IN THE MATTER OF THE INVESTIGATION OF THE BURGLARY, CRIMINAL TRESPASS AND INVASION OF PRIVACY OF MONMOUTH UNIVERSITY AND BROOKDALE COMMUNITY COLLEGE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0290-09T1

IN THE MATTER OF THE

INVESTIGATION OF THE

BURGLARY, CRIMINAL

TRESPASS AND INVASION

OF PRIVACY OF MONMOUTH

UNIVERSITY AND BROOKDALE

COMMUNITY COLLEGE.

______________________________

December 9, 2010

Submitted October 20, 2010 - Decided

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Miscellaneous No. 09-862.

Law Offices of Eric B. Morrell, attorneys for appellant W.J.M. (Caesar D. Brazza, on the briefs).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

We review challenges by appellant W.J.M. to a Criminal Part order granting the State's application ordering him to submit to non-testimonial identification procedures, that is, a buccal swab, for the purpose of comparing DNA to evidence obtained in an ongoing criminal investigation. W.J.M. asserts the State's application seeking investigative detention failed to satisfy the four-pronged prerequisites of Rule 3:5A-4, and included an "invalid" supporting affidavit in contravention of Rule 3:5A-2.

Following our examination of the record in light of the applicable law, we reject W.J.M.'s arguments and determine the State fully met its burden to establish a well-grounded basis supporting its request that W.J.M. submit to investigative detention. Accordingly, we affirm.

The facts are taken from the record comprised of the affidavit of Monmouth University Police Detective Corporal Jeffrey Layton filed with the State's application. On the evening of July 25, 2008, Monmouth Police Patrolman James Gaul responded to a report of a man hiding in the women's locker room. When Patrolman Gaul arrived at the scene, Kevaney Martin, the victim, advised Patrolman Gaul that as she returned from the pool she noticed the locker room door was propped open with a garbage can. Martin removed the garbage can, and heard a noise coming from the far side of the locker room. Upon investigation, Martin discovered a man hiding in a storage area of the showers. Martin screamed, left the locker room and ran toward the pool for help.

Martin described the suspect as a "white male, about forty years old, 5'9" to 6' tall, medium build, with brown or dark curly hair." She stated she did not get a good look at the man's face because "the room he was hiding in was dark." A fourteen-year-old girl, who had been playing basketball in the parking lot adjacent to the gym at the same time, told Monmouth Police Sergeant Milton Morris she saw a man run out of the gym "very quickly" and drive away from campus in a late model, four-door silver sedan.

The next morning, Patrolman Gaul and Sergeant Morris briefed Detective Corporal Layton before he commenced an investigation of the scene. Detective Corporal Layton's search yielded three items found on a counter just outside the storage room where the suspect was found: a white towel, a Trojan brand condom wrapper, and a mini vibrator. Photographs were taken and the evidence was secured.

On March 29, 2009, a similar event occurred at another college campus. Brookdale Community College Police Officer Shawn White responded to a report of a man discovered in the women's locker room of the Collins Arena. Catherine Folio, the victim, told Officer White she heard and saw something "out of the corner of her eye" in the shower area. When Folio pulled back a shower curtain, she saw a man sitting in a stall. Folio screamed. The man asked her to direct him to the men's locker room. As Folio began to walk him toward the men's room, he headed in the opposite direction, leaving the locker room and exiting the building. Folio described the suspect as a white male in his late thirties or early forties with short dark hair, 5'4" tall, and a chubby build. An unidentified eyewitness told Officer White a man ran into the parking lot and entered a small, silver, four-door vehicle and exited the area.

After further investigation of the shower area, Officer White, along with Officer Joseph Szotak, discovered an empty Trojan brand condom wrapper, a pair of women's white underwear, and a vibrator. In a locker outside the shower area, the officers also discovered a second vibrator.

On April 6, 2009, Brookdale Police Detective Risheen Whitten advised Monmouth Police Sergeant Kenneth Kennedy of the March 29, 2009 incident. Detective Whitten told Sergeant Kennedy he suspected W.J.M. was involved in the incident because the Brookdale Police had previously arrested W.J.M. twice for similar incidents. On April 15, 2009, Detective Corporal Layton met with Brookdale Police Captain Thomas Hartman to discuss the investigation of the March 29, 2009 campus incident. Detective Corporal Layton reviewed the evidence Brookdale retrieved, noting the similarity of the items recovered to those found at Monmouth University. Detective Corporal Layton also learned of several similar prior incidents involving W.J.M., including at least six arrests for lewdness or trespassing in women's locker rooms, at Monmouth University, Brookdale Community College or area high schools from 1991 to the present. One incident occurred on March 14, 1991 at Manasquan High School, where W.J.M. was arrested and pled guilty to criminal trespass. That year, he also pled guilty to a charge when caught in the university women's locker room by Monmouth University Police, and gave a statement admitting he had done this approximately five times in the prior week. Detective Corporal Layton reviewed the records of an incident at Brookdale Community College, where W.J.M. was found in the locker room area and escorted off the college campus. Detective Corporal Layton compared the victims' descriptions of the suspect in these and the unresolved similar incidents, many of which matched W.J.M.'s description.

