RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2816-15T2
STATE OF NEW JERSEY IN THE INTEREST OF D.H., a Juvenile. ________________________
Submitted May 17, 2017 – Decided August 10, 2017
Before Judges Fuentes, Simonelli and Farrington.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-306-16.
Joseph E. Krakora, Public Defender, attorney for appellant D.H. (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant entered a conditional plea to acts, which, if
committed by an adult, would constitute third-degree possession
of heroin with intent to distribute, N.J.S.A., 2C:35-5a. The
juvenile appeals from the denial of his motion to suppress the heroin found on his person during a pat-down search after his
arrest. We affirm.
On September 7, 2015, officers of the Jersey City Police
Department received a radio transmission advising all available
units to respond to Cator and Ocean Avenues on the report of a
person fitting the description of an individual suspected in
connection with a shooting homicide observed in the area. The
report was based upon information received from a citizen caller
who advised he had seen a picture of the suspect in the newspaper.
The suspect was described as "a black male," weighing 121 pounds,
and standing five-foot-six-inches tall. The caller described the
person he believed to be the suspect as wearing a white sleeveless
t-shirt, black pants with a white stripe down the sides, and Afro
style hair.
Detective Javier Toro testified he contacted the caller after
the Sheriff's Department reported the call. The caller confirmed
the description he had given previously and provided Toro with the
location of the individual. Detective Toro called the local
precinct and requested they send an officer to the location.
Thereafter, Detective Ray Weber drove past the location and
observed a person fitting the description with two other males.
Perimeter units were called in and approached the individuals.
2 A-2816-15T2 Officer Collin Congleton handcuffed D.H.,1 who he believed to be
the homicide suspect, and patted him down. He immediately
identified through the thin material of D.H.'s athletic pants what
turned out to be ninety bags of heroin. The officer testified
packaged heroin has a "distinct size, shape and texture", which
was immediately recognizable to him because of the years he had
spent in narcotics and on the street and the many hundreds of
times he had encountered heroin in this way.
Officer Congleton testified that D.H. was cooperative in
identifying himself and that he stated his name was D.H. Despite
the name being different from that of the homicide suspect, the
arresting officers testified that they were unable to ascertain
D.H. was not the suspect. D.H.'s appearance, an African American
male, five-foot-six-inches tall, weighing 130-140 pounds, wearing
clothing matching the description given by the caller, and strong
physical resemblance to the wanted notice picture, caused them to
doubt his identity until they returned to headquarters. There the
1 Although the juvenile refers to his encounter as a "stop" or investigative detention, we deem the facts indicate he was arrested. A stop must be "'justified at its inception' by a reasonable and articulable suspicion of criminal activity." State v. Rosario, ___ N.J. ___, ___ (2017) (slip op. at 16) (citing State v. Dickey, 152 N.J. 468, 476 (1998)). "An arrest . . . requires probable cause and generally is supported by an arrest warrant or by demonstration of grounds that would have justified one." Id. (slip op. at 11) (citations omitted).
3 A-2816-15T2 officers determined from the computer aided dispatch system (CAD)
that D.H. had a chest tattoo, and the suspect did not. D.H. now
appeals raising the following contention:
POINT I
THE BASIS FOR STOPPING D.H. WAS AN UNCORROBORATED ANONYMOUS TIP WITH UNKNOWN RELIABILITY, THE STOP WAS UNCONSTITUTIONAL AND THE FRUITS THEREFROM MUST BE SUPPRESSED.
The Fourth Amendment of the United States Constitution and
Article 1, paragraph 7 of the New Jersey Constitution guarantee
the right "of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, § 7.
"Warrantless searches presumptively violate those protections, but
'not all police-citizen encounters constitute searches or seizures
for purposes of the warrant requirement.'" State v. Rosario, ___
N.J. ___, ___ (2017) (slip op. at 9) (quoting State v. Rodriquez,
172 N.J. 117, 125 (2002)).
In Rosario, our Supreme Court noted "[i]n escalating order
of intrusiveness upon a citizen's rights, three categories of
encounters with police have been "identified by the courts: (1)
field inquiry; (2) investigative detention; and (3) arrest." Ibid.
The circumstances of D.H.'s detention make it clear that his
encounter with the police began as an arrest. Officer Congleton
4 A-2816-15T2 testified he handcuffed D.H. before patting him down. Prior to
his arrest, D.H. was standing outside a house with other people
when he was surrounded by several police officers who intended to
arrest him as a homicide suspect. It is indisputable that D.H.
was not free to leave. Having determined that D.H.'s encounter
with the police was an arrest, "we then must consider the second
question of whether, based on a totality of the circumstances,"
there was probable cause for the arrest, and in the absence of an
arrest warrant, grounds which would have justified one. Id.
