STATE OF NEW JERSEY v. KARIEM CARTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3623-08T43623-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KARIEM CARTER,

Defendant-Respondent.

________________________________________

 

Submitted January 26, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-11-2001.

Edward J. De Fazio, Hudson County Prosecutor, attorney for appellant (Nicole M. Ghezzar, Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Raquel Y. Bristol, Assistant Deputy Public Defender, on the brief).

PER CURIAM

By our leave, the State appeals from an order of the Law Division dated March 13, 2009, suppressing drug evidence seized from defendant Kariem Carter after a street encounter. We reverse.

On a suppression motion, "a trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). On this appeal, however, the trial court did not hold an evidentiary hearing and make findings of fact based on disputed evidence. Instead, the parties stipulated to the relevant facts as contained in a written report from the Hudson County Prosecutor's Office, and the court reached legal conclusions from those facts. Therefore, our standard of review is plenary. See State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005); State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990).

According to the written report, the Gang Task Force of the Prosecutor's Office had previously obtained information from a reliable confidential informant that a group of men were regularly selling "dip," the street term for cigarettes dipped in PCP (phencyclidine), in front of 62 Stevens Avenue in Jersey City. On June 4, 2008, a concerned citizen called the Jersey City Police Department to report that street gang members were at that time selling dip in front of that address. The concerned citizen gave names and descriptions of two men Alonzo Harris, who was described as a black man wearing a red hat, and "Lance," described as a black man with dreadlocks. The concerned citizen also told the police that Harris stashed PCP in a freezer in his apartment at 62 Stevens Avenue and that he kept a gun there in a dresser.

The citizen's tip was conveyed to the Gang Task Force, which contacted and instructed its confidential informant to confirm the information. The informant went to the area of 62 Stevens Avenue and reported back that a group of men at that location were selling drugs. He also confirmed the descriptions of the two men given by the citizen.

At about 4:30 p.m. on that date, Gang Task Force detectives drove by the area and saw four persons in front of 62 Stevens Avenue, including two men that fit the descriptions of Harris and Lance. One of the other men in the group was defendant Carter, who was known to the detectives "as a member of the Fruit Town Brim set of the Bloods street gang."

The detectives stepped out of their vehicle and identified themselves as police, showing their badges. Harris immediately reached into his pocket and put a small bottle into his mouth. A detective forced him to spit out the bottle, which turned out to contain PCP. Harris was arrested, and a search of his person produced $140 in cash and revealed an ankle bracelet that Harris was required to wear to monitor his location because he was on parole.

Shortly after Harris spit out the bottle of PCP, Detective Leslie Murphy approached defendant and asked if he had any narcotics on his person. Defendant said he had a bottle of PCP in his pocket. Detective Murphy seized the bottle and placed defendant under arrest. The bottle taken from defendant was subsequently confirmed to contain PCP. Defendant also had $113 in his possession.

All four individuals at that location were arrested and advised of their rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant elected not to answer any further questions or to make a statement. A search that night of Harris's apartment at 62 Stevens Avenue produced a handgun stored in a bedroom dresser. Harris later pleaded guilty to charges brought against him.

Defendant Carter was indicted on three charges, possession of less than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(7); possession of PCP with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; and conspiracy to possess PCP with intent to distribute, N.J.S.A. 2C:5-2.

In ruling on defendant's motion to suppress, the trial court first concluded that the police detectives did not violate defendant's constitutional rights by approaching the group of men and detaining them temporarily for purposes of investigation. However, the court also concluded that Detective Murphy's question to defendant whether he had any narcotics on his person violated his constitutional rights because the detective lacked evidence that defendant was also selling drugs. The court suppressed the evidence seized from defendant.

The street encounter of the police with defendant implicated his rights against unreasonable search and seizure under the Fourth Amendment and his rights against self-incrimination under the Fifth Amendment of the United States Constitution.

The police may, without violating rights protected by the Fourth and Fifth Amendments, make "field inquiry" of any person without evidence to suspect that person of involvement in criminal activity. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Rodriguez, 172 N.J. 117, 126 (2002); State v. Davis, 104 N.J. 490, 497 (1986). As a general proposition, the police may ask a question of any person on the street without violating constitutional rights. Such a field inquiry is not a "seizure" and, therefore, not restricted by the Fourth Amendment. Rodriguez, supra, 172 N.J. at 126.

A field inquiry, however, can grow into a "seizure" of a person, and thus implicate Fourth Amendment rights, if the person is not free to leave because of governmental restraint placed upon his freedom. Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 2405, 168 L. Ed. 2d 132, 138 (2007); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); Davis, supra, 104 N.J. at 498-99. "An encounter becomes more than a mere field inquiry when an objectively reasonable person feels that his or her right to move has been restricted." Rodriguez, supra, 172 N.J. at 126 (citing Davis, supra, 104 N.J. at 498).

