STATE OF NEW JERSEY v. ANTHONY CICCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3098-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY CICCIA,

Defendant-Appellant.

________________________________________________________

March 2, 2011

Argued November 16, 2010 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Indictment No.

09-01-0020.

Richard S. Lehrich argued the cause for

appellant.

Russell J. Curley, Deputy Attorney General,

argued the cause for respondent (Paula T.

Dow, Attorney General, attorney; Mr. Curley,

of counsel and on the brief).

PER CURIAM

In a four-count indictment, defendant Anthony Ciccia was charged with two counts of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts one and two); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count four). After the trial court denied defendant's motion to suppress evidence seized from his automobile, defendant pled guilty to count one of the indictment, second-degree possession of a handgun without a permit. In exchange for the plea, the State agreed to dismiss the remaining charges and further agreed to recommend a five-year sentence with three years of parole ineligibility. On January 22, 2010, the court sentenced defendant in accordance with the plea agreement. However, the sentence was stayed pending this appeal from the September 21, 2009 order denying defendant's motion to suppress evidence. For the reasons that follow, we affirm.

At the suppression hearing on September 8, 2009, the State presented testimony from Detective John Torrey and Sergeant Keith Stopko of the Division of Criminal Justice (the Division). Torrey, an eleven-year veteran of the Division, received periodic training throughout his career, and had been involved in "over 500" drug investigations and conducted "well over a thousand" surveillance operations. Stopko was a sheriff's officer for approximately thirteen years prior to joining the Division in February 2008, and had conducted "[h]undreds of surveillances." Defendant did not testify or call any witnesses. Detective Torrey testified that on October 23, 2008, he received information "from a concerned citizen" that defendant "was storing drugs at his sister's house, Deanna Ciccia, who resided . . . in Chesterfield, New Jersey." Torrey testified that he knew the citizen's identity, but the individual wished to remain anonymous. According to Torrey, the information provided was based on "indirect" rather than "direct" knowledge, the citizen was not "involved in criminal activity" or "working off charges," and was not "a paid informant." Torrey also testified that the citizen gave him Deanna's cellular telephone number.

The following day, Torrey met with other officers in his unit to discuss the information he received. Torrey then checked the Motor Vehicle Commission records to confirm Deanna's address, and the officers were able to view the Motor Vehicle Commission's photographs of both defendant and his sister. To further investigate the matter, Torrey planned to drive to Deanna's residence to "relay the information to her and then ask her for her consent to search the premises." Other officers were to accompany Torrey to conduct surveillance and assist in the search if Deanna consented.

At approximately 3:30 p.m. on October 24, 2008, Torrey arrived at Deanna's apartment complex and witnessed Deanna enter her vehicle and depart. Members of the unit attempted to follow Deanna, but they lost sight of her and returned to the apartment complex to conduct surveillance.

After waiting for "about 45 minutes or so," without anyone entering or exiting Deanna's apartment, Torrey "made a decision to call her on the cell phone number" he had been given. Torrey placed the call at approximately 4:15 p.m., and informed Deanna "that her brother was possibly storing drugs in her residence." Torrey asked her if she would consent to a search of the residence, and she responded that she would when she returned home at 6:00 p.m. Torrey agreed to meet her at that time, but did not advise her of his location.

Following the telephone conversation, Torrey and the other officers waited "to see if anybody would come . . . [to remove] drugs or contraband" from Deanna's apartment. About twenty minutes later, defendant arrived at Deanna's residence driving a black Mercury Mariner. Defendant parked across the street from the apartment complex, and Torrey watched him open the door to his sister's apartment with a key. Although defendant entered the apartment empty-handed, Torrey observed him exit about three minutes later with a pink "five-gallon type bag." Defendant walked to his vehicle and began to drive away. At that point, Torrey instructed Sergeant Stopko to stop defendant's vehicle because Torrey believed that defendant had just removed contraband or drugs from his sister's residence.

After defendant's vehicle was stopped, Torrey approached the vehicle and saw "the pink bag" on the front passenger side of defendant's car in plain view. Torrey said he was conducting a narcotics investigation and he asked defendant for permission to search the vehicle. When defendant refused to consent, he was handcuffed and placed in the back seat of Sergeant Stopko's vehicle at "about five o'clock." Defendant was told "he was being detained for investigative purposes."

Torrey then contacted the Mercer County Prosecutor's Office to request a drug-sniffing dog before returning to his office to prepare an affidavit for search warrants for defendant's vehicle and person. About fifteen minutes later, Detective Angarone, the dog handler, arrived on the scene. After the dog performed a five minute "sniff test," Angarone called Torrey and informed him that the dog had a positive reaction at "the front passenger door."

Torrey completed his affidavit and arranged to meet the on-call judge at a local police station at 7:30 p.m. However, the judge failed to appear, and there was no answer when Torrey telephoned the number the judge had given him. The Burlington County Sheriff's Department also made several unsuccessful attempts to contact the judge. More than three hours later, at 10:21 p.m., both search warrants were signed by a different judge. Torrey then telephoned Sergeant Stopko and informed him that he could begin the search of defendant and his vehicle. Consequently, defendant remained in police custody for more than five hours prior to the search.

