STATE OF NEW JERSEY v. MAURICE LOATMAN

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1165-09T4



STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

MAURICE LOATMAN,

     Defendant-Respondent.

_________________________________________

         Argued April 13, 2010 - Decided April 30, 2010

         Before Judges Lihotz and Ashrafi.

         On appeal from Superior Court of New Jersey,
         Law Division, Cumberland County, Indictment
         No. 09-03-0233.

         Cathryn E. Wilson, Assistant Prosecutor,
         argued the cause for appellant (Jennifer
         Webb-McRae, Cumberland County Prosecutor,
         attorney; James O. Turner, Jr., Assistant
         Prosecutor, of counsel and on the brief).

         Cecelia Urban, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Yvonne Smith Segars, Public Defender,
         attorney; Ruth Bove Carlucci, Assistant
         Deputy Public Defender, of counsel and on
         the brief).

PER CURIAM

    By our leave, the State appeals from an order of the Law

Division dated September 21, 2009, suppressing all evidence

seized from defendant Maurice Loatman's car.    The State seeks to

present the evidence in defendant's prosecution for possession

of cocaine and heroin with intent to distribute.     Although the

evidence was discovered pursuant to a search warrant, the Law

Division concluded that the police violated defendant's Fourth

Amendment rights because they detained him and his car without

sufficient reasonable articulable suspicion before they obtained

a warrant.   We disagree with that conclusion and reverse.

    On a suppression motion, we defer to the findings of fact

and credibility determinations of the trial court.     State v.

Robinson, 
200 N.J. 1, 15 (2009) (quoting State v. Elders, 
192 N.J. 224, 243-44 (2007)); State v. Locurto, 
157 N.J. 463, 474

(1999); State v. Hodgson, 
44 N.J. 151, 163 (1965), cert. denied,


384 U.S. 1021, 
86 S. Ct. 1929, 
16 L. Ed. 2d 1022 (1966); State

v. Johnson, 
42 N.J. 146, 161 (1964).   However, we need not defer

to the trial court's legal conclusions reached from the

established facts, see State v. Loyal, 
164 N.J. 418, 452 (2000),

in particular, "[i]f the trial court acts under a misconception

of the applicable law[.]"   State v. Brown, 
118 N.J. 595, 604

(1990).   The trial court's understanding and application of the

                                               See State v.
law is subject to plenary review on appeal.




                                                              A-1165-09T4
                                2

Cleveland, 
371 N.J. Super. 286, 295 (App. Div.), certif. denied,


182 N.J. 148 (2004).

     In this case, there is no dispute about the relevant

facts, but the Law Division erred in its application of the law.

It failed to apply the holding of State v. Birkenmeier, 
185 N.J.
 552 (2006), and other cases addressing what constitutes

sufficient reasonable suspicion to stop and detain a motor

vehicle for purposes of investigating a crime.

    On January 8, 2009, at about 4:30 p.m., Detective Cruz of

the Vineland Police Department received a call from a reliable

confidential informant whom the Vineland Police had frequently

used during the prior two years, including for a wiretap

investigation that resulted in multiple arrests and charges.

Altogether, the informant had provided reliable information

leading to about twenty arrests and had made controlled buys of

illegal drugs on about ten to fifteen occasions.    The informant

did not have a criminal record.

    The informant told Detective Cruz that he had just observed

a drug transaction involving two cars in the area of Third and

Chestnut.    He described the seller of the drugs as a man known

as "Snoop" wearing a red baseball cap and white shirt with red

sleeves.    He described Snoop's car as a white Infinity G-35 and

said that the Infinity headed east on Chestnut Avenue after the




                                                           A-1165-09T4
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drug transaction.    The informant said that Snoop was usually in

possession of a handgun and dealt in large quantities of heroin.

Before the call from the informant, the Vineland Police had no

information about a man named Snoop selling drugs.

