STATE OF NEW JERSEY v. WILLIAM E. CUSTIS

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM E. CUSTIS,

Defendant-Appellant.

_______________________________

April 23, 2014

Submitted February 12, 2014 - Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-12-2877.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant William E. Custis was convicted following entry of a guilty plea to the charge of second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b). Pursuant to the terms of a negotiated agreement, he reserved his right to appeal from an order denying his motion to suppress the weapon seized from his person at the time of arrest.1 Defendant maintained police lacked probable cause for the arrest, and therefore the search was unconstitutional. The trial judge, however, rejected this argument.

On appeal defendant asserts:

OFFICER AUGE'S GENERALIZED BELIEF THAT CUSTIS MAY HAVE BEEN INVOLVED IN A DRUG TRANSACTION WAS INSUFFICIENT TO SUPPORT A FINDING OF PROBABLE CAUSE TO ARREST.

We disagree and affirm.

These facts are taken from the evidence presented during the suppression hearing. Shortly after midnight on October 1, 2011, New Jersey State Trooper George Auge and his partner were conducting a "sneak-and-peek" operation, which presumably entailed surveillance, of Camden's "well-known drug sets."2 While driving to a desired location, the troopers observed Ricardo Bacon running across the Tamarack Apartments' parking lot, with money in his hand. Bacon was headed toward defendant and co-defendant Jazsmin Wiley, who were the only people "milling about" on the apartment complex's sidewalk. As Bacon approached, Wiley turned and walked toward him. Bacon handed Wiley currency and received a clear plastic bag containing a substance appearing to be illicit narcotics. During this exchange, defendant stood nearby and watched.

Believing they had observed a hand-to-hand narcotics transaction involving Bacon, Wiley, and defendant, the plain clothes troopers stopped, exited their vehicle, identified themselves and told the men to lie on the ground. Bacon and Wiley fled. Trooper Auge grabbed defendant's shirt, told him not to move and to put his hands on his head. Wiley's intended escape was thwarted when he was blocked by a dumpster. Trooper Auge continued to hold defendant by the shirt and "screamed[,]" to Wiley "stand, get on the ground." Wiley looked as if he was attempting to remove a weapon from his waistband. Both Trooper Auge and his partner drew their weapons and aimed at Wiley. Trooper Auge again yelled for Wiley to comply and noted he had a clear shot at his back. At that point, defendant "said don't shoot me, I have a gun." Trooper Auge's partner was able to apprehend Wiley. A search incident to co-defendant's arrest yielded a loaded Smith & Wesson nine-millimeter handgun and twenty-eight bags of suspected crack cocaine.

Trooper Auge then holstered his weapon and grabbed the loaded "government model 45-caliber handgun" from defendant's waistband. A later check revealed this weapon was stolen. Approximately ten minutes later, Bacon was apprehended.

Defendant was indicted for weapons offenses; he was not charged with drug distribution. Defendant moved to suppress the handgun seized during his arrest, arguing Trooper Auge did not have probable cause to arrest him, and the warrantless search was illegal. Following an evidentiary hearing, the trial judge denied defendant's motion.

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)).

We defer to those "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 State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, "[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 Johnson, 42 N.J. at 162). 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)). Finally, 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).

Defendant asserts he was not implicated in Wiley's drug sale as demonstrated by the fact he was never charged with that offense. He contends he was merely standing on the sidewalk thereby making his arrest unconstitutional. Because Trooper Auge acted on "a hunch" and the State's proofs were insufficient to support a finding of probable cause to seize him, defendant argues his Fourth Amendment rights were violated.

Under the Fourth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, along with Article 1, Paragraph 7 of the New Jersey Constitution, citizens have the right to remain free from unreasonable searches and seizures by the State. See Bailey v. United States, __ U.S. __, __, 133 S. Ct. 1031, 1037, 185 L. Ed. 2d 19, 28 (2013). Seizures are reasonable only if based on probable cause, which can only be upheld by applying traditional standards governing intrusions into a person's liberty. Id. at ___, 133 S. Ct. at 1042, 185 L. Ed 2d at 33. As our Court has often stated, probable cause to search an individual "is not susceptible of precise definition." State v. Moore, 181 N.J. 40, 45 (2004). Rather, it is "'a fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules.'" State v. Basil, 202 N.J. 570, 585 (2010) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 544 (1983)). Probable cause entails a "'practical, nontechnical conception' addressing 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Ibid. (quoting Gates, supra, 462 U.S. at 231, 103 S. Ct. at 2328, 76 L. Ed. 2d at 544 (citations and additional internal quotation marks omitted)).

