STATE OF NEW JERSEY v. DION BRIGGS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3514-05T43514-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DION BRIGGS,

Defendant-Appellant.

_______________________________________

 

Submitted March 8, 2007 - Decided April 26, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 01-05-0685 and 04-12-0864.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following the denial of his suppression motion, defendant Dion Briggs pled guilty, pursuant to a non-negotiated plea agreement, to possession of cocaine with the intent to distribute within 1,000 feet of school property. Defendant was sentenced to five years imprisonment with a four-year period of parole ineligibility. Defendant appeals the denial of the suppression motion, claiming the cocaine seized from him was the product of an illegal search and seizure. We affirm.

At the suppression hearing, one witness testified, Detective Michael Schiaretti, a six-year veteran of the Trenton Police Department, whose service included a two-year assignment to the Patrol Unit and four years in the Trenton Anti-Crime (TAC) Unit, a special unit designed to combat street-level crime. His experience with narcotics-related offenses included training at the Police Academy and attendance at the Multi-Jurisdictional Drug Task Force School in Cape May. In his capacity as a TAC officer, Schiaretti was familiar with trends in narcotics activity, including the types of paraphernalia used, methods of drug purchases, and the appearance of drugs.

Schiaretti testified that on July 17, 2004, he, along with two other officers, were on routine patrol as part of a new project, the Neighborhood Enforcement Stabilization Program, designed to combat street-level crimes in high-crime areas. During their patrol, Detective Schiaretti saw "a black male and a black female standing on the corner, the far corner of Stuyvesant and Christoph." His attention was drawn to them when he "saw the black male with his hand out towards the black female, his palm was up, [and] she was looking in his palm[.]" As he got closer, he "could see that there was a clear plastic and a light colored object in his hand."

When the pair became aware of his presence, "the black male and the black female both got startled, they separated, [and] he stuffed his hand in his pocket real quick." He then went "to walk towards Stuyvesant Avenue and like, stop[ped], turn[ed] around, [went] to walk back towards Christoph, went down Christoph, stop[ped] and look[ed] around again and then start[ed] to walk on Christoph again."

Schiaretti believed that the light-colored object was crack cocaine, as it is "common for crack cocaine to be kept in clear plastic [and] [t]he color was similar to the color of crack cocaine." He also believed that the "black male was showing it to the black female, possibly to sell it to her or to give it to her, some sort of distribution."

Schiaretti advised his partner to pull their vehicle over. Schiaretti called to defendant to stop and take his hands out of his pockets. Defendant kept on walking. It was not until Schiaretti's third command to stop that defendant did, in fact, stop. Because Schiaretti had recovered weapons from narcotics dealers with increasing frequency over the course of the previous year and had observed defendant stuff his hand in his pocket, Schiaretti placed defendant up against a nearby wall and began to frisk him. During the course of the frisk, Schiaretti saw about two inches of a piece of plastic sticking out of the same pocket into which defendant had stuffed his hand. He removed the item and found the "[s]uspected controlled dangerous substance of crack cocaine in there."

At the conclusion of this testimony, defendant moved to suppress the evidence seized, arguing the fact that defendant was present in a high-crime neighborhood does not, standing alone, warrant a Terry stop. The court rejected this argument, finding that the stop and frisk were both valid under Terry based upon Schiaretti's experience with narcotics, the fact that it was a high-narcotic area, and Schiaretti's opinion that he suspected he had observed narcotics activity. Likewise, the court also upheld the seizure of the suspected drugs based upon its conclusion that during the course of the stop and frisk, the piece of clear plastic was in Schiaretti's plain view.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS BEING THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE.

A. THE PAT-DOWN OF DEFENDANT WAS NOT SUPPORTED BY A REASONABLE BELIEF THAT THE DEFENDANT WAS ARMED AND DANGEROUS.

B. AS SCHIARETTI WAS NOT LAWFULLY ENGAGED IN THE PAT-DOWN OF DEFENDANT AND BECAUSE HE HAD SEEN DEFENDANT PUT THE DRUGS IN HIS POCKET, THE FINDING OF THE DRUGS DOES NOT FALL WITHIN THE "PLAIN VIEW" DOCTRINE.