Brookdale Community College Patrolman Casey Willms told Detective Corporal Layton of an August 2006 incident at the school. Patrolman Willms had spoken to W.J.M.'s employer, who confirmed W.J.M. left work, driving a silver Honda Civic and stated the plate number. Using the tag number, Detective Corporal Layton checked New Jersey Motor Vehicle Commission records and found the tag matched a 1998 four-door, silver Honda Civic, registered to W.J.M.'s wife. During a subsequent drive past W.J.M.'s residence, Detective Corporal Layton observed the Civic parked in the driveway and determined the vehicle matched the description given by witnesses in the July 25, 2008 and March 29, 2009 incidents.

On June 14, 2009, while on a main Brookdale campus road, Detective Whitten saw a man matching W.J.M.'s description drive past him in a Honda Civic matching the plate number. Later that same day, Detective Whitten saw the man walking quickly through a wood-lined area of a campus parking lot, enter the same vehicle and speed off. Detective Whitten stopped the driver, who was W.J.M., for failure to stop at a stop sign. Detective Whitten noticed W.J.M. was not wearing shoes, his socks were wet and muddy, and his shirt was turned inside out.

Detective Corporal Layton requested forensic examination of the retrieved evidence. The condom wrappers found at the two colleges were noted to have identical impressions "consistent with" carrying the condom in a wallet. The State Police East Regional Laboratory Office of Forensic Services produced a report stating the vibrator retrieved from the Monmouth University July 25, 2008 incident contained male DNA. The report further noted: "No conclusions can be reached concerning a possible contributor to the DNA profile(s) obtained from the specimen(s) examined without submission of a buccal swab reference." The items retrieved from Brookdale Community College incident were also submitted, but at the time of the State's motion, the results remained pending.

On August 21, 2009, the State filed a motion seeking investigative detention of W.J.M., specifically the provision of a buccal swab sample to identify his DNA. The application was supported by Detective Corporal Layton's affidavit reciting the facts as stated above. After a hearing, the trial court's oral opinion determined the facts stated in the affidavit sufficiently supported the State's request and sufficiently established a reasonable and well-grounded basis from which to believe W.J.M. may have committed the crimes under investigation. The court granted the State's application for an investigative detention and this appeal followed.

W.J.M. argues the trial court erred in relying on Detective Corporal Layton's affidavit, which he maintains is legally insufficient because it provides no evidence connecting him to the alleged incidents under investigation. Rule 3:5A-4. W.J.M. challenges the State's reliance on imbedded hearsay from other investigations, suggesting Detective Corporal Layton's own interview of witnesses does not provide the necessary proofs. Finally, W.J.M. asserts N.J.R.E. 404(b) precludes the use of other crimes evidence to attempt to justify his investigative detention for these new incidents. We disagree and reject each of these arguments.

Investigative detentions, like conventional searches and seizures, "are undertaken to advance the investigation of criminal cases." State v. Hall, 93 N.J. 552, 558, cert. denied, 464 U.S. 1008, 104 S. Ct. 526, 78 L. Ed. 2d 709 (1983). As such, an order for investigative detention shall be issued only if the judge concludes from the application that:

(a) a crime has been committed and is under active investigation, and

(b) there is a reasonable and well-grounded basis from which to believe that the person sought may have committed the crime, and

(c) the results of the physical characteristics obtained during the detention will significantly advance the investigation and determine whether or not the individual probably committed the crime, and

(d) the physical characteristics sought cannot otherwise practicably be obtained.

[R. 3:5A-4.]

A court "must determine whether the request for investigative detention is reasonable and satisfies the four-part showing required by Rule 3:5A-4." In re Alleged Aggravated Sexual Assault of A.S., 366 N.J. Super. 402, 410 (App. Div. 2004) (citing State v. Rolle, 265 N.J. Super. 482, 486-87 (App. Div.), certif. denied, 134 N.J. 562 (1993)). In doing so, "an evidential finding of probable cause to believe that a particular individual has committed a crime is not an absolute prerequisite for judicial authorization of an investigatory detention." Hall, supra, 93 N.J. at 561-62. In fashioning the requirements of the Rule, the Supreme Court has "'meticulously struck a fine balance between the State's interest in pursuing criminal investigations and the constitutionally protected privacy, liberty, and personal integrity interests of all citizens upon whom criminal investigations might focus.'" A.S., supra, 366 N.J. Super. at 408-09 (citing Rolle, supra, 265 N.J. Super. at 486).

