STATE OF NEW JERSEY v. DEIDRE DAVIS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0378-17T2

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

DEIDRE DAVIS,

     Defendant-Respondent.
_______________________________

              Submitted January 17, 2018 – Decided February 14, 2018

              Before Judges Fuentes, Manahan, and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 16-
              06-1223.

              Joseph D. Coronato, Ocean County Prosecutor,
              attorney for appellant (Samuel Marzarella,
              Chief Appellate Attorney, on the brief).

              Joseph E. Krakora, Public Defender, attorney
              for respondent (Rebecca Gindi, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

PER CURIAM

        Following leave to appeal, the State appeals from a June 28,

2017 order that granted a motion by defendant Deidre Davis to
suppress evidence.     We reverse the suppression order and remand

to the trial court for proceedings consistent with our decision.

     In June 2016, defendant1 was indicted in Ocean County on three

counts   of    third-degree     possession     of    controlled     dangerous

substances    that   included   heroin,   oxycodone,         and   alprazolam,


N.J.S.A. 2C:35-10(a)(1) (Counts One, Four and Six); three counts

of   third-degree    possession    with      the    intent    to    distribute

controlled dangerous substances, 
N.J.S.A. 2C:35-5(b)(3) (Counts

Two, Five and Seven); and one count of third-degree distribution

of a controlled dangerous substance (heroin), 
N.J.S.A. 2C:35-

5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3) (Count Three).

      Defendant's motion to suppress evidence was granted on June

28, 2017.     The State contends the trial court erred because the

evidence was seized based on a valid search that followed from an

investigatory stop based on reasonable, articulable suspicion.                We

gather the following facts from the record developed at the

suppression motion.

     At about 2:30 a.m. on February 27, 2016, Officer Scott Keefe

of the Lacey Township Police Department was in his patrol vehicle

when he received a radio transmission from the police dispatcher



1
   Two other co-defendants were charged in the nine-count
indictment. The co-defendants are not parties to this appeal.

                                     2                                 A-0378-17T2
that there was a "possible drug transaction taking place" in the

female bathroom of the Wawa near Taylor Lane.            The Wawa store

manager had called the police to report she saw a Caucasian woman

hand money to an African American woman in the female bathroom of

the Wawa, and then both women exited the bathroom.        The Caucasian

woman then approached a Caucasian male and left the Wawa with him,

walking south on Route 9.        The manager saw the African American

woman get into a vehicle that had two other occupants, a woman and

a man, both African American.       She provided a description of the

vehicle and the license plate number.

        Officer Keefe was patrolling on Route 9 southbound when he

received the call from the dispatcher.         He went directly to the

Wawa and arrived "pretty quick."        The Wawa was on Route 9 adjacent

to Taylor Lane.    As Keefe drove through the intersection of Route

9 and Taylor Lane, he observed a vehicle, matching the provided

description, stopped at the light.         Keefe also observed that the

three occupants of the vehicle were "two black females and one

black   male".   Given   these   observations,   Keefe   positioned   his

vehicle behind the suspect vehicle and confirmed that it matched

the description and the license plate given by the dispatcher.

The vehicle made a left turn, proceeding north on Route 9.        Keefe




                                    3                           A-0378-17T2
activated   his    lights    and   when       the    vehicle   did   not   stop,   he

activated his siren.        The vehicle eventually came to a stop.

     The defendant was driving. Upon approaching the vehicle,

Keefe   identified     himself     and    asked        for   defendant's    vehicle

credentials.      Keefe advised defendant that police received a "call

that a drug transaction had possibly taken place between possibly

[defendant] and another white female."

        Subsequent to the arrival of other officers, Officer Michael

Verwey spoke with the other passengers.                The male passenger in the

backseat, later identified as Kevin Mack, initially provided false

information about his identity.               While speaking to Mack, Verwey

"smelled the odor of marijuana coming from inside the car where

he was seated."     Verwey then requested that Mack exit the vehicle.

After Mack exited the vehicle, Verwey observed a rolled-up dollar

bill with a white powdery substance on it laying on the back seat

where the male was sitting. The officer also smelled the odor of

marijuana coming from Mack.         Mack eventually provided his actual

identity and admitted he had outstanding warrants, that he had

smoked marijuana, and that he had marijuana under his genitalia.

Mack was arrested and searched.                     The search yielded a large

quantity of money, but defendant claimed it was hers.




                                          4                                 A-0378-17T2
       The officers conducted a search of the vehicle based on the

odor   of   marijuana,   Mack's   admitted   use   of   it,   and   Verwey's

observation of drug paraphernalia.       The search revealed a bottle

of unmarked pills in the center console as well as a bottle of

prescription labeled pills in defendant's name.          Upon examination

of that bottle, the officers noted that the pills contained therein

were two different types, including oxycodone.            The search also

revealed a quantity of cash on both Mack and defendant.             Defendant

was arrested.