A "seizure" of the person can be either an investigatory detention or an arrest, depending on the constraints placed upon the person, and their duration. See Davis, supra, 104 N.J. at 498; State v. Contreras, 326 N.J. Super. 528, 538-39 (App. Div. 1999). An investigatory detention generally occurs at or near the scene of the initial police encounter and is of short duration. See Dunaway v. New York, 442 U.S. 200, 210, 99 S. Ct. 2248, 2256-57, 60 L. Ed. 2d 824, 834-35 (1979). Our Supreme Court has described such investigatory detentions as "minimally intrusive" restraints on the person's freedom. State v. Dickey, 152 N.J. 468, 478 (1998). While the police restrict the person's movements, they do not place the person under arrest, or employ constraints that are the functional equivalent of formal arrest. See State v. Toro, 229 N.J. Super. 215, 221 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled in part on other grounds, State v. Velez, 119 N.J. 185, 187 (1990).

To subject a person to investigatory detention, the police must have reasonable and articulable suspicion of conduct that violates the law. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612 (1985); Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 21-22 (2004); Rodriguez, supra, 172 N.J. at 126. Reasonable suspicion has been described as "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). It requires less evidence than probable cause to arrest a person for violation of the law. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); Stovall, supra, 170 N.J. at 356.

Defendant argues the police detectives did not have reasonable suspicion that he was engaged in criminal activity when they first approached and detained the four men in front of 62 Stevens Avenue. He notes that the concerned citizen and the confidential informant had named or described only Harris and Lance, not defendant. The trial court rejected defendant's argument and concluded that the police had reasonable and articulable suspicion to detain defendant temporarily along with the others for purposes of investigation. We agree with that conclusion.

When the detectives first went to 62 Stevens Avenue, they did not have any information about defendant individually. Their two sources had described a group of men involved in gang activity who were selling drugs in front of that address. The information from each independent source was consistent with and therefore corroborated the information from the other source. Upon driving to the location, the detectives further corroborated the tips by their own observations matching the descriptions given for two of the men by each source.

As the confidential tips were being corroborated, the detectives obtained their first information about defendant Carter individually when they approached and saw him among the group who were allegedly selling drugs. The detectives were previously familiar with defendant as a gang member. Upon stepping out of their vehicle, the detectives observed Harris attempting to swallow a bottle that was soon determined to contain contraband narcotics. Harris's conduct confirmed the accuracy of the information received from the two sources that at least one of the group of men was selling drugs.

Defendant argues that the police could not transfer to defendant evidence of Harris's selling drugs simply because he was nearby. If the issue were whether the police had probable cause to arrest defendant at that point, we would agree. But the corroborated information the police had when they encountered defendant was sufficient to constitute reasonable suspicion to detain him temporarily for purposes of investigating his potential involvement. Cf. 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. Arthur, 149 N.J. 1, 10 (1997) (factors providing police with reasonable suspicion of drug transaction to make a motor vehicle stop). The trial court correctly concluded that the police had reasonable articulable suspicion for an investigatory detention of defendant.

The trial court was mistaken, however, in concluding that Detective Murphy violated defendant's constitutional rights by asking him whether he had any drugs in his possession. The court said, "You can't do that. What right did she have to ask him if he had any narcotics? . . . You can't turn to somebody on the street and say do you have any drugs on you because the person standing next to you had some." The court suggested that the police needed more information to have the right to ask the accusatory question, such as their own observation of a hand-to-hand transaction or similar conduct by defendant.

The trial court demanded evidence beyond the standard of reasonable articulable suspicion. Combined with the corroborated information they had from their two sources, the necessary evidence suggested by the trial court would have given the police probable cause to arrest and search defendant, not just reasonable suspicion to detain him and investigate his involvement. See, e.g., State v. Moore, 181 N.J. 40, 47 (2004). The police did not need evidence satisfying the probable cause standard to detain and question defendant during a Terry investigatory stop. See State v. Citarella, 154 N.J. 272, 279 (1998); Arthur, supra, 149 N.J. at 8.

Defendant's argument on appeal differs from the trial court's mistaken conclusion. Defendant contends that Detective Murphy's question converted the investigatory detention into a "de facto arrest" of defendant, which required a showing of probable cause. But defendant cites no legal authority to support his contention, and we find no merit in it.