Thus, courts must determine whether the State has met its burden in establishing that the warrantless search of an individual was justified by considering the totality of the circumstances test set forth in Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. Moore, supra, 181 N.J. at 46.

That test requires the court to make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The factors to be considered in applying that test include a police officer's common and specialized experience, and evidence concerning the high-crime reputation of an area. Although several factors considered in isolation may not be enough, cumulatively these pieces of information may become sufficient to demonstrate probable cause.

[Ibid. (internal citations and quotations omitted).]

"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 v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 899, 906 (1968)). 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, 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." State v. Davis, 104 N.J. 490, 505 (1986). 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).

Applying these concepts to "the totality of the circumstances" presented here, Basil, supra, 202 N.J. at 585, we reject defendant's contention. We conclude the record supports the facts found by the judge and show Trooper Auge did not act on a hunch, but on "a well grounded suspicion that a crime ha[d] been . . . committed" by defendant and Wiley. Ibid. (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)).

The troopers were canvassing a high crime area, notorious for open air drug sales. Their specific law enforcement assignment required patrolling for "well-known drug sets," and they had vast experience performing this function in this neighborhood. During the early morning hours, only Wiley and defendant stood together on the desolate street. Bacon stopped his car and ran across the parking lot with cash in his hand, as he headed toward Wiley and defendant. Trooper Auge testified he knew immediately there was going to be a drug deal. Defendant watched Bacon run across the street and stood a few feet from Wiley observing the exchange with Bacon. As Trooper Auge explained, based on his training and experience, when a party watches a drug transaction it is "not unusual if they're involved. It is unusual if they're not involved." Trooper Auge also explained the roles played by members of a drug set include "lookouts" and "muscle." Contrary to defendant's suggestion that he was just "standing near two men who appeared to be engaged in a drug transaction in a high-crime neighborhood[,]" he was actually with Wiley as Bacon approached to make his illicit narcotics purchase. Defendant was not a bystander "in close proximity to a drug deal." Rather, he was participating in the transaction. See State v. Rivera, 276 N.J. Super. 346, 352 (App. Div. 1994) ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.") (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed 2d, 238, 245 (1970)). In fact, defendant remained during and intently observed the entire narcotics exchange.

Taking the facts as found by the trial judge and applying the applicable law, we conclude the State proved Trooper Auge had an articulable suspicion and probable cause to believe defendant and Wiley were engaged in criminal activity, warranting defendant's detention. The totality of the objective facts and circumstances support Trooper Auge's articulable suspicion defendant accompanied Wiley to distribute drugs.

Having lawfully detained defendant, the seizure of the weapon defendant carried in his waistband was also lawful. Defendant's admission that he possessed a gun gave rise to the search and seizure of the weapon. Arthur, supra, 149 N.J. at 17 (stating a "defendant's explicit admission of drug possession gave the detective probable cause to search defendant's person"). See also, State v. Reininger, 430 N.J. Super. 517, 536 (App. Div. 2013), certif. denied, 216 N.J. 367 (2013) (stating when a defendant admitted to, and a police officer saw in plain view, a firearm in defendant's back seat, the police officer had probable cause to believe defendant possessed firearms in violation of the law).

We uphold the order denying defendant's suppression motion. Accordingly, we will not disturb his conviction.

Affirmed.

1 See R. 3:5-7(d) (permitting a defendant the right to appeal from a motion denial after conviction "notwithstanding that such judgment is entered following a plea of guilt.").

2 It is clear from Trooper Auge's hearing testimony the term "drug sets" referred to two individuals distributing narcotics, whereby one of the two acts as a lookout, muscle, or a director for potential buyers.