STATE OF NEW JERSEY v. JOSE COLON et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2608-04T22608-04T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSE COLON and JAVIER RAMOS,

Defendants-Respondents.

_______________________________

 

Submitted: November 9, 2005 - Decided:

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-05-1099.

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant (Christine Lento, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendants Javier Ramos and Jose Colon were each charged with one count of possession of CDS, N.J.S.A. 2C:35-10a(1). The court granted defendants' motion to suppress heroin and syringes seized without a warrant from an automobile operated by Ramos, in which Colon was a passenger. The court credited the testimony of the arresting officer, but found he did not have a reasonable and articulable suspicion of criminal activity required for a Terry investigatory stop of the motor vehicle and seizure of the drugs and paraphernalia. We granted the State leave to appeal. We affirm.

At 9:58 a.m. on January 4, 2004, Officer Christopher Colaner, a twelve-year member of the Freehold Borough Police Department, was on routine patrol in a marked vehicle in the vicinity of Institute and Washington Streets, an area known for drug trafficking. The officer observed a black Toyota Camry stopped in the center of the road in front of 18 Institute Street, a multi-family residence. Although about a month prior the officer had been informed of drug activity in front of that building, he did not have any current information that a drug sale was about to occur at that location on the day and time in question. The officer stopped his patrol car behind the Camry and its driver pulled to the right into a no-parking area. As the officer drove by, the driver put his head down and pulled away as if to hide his identity. Nevertheless, the officer recognized him as a person reported to be involved in drug activity. There were no passengers in the Camry.

When the officer was about two blocks away from the Camry, he observed a person in a gray coat walk from the building and approach the driver's side door. Officer Colaner then circled the block and drove past the Camry a second time, during which the driver again attempted to shield his face from the officer's view. The officer also observed the person in the gray coat start to walk towards the Camry, then quickly turn around and leave the area when he saw the marked patrol car. Officer Colaner did not observe any transaction between Ramos and the person in the gray coat on either occasion and never ascertained that person's identity.

Officer Colaner circled the block and located the Camry traveling on Conover Street. While following the automobile for a few blocks, he observed items hanging from its rear view mirror. Based on the above observations, the officer stopped the automobile in the entrance to the Rug Mill Plaza on Jackson Street. According to the officer, the driver then leaned forward as if attempting to conceal something. The driver, identified as Ramos, provided his credentials upon the officer's request. The officer noticed there was a passenger in the automobile, who he recognized as Colon from prior police involvement in drug-related activities.

When Officer Perski and Sergeant Jablonski arrived as back up, the arresting officer directed Ramos to the back of the Camry. Officer Colaner testified that Ramos was "very nervous, stuttering, shaking, [and] failing to make eye contact," and had no explanation as to why he was on Institute Street. According to the officer, Ramos told him there was heroin on the driver's side floor.

About the same time, Sergeant Jablonski was advised on a warrant call that Colon had an outstanding arrest warrant. As Colon was removed from the car, Sergeant Jablonski observed a syringe on the floor of the passenger side. Officer Colaner retrieved the syringe, then retrieved two decks of heroin located under the driver's side floor mat and a bag of syringes located in the console between the driver's and passenger's seats. No drugs were found on either defendant. Defendants were placed under arrest and charged with possession of heroin.

Ramos was not charged with any motor vehicle offenses, such as obstructing traffic, illegal parking or an obstructed view of his windshield. Officer Colaner candidly explained he did not stop Ramos' automobile for these violations, stating

The observation of the obstructed view was just in addition to my primary reason for stopping the vehicle, which was a narcotics investigation. Had I been looking to do a motor vehicle stop for an obstructed view and a parking offense at that time it would have been conducted on Institute Street or right in that area.

. . . .

[M]y primary reason [for effecting the stop] . . . was conducting a narcotics investigation. The activity I observed I believe was indicative of narcotics activity taking place on Institute Street.

The State argued there was reasonable suspicion for the motor vehicle stop as the following circumstances supported the determination that defendants were involved in illegal activity: Officer Colaner's knowledge that this was a high drug-trafficking area and that there had been prior drug activity in front of 18 Institute Street; his recognition of Ramos, a person reported to be involved in drug activity, as the driver of the car parked illegally in front of that address; Ramos' attempt to hide his identity as the officer passed him; and the officer's observation of the person walking from 18 Institute Street to Ramos' side of the vehicle and a few minutes later, beginning to approach the vehicle but turning away when he saw the patrol car. The State further argued that since the stop was lawful, the seizure of the heroin was also proper as the officer plainly viewed the contraband from a legal vantage point.

