STATE OF NEW JERSEY v. RICHARD SMITH

NOT FOR PUBLICATION WITHOUT THE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-1795-16T3


STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

RICHARD SMITH,

     Defendant-Respondent.
______________________________

              Submitted November 27, 2017 – Decided January 29, 2018

              Before Judges Ostrer and Whipple.

              On appeal from an interlocutory order of
              Superior Court of New Jersey, Law Division,
              Camden County, Indictment No. 16-02-0485.

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for appellant (Lee Brownstein,
              Assistant Prosecutor, of counsel and on the
              brief).

              Megan J. Davies, attorney for respondent.

PER CURIAM

        The State appeals by leave granted from a November 18, 2016

order of the trial court granting defendant's motion to suppress

evidence.      We affirm.
                                     I.

     We discern the following facts from the record on appeal.                     In

May 2015, the Cherry Hill Police Department received a tip from a

confidential informant (CI) that a person was distributing large

quantities of cocaine in the area.             This CI had provided credible

information which led to arrests in the past.                   The CI reported

knowing the drug trafficker as "Jay" and described him as a

Hispanic male, approximately 5'7" and 180 pounds, with short dark

hair and a dark mustache.

     Using    this   description,        Cherry     Hill     Detective     Sergeant

Schuenemann and Detective Sergio Velazquez conducted searches of

social media and law enforcement databases and located Joshua

Sanchez.     The CI subsequently identified Sanchez as Jay in a

photograph.

     In    June   2015,   the   police       set   up   a   meeting   to   have    an

undercover officer purchase a half ounce of cocaine from Sanchez.

Schuenemann, acting as an undercover officer, confirmed the CI's

assertion that Jay was Sanchez, and successfully purchased a half

ounce of cocaine from him.          During this transaction, a second

Hispanic male, who was never identified to the police, was present

with Sanchez.

     Again, in August 2015, two more undercover drug purchases

transpired between Schuenemann and Sanchez in which Schuenemann

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purchased   multiple   ounces   of       cocaine.   At   one   of     these

transactions, a different unidentified Hispanic male was present.

     In October 2015, Schuenemann purchased two more ounces of

cocaine from Sanchez.      An unidentified black male was present

during this transaction.

     On November 24, 2015, the police obtained an arrest warrant

for Sanchez.   The police did not identify any of the individuals

present with Sanchez at the various undercover drug purchases.             At

approximately 7:20 p.m. on November 24, 2015, the police traveled

to meet Sanchez in a shopping mall parking lot for an undercover

drug purchase, set up for the purpose of apprehending him on the

warrant.

     Upon arriving, the police observed Sanchez's SUV circling,

and Sanchez and a black male, then unknown to the police but later

identified as defendant, exited the vehicle.        The police takedown

teams1 converged on the vehicle, and both males began to run but

were subsequently apprehended and placed under arrest.          Upon his

arrest, the police searched defendant and found him to be in

possession of approximately two ounces of cocaine.



1
   The testifying officer at the motion hearing did not witness
the takedown, and did not testify as to whether the takedown team
ordered the men to stop or whether the police clearly and
unambiguously identified themselves as law enforcement prior to
the takedown.

                                     3                              A-1795-16T3
       A Camden County Grand Jury returned an indictment against

defendant and Sanchez.        Defendant was indicted for third-degree

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

10(a)(1), and second-degree possession of a controlled dangerous

substance with intent to distribute, 
N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(2).

       Defendant    moved   to     suppress   the    cocaine    found   in   his

possession.        On   November    18,   2016,   the   trial   court   granted

defendant's motion after hearing arguments and determining, under

the totality of the circumstances, the police did not have probable

cause to arrest defendant.          He was subject to a de facto arrest,

rather than an investigative stop, pursuant to Terry v. Ohio, 
392 U.S. 1 (1968), and therefore probable cause was necessary to search

him.

       This appeal followed.       On appeal, the State asserts the trial

judge erred in finding no probable cause to arrest or search

defendant.

                                      II.

