STATE OF NEW JERSEY v. ROBERT L. MERRITT

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT L. MERRITT, a/k/a

ROBERT LEVI MERRITT, ROBERT

MERRIT, RAMOND GREEN,

Defendant-Appellant.

_______________________________

September 10, 2014

Before Judges Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 12-02-00059.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert L. Merritt was charged with third-degree conspiracy to possess crack cocaine, N.J.S.A. 2C:35-10(a)(1). Following the denial of his motion to suppress, he pleaded guilty pursuant to a negotiated plea agreement, reserving his right to appeal the denial of his suppression motion. The judge imposed a two-year probationary sentence, conditioned upon serving 180 days in the Warren County Corrections Center, to run concurrent to a sentence imposed for a prior conviction in Pennsylvania. Defendant was also ordered to undergo substance abuse and mental health evaluations, and follow any recommended treatment. Finally, applicable fines and assessments were imposed and defendant's driving privileges were suspended for six months. On appeal, defendant maintains suppression should have been granted, arguing denial of his "motion to suppress evidence" was error. We disagree and affirm.

These facts are found in the motion record. On August 23, 2011, at approximately 9 p.m., Phillipsburg Police Department detectives James McDonald and Douglas Baylor were on routine patrol in the vicinity of a housing project, a known high crime and narcotics transaction area. The officers were familiar with defendant from prior non-drug related interactions, and knew he did not live in the complex or neighborhood. Detective McDonald testified he believed defendant was drug addicted.

The detectives observed defendant from their position located 150 feet away. Defendant walked up to a residence on Anderson Street. The detectives saw him speak to a man standing on the porch, known to them as Michael Gellick, with whom the detectives were familiar based upon previous reports that Gellick conducted narcotics activity from that address. Defendant exchanged objects with Gellick and then left.

Following the exchange, the police followed defendant and asked him to stop and speak to them. Defendant walked toward the rear of the police vehicle and Detective McDonald requested he move toward the front of the car. As defendant complied, although walking in "a circumventing route," Detective McDonald noticed defendant turned his back toward the police. He then saw defendant drop a shiny object toward the ground. Detective McDonald searched the area and found a plastic bag, which was "a $50 bag of crack cocaine." A search of defendant incident to arrest yielded no narcotics, paraphernalia or money.

The defense attacked Detective McDonald's credibility, showing he had been involved "with three bad searches; two that [were] not contested and one that is currently in the Appellate Division." The State distinguished the facts of each of these cases and noted none of them involved the claim here that the officer allegedly planted the drugs.

Defendant testified he was in the area looking for a cookout or a convenience store. He stopped at the Anderson Street residence to seek directions. He denied dropping drugs and claimed the area where he was stopped was littered with drug paraphernalia from a nearby methadone clinic.

Judge Ann R. Bartlett denied defendant's motion. She concluded the past cases evincing Detective McDonald's premature searches were not probative of his conduct in this matter. Evaluating the facts established, she concluded police engaged in a legal investigatory stop and his arrest occurred after defendant discarded the packet of crack cocaine. She found Detective McDonald properly retrieved the object defendant abandoned and arrested defendant because the detective suspected the discarded object was cocaine. Later testing confirmed this fact. She also found the police did not coerce defendant, did not tell him to surrender contraband, and did not even touch him. Further, she determined the only request Detective McDonald made was that defendant walk to the front of the police vehicle. Finally, under these circumstances, Judge Bartlett concluded the retrieval of the cocaine was lawful and its suppression was not warranted.

Defendant challenges the judge's determinations and argues the judge erred in denying his motion to suppress, urging that the facts presented did not give rise to a reasonable conclusion defendant engaged in criminal activity. We disagree.

In our review of an order granting or denying 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. . . . [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)). "[O]n 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)).

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 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 [or she] 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. at 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 909). 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, Judge Bartlett found the police asked defendant if he would speak to them after they observed his five-second interaction and exchange of objects with Gellick. Based on their knowledge, training and experience, the narcotics detectives reasonably believed they observed a hand-to-hand drug transaction. These facts were combined with their additional knowledge of the high crime area, noted particularly for illicit drug transactions; their familiarity with Gellick who, in the past was involved in selling drugs; and their knowledge defendant did not live in the housing project or its surrounding area. The totality of these particularized and objective facts, along with all reasonable inferences drawn from them, provided a well-grounded and reasonable suspicion defendant had just purchased drugs, justifying the stop. Rodriguez, supra, 172 N.J. at 126.

The evidence Judge Bartlett credited did not show defendant was ordered to stop. Rather, both officers asked if he would speak to them. As he walked toward the front of the police vehicle, defendant walked in an arc and dropped the baggie of crack. At that point he was arrested. We defer to the supported factual findings of the trial judge and conclude she properly denied suppression of the drug evidence.

Affirmed.