STATE OF NEW JERSEY v. BENJAMIN MUTHOKA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3570-05T23570-05T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BENJAMIN MUTHOKA,

Defendant-Respondent.

 

Submitted October 18, 2006 - Decided November 9, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 05-09-1205-I.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for appellant (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Benedict and Altman, attorneys for respondent (Steven D. Altman and Philip Nettl, on the brief).

PER CURIAM

Defendant Benjamin Muthoka was indicted by a Middlesex County Grand Jury on charges of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two); second-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count three); and second-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count four).

On February 6, 2006, the Law Division suppressed all evidence seized as a result of a search of defendant's vehicle. We granted the State leave to appeal from that determination and now affirm.

The facts are substantially undisputed and are gleaned from the suppression hearing testimony of Sergeant John Conway, of the Perth Amboy police force, and Sergeant Daniel Muntone, of the Middlesex County Prosecutor's Office. On July 21, 2005, Muntone received information from one of his investigators that a confidential informant told him that a black male in his late thirties, medium build, with short black hair, was at the Raceway gas station in the area of 1100 Convery Boulevard in Perth Amboy. According to the informant, the man drove a silver pickup truck with license plate number XE7-88A, and was in possession of a large quantity of cocaine located in a red bag under the driver's seat of the vehicle. Sometime between 3 p.m. and 5 p.m. that afternoon, Muntone relayed the information to Detective William Tiedgen, who in turn conveyed the information to Conway.

That afternoon, at approximately 5:10 p.m., the officers began surveillance of the gas station, where they observed the pickup truck described by the informant. At approximately 6:33 p.m., defendant, who matched the informant's description, entered the truck, and drove it from the gas station onto Convery Boulevard. The officers followed, and stopped the truck after observing the driver change lanes without signaling.

After police stopped the car, Muntone told the driver that he had reason to believe that narcotics were in the vehicle, and he asked him to consent to a search of the truck, to which defendant agreed. When Tiedgen conducted the search, he found and removed a red, white and blue Utz potato chip bag from underneath the driver's seat. Inside the bag, wrapped in plastic, was a large amount of a white rock-like substance. Based upon his experience, Sergeant Conway believed the substance was cocaine.

On those facts, the judge concluded that the police did not have a reasonable, articulable suspicion to search the vehicle. The judge said:

[S]ome pieces of information . . . are corroborated. The license plate, a description of a person and a location, but the information that's corroborated is that which is so totally open to the public to anyone passing that street could see a silver pickup truck with a certain license plate. In other words, it's nothing hidden that's being provided, that there's a black male in the area. It's just nothing that would give this Court, without more, a belief that there's reasonable, articulable suspicion there's criminal activity afoot. I believe [the police] were told there would be a red bag of cocaine under the driver's seat when they stopped that vehicle and asked Mr. Muthoka to step out, and someone said to me after I had seen a hint of red under the driver's seat I would say you have corroboration of some fact which would not otherwise be known to the general public, but I don't get that corroboration. I don't get a smell. I don't get a color. I don't get any type of plain view. I get no nervousness. I get no running. I get nothing in the totality of the circumstances which this Court finds reasonable, articulable suspicion without strengthening of the [confidential informant] which perhaps Officer Velagas could have put forward on this record, but I don't have it on my record. Not having it on this record I have to grant the motion to suppress.

The police may stop a motor vehicle based on a reasonable and articulable suspicion that an occupant of the vehicle has committed a crime or motor vehicle violation. State v. Carty, 170 N.J. 632, 639-40 (2000), modified by 174 N.J. 351 (2002). Here, therefore, the initial stop of defendant's automobile was legal based upon defendant's illegal lane change. We agree with the trial judge that following that stop, however, the officers had no basis to search the vehicle.

The police searched the vehicle based on defendant's consent. "[F]or a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle." Id. at 635, 647-48. The information provided by the confidential informant here, in the absence of corroboration, was not sufficient to meet this test.

An example of the kind of information that will establish corroboration is found in State v. Birkenmeier, 185 N.J. 552 (2006). There, the Supreme Court affirmed the trial court's denial of the defendant's suppression motion because the information provided by the confidential informant was very fact-specific. The Court summarized it as follows:

In early April 2002, Narcotics Detective Gary Friedhoff of the Monmouth County Prosecutor's Office met with a confidential informant. This informant previously had provided information to Friedhoff that led to the seizure of a large quantity of cocaine and weapons and a resulting arrest, and the separate seizure of a substantial amount of marijuana also with a resulting arrest. The informant provided the name, address and physical description of defendant, together with the make, model and license tag number of defendant's automobile. The informant explained that defendant was "involved in a large scale narcotic operation to include the distribution of marijuana" and that defendant "sells large quantities of marijuana from his residence and makes frequent trips into Long Branch to distribute his product."

