STATEOF NEW JERSEY v. RYAN H. GABOFF

NOT FOR PUBLICATION WITHOUT THE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-1727-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RYAN H. GABOFF,

     Defendant-Appellant.
____________________________

              Submitted February 13, 2018 – Decided February 28, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              15-11-1341.

              Helmer, Conley, & Kasselman, PA, attorneys for
              appellant (Patricia B. Quelch, of counsel and
              on the briefs).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Patrick F. Galdieri,
              II, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM
       After pleading guilty, defendant appeals from his conviction

for third-degree possession of a controlled dangerous substance

(CDS), 
N.J.S.A. 2C:35-10(a)(1).                We affirm.

       On appeal, defendant argues:

               THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
               MOTION TO SUPPRESS.

       "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.       Applying these standards, we see no error.

       Defendant       concedes     that    the    traffic     stop    was   lawful.

According to defendant, the officer should have issued a ticket

for speeding and use of a cell phone.                    After that, defendant

submits the officer should have permitted him to leave the scene

of    the    traffic    stop.       Defendant      maintains    that   the   officer

prolonged the investigatory stop, which he contends transformed

it into an illegal detention.


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      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

referred   to   as     a   Terry1    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. Rodriguez, 
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) (alteration in original) (quoting State v. Stovall, 
170 N.J. 346, 356 (2002)).       The officer's "articulable reasons" or

"particularized      suspicion"     must   be    based   on   the   officer's

assessment of the totality of the circumstances.              State v. Davis,


104 N.J. 490, 504 (1986).

      In addition to the unsafe driving, delay in pulling over, and

the inability to identify from where defendant had been coming,

the officer, who the judge found credible, observed immediately



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

                                      3                               A-1727-16T4
that defendant's hands were shaking, and that he had pinpoint

pupils and a dry mouth.         The pinpoint pupils and dry mouth led the

officer to believe, based on his extensive training and experience,

defendant had been using narcotics.            After defendant exited his

vehicle, he appeared nervous, provided a nonsensical explanation

for   why   his   pants    pocket     had   been   turned    inside     out,   and

spontaneously stated that he had not changed his contact lenses

recently.    The officer confirmed his suspicion that defendant was

under the influence of narcotics by shining a light in defendant's

eyes and observing his pupils stayed pinpoint and motionless.

      An investigative stop may become "a de facto arrest when 'the

officers'    conduct      is   more   intrusive    than     necessary    for     an

investigative stop.'"          State v. Dickey, 
152 N.J. 468, 478 (1998)

(quoting United States v. Jones, 
759 F.2d 633, 636 (8th Cir.

1985)).     Although there is no bright-line test to determine when

an investigative stop becomes a de facto arrest, courts have

identified several considerations relevant to the determination,

including, most significantly, the temporal duration of the stop.

An important concern in this regard "is whether the officer used

the least intrusive investigative techniques reasonably available

to verify or dispel his suspicion in the shortest period of time

reasonably possible."          Davis, 
104 N.J. at 504.        "Another factor

is the degree of fear and humiliation that the police conduct

                                        4                                 A-1727-16T4
engenders."      Dickey, 
152 N.J. at 479 (quoting United States v.

Bloomfield, 
40 F.3d 910, 917 (8th Cir. 1994)).

      Here, the officer pursued his suspicions diligently under the

totality of the circumstances.            After defendant withheld consent

to   search   his    vehicle,     the    officer   called   a   sergeant    with

experience as a drug recognition expert to the scene. The sergeant

arrived approximately seventeen minutes later because he was not

immediately available.

      The sergeant determined that defendant exhibited signs of

being under the influence and that narcotics were in the vehicle.

The officer then conducted field sobriety tests.                   Five minutes

later, he requested a canine unit, which arrived approximately

fifteen minutes later.       It took four minutes for the canine sniff.

In all, it took approximately one hour and ten minutes from the

time of the stop to the completion of the canine sniff.

      Following     the   stop,    the    police    impounded   the    vehicle,

obtained a search warrant, and then recovered the oxycodone pills

during the search.        At his plea hearing, defendant testified that

he understood the pills were in his vehicle and he did not have a

prescription for them.       The judge imposed a probationary sentence.

      There is no indication that defendant was subjected to any

unnecessary delay or was detained any longer than required.                  The

officer   used      the   least    intrusive       investigative     techniques

                                         5                              A-1727-16T4
reasonably available to verify or dispel his suspicion, and he did

so in a short timeframe.      Consequently, we conclude there was no

de facto arrest, and that the judge correctly denied defendant's

motion to suppress.

     We   conclude    that   defendant's   remaining   arguments   lack

sufficient merit to warrant discussion in a written opinion.          R.

2:11-3(e)(2).

     Affirmed.




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