STATE OF NEW JERSEY v. PAUL D. BUTTERBAUGH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5383-03T45383-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL D. BUTTERBAUGH,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Parker and Grall.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-08-758.

Yvonne Smith Segars, Public Defender, attorney for appellant (Melissa R. Vance, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After his motion to suppress was denied, defendant Paul Butterbaugh pled guilty to one count of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). He was sentenced to a term of probation for three years. We affirm.

At the suppression hearing, Detective Samuel Allen of the Millville Police Department testified that on May 22, 2003 he was conducting surveillance in the vicinity of 300 East Broad Street, an area known for drug trafficking. Allen and Sergeant Harvey saw a gold Honda park across the street from 300 East Broad. The driver went into a pizza place, picked up a pizza and returned to the car, while the passenger, later identified as defendant, left the car and walked toward 300 East Broad.

The officers watched defendant walk up the stairs, enter the apartment and remain there for two or three minutes before reappearing and walking back toward the car. As defendant walked back to the car, his left fist was clenched and he occasionally looked into that hand. Allen testified that he approached defendant and stated, "Millville Police. Do you mind showing me what you have in your left hand?" Allen was in plain clothes at the time but his badge was visible. Defendant responded by opening his hand and showing Allen a rock-like white substance. Allen field tested the substance, it was positive for crack cocaine, and Allen arrested defendant.

Allen testified that he had been a Millville police officer for about eight years, the last four of which he was assigned to the Street Crimes Unit dealing mainly with narcotic activity. Prior to the day he arrested defendant, Allen had been on surveillance teams at 300 East Broad Street when two search warrants were executed at that address and twelve people were arrested for distributing or purchasing CDS. During those surveillances operations, Allen observed people drive up to 300 East Broad, walk into the apartment for two or three minutes and walk out with something in their hands. All those stopped were found to be in possession of CDS.

At the suppression hearing, the driver of the gold Honda, Teddy Franklin Layton, testified that on the day in question he parked his car on Third Street in front of S & J Pizza. He went into the pizza place, bought a pizza and returned to the car. Defendant was not in the car when Layton returned because he had gone across the street to talk to a friend. Layton testified further that defendant was walking back to the car when two men ran up and grabbed one of his hands, put it behind his back and pushed him up against the car. Layton heard one of the men say, "Did he drop it, did he drop it?" The other man responded, "No."

Defendant testified on his own behalf at the suppression hearing, stating that when he was walking back to Layton's car, he had his left hand out to open the car door when Allen came running across the street and grabbed his wrist. Defendant claimed he did not know Allen was a police officer when Allen grabbed his wrist, bent it back and pushed him up against the car. Defendant testified that Allen asked defendant to show him what he had in his hand and he did. Defendant insisted that Allen did not identify himself as a police officer.

After hearing the testimony, the trial judge rendered his decision on the record:

The facts that the Court finds in this matter are that on the afternoon of May 22, 2003, Sergeant Harvey and Detective Allen of the Millville Police Department were conducting a surveillance at 300 East Broad Street in the City of Millville [an] area that is known to the police for drug trafficking . . . and the officers observed numerous individuals entering the residence and leaving a few minutes later.

At approximately 5:50 in the afternoon, the officers observed the defendant, Paul Butterbaugh . . . enter[] the premises at 300 East Broad Street. . . . They [did] not see what actually took place inside of the apartment, but they saw him walk upstairs, walk to the premises and then leave two or three minutes later. . . . [T]he officers indicated that they had received numerous complaints from neighbors about drug trafficking in the area.

They've also testified they have conducted 12 arrests in the area over a period [from] October of 2002 [to] May of 2003. They've also testified that two search warrants were served in this particular residence for purposes of drug investigations. As the defendant left the residence, came outside, walked towards his car, [he] had his hand in a fist, closed, walked, [and] looked at his hands on the way to the car. . . . [B]ased on the experience and knowledge that the officers had as to the area . . . the officers came to the conclusion that . . . perhaps some illegal activity was taking place. They approached the defendant as he was getting into his car in a rapid manner. There's some disputed testimony as to exactly how the actual encounter between the defendant and the officers [took] place[ ]. And the Court has assessed the credibility of the various witnesses. The Court finds that Officer Allen, was . . . credible and finds his testimony to be credible to this Court. The officer approached the defendant, asked the defendant, "Do you mind showing what you have in your left hand?" And as the defendant opened his left hand, it revealed a white rock crack-cocaine.

The officers then arrested the defendant and he was indicted for the possession of CDS.

The judge found that Allen's stop of defendant was valid in accordance with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), because the officer had a reasonable suspicion that a crime had occurred based upon his observations of the person stopped.