The officers found "an amount of steroids as well as two nine millimeter Smith and Wesson handguns and a couple of magazines" in the pink plastic bag located in the front passenger seat. A digital scale, which tested positive for cocaine residue, was also recovered from the vehicle. No evidence was found on defendant's body. Defendant was then placed under arrest.

Defendant moved to suppress the evidence by challenging the "predicate for the stop" and "the duration of the delay." Defense counsel conceded that the positive reaction by the drug-sniffing dog provided sufficient probable cause for both search warrants. The trial court denied defendant's motion, finding that the police had reasonable suspicion to conduct an investigatory stop of defendant, and that the subsequent delay in obtaining the search warrants was not attributable to any misconduct or fault of the officers.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

A. THE STOP OF DEFENDANT'S VEHICLE WAS ILLEGAL AND IT TAINTED EVERYTHING THAT FOLLOWED, REQUIRING SUPPRESSION OF THE EVIDENCE.

B. DEFENDANT'S DETENTION CONSTITUTED AN ILLEGAL DE FACTO ARREST WITHOUT PROBABLE CAUSE, AND IT TAINTED EVERYTHING THAT FOLLOWED, REQUIRING SUPPRESSION OF THE EVIDENCE.

C. THE SEARCH WARRANTS WERE ISSUED WITHOUT PROBABLE CAUSE, REQUIRING SUPPRESSION OF THE EVIDENCE; THE ISSUE SHOULD BE REACHED, ALTHOUGH NOT RAISED BELOW, ON THE GROUND OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

We conclude from our examination of the record and applicable law that the motion judge's factual findings are supported by sufficient credible evidence and that the matter was correctly decided. We add the following comments.

"'[A]n appellate court reviewing a motion to suppress must 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010).

Defendant first argues that he was subjected to an unlawful Terry1 stop. We agree with the trial court that Torrey had reasonable suspicion to stop defendant's vehicle.

"A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual had 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). The officer "must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906).

The concerned citizen's tip, which was based on indirect knowledge, did not independently establish reasonable suspicion. See State v. Caldwell, 158 N.J. 452, 460 (1999) (stating that "basis of knowledge" is an important factor in assessing the weight of a tip); State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002) ("[A]n unverified and uncorroborated informant's tip does not by itself justify a Terry stop."). Instead, the tip is considered under the totality of circumstances. Stovall, supra, 170 N.J. at 361-62.

Here, in addition to the concerned citizen's tip, Torrey had observed defendant arrive at his sister's residence shortly after Torrey had spoken with her, and Torrey further observed defendant exit the apartment with a large plastic bag. Under these circumstances, we are satisfied that the collective information known to Torrey, together with his experience in drug investigations and surveillance operations, established reasonable suspicion for a Terry stop. See State v. Arthur, 149 N.J. 1, 8 (1997) ("When determining if the officer's actions were reasonable, consideration must be given 'to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'") (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).

Defendant next argues that he was subjected to a de facto arrest without probable cause when the officers handcuffed him and placed him in the back seat of Sergeant Stopko s patrol car. According to defendant, the evidence seized from his vehicle must be suppressed as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Defendant's argument is unpersuasive because even if an illegal arrest occurred, the evidence was seized independent of defendant's detention and suppression is not warranted. See State v. Holland, 176 N.J. 344, 354 (2003) (stating that "'evidence that has been discovered by means wholly independent of any constitutional violation'" is nonetheless admissible) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508, 81 L. Ed. 2d 377, 387 (1984)).

In the present matter, Torrey had a justifiable basis to request a drug-sniffing dog because there was reasonable suspicion to believe that defendant had removed contraband from the apartment and was transporting it in his vehicle. See State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992) (stating that only "reasonable suspicion [is] needed to justify the unintrusive use of dogs to sniff . . . for narcotics"), certif. denied, 134 N.J. 484 (1993).

Furthermore, in his affidavit in support of the search warrants, Torrey outlined the dog's positive reaction, as well as the concerned citizen's tip, his telephone conversation with Deanna, the timing of defendant's arrival at his sister's apartment, and defendant's removal of a large plastic bag from the apartment. We agree that these facts established probable cause for the issuance of both search warrants. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S. Ct. 834, 838, 160 L. Ed. 2d 842, 847 (2005) (affirming the trial court's determination that a dog's positive reaction "establish[ed] probable cause to conduct a full-blown search of the [vehicle's] trunk"); Cancel, supra, 256 N.J. Super. at 433 ("We agree that the dog's positive reaction to defendant's suitcase and the discrepancy between her name and the name on her ticket gave the police probable cause to . . . obtain a warrant to search the suitcase.").

In his final point, defendant argues that trial counsel was ineffective for conceding that the dog's positive reaction provided probable cause for the search warrants. However, trial counsel was not ineffective for failing to make an argument that we now find to be without merit. See State v. Goodwin, 173 N.J. 583, 600 (2002) (finding that because "the police had probable cause to arrest defendant, [there was] no merit in defendant's claim that trial counsel should have filed a motion to suppress the evidence").

A

1 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)).