    Detective Cruz and other detectives immediately pursued the

informant's tip.    A few minutes after the call, Detective Cruz

spotted a white Infinity G-35 stopped at a traffic light on

Chestnut Avenue.    The clothing of the driver matched the

description the informant had given.     The Infinity pulled into

and parked in a gas station.     When backup detectives arrived,

Detective Cruz and another police car pulled into the gas

station and blocked the Infinity so that it could not be moved.

    Defendant Loatman was the only occupant of the car.      An

officer ordered him out, and he complied.     The police frisked

him, finding no weapon on his person.     When asked for motor

vehicle credentials, defendant could not produce a driver's

license but directed Detective Cruz to other identification in

the center console of the car.     Defendant denied being known as

Snoop, but several people walking to the mini-mart at the gas

station greeted him by that name.

    At defendant's suggestion, the police searched his person

more completely for evidence and found none.     When the police




                                                             A-1165-09T4
                                  4

asked for consent to search the car, defendant refused.1     Within

about thirty minutes, a police officer arrived with a drug-

sniffing dog.   The dog was walked around the Infinity and

reacted positively, indicating the presence of illegal drugs in

the trunk.   The police seized the car and held it overnight at

their headquarters.    They released defendant.

     Early the next morning, the police obtained a search

warrant for the car.   In the trunk, they found crack cocaine and

heroin, drug paraphernalia including a scale and baggies, cash,

and counterfeit money.    No weapon was found anywhere in the car.

     Defendant was indicted on charges of possession of cocaine

and heroin and possession of the same with intent to distribute.

He moved to suppress the evidence found in his car.

     The Law Division judge accepted the veracity of the

informant and his tip that he had witnessed a drug transaction.

But the judge concluded that the police lacked reasonable

suspicion to stop and detain defendant and his car because "the

basis of knowledge that the defendant was, again at the time of

the stop in possession of narcotics, is nowhere to be found in


1
  A person's refusal to consent to a warrantless entry or search
is not probative of wrongdoing and does not add to the police
justification for a search or detention. See State v. Frankel,

179 N.J. 586, 611, cert. denied, 
543 U.S. 876, 
125 S. Ct. 108,

160 L. Ed. 2d 128 (2004).




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this tip or in the record or in the testimony today."     The judge

concluded that the tip only established that defendant had

"completed a transaction," not that "he was still in possession

of narcotics."

    In suppressing the evidence, the judge erroneously applied

the probable cause standard to determine the lawfulness of

limited temporary detention of defendant for purposes of

investigation.    The amount of information the police need to

detain a suspect and investigate the potential commission of an

offense is less than that needed to make an arrest or to conduct

a search.

    The Fourth Amendment of the United States Constitution and

article 1, paragraph 7 of the New Jersey Constitution protect

the public against unreasonable search and seizure by

governmental authorities.    State v. Pena-Flores, 
198 N.J. 6, 18

(2009).     "Warrantless searches [or seizures] are presumptively

unreasonable and thus are prohibited unless they fall within a

                                                      Ibid. (citing
recognized exception to the warrant requirement."

State v. Wilson, 
178 N.J. 7, 12 (2003)).     The State has the

burden of proving that a seizure without a warrant falls within

a recognized exception.     State v. Maryland, 
167 N.J. 471, 489

(2001).




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                                  6

    Among the exceptions to the warrant requirement is a

temporary police detention for purposes of investigation, as

recognized by the United States Supreme Court in Terry v. Ohio,


392 U.S. 1, 21, 
88 S. Ct. 1868, 1880, 
20 L. Ed. 2d 889, 906

(1968).   The police may stop a motor vehicle and detain its

occupants temporarily while they investigate a criminal or

                    See, e.g., United States v. Hensley, 469 U.S.
traffic offense.

