STATE OF NEW JERSEY v. NELSON M. PENA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELSON M. PENA,

Defendant-Appellant.

_______________________________

December 12, 2013

Before Judges Sapp-Peterson and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-03-0345.

Whitney Elliott, attorney for appellant.

GraceH. Park,Acting Union County Prosecutor, attorney for respondent (Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Nelson M. Pena was charged with third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3). Following the denial of his motion to suppress, he pleaded guilty to the amended charge of third-degree conspiracy to possess cocaine, N.J.S.A. 2C:5-2(c) and 2C:35-10(a)(1), for which a three-year probationary sentence was imposed. On appeal, defendant maintains suppression should have been granted, arguing:

POINT I.

BECAUSE DETECTIVE ALSTON SEIZED PATILLO WITHOUT REASONABLE SUSPICION, THE COCAINE DISCOVERED AS A RESULT OF THAT SEIZURE SHOULD BE SUPPRESSED (PARTIALLY RAISED BELOW).

POINT II.

WHEN DETECTIVE ALSTON ASKED PATILLO IF HE POSSESSED ANYTHING ILLEGAL, THAT QUESTION AMOUNTED TO A REQUEST FOR CONSENT TO SEARCH PATILLO, BEFORE WHICH DETECTIVE ALSTON DID NOT ADVISE PATILLO OF HIS RIGHT TO REFUSE CONSENT; THE COURT SHOULD THUS REVERSE THE TRIAL COURT'S DENIAL OF MR. PENA'S MOTION TO SUPPRESS (PARTIALLY RAISED BELOW).

In his reply brief, defendant raises similar arguments, stating:

POINT I.

UNDER THE NEW JERSEY CONSTITUTION, DEFENDANT HAS STANDING TO CHALLENGE THE LEGALITY OF THE STOP OF PATILLO, AND HAS SUBSTANTIVE RIGHTS WITH RESPECT TO THE SEIZED COCAINE.

POINT II.

DETECTIVE ALSTON LACKED REASONABLE SUSPICION TO SUBJECT PATILLO TO A TERRY-STOP.

POINT III.

DETECTIVE ALSTON EFFECTIVELY SUBJECTED PATILLO TO A CONSENT SEARCH WITHOUT FIRST ADVISING PATILLO OF HIS RIGHT TO REFUSE CONSENT.

Following our consideration of these arguments, in light of the record and applicable law, we affirm.

During the suppression hearing, Plainfield Police Department narcotics detective Troy Alston was the State's sole witness. On October 28, 2010, Detective Alston and four other Plainfield police officers were working an undercover detail on Madison Avenue, an area he characterized as "a high crime, high narcotic area." Detective Alston saw an older Hispanic male pacing, looking up and down Madison Avenue, as he spoke on his cell phone. Detective Alston entered his unmarked police vehicle and continued to watch the man, later identified as Ronald Patillo. Detective Alston next saw a black Acura stop, allowing Patillo to enter the vehicle. Already seated in the Acura were two men, defendant, who was driving, and his co-defendant Jhonner Pena. Detective Alston observed Pena "turn his body . . . slightly" and reach his right hand toward Patillo, who sat in the rear. However, Detective Alston did not see exchange of an object. When Pena turned back to face the front of the vehicle, Patillo exited and the Acura pulled away. The encounter took "five to ten seconds."

Based on his training, education, and twelve years' experience as a narcotics detective, Detective Alston believed "a drug deal had just gone down." He ran toward Patillo, displaying his badge and identifying himself as a police officer. Patillo stopped and Detective Alston noticed Patillo was "very nervous." He asked him who was in the Acura, and Patillo ultimately responded "friends." Detective Alston asked their names, which Patillo admitted he did not know. When Detective Alston asked Patillo whether he "ha[d] anything illegal on him." Patillo looked at his shirt pocket and said "I possibly have something illegal on me." Detective Alston "looked in his pocket and saw a clear knot and retrieved . . . [what] appeared to be cocaine or crack."

Detective Alston arrested and Mirandized1 Patillo. He then asked Patillo how he obtained the drugs and Patillo told him he purchased the drugs from the men in the Acura. Detective Black, an officer working with Detective Alston, informed Detective Alston that he had stopped the Acura and arrested defendant and his co-defendant.