       Meanwhile, two other officers stopped the Caucasian female

as she was walking south on Route 9.         She admitted that she had

purchased heroin from defendant.

       The trial judge granted defendant's motion to suppress.             The

court found the officer stopped defendant's vehicle based on the

tip from the Wawa manager who "merely witnessed an exchange of

United States currency, and nothing more."          The judge noted that

what the manager observed was "legal activity" and that there was

no evidence she had experienced a hand-to-hand transaction.                The

judge held that the police did not have a "specific and articulable

set of facts to rely upon to justify the motor vehicle stop"

because the officers were relying "solely on a report from a




                                    5                                 A-0378-17T2
concerned citizen . . . that two individuals exchanged cash in a

Wawa bathroom, left the store, and one entered a vehicle and left."

     The State timely moved for leave to appeal.                 Based on that

motion, the trial court issued an "Amplification of a Prior

Opinion" under Rule 2:5-1(b).           In the Amplification, the judge

took issue with the State's claim that the Wawa manager said the

two females "immediately left" the Wawa, noting there was no

testimony about how soon defendant exited the Wawa once she left

the bathroom.     The judge stated that "it [was] not unusual for

more than one person to be present in a bathroom at 2:30 a.m. in

a store that is open twenty-four hours per day." and that it was

"speculation" that the exchange of money was a "patron-to-patron

financial    transaction."        The   judge    noted   that    there    was    no

testimony this was a high crime neighborhood or that "bathrooms

were commonplace for drug transactions."            The judge concluded the

manager reported she only observed legal activity. Since neither

the manager nor the dispatcher testified, the judge did not find

the testimony by the State "was sufficiently credible."

     On     appeal,   the     State     raises    one    argument        for    our

consideration. The State argues that the investigatory stop of

defendant's    vehicle      was   validity      predicated      on   reasonable,




                                        6                                 A-0378-17T2
articulable suspicion that defendant had just engaged in criminal

activity. We agree.

                                         II

       "When reviewing a trial court's decision to grant or deny a

suppression motion, [we] 'must defer to the factual findings of

the    trial    court   so   long   as    those    findings    are   supported   by

sufficient evidence in the record.'"                State v. Dunbar, 
229 N.J.
 521, 538 (2017) (quoting State v. Hubbard, 
222 N.J. 249, 262

(2015)).       "We will set aside a trial court's findings of fact only

when    such    findings     'are   clearly      mistaken.'"     Ibid.   (quoting

Hubbard, 
222 N.J. at 262).           "We accord no deference, however, to

a trial court's interpretation of law, which we review de novo."

Ibid. (quoting State v. Hathaway, 
222 N.J. 453, 467 (2015)).

       Here, the facts are not disputed.                  Whether those facts

provided the police a reasonable, articulable basis to stop the

Davis vehicle, is legal determination, not a factual one, to which

we owe no deference.          We disagree with the trial court that this

was a constitutionally invalid investigative stop.

       Both the federal and State constitutions protect citizens

against unreasonable searches and seizures.                   U.S. Const. amend.

IV; N.J. Const. art. I, ¶ 7.                  An investigatory stop, sometimes




                                          7                               A-0378-17T2
referred    to   as   a   Terry2   stop,    implicates   constitutional

requirements and must be based on "specific and articulable facts

which, taken together with rational inferences from those facts"

provide a "reasonable suspicion of criminal activity."         State v.

Elders, 
192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 
172 N.J. 117, 126 (2002)).     "Because an investigative detention is a

temporary seizure that restricts a person's movement, it must be

based on an officer's 'reasonable and particularized suspicion

. . . that an individual has just engaged in, or was about to

engage in, criminal activity.'"         State v. Rosario, 
229 N.J. 263,

272 (2017) (quoting State v. Stovall, 
170 N.J. 346, 356 (2002)).

The officer's "articulable reasons" or "particularized suspicion"

is based on the officer's assessment of the totality of the

circumstances.    State v. Davis, 
104 N.J. 490, 504 (1986).

       Here, the stop was based on information relayed to the officer

by a tip from the Wawa manager, a citizen eyewitness.                "In

determining the reliability of a tip, a court must consider an

informant's 'veracity,' 'reliability,' and 'basis of knowledge.'"

Stovall, 
170 N.J. at 362 (quoting Alabama v. White, 
496 U.S. 325,

328-29 (1990)).       Where an ordinary citizen is the informant,

"courts assume that the informant has sufficient veracity and


2
    Terry v. Ohio, 
392 U.S. 1 (1968).

                                    8                           A-0378-17T2
require[s] no further demonstration of reliability." Ibid. "There

is an assumption grounded in common experience that such a person

is motivated by factors that are consistent with law enforcement

goals." Davis, 
104 N.J. at 506.            To determine the informant's

"basis of knowledge", "the nature and details revealed in the tip

may imply" that the knowledge of the criminal activity comes from

a "trustworthy source."      Stovall, 
170 N.J. at 362.