Judge Cleary rejected the State's arguments and granted defendants' suppression motion. She stated,

I have some difficulty in determining . . . [the evidence] is enough for a stop. What we do have is a high drug area. And the officer has to be in that area. He has to be looking around and determining what is going on. But the only thing he saw was a person in a gray overcoat coming over to a car and stop at the passenger's seat. Although he . . . . received information that there was drug dealing allegedly taking place at 18B Institute Street, and this vehicle was . . . near 18B Institute Street, he didn't have anything new. It was a month old.

He didn't have anybody telling him immediately that somebody was selling drugs in that area. So, at this point I think that the facts, although we don't need probable cause, we need something a little less than that in order to support the stop. And there must be some objective manifestation that the subject was or is involved in criminal activity. And I'm not so sure that that's what was happening here.

There has to be a little bit more. All we had was the officer going by and seeing some person approach a car and leave. He didn't say that he saw any transaction. He didn't say that there was anything passed between the people. He didn't see the man in the coat leave with anything or the man in the coat arrive with anything and then not leave.

So, I think that the stop here was inappropriate. And that the motor vehicle stop was not lawful, because the officer is saying that's the only thing he based it on. He didn't base it on motor vehicles. He based it on the fact that he was investigating drug activity. And the fact that somebody in a drug area goes over to a car I don't think is enough at this point to warrant a stop and then the ultimate search here.

So, I will grant the motion to suppress and I will suppress all the evidence.

On review, we evaluate the evidence presented at the suppression hearing in light of the trial court's finding of fact to determine whether the State met its burden of demonstrating by a preponderance of the evidence that there was no constitutional violation. State v. Pineiro, 181 N.J. 13, 20 (2004). "[T]he level of reasonable suspicion necessary to justify an investigatory stop is 'something less than the probable cause standard needed to support an arrest.'" State v. Arthur, 149 N.J. 1, 8 (1997) (quoting State v. Thomas, 110 N.J. 673, 678 (1988) (explicitly adopting the Terry analysis)). In the context of an automobile stop, Terry permits an officer to stop a vehicle only if he or she is aware of specific articulable facts, together with rational inference from those facts, that reasonably warrant the intrusion, i.e. "some objective manifestation that the suspect was or is involved in criminal activity." Ibid.; see also United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 2582, 45 L. Ed. 2d 607, 618 (1975) (explicitly applying Terry to automobile stops).

We are satisfied the trial court gave due regard to Officer Colaner's "knowledge and experience and to the rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, supra, 149 N.J. at 10. Judge Cleary credited the testimony of the veteran officer, but concluded the totality of the circumstances did not objectively give rise to a reasonable and articulable suspicion that Ramos was engaged in illegal narcotics activity. We are satisfied with this determination.

The primary reason Officer Colaner stopped the automobile was for a drug investigation. An officer may not rely on mere hunches or assumptions not based on the particular facts with which he or she is confronted. State v. Demeter, 124 N.J. 374, 384 (1991). There may have been an innocent explanation for Ramos' conduct. He had the right to drive down Institute Street at ten o'clock in the morning. The officer did not believe the motorist's stopping in the roadway or pulling over to the no-parking zone merited a stop at that time with a warning or motor vehicle summons. Ramos could have sought to avoid Officer Colaner's gaze and the person in the gray coat could have sought to avoid police contact because of a prior bad experience with the officer or a variety of other legitimate reasons not related to criminal activity. Critically, the unidentified report that there was drug activity at the multi-family residence near where Ramos' car was stopped was a month old, and the officer had no information that a drug transaction was occurring or going to occur on the day, time and location in question. Moreover, the officer observed no transaction between Ramos and the pedestrian in the gray coat. Nor did he observe sufficiently suspicious conduct like in State v. Arthur, where a woman in a high drug-trafficking area entered the defendant's automobile, talked for about five minutes, left with a brown paper bag and looked around in a suspicious manner. Supra, 149 N.J. at 4. Accordingly, the officer's investigative stop of Ramos' automobile was not justified and the subsequent seizure of the heroin and syringes was unlawful.

Affirmed.

 

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

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A-2608-04T2

November 22, 2005