POINT II

SHOULD THIS COURT REVERSE THE DENIAL OF THE MOTION TO SUPPRESS EVIDENCE, THE VIOLATION OF PROBATION ON INDICTMENT 01-05-0685 MUST BE VACATED.

In our review of a trial court's denial of suppression, we give deference to a trial judge's findings of fact. State v. Locust, 157 N.J. 463, 472 (1999). See also State v. Williams, 381 N.J. Super. 572, 581 (App. Div. 2005), certif. granted, 188 N.J. 355 (2006). "Thus, [a reviewing court] evaluate[s] the evidence presented at the suppression hearing in light of the trial court's findings of fact to determine whether the State met its burden." State v. Pineiro, 181 N.J. 13, 20 (2004).

The essence of defendant's argument on appeal is that the stop and subsequent frisk for weapons was based not upon any particularized suspicion, but, instead, upon the "generalities of the situation," specifically "[t]he area where they were located . . . more drug dealers had been arrested with weapons recently, and the fact that more weapons had been seized altogether." Defendant urges that these "reasons had nothing to do with defendant." Therefore, without something more, Schiaretti's "nonspecific generalized fear that the defendant may have been armed" was insufficient to support an investigative stop and warrantless search under the Terry stop and frisk exception.

A police officer may engage in an investigatory Terry stop if, "based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). This reasonable suspicion is "less than probable cause," ibid., but must be a "particularized and objective basis for suspecting the person stopped of criminal activity," ibid. (citing Ornelas v. U.S., 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)), and the reasoning articulated by the officer must be "something more than an 'incohate and unparticularized suspicion or hunch.'" Id. at 357 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989)). Even so, "due weight [is] given . . . to the specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience." Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; see Stovall, supra, 170 N.J. at 363 ("It is fundamental to a totality of the circumstances analysis of whether reasonable suspicion exists that courts may consider the experience and knowledge of law enforcement officers.").

Also under Terry, "an officer is permitted to pat down a citizen's outer clothing when the officer 'has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.'" State v. Nishina, 175 N.J. 502, 514-15 (2003) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909)). "[T]he scope of the exception is limited to the safety of the detaining officer and those around him," State v. Garland, 270 N.J. Super. 31, 40 (App. Div.), certif. denied, 136 N.J. 296 (1994), and is judged by "whether a reasonably prudent person would be warranted in the belief that his or her safety or that of others was in danger." State v. Lund, 119 N.J. 35, 45 (1990). See, e.g., State v. Thomas, 110 N.J. 673, 684 (1988) (finding no justification for a Terry frisk where there was no evidence of reasonable belief that defendant was a cocaine dealer and the defendant was not in a high crime area known for drug dealing at the time of his arrest). This standard is totally objective. Garland, supra, 270 N.J. Super. at 41.

A "stop" and "frisk" under Terry are judged under two separate inquiries.

[T]he facts that allow the detaining officer to make a stop do not automatically permit that officer to search for weapons. While the right to search may flow from the same set of facts that permitted the stop, "in situations where . . . the officers have no prior indication that the suspect is armed, more is required to justify a protective search."

[Id. at 41-42 (quoting Thomas, supra, 110 N.J. at 680).]

Additionally, where there is no indication of a suspect's involvement in a violent crime and no indication that the suspect is armed, "more is required to justify a protective search." Thomas, supra, 110 N.J. at 680. See also State v. Walker, 282 N.J. Super. 111, 115 (App. Div. 1995) (finding officer had no reasonable basis for belief that defendants were armed and dangerous, as such was based solely on suspicion that they were in possession of illegal drugs).