In this appeal, defendant argues:

THE STATE FAILED TO SHOW PARTICULARIZED REASONABLE SUSPICION TO JUSTIFY AN INVESTIGATORY STOP (Raised Below).

ASSUMING ARGUENDO THAT THE INVESTIGATORY STOP WAS PROPER; THE SEARCH INCIDENT TO THAT STOP WAS UNLAWFUL (Partially Raised Below).

It is well settled that the police may lawfully detain a suspect on less than probable cause in order to investigate suspicious conduct. Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906-07; State v. Stovall, 170 N.J. 346, 356 (2002). A Terry stop is valid "if 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." State v. Pineiro, 181 N.J. 13, 20 (2004). A reasonable and articulable suspicion need not rise to the level of "probable cause necessary to justify an arrest." State v. Nishina, 175 N.J. 502, 511 (2003).

The "reasonableness of the police conduct . . . [can] be generally assessed by 'balancing the need to search (or seize) against the invasion which the search (or seizure) entails.'" State v. Arthur, 149 N.J. 1, 7 (1997) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905). In balancing the officer's conduct against the search or seizure, we must consider the "'specific reasonable inferences [the officer] is entitled to draw from the facts in light of his experience.'" Arthur, supra, 149 N.J. at 8 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909)). The investigating officer must identify "'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.'" Ibid. A reasonable suspicion is "a particularized and objective basis for suspecting the person stopped of criminal activity." Stovall, supra, 170 N.J. at 356 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). A brief stop is reasonable if the officer can articulate "'some minimal level of objective justification,'" Nishina, supra, 175 N.J. at 511 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989), that the stop was based on something more than the officer's mere "inchoate and unparticularized 'hunch.'" Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

A court must undertake a two-step analysis to determine "whether the totality of the circumstances create a 'particularized suspicion.'" State v. Davis, 104 N.J. 490, 501 (1986) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). First, the court must objectively consider the officer's observations by viewing the evidence as "'understood by those versed in the field of law enforcement.'" Ibid. "A trained officer draws inferences and makes deductions . . . that might well elude an untrained person." Ibid. Second, a court must determine whether the evidence raises a suspicion that "'the particular individual being stopped is engaged in wrongdoing.'" Ibid. "The 'articulable reasons' or 'particularized suspicion' of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced." Nishina, supra, 175 N.J. at 511 (quoting Davis, supra, 104 N.J. at 504).

Defendant argues that the State failed to show a particularized reasonable suspicion that justified the investigatory stop. We disagree. We have carefully reviewed the record and we are satisfied that Detective Allen's training, experience and observations gave rise to a reasonable suspicion that defendant was engaged in an illegal activity. Davis, supra, 104 N.J. at 501. We give deference to the factual inferences drawn by experienced police officers because they "learn[ ] through experience how to spot an addict or pusher, how an addict or pusher acts or reacts, and where the areas of narcotics activity are." State v. Sheffield, 62 N.J. 441, 445 (1973), cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973).

Here, the trial judge found that there was reasonable, articulable suspicion that defendant had committed an offense based upon the officer's experience, his participation in previous surveillance operations in the same high drug trafficking area and the officer's knowledge that search warrants had been executed and multiple arrests had been made of individuals leaving the same building in possession of drugs. The officer's observation of the gold Honda arriving, defendant entering the apartment at 300 East Broad Street for two or three minutes and returning to the car with his fists clenched, together with the officer's training and experience gave rise to a "'reasonable suspicion of criminal activity.'" Pineiro, supra, 181 N.J. at 20 (citing Nishina, supra, 175 N.J. at 511).

Defendant next argues that if we find the investigatory stop was proper, then the search incident to that stop was unlawful. He maintains that Allen's request that he open his hand and display what was in it is the functional equivalent of a frisk. Again, we disagree.

There is no constitutional violation when an officer merely approaches an individual on the street and poses questions. State v. Maryland, 167 N.J. 471, 483 (2001). The test of whether an officer's questions amount to a mere field inquiry, rather than search and seizure, is whether the officer's actions were consistent with what would be viewed as non-offensive contact had it occurred between ordinary citizens. State v. Sirianni, 347 N.J. Super. 382, 388 (App. Div.), certif. denied, 172 N.J. 178 (2002); State v. Brown, 282 N.J. Super. 538, 547-48 (App. Div.), certif. denied, 143 N.J. 322 (1995). We are satisfied that Allen's question to defendant was non-offensive and met the Sirianni standard.

 
Affirmed.

(continued)

(continued)

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A-5383-03T4

December 7, 2005