the pill fragment. The juvenile also contends that, even if exigent circumstances were present, Officer Hyman lacked probable cause to believe the pack contained contraband.

In reviewing a motion to suppress, we are obliged to "uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We defer to the findings of a trial judge which are influenced by the firsthand ability to hear and see the witness and to have a "feel" of the case which we do not enjoy. State v. Johnson, 42 N.J. 146, 161 (1964).

Here, the trial court made extensive credibility findings. The trial judge expressly found the testimony of Officer Hyman credible. Those facts demonstrated the stop and search of the juvenile, as well as the seizure of the CDS were constitutionally permissible.

The police are able to conduct a field inquiry "'without grounds for suspicion.'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)). So long as the police officer does not prohibit an individual's right to move, the inquiry does not amount to detention. State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). In addition, the inquiry is permissible if the officer's questions "'[are] not harassing, overbearing, or accusatory in nature." State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 50, 510 (2003)).

However, a field inquiry can escalate to an investigative detention where 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." Pineiro, supra, 181 N.J. at 20 (quoting Nishina, supra, 175 N.J. at 510-11).

In evaluating whether the totality of the circumstances provided a police officer with reasonable suspicion to conduct an investigative detention, we are directed to consider a number of factors, including an officer's experience and knowledge, State v. Moore, 181 N.J. 40, 46 (2004), the high-crime status of the area; State v. Johnson, 171 N.J. 192, 217 (2002), the time of day of the encounter; State v. Valentine, 134 N.J. 536, 553-54 (1994), the juvenile's nervousness; Pineiro, supra, 181 N.J. at 29, suspicious behavior and implausible responses to police questions; State v. Baum, 199 N.J. 407, 424 (2009), and flight; State v. Williams, 192 N.J. 1, 13 (2007).

Here, the circumstances of the time during early morning hours, with young people out past the town's curfew ordinance in a high-crime area, and their behavior towards a parked vehicle, supported an initial inquiry by the police officer. Her questions were not accusatory or harassing, rather, they were conversational. Thus, the juvenile's argument that this initial interaction was an investigative detention is rejected. However, once that had been undertaken, it is clear that the questioning of the juveniles, the responses given, and the suspicious behavior exhibited by J.S. escalated the situation to an investigative detention.

Based on these circumstances, Officer Hyman could reasonably believe that the juveniles were about to engage in criminal activity, enabling her to briefly detain them and by questioning them to confirm or dispel her reasonable suspicion. Pineiro, supra, 181 N.J. at 22.

The trial court properly determined that Officer Hyman lawfully seized J.S.'s cigarette pack and discovered, pursuant to exigent circumstances, its contents. Probable cause to search requires "'a practical, common-sense 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.'" State v. Demeter, 124 N.J. 374, 381 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). Exigent circumstances exist if there is no time to "procure a warrant to search defendant because the evidence very well could have been consumed, hidden[,] or sold by the time that such a warrant was issued." State v. Guerrero, 232 N.J. Super. 507, 512 (App. Div. 1989).

Officer Hyman was faced with J.S., who had removed the cigarette pack from his pocket, and attempted to dump the contents while permitting the officer to search him. If the contents were discarded, whatever was contained in the pack would have been lost. The circumstances did not allow for any time to secure a warrant to deal with the immediacy of the juvenile's attempt to abandon contraband. Nor would it be unusual for a person to conceal drugs in a cigarette pack. See, e.g., Pineiro, supra, 181 N.J. at 18. The juvenile's nervousness, his reference to a prior CDS arrest, and his volunteering to be searched while at the same time trying to discard the contents of the cigarette pack without being noticed, evidenced a consciousness of guilt and focused the officer's suspicion on the content of the cigarette pack as a repository for CDS. This was a public street encounter occurring after 2:00 a.m. with the juvenile, in the officer's presence, trying to discard the contents of a cigarette pack. Officer Hyman had ample reason to believe that preservation of evidence required an immediate response by seizing and searching the cigarette pack. We discern no error in denying the motion to suppress.

With regard to the statements made by the juvenile, we are satisfied that the initial questioning was proper under a field inquiry, as previously discussed, which escalated into an investigative detention. The questioning which led up to the seizure of the cigarette pack was not subject to the proscription of Miranda, which is designed to protect persons suspected of a crime who are subject to custodial interrogation against self-incrimination. Supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706.

Turning our attention to the questioning of J.S. as to identifying the partial pill which was secreted in the cigarette pack, even if Miranda warnings were applicable, J.S.'s response was harmless beyond a reasonable doubt. State v. Macon, 57 N.J. 325, 340-41 (1971). Even if his response that it was "Oxy" was suppressed, it would not have led to a different result. The tablet was submitted to the State laboratory for testing. The testing of the tablet, contrary to what the juvenile described as "Oxy," proved to be Hydrocodone. Thus, the State would not have relied on the juvenile's response because he had misidentified the pill itself. The laboratory report would have been utilized to prove one of the elements of the offense that the drug seized was a prohibited scheduled drug illegally possessed by the juvenile. See N.J.S.A. 2C:35-10a(1). Thus, even if the Miranda warning should have preceded asking the juvenile to identify the drug, it would not have made a difference in the trial outcome if his response had been suppressed.

Finally, with respect to the juvenile's sentence, we see nothing shocking nor excessive in the probationary disposition that was subject to conversion to a deferred disposition based on the juvenile's substance abuse evaluation and compliance with any treatment or other recommendation. Indeed, it was in keeping with the rehabilitative goal of juvenile sentencing to provide an incentive for the juvenile to rid himself of any potential drug addiction if he was so pre-disposed. See State ex rel. C.V., 201 N.J. 281, 295 (2010). The trial court properly considered the impact of drug use on society and tailored the sentence to the individual characteristics of this juvenile. See N.J.S.A. 2A:4A-43a(1), (4), (6), (10).

1 Police Explorers is a philanthropic civic group which promotes youth participation with police departments and exploration in law enforcement careers.

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