Here, Schiaretti testified that he was patrolling an area known for high narcotics and illegal weapons activities. He observed defendant in this area displaying to another person a clear plastic object, which, based upon Schiaretti's training and experience in narcotics activities, he suspected was a controlled dangerous substance. Stovall, supra, 170 N.J. at 363. See also State v. Ramos, 282 N.J. Super. 19, 21 (App. Div. 1995) (finding that an officer's "observations, considered in light of his training and expertise, supported a reasonable suspicion that defendant was engaging in a drug transaction"). Thereafter, defendant's conduct justified the subsequent Terry frisk. Defendant appeared "startled" when he became aware of the officers' presence, "stuffed his hand in his pocket real quick," started to walk in one direction, turned and started walking in another direction while looking around, and, finally, he ignored the officer's commands to stop and to remove his hands from his pockets.

Each of these acts, standing alone, does not implicate any criminal activity and, as defendant argues, are generalized observations. See Stovall, supra, 170 N.J. at 356 (requiring that reasonable suspicion be "particularized and objective"). However, when considered together, along with the area and the high incidents of drugs and weapons offenses, justified not only the investigative stop but the subsequent frisk for weapons. Therefore, the trial court properly concluded there was reasonable and particularized suspicion sufficient to justify the Terry stop and the subsequent protective frisk for weapons. Id.

Next, defendant argues that the plain view exception to the warrant requirement does not apply here because there was nothing inadvertent about the discovery of the narcotics in light of Schiaretti's testimony that he observed the suspected narcotics before he directed defendant to stop and then saw defendant stuff an object in his right front pants pocket, where the plastic was sticking out at the time of the frisk.

The standard for satisfaction of the plain view exception under both the New Jersey and United States Constitutions is the same. State v. Bruzzese, 94 N.J. 210, 237-38 (1983) ("The Supreme Court's three plain view requirements comport with the overall constitutional standard of reasonableness. Hence, we adopt them as the law of New Jersey."). In Bruzzese, the Court held that under both the New Jersey and United States Constitutions, a plain view exception to the warrant requirement is satisfied with proof that (1) the police officer was lawfully in the viewing area; (2) the discovery of the evidence was inadvertent, meaning the officer "did not know in advance where [the] evidence was located nor intend beforehand to seize it"; and (3) the officer had "probable cause to associate the property with criminal activity." Id. at 236.

The motion judge credited Schiaretti's testimony that based upon his training and experience, he believed he was witnessing narcotics activity when he first observed defendant. Additionally, the judge was also satisfied, based upon the totality of the circumstances, that the pat-down for weapons was justified. Consequently, the first and third requirements of the plain view exception under Bruzzese were satisfied. We agree, however, with defendant's argument that based upon the testimony of Schiaretti, the discovery of the narcotics was anything but inadvertent. The absence of inadvertency, however, does not mean the seizure was constitutionally unreasonable.

It was Schiaretti's observation of defendant displaying a clear plastic object commonly used to package narcotics, to another individual that caught his initial attention. He testified that defendant appeared startled when he observed the officers, stuffed the clear plastic object in his pocket, and started to walk away while looking around. In our view, these facts provided the well-grounded suspicion of criminal activity sufficient to justify the seizure of the drugs during the frisk. See Garland, supra, 270 N.J. Super. at 42. In other words, the right to arrest was established prior to the search. Doyle, supra, 42 N.J. at 342. Moreover, the seizure and arrest were so close in time that they were "part of a single transaction, as connected units of an integrated incident." Id. at 343.

In light of our conclusion that the State met its burden of proof in establishing that the stop and frisk of defendant was proper under Terry and that the seizure of drugs was not constitutionally unreasonable under Doyle, there is no basis to remand to the trial court to reconsider whether defendant violated his probation. That is issue is moot.

 
Affirmed.

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968), the United States Supreme Court held that to justify intrusion into constitutionally protected rights of a citizen, a police officer must "point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion."

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A-3514-05T4

April 26, 2007