STATE OF NEW JERSEY v. JORDAN T. WEBER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5822-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORDAN T. WEBER,

Defendant-Appellant.

_____________________________________

May 14, 2012

Submitted October 25, 2011 - Decided

Before Judges Simonelli and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-04-0298.

Joseph E. Krakora, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Jordan T. Weber entered an open guilty plea to third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (count one), and third-degree possession of CDS (oxycodone), N.J.S.A. 2C:35-10a(1) (count two). The trial judge sentenced defendant to two years probation and 354 days incarceration in the Somerset County Correctional Center, which was suspended pending successful completion of probation.

On appeal, defendant raises the following contentions for our consideration.

POINT I - THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE CONDUCTED AN INVESTIGATORY STOP WITHOUT SPECIFIC AND ARTICULABLE FACTS TO GIVE RISE TO A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AND THE EVIDENCE OBTAINED AS A RESULT WAS FRUIT OF THE ILLEGAL STOP.

1. The police subjected the Defendant to an investigatory stop.

2. The police did not have specific and articulable facts that gave rise to a reasonable suspicion of criminal activity.

3. The Defendant's confession and the illegal drugs were obtained as the result of the illegal stop.

POINT II - THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO EXCLUDE THE DEFENDANT'S CONFESSION AND THE ILLEGAL DRUGS BECAUSE BOTH WERE ELICITED IN RESPONSE TO A CUSTODIAL INTERROGATION PRIOR TO WHICH THE POLICE FAILED TO READ THE DEFENDANT HIS MIRANDA RIGHTS.

Having considered defendant's arguments in light of the applicable legal principles, we affirm.

The record reveals the following facts. In May 2008, the Branchburg Police Department received at least five complaints from residents living in a condominium complex that drug trafficking was occurring there in the unit where a person known as Joseph Mino lived with his mother. The complaints included heavy foot traffic at all hours by young people entering and leaving Mino's residence and staying only a short time, and a strong smell of burning marijuana emanating from Mino's unit. As a result, the police began surveillance and confirmed the accuracy of the citizens' complaints. As the police determined that the pattern of young people frequently visiting Mino's unit for a very brief period was consistent with illegal drug activity, they referred the matter to the Somerset County Prosecutor's Office Narcotics Task Force Unit.

In February 2009, after a reliable confidential informant told the local police that Mino was selling drugs from his residence, a detective in the Somerset County Narcotics Unit arranged for another confidential reliable informant to make a controlled buy of heroin. After the buy, the informant reported seeing a firearm and marijuana plants growing in Mino's residence. Based upon this information, on March 5, 2009, the detective obtained a no-knock warrant to search the premises.

On March 6, 2009, members of the Narcotics Unit, armed with the search warrant, were watching the condominium complex to determine whether any sales activity was taking place. From their surveillance location, the police could only view a breezeway in the complex that served as an entrance to Mino's and several other residents' units. A green Ford pulled in front of the complex, and two young men exited the car, went through the breezeway toward Mino's residence, returned to their car in less than five minutes, and drove away. An officer contacted his supervisor, Detective Shearer, via police radio, described the men and the car, and requested that the vehicle be stopped for an investigation.

After stopping the subject Ford, Investigator Gelardi of the Somerville Police Department and Detective Shearer approached the car and obtained the identification of the four occupants. Shearer recognized defendant's name from a previous contact and noticed that defendant matched the description of one of the men who had briefly entered Mino's building. The officers took defendant aside and told him that they knew Mino was selling drugs and had seen defendant go in and out of Mino's residence. One officer asked defendant if he had anything on him that he should not have. Defendant sighed, mentioned that his brother had died that week, then reached into his pocket, pulled out a pouch containing ten bags of heroin and two oxycodone tablets, and handed it to Investigator Gelardi. The entire conversation lasted about thirty seconds.

The police arrested defendant immediately and brought him to the police station, where he was given Miranda1 warnings. After waiving his Miranda rights orally and in writing, defendant gave a statement admitting to buying heroin from Mino and having oxycodone in his possession.

