STATE OF NEW JERSEY v. DANA IZZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2361-08T42361-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANA IZZO, a/k/a

DANA L. PORTER,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 24, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0760.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Dana Izzo pled guilty to possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), pursuant to a plea agreement after her motion to suppress evidence was denied by the trial court. She appeals the order denying her motion to suppress statements she made to police prior to her arrest and drugs she surrendered to police at her workplace. R. 3:5-7(d). We affirm.

The evidence presented at the suppression hearing is set forth in detail in the trial court's written opinion and need not be repeated here. We note only the following salient facts.

At approximately 11:45 a.m. on September 18, 2007, Officers Joseph Buda and William Sampson of the Manville Police Department arrived at defendant's place of employment, Cool-O-Matic, in response to a report of suspected drugs in a parked vehicle. Officer Buda met with Arthur Stainer, the business owner, who advised that "several" of his employees saw a man approach defendant's car and place an item that they suspected to be "a bundle of heroin" under the driver's side floor mat. The employees did not wish to be identified. Stainer had not witnessed the incident but knew that defendant had used heroin in the past. Officer Buda also knew of defendant's prior heroin use and knew Stainer to be a well-respected member in the community. Based upon his prior contacts with Stainer, Buda had no reason to doubt him.

Officer Buda asked Stainer if he could speak to defendant in private to avoid embarrassing her. Stainer took the officers to his office and then brought defendant to the office, closed the door and left.

The versions provided by the State and defendant of what occurred thereafter are similar. Defendant asked Officer Buda, "What's the problem?" According to defendant, Officer Buda referred to her twenty-one year old daughter, Jessica, stated that Jessica had always been very cooperative, which worked to her benefit, and that he hoped that she would be cooperative as well. Defendant said that Officer Buda then told her that they had been called because a white male had put something in her car. Officer Buda explained that it was in her interest to cooperate if she had drugs in her possession because the officers would allow her to leave on her own, without handcuffs, and drive herself to police headquarters. In the alternative, Officer Buda stated that he had a K-9 unit trained in the detection of drugs available to inspect her car and, if she did not cooperate and drugs were found, the car would be towed and she would be removed in handcuffs.

Defendant removed several small plastic baggies held together with a rubber band from her pants and surrendered it to Officer Buda. She then started to cry. Defendant stated that she was "going through a rough time lately" and that she uses drugs as a temporary fix although she knows that they do not provide an answer for her problems. Officer Buda asked if she had anything else in her car or on her person. Defendant removed a hypodermic needle from her pocket and stated that she had nothing else.

Defendant was placed under arrest for possession of a controlled dangerous substance and possession of a hypodermic needle. A search incident to arrest was conducted. She was permitted to leave her place of employment without handcuffs. Defendant drove herself to police headquarters, where she was read the Miranda warnings and executed a standard Miranda waiver form at 12:15 p.m., thirty minutes after the officers had arrived at Cool-O-Matic.

At police headquarters, defendant confessed that she ordered the package of heroin from a person named "Dave" who directed her to leave $150 under the driver-side floor mat of her car. She received a call from him, advising that he had left the heroin in her car. She retrieved it and intended to use the heroin during her lunch break. The package surrendered by defendant held twelve small wax baggies containing a chalky-colored substance that tested positive in a field test for heroin.

Defendant was charged in a one count indictment with possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and in a complaint with the disorderly persons offenses of possession of narcotics paraphernalia, N.J.S.A. 2C:36-2, and possession of a hypodermic syringe, N.J.S.A. 2C:36-6. Her motion to suppress the drug evidence and her statements was denied. Defendant then pled guilty to the indictment pursuant to a plea agreement in which the disorderly persons offenses were dismissed and the State agreed to recommend a sentence of non-custodial probation. Defendant was sentenced to probation for a period of three years with the conditions that she submit to a drug and alcohol evaluation within forty-five days and perform fifty hours of community service along with appropriate fines and penalties.

Defendant raises the following issues on appeal:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT OT [SIC] THE UNITED STATES CONSTITTUTION [SIC] AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

A. THE DEFENDANT WAS ILLEGALLY DETAINED.

B. THE DEFENDANT CONSENTED TO THE SEARCH OF HER PERSON WITHOUT BEING ADVISED THAT SHE HAD THE RIGHT TO WITHHOLD CONSENT.

POINT II

THE POLICE UNLAWFULLY EXTRACTED A CONFESSION FROM DEFENDANT DURING CUSTODIAL INTERROGATION WITHOUT ADVISING THE DEFENDANT OF HER MIRANDA RIGHTS IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY COMMON LAW.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

In reviewing the order denying defendant's motion to suppress, we are required to "uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007); see also State v. Locurto, 157 N.J. 463, 474 (1999). We must also "give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244.