"[A]n investigative stop becomes a de facto arrest when 'the officers' conduct is more intrusive than necessary for an investigative stop.'" Dickey, supra, 152 N.J. at 478 (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837, 106 S. Ct. 113, 88 L. Ed. 2d 92 (1985)). The factors that are relevant to determining whether a person should be considered arrested rather than temporarily detained for investigation are: (1) whether the length of detention involves unnecessary delay for purposes of the legitimate investigation being conducted, id. at 479 (citing United States v. Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605, 616 (1985)); (2) whether "the degree of fear and humiliation that the police conduct engenders" is inconsistent with a detention that is minimally intrusive, ibid. (quoting United States v. Lego, 855 F.2d 542, 544-45 (8th Cir. 1988)); (3) whether the person is transported to another location or isolated from others, ibid. (citing United States v. Rose, 731 F.2d 1337, 1342 (8th Cir.), cert. denied, 469 U.S. 931, 105 S. Ct. 326, 83 L. Ed. 2d 263 (1984)); and (4) whether the person is handcuffed or placed in a police vehicle, ibid. (citing United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992)).

None of these factors is present in this case. Defendant was not detained for any significant time before Detective Murphy asked the confrontational question; there was no evidence of an undue amount of fear or intimidation; defendant was not removed from the initial location of the investigatory detention; and defendant was not handcuffed, placed in a police car, or otherwise restrained physically before the question was put to him. Detective Murphy's question alone did not convert the detention into a de facto arrest.

Neither the United States nor the New Jersey Supreme Court has ever held that asking a person whether he has any contraband in his possession amounts to a de facto arrest. See Rodriguez, supra, 172 N.J. at 129 (Court declined to reach such a holding as unnecessary to its decision). Our own prior decisions have only said that such a confrontational question, in the context of other evidence that the person was not free to leave, converted a field inquiry into investigatory detention and, therefore, the State was required to show reasonable articulable suspicion. See State v. Costa, 327 N.J. Super. 22, 30-31 (App. Div. 1999); Contreras, supra, 326 N.J. Super. at 540; State ex rel. J.G., 320 N.J. Super. 21, 30-31 (App. Div. 1999). Here, the police had reasonable articulable suspicion for investigatory detention of defendant. As part of that investigation, they could ask defendant whether he was in possession of contraband without converting the detention into a de facto arrest.

In sum, the police did not violate defendant's Fourth Amendment right against unreasonable seizure of his person by asking him during a valid investigatory detention whether he had contraband in his possession. Once defendant answered that he had PCP in his pocket, the police had probable cause to arrest and search him.

The questioning of a person in a custodial situation also implicates his Fifth Amendment right against self-incrimination. The police are required to advise a person of his Miranda rights before conducting interrogation if they have deprived defendant of his freedom in a significant way. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; State v. Graves, 60 N.J. 441, 448 (1972); State v. Dispoto, 383 N.J. Super. 205, 214 (App. Div. 2006), aff'd on other grounds, 189 N.J. 108 (2007). However, brief, non-coercive questioning during a Terry investigatory detention does not require that the police first give Miranda advice. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-35 (1984); Smith, supra, 374 N.J. Super. at 431; State v. Brown, 352 N.J. Super. 338, 353-56 (App. Div.), certif. denied, 174 N.J. 544 (2002); State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988).

The need for Miranda warnings depends on "circumstances includ[ing] the duration of the detention, the place and time of the interrogation, the nature of the questions and the language employed by the interrogator, the conduct of the police, the status of the interrogator, the status of the suspect, and any other relevant circumstances." Brown, supra, 352 N.J. Super. at 352. Viewing those circumstances in relation to the stipulated facts in this case, Detective Murphy was not required to give defendant Miranda warnings before asking her single question whether he had any narcotics on his person.

We conclude that defendant's Fifth Amendment right against self-incrimination was also not violated in this case.

 
Reversed and remanded for trial.

The man with the dreadlocks, identified as Lance Powell, was arrested only on a child support warrant. As to the fourth person, a juvenile, he began spitting out green vegetative matter as he was being questioned at the scene. The juvenile admitted attempting to swallow a marijuana "blunt" he was rolling when he saw the police approach. Thirteen clear plastic bags containing marijuana were seized from the juvenile. Because the prosecution report suggests that the marijuana was not discovered until after Detective Murphy asked defendant Carter whether he had any narcotics in his possession, we view the evidence seized from the juvenile as irrelevant to the issues on this appeal.

The New Jersey Constitution protects against unreasonable search and seizure in Article I, paragraph 7. The State Constitution does not have a provision equivalent to the Fifth Amendment protection against self-incrimination, but that right is recognized under common law in New Jersey. See In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 229 (1986); State v. Hartley, 103 N.J. 252, 286 (1986). In the context of the issues raised on this appeal, we have found no difference between the State protections and federal constitutional law. We will refer to both as defendant's Fourth and Fifth Amendment rights.

The police drew a distinction between reasonable suspicion to detain and investigate and probable cause to arrest and charge drug offenses. They did not charge Lance Powell with drug offenses simply because he was with the other persons selling drugs at that location.

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A-3623-08T4

April 13, 2010