STATE OF NEW JERSEY v. DANIELLE WHEELER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0196-12T1


STATE OF NEW JERSEY,


Plaintiff-Appellant,


v.


DANIELLE WHEELER and

MEQUANNA COOLEY,


Defendants-Respondents.

______________________________

March 19, 2013


Submitted February 27, 2013 - Decided


BeforeJudges Sapp-Peterson, Nugent and Haas.


On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-03-0520.


Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Colleen Hannon, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).


Joseph E. Krakora, Public Defender, attorney for respondents (Stefan Van Jura, Assistant Deputy Public Defender, on the brief).


PER CURIAM


We granted leave to the State to review the interlocutory order granting defendant Mequanna Cooley's (Cooley)1 motion to suppress evidence seized "on her person and inside of her apartment" as a result of the execution of a search warrant at her residence. We affirm.

The facts supporting the issuance of the search warrant arose out of the stop of a vehicle driven by Cooley, who at the time of the stop not only acknowledged she was in possession of drugs in the vehicle, but after being arrested and transported to police headquarters, told police she had narcotics in her apartment, where she resided along with her sister, co-defendant Danielle Wheeler (Wheeler). Based upon this statement, police obtained a warrant to search the apartment, where additional narcotics were located in the bedrooms occupied by Cooley and Wheeler. Marijuana was also found on Cooley.

Cooley and Wheeler filed a suppression motion and the court conducted a hearing at which the State presented two witnesses: Officers Anthony Goodman and Michael Burgess. Cooley and Wheeler presented no witnesses. Officer Goodman, a Jersey City police officer, testified that in early October 2011, he received a tip from a confidential informant (CI) that an individual known to the CI as "Lee," but later identified as Lebrin Israel, stashed most of his marijuana in an apartment rented by a black girl named "Danielle." According to the CI, "Danielle" also sold drugs for Lee.

Because the CI had provided reliable information in the past, Officer Goodman set up a visual surveillance of the three-story apartment building on the evening of October 25, 2011. At approximately 7:00 p.m., Officer Goodman observed a black male, later identified as Jermane Wright, walking west from Bayview Avenue. He stopped on Martin Luther King Drive (MLK) in front of a multi-unit apartment building, where Wheeler purportedly resided, and looked up at a window several times. A short while thereafter, an African-American female, later identified as Cooley, came out of the building.

Cooley and Wright entered a burgundy Oldsmobile parked in front of the apartment building, Cooley in the driver's seat and Wright in the passenger's seat. Officer Goodman testified that he followed the vehicle to investigate whether Cooley fit the CI's description of "Danielle." He witnessed the Oldsmobile travel south for one block, then turn right, traveling west for one block before turning right again. The vehicle traveled north for another block and then turned right, traveling east before returning to its original location. Wright exited the Oldsmobile and entered a black Acura on the passenger's side, and both vehicles departed. Believing, based on his training and experience, that a drug transaction had occurred, Officer Goodman instructed other members of the surveillance team stationed in the perimeter to stop the vehicles.

Officer Burgess testified that as he approached the burgundy Oldsmobile and instructed the female driver, Cooley, to show her hands, she stated, without any prompting, that she had four bags of marijuana and showed the drugs to him. He then placed Cooley under arrest and informed her of her Miranda2 rights. The occupants of the black Acura were also arrested for possession of marijuana and Mirandized. When questioned, Cooley said she had come from her apartment. When asked whether anyone else was home, she stated she was not sure if her sister was home. She refused to consent to a search of her apartment.

During this interaction, the officers observed that Cooley's cellular phone rang continuously. In addition, an unknown passerby who noticed that Cooley was being arrested, offered to inform Cooley's sister of the arrest. Based upon this statement from the passerby, officers went to Cooley's apartment to secure the premises pending the issuance of a search warrant. They used Cooley's keys to access the common hallway and proceeded to the apartment on the third floor. They knocked on the door and spoke to a woman who identified herself as Danielle Wheeler. The officers advised Wheeler of Cooley's arrest and asked if she would allow them to search the apartment. When Wheeler refused, the officers decided to perform a protective sweep pending the issuance of a search warrant. After looking in every room of the apartment to ensure there was no one else inside, Wheeler and an officer waited in the hallway for Officer Goodman to return with a warrant.