Defendant's first argument is that she was subjected to an illegal detention because the information provided to the officers did not provide a reasonable, articulable suspicion that would justify their conduct. The motion judge concluded that it was unnecessary for the State to show that the officers had such a reasonable suspicion because defendant was free to leave and was not threatened or compelled. This finding that defendant was free to leave is undoubtedly grounded in the opportunity that the judge had to hear and see the witnesses and have the feel of the case that we lack. See ibid. However, even if defendant did not feel free to leave her employer's office and the officers' conduct is equated with an investigative stop, the facts here provide sufficient justification for the officer's action.

To justify an investigative stop, the facts and rational inferences known to the police officers must rise to the level of a reasonable, objective and particularized suspicion. See State v. Nishina, 175 N.J. 502, 511 (2003). "An officer does not need a warrant to make [an investigatory] stop 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. Rodriguez, 172 N.J. 117, 126 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). "[Reasonable suspicion requires] some minimal level of objective justification for making the stop." Nishina, supra, 175 N.J. at 511.

The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[Nishina, supra, 175 N.J. at 511; State v. Davis, 104 N.J. 490, 504 (1986).]

In this case, the officers were called to defendant's place of employment by her employer, who had been advised by several of his employees that they observed a man placing an item that appeared to be drugs in defendant's car. Both the employer and the police officer had personal knowledge that defendant had used heroin in the past. The source of the information was not entirely anonymous but was identified as co-workers of defendant. Since the officer considered the employer to be a reliable source, his willingness to call the police based on the information he received from his employees gave support for the trustworthiness of the information. To the extent that interviewing defendant in her employer's office can be considered an intrusion upon her freedom, this intrusion was both extremely limited and circumspect, taking only a few minutes and conducted in a manner designed to minimize embarrassment to defendant at her workplace. We conclude that the information known to the officers justified this brief investigative action.

Defendant contends that she "effectively consented to a search" without being advised of her right to withhold consent when she surrendered the drugs on her person. The sole basis for this characterization is that the officer advised defendant that if she did not choose to cooperate, a K-9 unit was available to inspect her automobile. There was, however, no search of defendant's person prior to her arrest. The mere fact that the officers truthfully told her of the alternatives does not convert her voluntary surrender into an invalid consent and an unlawful search and seizure. See State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993) ("[T]he officers' comment to defendant that she would be detained while they obtained a search warrant was a fair prediction of events that would follow, not a deceptive threat made to deprive her of the ability to make an informed consent.").

Defendant also argues that her conversation with the police officers in her employer's office was a custodial interrogation which required the police to advise her of her Miranda rights and that the failure to do so was a constitutional violation that compels the suppression of her statements. We disagree.

In State v. Smith, 374 N.J. Super. 425 (App. Div. 2005), we considered the applicability of Miranda warnings in the context of an officer's response to a call about a domestic dispute and found the circumstances analogous to Terry investigative stops and traffic stops as the police response "is likely to involve some restraint on the occupants' freedom of action." Id. at 431. We noted that "[d]espite the restraint on freedom of action involved in Terry and traffic stops, an officer is not required to give Miranda warnings before asking questions reasonably related to dispelling or confirming suspicions that justify the detention." Ibid.; see also State v. Baum, 199 N.J. 407, 424 (2009). Rather, "Miranda warnings are required only if the stop, due to its duration or other attendant circumstances, 'is fairly characterized as the functional equivalent of an arrest.'" Ibid. (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 336 (1984)).

Here, the conversation in defendant's employer's office lasted only a few minutes. The office itself was within defendant's workplace, not isolated or dominated by the police, and not an inherently coercive circumstance. Therefore, neither the very limited duration of the conversation here nor any other attendant circumstances permit the conversation to be "fairly characterized as the functional equivalent of an arrest." See Smith, supra, 374 N.J. Super. at 431. We therefore conclude that the police officers were not required to give Miranda warnings to defendant before engaging in a conversation with her that was reasonably related to dispelling or confirming suspicions that drugs had been placed in her automobile.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Terry v. Ohio, 392 U.S. 1, 88, S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

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A-2361-08T4

March 15, 2010