221, 226, 
105 S. Ct. 675, 679, 
83 L. Ed. 2d 604, 610 (1985);

Delaware v. Prouse, 
440 U.S. 648, 663, 
99 S. Ct. 1391, 1401, 
59 L. Ed. 2d 660, 673 (1979); United States v. Brignoni-Ponce, 
422 U.S. 873, 881-82, 
95 S. Ct. 2574, 2580, 
45 L. Ed. 2d 607, 616-17

(1975); Locurto, supra, 
157 N.J. at 470; State v. Dickey, 
152 N.J. 468, 477 (1998).   Our Supreme Court has stated that such

investigatory detentions do not require a warrant because they

are "minimally intrusive" restraints on the person's freedom.

Dickey, supra, 
152 N.J. at 478.

    To subject a person to investigatory detention, the police

must have reasonable and articulable suspicion of conduct that

violates the law.   Terry, supra, 
392 U.S.  at 21, 
88 S. Ct.  at
 1880, 
20 L. Ed. 2d  at 906; Hensley, supra, 
469 U.S.  at 229, 
105 S. Ct.  at 680, 
83 L. Ed. 2d  at 612; Elders, supra, 
192 N.J. at
 247; State v. Pineiro, 
181 N.J. 13, 21-22 (2004); State v.

Rodriguez, 
172 N.J. 117, 126 (2002).   Reasonable articulable




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                                  7

suspicion requires less evidence than probable cause.     Alabama

v. White, 
496 U.S. 325, 330, 
110 S. Ct. 2412, 2416, 
110 L. Ed. 2d 301, 309 (1990); Rodriguez, supra, 
172 N.J. at 127; State v.

Stovall, 
170 N.J. 346, 356 (2002).   Reasonable suspicion has

been described as "a particularized and objective basis for

suspecting the person stopped of criminal activity."     Ibid.

(quoting Ornelas v. United States, 
517 U.S. 690, 696, 
116 S. Ct. 1657, 1661, 
134 L. Ed. 2d 911, 918 (1996)).    On the other hand,

a showing of probable cause requires "a 'well-grounded'

suspicion that a crime has been or is being committed."     State

v. Johnson, 
171 N.J. 192, 214 (2002) (quoting State v. Sullivan,


169 N.J. 204, 211 (2001)).   The trial court in this case sought

evidence beyond that needed to prove reasonable articulable

suspicion.   Several Supreme Court precedents illustrate the

level of proof required.

    In Birkenmeier, supra, 
185 N.J. at 555-56, an informant who

had previously provided information leading to two seizures of

marijuana told the police that the defendant was engaged in the

sale of large amounts of marijuana and gave the defendant's name

and physical description and a description of his car.

Subsequently, the informant called the police and said the

defendant would be leaving his house at a certain time with a

laundry bag containing marijuana.    The police set up




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                                8

surveillance and observed a man fitting the description provided

leaving a residence with a laundry bag and driving in a car as

described.    The police stopped the vehicle, conducted a

warrantless search, and found marijuana in the laundry bag.

       In an unreported opinion, we concluded that the stop of the

car violated the defendant's constitutional rights.    See id. at

560.    As the Law Division did in this case, we criticized the

absence of evidence to establish the basis of the informant's

knowledge that the defendant would be carrying marijuana at the

                                                  See ibid.
time of the motor vehicle stop and detention.

Consequently, we found that the State had not demonstrated

reasonable articulable suspicion to stop the defendant's car,

and we suppressed the evidence.       See ibid.

       The Supreme Court disagreed with our reasoning and

reversed.    The Court said that reasonable suspicion is "some

minimal level of objective justification for making the stop."

Id. at 562 (quoting State v. Nishina, 
175 N.J. 502, 511 (2003)).

In the circumstances presented, "the confidential informant's

tip, once corroborated by the observations made by the police,

provided sufficient reasonable suspicion to detain and conduct

an investigatory stop of defendant and, therefore, the initial

stop of defendant's car was proper."      Ibid.