Meanwhile, Cooley had been transported to police headquarters, where she was placed in the same room as Officer Goodman. While Officer Goodman was filling out a search warrant application, Cooley stated, once again unprompted, that she had twenty-eight more bags of marijuana in her bedroom. At that point, Officer Goodman informed her of her Miranda rights again. He then asked why she failed to reveal this information earlier, and Cooley replied that she did not want to get Wheeler in trouble.

After securing a search warrant, officers recovered thirty-two bags of suspected marijuana and $50 in cash from Cooley's bedroom. In the bedroom believed to be Wheeler's, officers discovered a Sponge Bob knapsack containing fifty bags of suspected heroin inscribed with a "NINJA" logo, a black knapsack containing ninety-two bags filled with suspected marijuana, a heat sealer, and $1435 in cash. In the third bedroom, officers found a shoebox containing an unspecified amount of marijuana, cash, 74 Ecstasy pills, and a New Jersey identification card for Jawwaad McCarthy.3

At the conclusion of the hearing, Judge Patrick J. Arre granted defendants' motion. He found:

In this case the CI provided no such particularized information. The observations of the trained, skilled police officer amount to innocuous observations, at best, in the view of this [c]ourt. And as a result, I find there was no probable cause to stop the vehicle. As a result, all the evidence seized subsequent to that, pursuant to the warrant is suppressed.


This appeal followed.

The State raises the following points for our consideration.

POINT I


THE LOWER COURT ERRED IN NOT ALLOWING EXPERT TESTIMONY.


POINT II


THE TRIAL COURT'S DECISION TO SUPPRESS PHYSICAL EVIDENCE WAS ERRONEOUS.


POINT III


THE OFFICERS HAD PROBABLE CAUSE TO ARREST COOLEY.




POINT IV


THE MONEY AND THE DRUGS THAT WERE RECOVERED FROM [THE PREMISES] WERE RECOVERED PURSUANT TO A SEARCH WARRANT AND ARE PRESUMPTIVELY VALID.


In our review of an order granting a motion to suppress evidence seized, we must defer to the motion judge's factual findings, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). However, we owe no special deference to the motion judge's legal conclusions. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Ventura, 353 N.J. Super. 251, 258 (App. Div. 2002). Moreover, we "may re-appraise the record and make [our] own alternative finding if [we are] 'thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" State v. Davila, 203 N.J. 97, 110 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)). Nonetheless, "[m]ore than a mere 'disagreement with how a motion judge weighed the evidence in a close case,' though, is required if a substituted finding is to be made by an appellate court." Ibid. (quoting Elders, supra, 192 N.J. at 245 (criticizing Appellate Division's lack of deference to trial court)).

I.

We first address the exclusion of expert testimony. The State moved to qualify Officer Goodman as an expert in the field of narcotics, particularly regarding how narcotics are trafficked in Jersey City. Officer Goodman testified that he has received training related to "different aspects" of narcotics offered by state and local authorities and has been qualified as an expert in the field of narcotics approximately ten times in the Hudson County Superior Court. Defense counsel objected to the designation of the officer as an expert witness, arguing that because none of the facts in the case are beyond the common understanding and knowledge of the trier of fact, expert testimony was unnecessary. Judge Arre sustained defense counsel's objection without explanation. The State urges that had Officer Goodman been permitted to offer expert testimony, he would have provided "specialized information [that would help the court] understand why seemingly innocuous facts caused Officer Goodman to have a reasonable articulable suspicion justifying the investigatory stop."

N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Further, the three basic requirements for the admission of expert testimony are: "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." State v. Rosales, 202 N.J. 549, 562 (2010); N.J.R.E. 702.

However, expert testimony cannot be used exclusively to bolster the State's case where there is no direct evidence of a defendant's guilt. State v. Sowell, ___ N.J. ___, ___ (2013) (citing State v. Baskerville, 324 N.J. Super. 245, 263 (App. Div. 1999) (while an expert witness in a drug prosecution case may offer testimony regarding methods generally used by drug dealers, he may not offer opinion testimony that drug transactions in fact occurred where the State provided no direct evidence as proof of possession with intent to distribute)). The Appellate Division reviews evidentiary rulings under the abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Furthermore, a trial court's refusal to qualify a proposed expert witness will only be reversed for "manifest error and injustice." State v. Jenewicz, 193 N.J. 440, 455 (2008).