Our review reveals Detective Corporal Layton's affidavit provides substantial evidence linking the two incidents, strongly suggesting the police were looking for one perpetrator. The locations of the offenses matched, as both took place in a women's locker room on a local college campus. The witnesses' descriptions of the suspect, as well as his vehicle, were similar in most respects, except height. Further, the items found at the crime scenes were alike, including a Trojan brand condom wrapper, a mini vibrator and a cloth article (at one scene was a white towel and at the other white women's underwear). Finally, the impressions left on the condom wrapper were identical, suggesting they were kept in the same wallet. This totality of the facts sufficiently established a connection between the two criminal incidents.

We also concur with the Criminal Part judge that the facts recited in Detective Corporal Layton's affidavit support a well-grounded basis to conclude W.J.M. was likely the perpetrator of these two offenses. Detective Corporal Layton detailed W.J.M.'s six previous arrests where he was found in or near a women's locker room, including two separate arrests when W.J.M. was discovered in the Brookdale Community College women's locker room, and two arrests for incidents when W.J.M. was caught in the Monmouth University women's locker room. Aside from the six cases which led to arrests, the affidavit enumerates other occasions when W.J.M. was found in the women's locker rooms of both campuses, but not charged.

The eyewitness statements describing the perpetrator's vehicle used in both incidents also bears noting. Both witnesses described a late model, four-door, silver sedan. Detective Corporal Layton observed a 1998 four-door, silver Honda Civic, registered to W.J.M.'s wife, parked in W.J.M.'s driveway. Thereafter, W.J.M. was pulled over for disregarding a stop sign on the Monmouth University campus while driving this car.

As detailed above, Detective Corporal Layton's affidavit relates ample facts providing more than an adequate basis to sustain the State's application for investigative detention. The affidavit connects the July 25, 2008 and March 29, 2009 incidents. Further, it links W.J.M. to the offenses based on his history of arrests for trespassing on campus women's locker rooms and because of the eyewitnesses' description of the perpetrator and his vehicle. Taken together, the evidence meets the necessary showing of "a reasonable and well-grounded basis from which to believe [W.J.M.] may have committed the crime[s.]" R. 3:5A-4(b).

We additionally reject as without merit, W.J.M.'s challenge that Detective Corporal Layton has no personal knowledge of the facts stated and the contention that Detective Corporal Layton's affidavit "failed to satisfy both requirements of R. 3:5A-2 and R. 1:6-6" in that it contained "only double and triple hearsay[.]" Hearsay statements are legally sufficient and permissible when the facts given have "'an appearance of trustworthiness.'" A.S., supra, 366 N.J. Super.at 410 (quoting State v. Di Rienzo, 53 N.J.360, 385 (1969)). See also U.S. v. Ventresca, 380 U.S. 102, 107, 85 S. Ct. 741, 745, 13 L. Ed. 2d 684, 688 (1965) (holding that a finding of probable cause may be premised upon evidence which otherwise may not be legally competent for admission at trial).

Here, Detective Corporal Layton incorporated the investigations of his fellow officers from the Monmouth and Brookdale Police Departments, who recorded statements from victims and eye witnesses of those similar incidents. Therefore, the statements relied upon have an appearance of trustworthiness. "Observations of fellow officers . . . engaged in a common investigation are plainly a reliable basis for a warrant[.]" Id. at 111, 85 S. Ct. at 747, 13 L. Ed. 2d at 690. We need not "impose a greater standard when analyzing the adequacy of affidavits submitted in support of an application for investigative detention[.]" A.S., supra, 366 N.J. Super. at 410. Accordingly, we conclude no error resulted from the trial court's order that W.J.M. submit a buccal swab based upon its finding that the State adequately satisfied its burden of establishing a reasonable and well-grounded basis supporting its request.

Finally, W.J.M. argues the State improperly relied on his prior criminal history. Citing N.J.R.E. 404(b), W.J.M. claims "our legislature has long forbidden a finder of fact to consider prior bad acts of an individual in order to show that such person acted in conformity therewith." The trial court found "admissibility determinations are not ripe for determination" during this investigatory stage, making it "significantly premature." We agree.

A