The circumstances leading to the arrest commenced with
information from a citizen caller. Anonymous telephone calls
standing alone, have long been recognized as "inherently lack[ing]
the reliability necessary to support reasonable suspicion because
the informant's 'veracity . . . is by hypothesis largely unknown,
and unknowable.'" Ibid. (citing Rodriguez, supra, 172 N.J. at
127-28). As noted by the motion court in its decision on the
record, the caller was not anonymous, and the information was
confirmed by both Detectives Toro and Weber. Moreover, the caller
was not reporting "knowledge of concealed criminal activity[,]"
but his personal observations. Id. (slip op. at 16-17).
The court found the testifying police officers to be credible.
Based on their testimony and experience, Judge Alvaro L. Iglesias
concluded, "So, given the circumstances, given the fact that the
5 A-2816-15T2 suspect that was being sought was a suspect in a shooting homicide,
and in light of all the circumstances, the search was justified
under the warrant exception."
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RECORD IMPOUNDED
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-2816-15T2
STATE OF NEW JERSEY IN THE INTEREST OF D.H., a Juvenile. ________________________
Submitted May 17, 2017 – Decided August 10, 2017
Before Judges Fuentes, Simonelli and Farrington.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-306-16.
Joseph E. Krakora, Public Defender, attorney for appellant D.H. (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant entered a conditional plea to acts, which, if
committed by an adult, would constitute third-degree possession
of heroin with intent to distribute, N.J.S.A., 2C:35-5a. The
juvenile appeals from the denial of his motion to suppress the heroin found on his person during a pat-down search after his
arrest. We affirm.
On September 7, 2015, officers of the Jersey City Police
Department received a radio transmission advising all available
units to respond to Cator and Ocean Avenues on the report of a
person fitting the description of an individual suspected in
connection with a shooting homicide observed in the area. The
report was based upon information received from a citizen caller
who advised he had seen a picture of the suspect in the newspaper.
The suspect was described as "a black male," weighing 121 pounds,
and standing five-foot-six-inches tall. The caller described the
person he believed to be the suspect as wearing a white sleeveless
t-shirt, black pants with a white stripe down the sides, and Afro
style hair.
Detective Javier Toro testified he contacted the caller after
the Sheriff's Department reported the call. The caller confirmed
the description he had given previously and provided Toro with the
location of the individual. Detective Toro called the local
precinct and requested they send an officer to the location.
Thereafter, Detective Ray Weber drove past the location and
observed a person fitting the description with two other males.
Perimeter units were called in and approached the individuals.
2 A-2816-15T2 Officer Collin Congleton handcuffed D.H.,1 who he believed to be
the homicide suspect, and patted him down. He immediately
identified through the thin material of D.H.'s athletic pants what
turned out to be ninety bags of heroin. The officer testified
packaged heroin has a "distinct size, shape and texture", which
was immediately recognizable to him because of the years he had
spent in narcotics and on the street and the many hundreds of
times he had encountered heroin in this way.
Officer Congleton testified that D.H. was cooperative in
identifying himself and that he stated his name was D.H. Despite
the name being different from that of the homicide suspect, the
arresting officers testified that they were unable to ascertain
D.H. was not the suspect. D.H.'s appearance, an African American
male, five-foot-six-inches tall, weighing 130-140 pounds, wearing
clothing matching the description given by the caller, and strong
physical resemblance to the wanted notice picture, caused them to
doubt his identity until they returned to headquarters. There the
1 Although the juvenile refers to his encounter as a "stop" or investigative detention, we deem the facts indicate he was arrested. A stop must be "'justified at its inception' by a reasonable and articulable suspicion of criminal activity." State v. Rosario, ___ N.J. ___, ___ (2017) (slip op. at 16) (citing State v. Dickey, 152 N.J. 468, 476 (1998)). "An arrest . . . requires probable cause and generally is supported by an arrest warrant or by demonstration of grounds that would have justified one." Id. (slip op. at 11) (citations omitted).
3 A-2816-15T2 officers determined from the computer aided dispatch system (CAD)
that D.H. had a chest tattoo, and the suspect did not. D.H. now
appeals raising the following contention:
POINT I
THE BASIS FOR STOPPING D.H. WAS AN UNCORROBORATED ANONYMOUS TIP WITH UNKNOWN RELIABILITY, THE STOP WAS UNCONSTITUTIONAL AND THE FRUITS THEREFROM MUST BE SUPPRESSED.