Although Judge Arre sustained defendants' objection to Officer Goodman testifying as an expert, he did so without expressly placing the reasons for his ruling on the record. We are satisfied he implicitly determined expert testimony was not needed to render an opinion upon the straightforward facts presented. See Sowell, supra, ___ N.J. at ___ (reiterating "no expert [is] needed to explain what the jury could grasp on its own whether or not a drug transaction had occurred"). Stated differently:

Expert testimony should be limited to areas that are beyond the understanding of the jury. It is not appropriate to summarize straightforward but disputed evidence in the form of a hypothetical and then elicit an expert opinion about what happened. That approach improperly bolsters the State's proofs with expert testimony and can usurp the jury's sole responsibility to find the facts. "[E]xperts may not intrude on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out without expert assistance. . . ."


[Sowell, supra, ___ N.J. at ___ (quoting State v. McLean, 205 N.J. 438, 461 (2011)).]


Moreover, in this case, Officer Goodman was the officer to whom the tip had been given. He was also the officer who set up the surveillance and observed the conduct of Wright and later Cooley after she exited the apartment. Finally, it was Officer Goodman who followed Cooley and Wright after the two entered the Oldsmobile and traveled around the four blocks before returning to the original location of the vehicle in front of the apartment building. Given the absence of any direct evidence of a drug transaction, the probative value of his expert opinion is outweighed by the prejudice to defendant in having this investigating officer also testify as the expert witness on the characteristics of drug transactions. See State v. Berry, 140 N.J. 280, 301 (1995) (while recognizing the usefulness and admissibility of expert testimony in drug prosecutions, the Court also noted that the risk of prejudice to a defendant is significant "if the expert witness is one of the investigating officers and also offers an opinion on an ultimate issue in the case.") We are satisfied, however, while we have repeatedly admonished trial courts to place reasons explaining their rulings on the record, Ronan v. Adely, 182 N.J. 103, 110 (2004), the motion judge's failure to expressly do so here does not warrant reversal.

Finally, even if the judge erred in excluding Officer Goodman's expert testimony, the error was harmless. On cross-examination, Officer Goodman testified that in his experience, "driving around the block has always resulted in a sale, a drug sale." He stated that he believed, based upon his training and experience, that "a narcotics sale happened during the course of them driving around the block." Judge Arre credited this testimony but found this conduct as the sole basis for the investigative stop unconstitutional. Thus, notwithstanding the court's ruling, the court considered and weighed the opinion expressed by Officer Goodman in his analysis.

II.


The State next argues Judge Arre erred in the application of the law regarding investigatory stops and reached an incorrect conclusion regarding the reliability of the information provided by the confidential informant. We disagree.

To justify an investigative stop, an officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, 906 (1968). New Jersey adopted the Terry standard in State v. Branch, 301 N.J. Super. 307, 318 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998) (finding that an investigatory detention is constitutional "so long as the stop is supported by a reasonable suspicion that criminal activity is afoot."). "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

When facts that have been articulated with specificity are combined with the rational inferences that may be derived from articulated facts, and these facts and inferences give rise to suspicion of criminal activity, investigative intrusion is justified. State v. Mann, 203 N.J. 328, 338 (2010). In other words, it is "'the totality of the circumstances -- the whole picture'" to which the officer had access. State v. Stovall, 170 N.J. 346, 361 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d 621, 629 (1981)). In short, the evidence available to the officer should be "'seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'" State v. Ramos, 282 N.J. Super. 19, 22 (App. Div. 1995) (quoting Cortez, supra, 449 U.S. at 418, 101 S. Ct. at 695, 66 L. Ed. 2d at 629).

Here, Officer Goodman testified his investigation was prompted by a confidential tip he received regarding drug activity at an apartment building on MLK by "a black girl" named Danielle. No other details were provided in the tip. "Broadly speaking, the reliability of a known police informant is judged by any indicia of the informant's veracity and an analysis of the basis of the informant's knowledge." Byrnes, N.J. Arrest, Search & Seizure, 6:3-2(d) (2011) (citing State v. Keyes, 184 N.J. 541, 555-56 (2005); State v. Sullivan, 169 N.J. 204, 212 (2001)).