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                                  9

    Similarly in this case, the informant's tip corroborated by

the Vineland police provided sufficient reasonable suspicion to

detain defendant and his car and to conduct an investigation of

his reported involvement in selling drugs.

    The Law Division judge was concerned that the tip only

established a past drug offense, not that defendant was still in

possession of drugs after completing the transaction.    But the

police can detain and investigate both the seller and buyer

after a completed drug transaction without direct evidence that

the seller still has contraband in his possession.    In State v.

Arthur, 
149 N.J. 1, 5 (1997), for example, the police personally

observed what they believed to be a hand-to-hand drug

transaction.   After the transaction was completed, the two

individuals went in different directions, and separate police

officers stopped each one.   The Court held that the police had

reasonable suspicion to stop and question the two individuals,

although the police observations did not establish probable

                                         Id. at 15.   Nothing in
cause to conduct a warrantless search.

the record suggested the alleged seller's continuing possession

of drugs, but nevertheless, the police had sufficient reasonable

suspicion to stop his car and to detain and investigate him.

Id. at 12, 15.




                                                           A-1165-09T4
                                10

       Applying the holding and reasoning of Arthur in this case,

the police did not need information, such as the informant's

direct knowledge, that defendant continued to possess illegal

drugs in order to have reasonable suspicion to detain him and

his vehicle for further investigation.    Although the informant's

tip, together with the limited corroborating observations, did

not rise to the level of probable cause to arrest defendant at

the gas station and to search his car without a warrant, that

information was enough to detain him and investigate.    See Adams

v. Williams, 
407 U.S. 143, 147, 
92 S. Ct. 1921, 1924, 
32 L. Ed. 2d 612, 617-18 (1972) (informant's unverified tip not sufficient

to constitute probable cause to arrest defendant or search his

car but "carried enough indicia of reliability to justify"

investigatory stop); State v. Zutic, 
155 N.J. 103, 113 (1998)

(informant's tip and police corroboration "generated . . .

reasonable articulable suspicion to justify an investigative

stop" although they did not establish probable cause to search

defendant for contraband).   The positive reaction of the drug

sniffing dog subsequently provided the additional evidence

needed for probable cause to obtain a search warrant for the

car.

       Defendant cites State v. Caldwell, 
158 N.J. 452 (1999), as

a decision supporting the Law Division's ruling.    The holding of




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                                 11

Caldwell, however, does not apply to this case because the facts

there were quite different.   In Caldwell, a reliable informant

told the police that "Curtis Stuart, who was wanted on a

warrant, was standing in front of a multi-unit dwelling." Id. at

454-55.   The informant could not give a physical description and

only knew that Stuart was a black male.       Id. at 455.   Three

detectives went to the location.       Standing alone in front of the

address given was a black man who turned out to be defendant

Eric Caldwell, not Curtis Stuart.       Upon seeing the police,

Caldwell ran into the building.     The police pursued, ordering

him to stop.   Caldwell tossed an object aside, which the police

                                                  Id. at 455-56.
recovered and determined contained cocaine.

    The Supreme Court held that the informant's tip was not

sufficient to stop and detain Caldwell because the State could

show no basis for the informant's knowledge about Curtis Stuart,

which turned out to be erroneous, in particular, because the

                                                             Id. at
warrant for Curtis Stuart had been earlier discharged.

460-61.   Here, the information given by the informant to the

Vineland police was much more specific than the vague reference

to a black male given in the Caldwell case.       The informant had

personally witnessed a drug transaction, indicating the basis of

his knowledge that a crime had been committed.       In addition, the

police had a description of defendant's clothing and car.          This




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                                  12

case is controlled by the holdings of Birkenmeier, supra, 
185 N.J. at 561; Zutic, supra, 
155 N.J. at 113; and Arthur, supra,


149 N.J. at 15.   The Law Division did not apply those holdings

to the facts developed in the suppression hearing.

    Reversed and remanded for trial.




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