STATE OF NEW JERSEY v. DON DORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4027-11T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DON DORITY,

Defendant-Respondent.

_______________________________

May 8, 2013

Submitted November 7, 2012 - Decided

Before Judges Lihotz and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-12-397.

Richard T. Burke, Warren County Prosecutor, attorney for appellant (Tara J. Kirkendall, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (John V. McGuigan, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from an order of the Law Division suppressing evidence. For reasons stated in this opinion, we reverse.

I.

The Warren County Grand Jury returned an indictment against defendant Don Dority charging him with third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession of a CDS, contrary to N.J.S.A. 2C:35-10(a)(1). Defendant entered a plea of not guilty and filed a motion to suppress evidence. Following an evidentiary hearing held on August 22, 2011, the motion judge granted the motion to suppress evidence by order and a written opinion dated March 6, 2012. The State argues that the motion judge erred because evidence had been seized pursuant to a search "incident to a lawful arrest." We consider this argument in light of the facts in the record and the applicable law.

II.

We derive the facts from the record of the evidentiary hearing. On the evening of March 19, 2010, officers of the Phillipsburg Police Department and other law enforcement agencies executed a search warrant at the home of William Joe on Mercer Street in Phillipsburg. Joe was arrested at that time and taken to police headquarters. Other law enforcement officers remained at Joe's Mercer Street home undertaking a search of the premises.

Joe at this time advised Phillipsburg Detective James McDonald that he wanted to cooperate with the police, and he offered to arrange a purchase of CDS from an individual he identified as "Shah." Joe did not know Shah's real name, but indicated he had purchased CDS from Shah in the past. McDonald, a member of the special operations division within the Phillipsburg Police Department, charged with "narcotics investigations," testified that Joe stated, "he had purchased 20 grams of cocaine every two to three days for the past two, two and a half months." Joe described Shah as a black male, approximately six feet tall, with a stocky build, curly black hair and green eyes, who drove a "red Ford Taurus with tinted windows and [Pennsylvania] plates." He added that Shah lived "off of Locke Street in Phillipsburg."

In the past, Joe would call Shah on his cell phone and Shah would either meet him at his home at Mercer Street, or at a nearby park. Joe offered to "make a phone call to Mr. Shah to have him deliver narcotics to [his] house[,]" according to the detective. After receiving approval from the prosecutor to participate in an "overhear," McDonald returned Joe's cell phone to him to allow him to call Shah to arrange a CDS purchase. Joe, who had not previously worked as an informant for the Phillipsburg Police Department, then called Shah with McDonald listening in on the call.

Shah did not answer Joe's first phone call, so Joe called a second time and left a message asking for "$30," which he explained was "code for 30 grams of crack." Shah shortly returned that call and said he would have to "go out to garage" to ascertain what he had available. Shah called back and said he would deliver five and one half grams of "soft" (powder cocaine) to Joe's house. Shah called back a second time and said "he had seven grams and . . . was going to deliver it to [Joe's] house." Detective McDonald then relayed this information to the officers who had stayed at Joe's Mercer Street home.

Joe remained at police headquarters with Detective McDonald, while officers on the scene waited near the Mercer Street house for Shah to arrive. Phillipsburg police Detective James Stettner positioned himself in an alley across the street, and saw a red Ford Taurus with tinted windows and Pennsylvania plates "pull[] up directly in front of the house. It was there for a moment or two and then it left." Stettner relayed this information to McDonald.

At this moment, Shah called Joe's cell phone, but Joe did not take the call because he believed Shah "wanted him to come outside." Joe, at McDonald's direction, then called Shah and told him to return to the house. Shah agreed to do so and stated he was nervous because he had seen police in the area. McDonald then called Stettner and told him Shah would be returning.

Shortly thereafter, the red Taurus again pulled up in front of Joe's house. At this point, the five or six officers on the scene, some with weapons drawn, "merged on the car" and surrounded it. Officers could not see into the interior of the car because of the tinted windows, but the driver was told to show his hands. Defendant then emerged from the driver's seat as ordered by the police and was taken into custody. Thereafter, he was brought into the Mercer Street residence, where a search of defendant's person revealed cocaine in his front pants pocket. Defendant was charged with possession of cocaine and possession of cocaine with intent to distribute.

The motion judge, after finding the facts essentially as we have laid them out above, suppressed the cocaine seized from defendant. The motion judge concluded as follows:

The problem with the facts of this case is that the police jumped the gun. . . . [T]hey arrested the Defendant while he was still in his car. . . . [P]olice could not see the Defendant's face. Police approached the car and seized the driver without observing that it was a male with dark skin, curly black hair or green eyes. . . . The background and preparation for the staged buy in the case at hand had the promise of probable cause. However in acting prematurely to arrest the Defendant, the police did not give the Defendant a chance to perfect the probable cause by walking up to the informant's door in performance of the planned transaction. Thus, Defendant's actions never evolved into probable criminal activity and his arrest was unlawful.

II.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (internal quotation omitted). We do not, however, defer to a trial judge's interpretation of the law, and we review legal issues de novo. See State v. Gandhi, 201 N.J. 161, 176 (2010).

In this case there is essentially no dispute over the facts. The question for analysis is whether these facts support probable cause to arrest the driver of the red Ford Taurus before he emerged from the vehicle. See State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990) (the validity of a search incident to arrest hinges on the validity of the arrest).

"Probable cause for an arrest exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion." State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1988) (citing State v. Bates, 202 N.J. Super. 416 (App. Div. 1985); State v. Davis, 50 N.J. 16 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968); and State v. Burnett, 42 N.J. 377 (1964)). It is not a rigid concept; rather, it is "flexible [and] nontechnical." State v. Novembrino, 105 N.J. 95, 120 (1987). A court determines the existence of probable cause by applying a "common-sense, practical standard." Ibid. It exists if the facts and circumstances known to a police officer warrant a prudent 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).

"Information related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." State v. Jones, 179 N.J. 377, 389 (2004). (citation omitted). "'Independent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip' and is considered 'an essential part of the determination of probable cause.'" Id. at 390 (quoting State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). 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. If the informant does not identify a basis of knowledge, 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, supra, 155 N.J. at 94. Alternatively, 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.

Using a common-sense approach, the veracity of Joe was demonstrated by his level of detail, and the appearance of the red Ford Taurus in the area and the time frame described by Joe. Joe told the officers what to expect, and events played out precisely as Joe stated they would. In addition, the telephone conversations between Joe and Shah made it very evident that the driver of the red Taurus with the tinted windows and the Pennsylvania plates was in possession of cocaine that he was in the process of delivering to Joe's Mercer Street home.

While it would have been better to let the driver exit the vehicle so that the police could assure themselves that the driver matched the physical description of Shah provided by Joe, the police were not required to wait for that potentially dangerous maneuver to occur before it could be said that they had probable cause to arrest the driver. Events were unfolding rapidly here in the wake of the arrest of Joe. A little over an hour had elapsed between Joe's arrest and the arrest of defendant. It would have been unlikely any drug dealer would have responded to Joe's requests for CDS after news of his arrest reached the community. The police were able to watch the actions of the driver of the red Ford Taurus undertaken precisely in accordance with the telephone conversations between Joe and Shah.

A determination that probable cause exists "must be made on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 549 (2006). It is a common sense, flexible and practical standard designed for "nonlawyers is the midst and haste of a criminal investigation." Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527, 546 (1983). That standard was met here.

Reversed.