In State v. Birkenmeier, the information provided by the informant, whose veracity and reliability had not been established, was nonetheless corroborated by police observation. 185 N.J. 552, 556 (2006). The informant provided the defendant's name, the make, model and license of his car, a description of a bag containing drugs and the time the defendant would be leaving his home. Id. at 562. The Court found these facts, corroborated by police observation, constituted reasonable suspicion that justified an investigative stop of defendant. Ibid. In doing so, the Court stated "[f]acts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct." Ibid. (quoting State v. Nishina, 175 N.J. 502, 511 (2003)).

The State argues the informant's tip that marijuana was being sold from an apartment on MLK for a man named Lee by a black girl named Danielle, as well as Officer Goodman's observation of a black girl leaving the apartment building to meet with a male subject who had been looking up toward a window of the apartment building, and then the pair's short drive around the block in an Oldsmobile, amounted to reasonable, articulable facts to support an investigatory stop. We disagree.

First, unlike the informant in Birkenmeier, who in the past had provided information that led to major drug and weapons seizures and who also provided particularized information to police about the defendant, other than the officer's conclusory statement that the CI had provided reliable information in the past, the State elicited no facts from the officer to support his testimony that the CI was reliable. Id. at 561. Critically, however, the information the CI provided was grossly vague. No distinguishing characteristics such as height or weight were given of the black female; the informant merely stated the suspect was a black girl named Danielle living in a multi-unit apartment building on MLK. See State v. Caldwell, 158 N.J. 452, 460 (1999) (concluding informant's tip that a black male standing in front of a multi-unit apartment building was wanted on an outstanding warrant was too vague to justify an investigative stop when the apartment building was located in a predominantly African-American community). Nor did the informant provide predictive or "hard to know" information about the suspect's pattern of behavior. See Byrnes, supra, at 6:3-2(d). State v. Williams, 364 N.J. Super. 23, 34-35 (App. Div. 2003) (citing State v. Smith, 155 N.J. 83, 94-95, cert. denied sub. nom., 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed.2d 480 (1998)).

Second, the State's argument that the innocuous set of facts in this case, specifically, the male subject's repeated glances at a window of the apartment building and the subsequent short drive around the block with a black girl who exited from the apartment building shortly thereafter, constitute "collective circumstances . . . consistent with criminal conduct" is not remotely analogous to Birkenmeier, supra, 185 N.J. at 562. There, the collective circumstances were undergirded by particularized facts, namely corroboration of the informant's tip by police observation. Ibid.

Officer Goodman's observations were completely unconnected to the tip he received. For example, the informant did not state there was a pattern of conduct that would occur, such as persons typically stopping in front of the multi-unit apartment building who look upwards, and then a short time later, the departure of a female from the apartment who would then enter acar with the person standing outside and together they would circle the block. Further, since there was no physical description of Danielle, Officer Goodman could not confirm whether the person who came out of the building was Danielle. More importantly, however, Officer Goodman admitted that he ordered the investigatory stop, after following the Oldsmobile around the block, based on his belief that "driving around the block has always resulted in . . . a drug sale." As Judge Arre concluded, this statement is not reasonably objective. Nor do these circumstances provide additional objective factors to support a reasonable articulable suspicion that defendant was engaged in criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

While an officer's experiences are to be credited in making these determinations, Terry instructs the courts to consider "rational inferences" derived from the specific and articulable facts provided. Ibid.; State v. Pineiro, 181 N.J. 13, 22 (2004). Because no specific or articulable facts were provided by the CI, Judge Arre did not err in concluding there was no legal basis for the investigatory stop.

Further, we note, as the State argues, the motion judge's reference to the more stringent probable cause standard rather than the reasonable articulable suspicion standard in analyzing the stop. The judge's amplified written opinion, however, includes an explanation of the reasonable and articulable suspicion standard for an investigative stop as well as the probable cause standard for a search or seizure. It appears the judge conflated the two standards. It is therefore unclear whether the judge intended to state that police required probable cause to conduct an investigative stop. Since the record does not support the investigative stop based upon the reasonable and articulable standard, as set forth in Terry and its progeny, even if the judge intended to ascribe the more stringent probable cause standard to the investigative stop, the error was harmless. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