In his motion to suppress the evidence, defendant argued that the seizure of the drugs was illegal due to the unconstitutionality of both the stop of defendant's car and the subsequent questioning. Judge John Pursel denied the motion, finding that, based upon the totality of circumstances, the police had a particularized reasonable suspicion to stop the vehicle, have defendant exit the car and speak to him. The judge observed that the residents' complaints, the police surveillance, the confirmed high volume of foot traffic, and the controlled buy furnished the police with probable cause to believe Mino was selling drugs. Thus, the police's reasonable belief as to Mino's drug selling combined with police observation that defendant acted in conformity with the behavior of previously-observed youthful visitors to the complex led the police to suspect that defendant had just purchased drugs from Mino. On this basis, the judge determined that the police had a reasonable suspicion that defendant had engaged in criminal activity and thus they made a valid investigatory stop.

Additionally, Judge Pursel rejected defendant's claim that the evidence should be suppressed because the police questioned him without giving him Miranda warnings. The judge pointed out that a brief investigatory stop where a person is not in custody does not require Miranda warnings. The judge concluded that defendant had not been in custody and had not been subjected to custodial interrogation warranting Miranda warnings.

Our review of a trial judge's decision on a suppression motion is deferential. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "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.Elders, 192 N.J. 224, 243 (2007). On the other hand, as appellate review of the trial court's legal conclusion is plenary, we need not defer to the trial court's decisions when a question of law is at stake. State v.Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Even a brief limited detention of a person, such as during an automobile stop, is a seizure within the meaning of this provision. Whren v. UnitedStates, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)).

However, police may make an investigatory stop if it is based upon "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) (citation and internal quotation marks omitted). The permissible length of the stop and the extent of the inquiry depend upon whether, "based on the totality of the circumstances, the officer has a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906; see also Statev. Davis, 104 N.J. 490, 504 (1986)). This determination requires "a sensitive appraisal of the circumstances in each case." State v.Pineiro, 181 N.J. 13, 27 (2004).

Applying these principles to the facts in this case, we are satisfied that Judge Pursel's finding that the police had sufficient grounds to make an investigatory stop is supported by sufficient credible evidence in the record. We agree with Judge Pursel that several specific factors, including the citizens' complaints, the observations during police surveillance, the controlled buy of heroin and the youthful defendant's brief visit to the complex led the police to the reasonable suspicion that defendant had just purchased drugs from Mino. While "defendant's actions might have some speculative innocent explanation, they are also reasonably consistent with illegal activity" so as to give the officer reasonable suspicion to conduct an investigatory stop. State v.Citarella, 154 N.J. 272, 280-81 (1998) (internal quotation omitted). Thus, the police were justified in making a brief stop to inquire in order to confirm or allay their suspicion.

Further, we find unpersuasive defendant's additional contention that the evidence must be suppressed because defendant was in police custody when he was questioned without receiving Miranda warnings. Absent such warnings, statements made by a defendant during custodial interrogation generally may not be used against him. State v. O'Neill, 193 N.J. 148, 168 (2006). Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. The right to be given Miranda warnings, however, is not implicated "'when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation.'" State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (quoting State v. Pierson, 223 N.J.Super. 62, 66 (App. Div. 1988)), certif. denied, 153 N.J. 216 (1998). During an investigatory stop a police officer may make non-threatening, non-coercive inquiry to establish identity and resolve suspicion. Berkemer v. McCarty, 468 U.S. 420, 439-440, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-335 (1984).

New Jersey applies a totality of the circumstances test to determine whether a detainee is in custody. Pierson, supra, 223 N.J. Super. at 67. It is an objective test that examines "the duration of the detention, the nature and degree of the pressure applied to detain the individual, the physical surroundings of the questioning and the language used by the officer in summoning the individual." Ibid. (citing UnitedStates v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981); State v. Godfrey, 131 N.J. Super. 168, 175-77 (App. Div. 1974), aff'd, 67 N.J. 267 (1975)). However, when an investigative stop is "'more intrusive than necessary,'" a "de facto" arrest occurs. State v.Dickey, 152 N.J. 468, 478-79 (1998) (quoting UnitedState 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)).

Judge Pursel found that, given the brief detention and short, non-threatening conversation between the police and defendant before he voluntarily turned over the drugs, the investigatory stop was not more intrusive than necessary and did not become a de facto arrest. We are satisfied that the record contains sufficient evidence to support the judge's finding. Thus, as defendant was not in custody, he was not entitled to receive Miranda warnings prior to the police speaking to him.

Accordingly, we discern no reason to disturb the trial court's findings. We agree that under the totality of the circumstances the police had a well-grounded, reasonable, articulable suspicion to justify both the investigatory stop and the brief inquiry that occurred here.

A

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