STATE OF NEW JERSEY v. PERRY A. WILCOX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PERRY A. WILCOX, a/k/a PERRY WILCOX,

Defendant-Appellant.

November 3, 2014

Argued October 22, 2014 Decided

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-11-01003.

Samuel Feder, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Feder, on the briefs).

G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following denial of his motion to suppress drug evidence found on his person after he was placed under arrest by Vineland police, defendant Perry A. Wilcox entered a guilty plea to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one). In return, the State agreed to dismiss charges of third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5b(3) (count two); and third-degree possession with intent to distribute cocaine in a school zone, N.J.S.A. 2C:35-7 (count three). Pursuant to his plea agreement, the court sentenced defendant to a four-year term subject to two years of parole ineligibility. Defendant now appeals from the denial of his suppression motion. We affirm.

I.

We derive the facts from the record of the evidentiary hearings on defendant's suppression motion that were held on June 28 and 29, 2012, and July 10, 2012. In the early morning hours of July 24, 2011, Vineland Police Officer Jose Torres met with a confidential informant (CI) whom he had arrested earlier that evening, apparently based on an outstanding warrant. Torres had utilized the CI on approximately four occasions over the previous several months. Although the CI had given Torres accurate information in the past, it was information that was already known to the police and had not led to any arrests.

The CI agreed to provide Torres with information about defendant, who he knew both by name and by his nickname, "P." The CI provided a physical description of defendant, and identified defendant when shown a picture of him by Torres. Torres knew that defendant had numerous arrests for selling drugs and for possessing a handgun.

The CI told Torres that he could buy a half-ounce of crack cocaine from defendant. The CI then used his personal cell phone to call defendant to arrange the purchase. The phone was on speaker, which enabled Torres to clearly hear their conversation. The CI asked "P" whether he had crack cocaine. Defendant responded that he did, and advised the CI to meet him at the Rite Aid store at the intersection of Delsea and Landis Streets in twenty minutes. Defendant also informed the CI that he would be arriving there in a Yellow Cab.

Sergeant Steven Triantos was in charge of the Vineland Police Department's Street Crimes Unit (SCU). Triantos testified that the police had previously received information that defendant was "dealing drugs within our city." After a briefing attended by Triantos, Torres, and other members of the SCU, Triantos and Torres set up surveillance outside the Rite Aid at approximately 1:00 a.m. Officers McGee and Kwintiuk remained with the CI at police headquarters. A "take down team," comprised of Officers Gary Mollik and Chuck Capelli, was assigned the task of moving in and arresting defendant at the Rite Aid.

Triantos and Torres observed defendant arrive by Yellow Cab at the Rite Aid. Defendant exited the cab, looked around, waited a few seconds, and then entered the store. While defendant was in the Rite Aid, he telephoned the CI to advise him he was there and was waiting for him. McGee contacted Torres and notified him of defendant's call. Defendant then left the store and got back into the cab. Torres directed the take down team to apprehend defendant. Defendant was removed from the vehicle and placed under arrest.

Officer Mollik was also familiar with defendant, having attended high school with him. Upon searching defendant, Mollik felt a bulge in the crotch area of defendant's pants, and heard the crinkling of a plastic bag. Triantos manipulated the bag so as to get it into position near the top of defendant's boxer shorts. Triantos then ripped the bag out, along with a small piece of defendant's underwear. The bag was found to contain crack cocaine.

Defendant testified at the suppression hearing. He claimed that he went to the Rite Aid to buy condoms and orange juice. He stated that he had received numerous calls and text messages from the CI, asking to buy cocaine, which he had refused. The CI had indicated he was essentially homeless, and defendant offered to meet him and put him up in his hotel room for the night. Defendant admitted calling the CI from the Rite Aid to tell him he did not see him there and that he was leaving. According to defendant, when the police searched him, they cut the boxer briefs he was wearing with a knife in order to remove the drugs.

Judge Darrell M. Fineman denied the motion to suppress in a twelve-page written decision. He concluded that the police had probable cause to believe that defendant possessed a half ounce of crack cocaine with the intent to distribute it. Consequently, the search of defendant's person was incident to a lawful arrest, and fell within that well-recognized exception to the warrant requirement. The judge also rejected defendant's testimony as "incredible."

On appeal, defendant in a counseled brief raises the following issues for our consideration

POINT I

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS BECAUSE THE VINELAND POLICE LACKED PROBABLE CAUSE TO ARREST FOR EITHER CONSPIRACY TO DISTRIBUTE OR POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE

THE POLICE LACKED PROBABLE CAUSE TO BELIEVE THAT [DEFENDANT] HAD CONSPIRED TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE

THE POLICE ALSO LACKED PROBABLE CAUSE TO BELIEVE THAT [DEFENDANT] POSSESSED A CONTROLLED DANGEROUS SUBSTANCE

In a pro se supplemental brief, defendant also argues the following

POINT I

THE VINELAND POLICE VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY BOTH THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I., PAR. 7 OF THE NEW JERSEY CONSTITUTION.