       This was not an anonymous tip; the manager gave her name and

location. She relayed specific information that a drug transaction

was in progress or had occurred.          It was 2:30 a.m.       The manager

described the women involved, that money was handed from one person

to another in the bathroom, that they both then left the bathroom

and departed the Wawa separately.         According to the manager, one

woman drove away in a vehicle with two others, a man and a woman.

The other woman was on foot with a male companion walking south

on Route 9.    The manager gave a description of the vehicle and its

license plate number.

       "In determining whether reasonable suspicion exists, a court

must   consider    'the   totality   of   the   circumstances-    the   whole

picture.'"    Id. at 361 (quoting United States v. Cortez, 
449 N.J.
 411 (1981)).      The reliability of the tip is part of the totality

of the circumstances analysis.        Id. at 361-62.


                                      9                              A-0378-17T2
       In State v. Amelio, 
197 N.J. 207 (2008), the defendant's

seventeen-year old daughter reported to the police that her father

was operating a vehicle while intoxicated.              The Court held that

the tip provided a "reasonable and articulable suspicion of an

offense to support a constitutional motor vehicle stop by the

police."       
197 N.J. at 209.         Although the Court said that "an

anonymous tip, standing alone, is rarely sufficient to establish

reasonable articulable suspicion of criminal activity," the tip

of a "known person" was not viewed in the same way.                  Amelio, 
197 N.J at 212 (quoting Rodriquez, 
172 N.J. at 127).

       In State v. Zapata, 
297 N.J. Super. 160, 174 (App. Div. 1997),

we   held   that   the   police   had    "an     articulable   and    reasonable

suspicion" for an investigatory stop based on their independent

corroboration of an anonymous tip to the police dispatcher that

"several male Hispanics were in a tan Chevy with New York license

plates that had been in Vinnie's Tavern parking lot. The anonymous

caller stated that these men had been distributing cocaine."                  The

tip further provided the license plate number of the van.                We held

that    "the     totality    of   the         circumstances    justified      the

investigatory stop" of the van.              Ibid.

       We are not persuaded that the factual scenario presented here

is apposite to State v. Maryland, 
167 N.J. 471 (2001), a case


                                        10                               A-0378-17T2
relied on by defendant, where the Court reversed the denial of a

suppression motion.    There, the basis for stopping the defendant

was an observation by the police that he shoved a brown paper bag

into his waistband.    The Court found the stop was based on a hunch

by the police with no other facts to transfer their hunch into a

suspicion.   
167 N.J. at 488.

      Nor are we persuaded by State v. Richards, 
351 N.J. Super.
 289 (App. Div. 2002), cited by the motion judge. In that case,

unlike here, the defendant was stopped based on an anonymous tip

that had no indicia of reliability.

      In the instant matter, there was a detailed description by

an   identified   citizen   who   suspected   that   a   drug   transaction

occurred.    This citizen-reporter provided a description of the

transaction, the physical description of the participants and

their movements after the transaction including specific details

of the vehicle in which one participant left the WaWa.

       Keefe corroborated the tip when he "quickly" arrived at the

scene and observed a vehicle matching the description and confirmed

the license plate.    Given the information provided to the police

and its corroboration, we conclude, as in Stovall and Zapata, the

officer would have been derelict not to investigate the report of

potential criminal activity.       We further conclude that the stop


                                    11                              A-0378-17T2
of   the     vehicle    was   reasonable    in    light    of   the   attendant

circumstances presented in that there was a reasonable articulable

suspicion by police of criminal activity which implicated the

vehicle.

      Further, whether what the store manager observed in the

bathroom of the WaWa at 2:30 a.m. was actually criminal activity

is not dispositive of the legality of the motor vehicle stop.                     To

be   sure,    police    routinely    receive     reports    from   citizens       of

potential criminal activity that, upon investigation, reveal that

no   criminal     activity    has   occurred.    Those     "negative"      results

however      do   not    abrogate     law      enforcement's       duty,     under

circumstances such as here, to investigate the reports.

       As such, we are constrained to reverse the June 28, 2017

order, holding that the police executed a constitutionally valid

investigatory stop of Davis' vehicle.            Predicated upon the judge's

holding that the stop of defendant's vehicle was not valid, the

judge made no determination relative to the constitutionality of

the subsequent warrantless search.             Therefore, we remand to the

Law Division for further proceedings on this issue.

      Reversed and remanded for proceedings consistent with this

decision.     We do not retain jurisdiction.




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