       We review the grant or denial of a motion to suppress with

deference to the factual findings of the trial court if those

findings are supported by sufficient evidence in the record. State

v. Hubbard, 
222 N.J. 249, 262 (2015).               We should be deferential

to a trial judge's factual findings which "are often influenced

                                          4                             A-1795-16T3
by matters such as observations of the character and demeanor of

witnesses and common human experience that are not transmitted by

the record." State v. Locurto, 
157 N.J. 463, 474 (1999) (citations

omitted).     We disregard those findings only when a trial court's

findings of fact are clearly mistaken.           Hubbard, 
222 N.J. at 262.

       Both the United States and New Jersey Constitutions protect

individuals against unreasonable searches and seizures.                     U.S.

Const., amend IV; N.J. Const., art. I, ¶ 7.             "Warrantless seizures

and searches are presumptively invalid as contrary to the United

States and the New Jersey Constitutions."               State v. Pineiro, 
181 N.J.    13,   19   (2004)   (citation       omitted).      To   overcome   this

presumption, the State must show the search falls within one of

the well-recognized exceptions to the warrant requirement.                 State

v. Maryland, 
167 N.J. 471, 482 (2001) (citing Schneckloth v.

Bustamonte, 
412 U.S. 218, 219 (1973)); see State v. Hill, 
115 N.J.
 169, 173-74 (1989).     The State bears the burden to demonstrate by

a preponderance of evidence that such a search and seizure is

legal.    State v. Valencia, 
93 N.J. 126, 133 (1983).

       One of these exceptions involves searches incident to a lawful

arrest, established in Chimel v. California, 
395 U.S. 752 (1969),

and first applied by the New Jersey Supreme Court in State v.

Welsh, 
84 N.J. 346 (1980).      This exception is "invocable to ensure

police safety or to avoid the destruction of evidence."              State v.

                                        5                              A-1795-16T3
Eckel, 
185 N.J. 523, 539 (2006) (citations omitted).               However,

this exception "requires that there be probable cause to arrest."

State v. Dangerfield, 
171 N.J. 446, 456 (2002).

     "Probable cause exists if at the time of the police action

there is 'a well-grounded suspicion that a crime has been or is

being committed.'"      State v. Sullivan, 
169 N.J. 204, 211 (2001)

(quoting State v. Waltz, 
61 N.J. 83, 87 (1972)); State v. Moore,


181 N.J. 40, 45 (2004).        Courts should utilize the totality of the

circumstances    test     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.'"              Moore, 
181 N.J. at 46 (quoting

Illinois v. Gates, 
462 U.S. 213, 238 (1983)).

     The State argues defendant was likely privy to the details

of a call placed by the police to Sanchez before the arrest, and

together with the fact that Sanchez had utilized accomplices for

drug transactions with the police in the past, the totality of the

circumstances gave the police probable cause.            We disagree.

     Probable cause must be "particularized with respect to that

individual or vehicle."        State v. Dolly, 
255 N.J. Super. 278, 283

(App.   Div.   1991)    (citation    omitted).        Defendant   was     never

identified as a previous accomplice of Sanchez, and he was not

known to the police.     "'[M]ere propinquity to others independently

                                        6                               A-1795-16T3
suspected of criminal activity does not, without more, give rise

to probable cause' to search a person."      Ibid. (quoting Ybarra v.

Illinos, 
444 U.S. 85, 90 (1979)).         The execution of an arrest

warrant does not "confer broad authority on the police to subject

those in the vicinity to the indignity of searches because they

happen to be there."      State v. Rivera, 
276 N.J. Super. 346, 351

(App. Div. 1994) (citation omitted); see Dolly, 
255 N.J. Super.

at 283.

       In Michigan v. Summers, the United States Supreme Court found

that

            some seizures admittedly covered by the Fourth
            Amendment constitute such limited intrusions
            on the personal security of those detained and
            are   justified   by  such   substantial   law
            enforcement interests that they may be made
            on less than probable cause, so long as police
            have an articulable basis for suspecting
            criminal activity.

            [
452 U.S. 692, 699 (1981).]