The Fourth Amendment of the United States Constitution and
Article 1, paragraph 7 of the New Jersey Constitution guarantee
the right "of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, § 7.
"Warrantless searches presumptively violate those protections, but
'not all police-citizen encounters constitute searches or seizures
for purposes of the warrant requirement.'" State v. Rosario, ___
N.J. ___, ___ (2017) (slip op. at 9) (quoting State v. Rodriquez,
172 N.J. 117, 125 (2002)).
In Rosario, our Supreme Court noted "[i]n escalating order
of intrusiveness upon a citizen's rights, three categories of
encounters with police have been "identified by the courts: (1)
field inquiry; (2) investigative detention; and (3) arrest." Ibid.
The circumstances of D.H.'s detention make it clear that his
encounter with the police began as an arrest. Officer Congleton
4 A-2816-15T2 testified he handcuffed D.H. before patting him down. Prior to
his arrest, D.H. was standing outside a house with other people
when he was surrounded by several police officers who intended to
arrest him as a homicide suspect. It is indisputable that D.H.
was not free to leave. Having determined that D.H.'s encounter
with the police was an arrest, "we then must consider the second
question of whether, based on a totality of the circumstances,"
there was probable cause for the arrest, and in the absence of an
arrest warrant, grounds which would have justified one. Id.
The circumstances leading to the arrest commenced with
information from a citizen caller. Anonymous telephone calls
standing alone, have long been recognized as "inherently lack[ing]
the reliability necessary to support reasonable suspicion because
the informant's 'veracity . . . is by hypothesis largely unknown,
and unknowable.'" Ibid. (citing Rodriguez, supra, 172 N.J. at
127-28). As noted by the motion court in its decision on the
record, the caller was not anonymous, and the information was
confirmed by both Detectives Toro and Weber. Moreover, the caller
was not reporting "knowledge of concealed criminal activity[,]"
but his personal observations. Id. (slip op. at 16-17).
The court found the testifying police officers to be credible.
Based on their testimony and experience, Judge Alvaro L. Iglesias
concluded, "So, given the circumstances, given the fact that the
5 A-2816-15T2 suspect that was being sought was a suspect in a shooting homicide,
and in light of all the circumstances, the search was justified
under the warrant exception."
We find the motion judge properly found, based upon the
testimony of the police and the totality of the circumstances,
there was both probable cause and grounds, which would have
supported an arrest warrant on the facts then known to the police.
We next consider whether the pat-down of D.H. was conducted
within the confines of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968). We find the court correctly determined
Officer Congleton acted as "a reasonably prudent [officer] in the
circumstances would [and was] warranted in the belief that his
safety or that of others was in danger." State v. Thomas, 110
N.J. 673, 685 (1988) (quoting id. at 27, 88 S. Ct. at 1883, 20 L.
Ed. 2d at 909). Acting under the reasonable premise that D.H. was
the homicide suspect, the pat-down of D.H.'s outer clothing was a
minimal intrusion. D.H.'s cooperation with the police, by giving
them his correct name, does not negate the reasonable and
articulable suspicion for the arrest or the subsequent pat-down.
Here, as in State v. Toth, 321 N.J. Super. 609, 614-16 (App.
Div. 1999), certif. denied, 165 N.J. 531 (2000), the motion court
found Officer Congleton immediately knew, without manipulation,
6 A-2816-15T2 what he felt in D.H.'s pocket was heroin and not a weapon. As the
judge noted,
[Congelton] performed the pat-down -- a pat- down of the outer clothing. And he testified, and I find he did it in a methodical way, looking for a weapon because the police officers knew that the suspect could be armed and dangerous . . . [for] his protection and the protection of others. While he was doing the pat-down, he felt over the clothing what he recognized as a bundle of heroin from many prior experiences which he -- I believe he stated hundreds of cases. This was 90 bags or nine bundles. And he felt it, because of his experience, he knew that that was heroin. That happened as he was doing the pat-down for weapons for the protection of everyone.
The judge found the seizure, conducted during the pat-down,
did not exceed Terry's boundaries. The "plain feel" doctrine has
been analogized to the "plain view" doctrine. "[O]ur Supreme
Court has recognized the applicability of the totality-of-the-
circumstances approach to plain-view searches. There is no reason
in law, logic, or policy that would justify a different analysis
when analyzing a plain-feel matter." Toth, supra, 321 N.J. Super.
at 615 (citing State v. Demeter, 124 N.J. 374, 381 (1991)).
We find the motion court correctly found there was no invasion
of D.H.'s privacy, beyond that already authorized by the officer's
search for weapons, in the warrantless seizure of the heroin from
his person, in a plain-feel context.
Affirmed.
7 A-2816-15T2