Defendant filed a motion to suppress, arguing Detective Alston's observations were insufficient to provide a suspicion of criminal activity necessary to justify the investigatory stop of Patillo. The judge disagreed and denied defendant's motion. Defendant then pled guilty to the amended third-degree charge and filed this appeal.

As a general rule, people "are free to go on their way without interference from the government. That is, after all, the essence of the Fourth Amendment the police may not randomly stop and detain persons without particularized suspicion." State v. Shaw, 213 N.J. 398, 409-10 (2012) (citing Terry v. Ohio, 392 U.S. 1, 9, 27, 88 S. Ct. 1868, 1873, 1883, 20 L. Ed. 2d 889, 898-99, 909 (1968)). An investigatory police stop must be "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. Pineiro, 181 N.J. 13, 20 (2004) (citations omitted).

Defendant argues the police lacked reasonable suspicion to stop Patillo and therefore, the warrantless seizure of narcotics from his pocket must be suppressed. We are not persuaded.

In our review of a motion to suppress, 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, we "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161). Nevertheless, we need not defer or be bound by the trial court's legal conclusions. State v. Gandhi, 201 N.J. 161, 176 (2010) (citation omitted). In short, "on appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)).

An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. 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.

[State v. Rodriguez, 172 N.J. 117, 127 (2002) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

"A police 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. 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906). Specific and articulable facts are more than a police officer's "'inchoate and unparticularized suspicion or 'hunch[.]'" State v. Privott, 203 N.J. 16, 29 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 900). However, "[n]o mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity." Davis, supra, 104 N.J. at 505. In such an evaluation, we afford "weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). We also note, "[t]he fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).

Here, we agree Detective Alston's command to Patillo constituted an investigatory stop. See State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) ("It is undisputed that defendant was subject to [an investigatory stop] when [the officer] ordered him to stop . . . ."), certif. denied, 201 N.J. 440 (2010). Understanding that, the judge credited Detective Alston's testimony on key points, which he found demonstrated that Detective Alston possessed the requisite reasonable and articulable suspicion to conduct the investigatory stop. These facts included: the officer's observation of Patillo pacing and looking up and down Madison Avenue, an area known for criminal and narcotics activity, while talking on his cell phone; Patillo's entry into the Acura for a mere fifteen seconds; co-defendant's gestures of turning in his seat and extending his right hand toward Patillo as if to hand him something; and Patillo's swift exit from the vehicle after this encounter occurred.

Further, Patillo's subsequent conduct added to the body of articulable facts, supporting Detective Alston's reasonable suspicion. Patillo appeared nervous when approached by the officer, despite referring to the men in the Acura as his friends, when asked their names he admitted he did not know their names, and glanced at his pocket when asked if he had anything illegal. Although we consider the fact that Detective Alston did not actually view a hand-to-hand drug transaction, when weighed against the totality of other facts, that alone is insufficient to reject the trial court's findings as unsupported. As such, we cannot agree with defendant's suggestion that the stop was based on nothing more than a hunch. See Arthur, supra, 149 N.J. at 8 (holding mere hunch insufficient to uphold propriety of investigatory stop).

Following our review, we determine the facts and the reasonable inferences drawn from them, when considered in light of Detective Alston's considerable experience and training, support the judge's legal conclusion that a reasonable and articulable suspicion of unlawful conduct occurred to justify the investigatory stop.

Once stopped, Patillo as much as admitted he possessed contraband. He looked toward his pocket and suggesting he may possess something illegal. The right to arrest him was present when Detective Alston saw the baggie, which contained cocaine. Once arrested, Patillo stated he obtained the drugs from defendant and his co-defendant, supporting their subsequent arrest. See State v. O'Neal, 190 N.J. 601, 614 (2007) ("As long as the right to arrest pre-existed the search, and the 'arrest is valid independently of, and is not made to depend on, the search or its result,' the search will not be invalidated 'simply because in precise point of time the arrest does not precede the search.'") (quoting State v. Doyle, 42 N.J. 334, 343 (1964))).

We conclude the motion to suppress the cocaine seized from Patillo was properly denied. Defendant's conviction will not be disturbed.

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