Finally, because the search warrant was obtained as a result of information procured by unconstitutional means, the evidence seized upon the authority of that warrant must be examined under the exclusionary rule, "'a judicially created remedy designed to safeguard' the right of the people to be free from 'unreasonable searches and seizures.'" State v. Williams, 192 N.J. 1, 14 (2007) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620, 38 L. Ed.2d 561, 571 (1974)). It's purpose is two-fold. One "'is to deter future unlawful police conduct' by denying the prosecution the spoils of constitutional violations." State v. Badessa, 185 N.J. 303, 310-11 (2005) (quoting State v. Evers, 175 N.J. 355, 376 (2003)). In that regard, "[t]he rule is calculated to prevent, not to repair. Its purpose is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it." State v. Smith, 212 N.J. 365, 388 (2012) (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 1444, 4 L. Ed.2d 1669, 1677 (1960)). The second purpose "is to uphold judicial integrity by serving notice that our courts will not provide a forum for evidence procured by unconstitutional means." Williams, supra, 192 N.J. at 14. In essence, the exclusionary rule is designed to deter constitutional violations by law enforcement officers.

It has been, however, recognized that while the exclusionary rule "may vindicate the Fourth Amendment rights of a particular defendant and . . . the privacy rights of all persons," in the aggregate, by excluding reliable evidence, it also may result in setting the guilty free. State v. Shaw, ___ N.J. ___, ___ (2011) (citing United States v. Janis, 428 U.S. 433, 448-49, 96 S. Ct. 3021, 3029, 49 L. Ed.2d 1046, 1058 (1976)). Due to these competing concerns, the exclusionary rule "will not apply when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from the unlawful conduct." Badessa, supra, 185 N.J. at 311 (citing Wong Sun v. United States, 371 U.S. 471, 487, 83 S. Ct. 407, 417, 9 L. Ed.2d 441, 455 (1963)); see also State v. Lee, 190 N.J. 270, 278 (2007) (explaining attenuation doctrine).

The three factors to be considered in determining whether evidence sought to be admitted is attenuated from unconstitutional police conduct are: "(1) the temporal proximity between the illegal conduct and the challenged evidence, (2) the presence of intervening circumstances, and (3) the flagrancy and purpose of the police misconduct." Lee, supra, 190 N.J. at 278 (citing Brown v. Illinois, 422 U.S. 590, 599-600, 95 S. Ct. 2254, 2260, 45 L. Ed.2d 416, 425 (1975)). See also State v. Barry, 86 N.J. 80, 87 (1981). We consider these factors against the factual record presented here and agree, as Judge Arre found, the evidence sought to be admitted is not sufficiently attenuated from the unconstitutional conduct.

When officers approached Cooley after stopping her vehicle, she admitted, without any prompting or inquiry, that she had marijuana and showed the drugs to the officers. This conduct provided the investigating officer with probable cause to arrest Cooley. Johnson, supra, 178 N.J. at 214. However, because police officers lacked the constitutional authority to initiate the investigative stop, Cooley's actions were not sufficiently attenuated from the illegal stop. Nor had Cooley committed any motor vehicle violation which would have otherwise justified the stop. State v. Carty, 170 N.J. 632, 639-40 (2002). But for the unauthorized stop, Cooley would not have revealed that she possessed marijuana. Therefore, Judge Arre properly concluded that officers lacked probable cause to arrest Cooley.

Likewise, Officer Goodman obtained a search warrant based upon the confidential informant's tip, the discovery of marijuana in Cooley's possession at the time she was arrested, and her later confession at the precinct that she had more marijuana in her apartment. The motion judge correctly determined the search warrant was tainted because it relied on an unverified tip, information garnered during an illegal stop and subsequent arrest and an unattenuated confession, circumstances which the motion judge properly found were distinguishable from those upholding the confession. Barry, supra, 86 N.J. at 88-89. Here, while Cooley's confession was voluntary, temporal proximity between the illegal conduct and seized evidence was indivisible and there were no intervening circumstances. Thus, the taint of the illegal stop and subsequent arrest were not sufficiently attenuated to sustain the seizure of the drugs. Id. at 87.

Affirmed.

1 Defendant Danielle Wheeler joined in Cooley's motion and adopted her arguments.

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

3 Also referred to as McArthur in the appellate record.