At approximately 3:00 p.m. on April 5, 2002, the informant telephoned Friedhoff and informed him that defendant would be making a large marijuana delivery that afternoon. Specifically, . . . that defendant "would be leaving his residence at approximately 4:30 p.m. and would be delivering approximately 30 pounds of marijuana" and that defendant "utilizes a laundry tote bag to transport the marijuana." . . .

On his way to the prearranged location, Friedhoff drove past defendant's home and observed a car matching the description given to him by the informant parked at defendant's residence. Once at the prearranged location, Friedhoff assigned separate responsibilities to each officer present. At 3:30 p.m., the police officers proceeded to their respective assigned locations and placed defendant's residence under surveillance.

Precisely as earlier described by the informant, at 4:30 p.m., defendant was observed "leaving his residence with a large laundry tote bag and plac[ing] the bag on the passenger side of the vehicle [earlier identified by the informant and corroborated by Friedhoff]." Defendant entered the vehicle and, also as described by the informant, headed into Long Branch.

[Id. at 555-56.]

During the Birkenmeier suppression hearing, the officer testified that the confidential informant had proved reliable in the past, and based on information the informant had provided, the police were able to make arrests for narcotics and weapons offenses. Id. at 558.

Here, conversely, the information from the confidential informant was insufficient to provide the police with a reasonable and articulable suspicion of criminal wrongdoing so as to justify a search of the vehicle. As the trial judge aptly pointed out, the information provided to the police was generic. The informant only gave the police a description of the location of the vehicle, a vague description of defendant, and a partial description of the bag that ultimately contained the illegal narcotics. All of the information supplied pertained to conditions existing at the time the information was relayed to the police. It did not contain details about future actions. See Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2414, 2417, 110 L. Ed. 2d 301, 310 (1990) (fact that officers found car precisely matching caller's description did not establish reasonable suspicion without details of future actions that may not be ordinarily predicted by third parties).

In Birkenmeier, supra, the informant told the police precisely the time the defendant would leave to deliver the marijuana, and where the defendant would be heading, to Long Branch. 185 N.J. at 555-56. The informant also advised the police that the defendant would be delivering "approximately thirty pounds of marijuana" and would utilize "a laundry tote bag" to transport the product. Id. at 556. When the police initiated their surveillance, they observed that as "described by the informant," at precisely 4:30, the defendant left his residence with a large laundry tote bag, placed it in his car, and headed into Long Branch. Id. at 555-56.

In contrast, here, the informant did not indicate what defendant would be wearing, the time defendant would leave or where defendant would be heading. The information was vague in describing the carrying case; the informant described a "red bag," when the drugs were found in a red, white and blue potato chip bag. When the police stopped defendant's truck they did not see the bag in plain sight nor observe any other evidence of criminal conduct. Based on the totality of the circumstances, the search of the truck was not justified.

That said, an even more significant reason to grant defendant's suppression motion was the failure of proofs as to the reliability of the confidential informant. In the absence of corroborating information, such as suspicious conduct on the part of a defendant, prior knowledge of a defendant's allegedly illegal conduct, or where and when a defendant would deliver the drugs, the constitutionality of the search rests heavily upon the reliability of the informant. See State v. Williams, 364 N.J. Super. 23, 31-32 (App. Div. 2003). "[T]he 'basis of knowledge' underlying an informant's tip can be established by direct evidence of the manner in which the informant learned of the criminal activity, by details that establish that the informant's knowledge has been derived from a trustworthy source, or by a prediction of hard to know future events." Id. at 34-35 (quoting 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)). None of that information is contained in the record here.

No testimony at the suppression hearing addressed the reliability of the confidential informant. It is unknown how the informant learned of the criminal activity, and the State provided no details that would establish that the informant was trustworthy. This again contrasts with Birkenmeier, supra, where testimony disclosed that the confidential informant had, on two prior occasions, provided information to the police leading to arrests. 185 N.J. at 558. While verification of the credibility of a citizen's tip is not generally required, verification is usually necessary when a police informant provides the tip. Williams, supra, 364 N.J. Super. at 34.

The State argues in its brief that "when the standard to be met is not probable cause but is rather reasonable and articulable suspicion, the basis of the informant's knowledge is 'irrelevant' to the inquiry," citing Birkenmeier, supra, 185 N.J. at 561 n.1. Not so. In the footnote the State relies upon, the Court pointed out that the informant's information had in fact been corroborated, thus providing the reasonable and articulable suspicion required to justify the investigatory stop. Ibid. The Court did not say, as the State suggests, that corroboration is needed for probable cause, but not for a reasonable and articulable suspicion.

Affirmed.

 

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A-3570-05T2

November 9, 2006