Summers involved the execution of a valid search warrant by the

police.     Id. at 693.      When the police arrived at the target

premises,    they   detained   the   defendant   homeowner   while   they

searched it.   Ibid.   When the police found narcotics in the house,

they arrested the defendant and searched him, finding narcotics

on his person.       Ibid.     The Court considered whether it was

reasonable for the police to detain the defendant prior to the


                                     7                           A-1795-16T3
completion of the search.       Id. at 694.    After reasoning that a

neutral and detached magistrate had found sufficient probable

cause that "an invasion of the citizen's privacy is justified, it

is constitutionally reasonable to require that citizen to remain

while officers of the law execute a valid warrant to search his

home."     Id. at 705.    As such, it was lawful for the police to

detain him prior to the search.        Ibid.

     Summers, however, is distinguishable from this case.            At

issue here is not whether it was lawful to detain and search

defendant because the police had a warrant to search the car, but

rather whether it was lawful for the police to forcibly arrest him

and search him, when they had an arrest warrant naming only

Sanchez.    Because defendant was present when the police executed

the arrest warrant on Sanchez and both defendant and Sanchez

attempted to flee when the police converged, the police arrested

defendant and searched him.       The court suppressed the evidence

uncovered as a result of that search, finding the police did not

have probable cause to arrest defendant under the totality of the

circumstances.

     Other courts have upheld warrantless arrests so long as the

police have sufficient probable cause that they could have obtained

an arrest warrant.       See e.g., United States v. Watson, 
423 U.S. 411, 417 (1976) (citing Abel v. United States, 
362 U.S. 217, 232

                                   8                          A-1795-16T3
(1960); Ker v. California, 
374 U.S. 23, 34-35 (1963); Draper v.

United States, 
358 U.S. 307 (1959)); People v. Fein, 
484 P.2d 583,

589 (Cal. 1971); State v. Love, 
598 P.2d 976, 978 (Ariz. 1979);

People v. Hoinville, 
553 P.2d 777, 781 (Colo. 1976).                 It is also

true, when effectuating a lawful arrest, the police are authorized

to use reasonable force.          See e.g., Graham v. Connor, 
490 U.S. 386, 396 (1989); State v. Simms, 
369 N.J. Super. 466, 472 (App.

Div. 2004).   Furthermore, once a lawful arrest has been performed,

the police may search the arrestee and the area within the control

of the arrestee.     United States v. Robinson, 
414 U.S. 218, 224

(1973); State v. Dangerfield, 
171 N.J. 446, 461 (2002).

     Here,    however,    there    was       no   probable   cause   to    arrest

defendant.    Nor does the fact that defendant ran from the police

create probable cause, because the judge found no evidence that

an unlawful flight occurred.        We discern no abuse of the court's

discretion in this determination.

     Our Supreme Court has held "a person has no constitutional

right to flee from an investigatory stop."             State v. Williams, 
192 N.J. 1, 11 (2007).       An individual "must obey the officer's order

to stop and may not take flight" when the officer is "acting in

good faith and under color of his authority."                Id. at 12; State

v. Crawley, 
187 N.J. 440, 451-52 (2006).



                                         9                                A-1795-16T3
     Here, the police neither ordered defendant to stop or clearly

and unambiguously identified themselves as law enforcement prior

to the takedown.    Instead, "[defendant and Sanchez] exited their

vehicle and began running once unmarked police vehicles converged

on their location. It was not until officers exited their vehicles

wearing police identifiers that the [defendant and Sanchez] could

have definitively known they were being chased by law enforcement."

It cannot be said defendant failed to obey an officer's order

acting under color of his authority, making his flight unlawful.

     As a result, the trial judge's findings that the police did

not have sufficient probable cause to arrest and search defendant,

based on his mere presence at the scene or his flight from the

police,   are   entitled   to   this   court's   deference   as   they   are

supported by sufficient evidence.       We discern no error in granting

defendant's motion to suppress the evidence obtained as a result

of the unlawful arrest and search.

     Affirmed.




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