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 (2011); 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) (citation and internal quotation marks 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).

Warrantless searches are presumptively unlawful. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973). Consequently, a "warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J.657, 664 (2000). One such exception allows a search incident to arrest. State v. Minitee, 210 N.J.307, 318 (2012); State v. Pena-Flores, 198 N.J.6, 19 (2009).

"The validity of the search, however, depends on the constitutionality of the arrest." State v. Gibson, 218 N.J. 277, 293 (2014). "An arrest without probable cause is an unreasonable seizure in violation of both the Federal and State Constitutions." Id. at 281.

Probable cause has been defined as a well grounded suspicion that a crime has been or is being committed, and as a reasonable ground for belief of guilt. It is more than a mere suspicion of guilt, [but] less than the evidence necessary to convict a defendant of a crime in a court of law. It is a fluid concept -- turning on the assessment of probabilities in particular factual contexts and addresses the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Last, [i]n determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer.

[Id. at 292-93 (alterations in original) (citations and internal quotation marks omitted).]

Here, the central issue is not whether the police were authorized to conduct a field inquiry1 or an investigative stop2 of defendant, but rather whether they had probable cause to arrest him. Id. at 291. Guided by Gibson, we must thus "determine whether, viewed through the eyes of on objectively reasonable police officer, there was sufficient credible evidence to support the [defendant's] arrest." Id. at 296.

"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 110-11. 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. Id. 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.

In his analysis, Judge Fineman analogized the present case to State v. Williams, 364 N.J. Super. 23 (App. Div. 2003). In Williams, a known informant, who was seeking a favorable disposition of a pending municipal drug paraphernalia charge, informed police that she could arrange a drug transaction with a man named Andre. Id. at 27. The informant then placed a call to "Andre" to order drugs, and "Andre" responded that they would be delivered shortly. Id. at 28. The call was overheard by the police. Ibid. Although the informant had not provided the police with Andre's last name, or a description of him, his clothing, or his mode of transportation, the informant identified the passenger in the car that later arrived as Andre. Ibid. When the driver sought to leave, the police stopped the vehicle and conducted an investigative detention of its occupants. Id. at 28-29. We expressed "difficulty" with the fact that, at the time of the stop, there was no corroboration that "defendant was the 'Andre' to whom the informant had spoken or that defendant intended to engage in criminal activity." Id. at 35. Nonetheless, we concluded that there was sufficient reasonable suspicion that defendant was about to engage in a drug transaction with the informant to justify the investigative detention. Id. at 36-37.

Judge Fineman aptly recognized that the issue in Williams was whether there existed reasonable suspicion to conduct an investigative detention, as opposed to the higher degree of proof necessary to establish probable cause to arrest. The judge concluded that "there are additional, stronger facts here which provided probable cause to arrest [] defendant." Elaborating, he found that

As in Williams, the police overheard a known informant place a phone call in which drugs were ordered, and the caller stated where and when he would be arriving to consummate the transaction.

However, in this matter, the police knew who the suspect was because of his prior contacts with police and previous arrests and convictions, and knew that he was involved in drug offenses. The successful positive identification of an arrest picture of [] defendant by the [CI] removed the need . . . to conduct [an] on-site identification. Additionally, the police knew how the suspect would be arriving at the site of the drug transaction: in a yellow taxi cab. Finally, the suspect telephoned the informant that he had arrived on the scene where the drug transaction was to take place. Therefore, these additional circumstances which were not present in Williams provided the police with probable cause to arrest the defendant for CDS possession.

The search of the defendant's person was incident to a lawful arrest, and falls within that exception to the warrant requirement. The police had probable cause to believe that [] defendant possessed a half ounce of crack cocaine with the intent to distribute it.

We agree with Judge Fineman's analysis. The CI was detained on a warrant and was seeking favorable treatment when he provided Torres with information about defendant. "[I]t can be argued that an informant's expectation of gain or concession" may cause him or her to be truthful, "since gain seldom flows in this context from mistruth." Williams, supra, 364 N.J. Super. at 34. Using a commonsense approach, the C.I.'s veracity was demonstrated by his familiarity with defendant, the content of his conversation with defendant that Torres overheard, and the subsequent appearance of defendant in the Yellow Cab at the Rite Aid at the appointed time.

The credible evidence adduced at the hearing established that the CI's conversation with defendant focused on a singular purpose, which was to engage in a drug transaction. That conversation made it very evident that defendant possessed cocaine and that he was in the process of delivering it to the CI at the Rite Aid when the police validly arrested him and seized the drugs.

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 in 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.

Affirmed.

1 A field inquiry occurs when a police officer approaches an individual and asks if the person is willing to answer some questions. State v. Pineiro, 181 N.J. 13, 20 (2004).

2 A police officer may conduct an investigative stop when, "based on specific and articulable facts," he has a reasonable suspicion that a person is engaged in criminal activity. Pineiro, supra, 181 N.J. at 20 (citations and internal quotation marks omitted).