NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2518-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN M. CONHEENEY,
Defendant-Appellant. ________________________
Argued March 18, 2025 – Decided April 3, 2025
Before Judges Gooden Brown and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 22-06- 1110.
Mitchell J. Ansell argued the cause for appellant (Ansell Grimm & Aaron, PC, attorneys; Mitchell J. Ansell, of counsel and on the briefs; Tara K. Walsh, on the briefs).
Kaili E. Matthews, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Kaili E. Matthews, of counsel and on the brief). PER CURIAM
Defendant Kevin M. Conheeney appeals from the portion of the April
20, 2023 Law Division order denying his motion to suppress controlled
dangerous substances (CDS), arguing the stop of his motor vehicle was not
predicated on reasonable and articulable suspicion that he was involved in
criminal activity.
After reviewing the record, we affirm substantially for the reasons
articulated by the trial court in its thorough written decision.
I.
Given the limited issue on appeal, we discern the salient facts from the
record established at the suppression hearing. The State presented the
testimony of Detectives Duncan MacRae and Samantha Sutter. Defendant did
not call any witnesses to testify.
A.
On September 29, 2020, MacRae and Sutter were assigned to the Toms
River Police Department Special Enforcement Team as plain clothes officers
and proceeded to surveille a parking lot that was known by the police for drug
trafficking. In the ten years prior to the date of defendant's arrest, MacRae
participated in approximately twenty-five narcotics-related investigations
resulting in arrests in that parking lot.
A-2518-23 2 Soon after beginning their surveillance, MacRae observed a white
Toyota truck enter the lot and park far from the stores. The driver did not exit
the vehicle. Less than five minutes later, a Hyundai parked nearby and the
driver got into the Toyota. The Toyota was driven around the parking lot for
roughly one minute before it returned to the Hyundai and dropped off the
passenger. Both vehicles then exited the parking lot. MacRae testified the
cars never left his line of sight, and neither occupant entered any of the
businesses the parking lot services. MacRae believed the two drivers engaged
in a CDS transaction, based on his observations. He then radioed headquarters
with descriptions of the vehicles, requesting the assistance of uniformed
police.
MacRae and his partner followed the Toyota, driven by Christopher
McDermott, and eventually stopped the vehicle after he parked in a driveway
in a nearby neighborhood. McDermott was read his Miranda1 rights after
exiting the vehicle. McDermott, appearing nervous, cooperated with MacRae
and told the detective he was in the parking lot for a football pool, but could
not say "which way the money went," meaning who won the pool. McDermott
consented to a search of his person and the Toyota, which yielded a plastic bag
1 Miranda v. Arizona, 384 U.S. 436 (1966).
A-2518-23 3 containing clear capsules and white powder. When a field test revealed the
powder was cocaine, MacRae arrested McDermott.2
Meanwhile, Sutter was following the Hyundai driven by defendant. As
Sutter tailed him, she radioed for assistance of uniformed officers driving
marked police vehicles. Corporal Westfall responded and effectuated the stop
of defendant's vehicle, which was captured on his mobile video recorder
(MVR).
Sutter then spoke to defendant, describing the incidents MacRae
witnessed in the parking lot. When asked if defendant had anything illegal in
the car, he responded no, but refused to consent to a search of the vehicle.
Sutter then requested a Sheriff canine to conduct a sniff of the vehicle.
According to the MVR, defendant appeared calm and cooperative. A
computer search revealed defendant's driver's license was suspended, and
Westfall issued a summons to defendant.
The MVR reviewed at the suppression hearing showed Sutter received a
cell phone call approximately ten minutes into the stop. Sutter testified the
call was from MacRae, informing her of McDermott's arrest based on the CDS
identified during the field test. Sutter told MacRae she also observed clear
2 The CDS obtained during that vehicle search was later laboratory tested and determined to be AP238, which is not categorized as a CDS.
A-2518-23 4 capsules matching MacRae's description in plain view on the front seat of
defendant's vehicle. After seizing the capsules, Sutter canceled the canine
sniff, placed defendant under arrest, and frisked him.
"A quantity of money" was seized from defendant upon a frisk of his
person. During the search of defendant's vehicle, the police found a small bag
filled with white powder that tested positive in the field for cocaine, along with
four capsules containing suspected cocaine. Upon lab testing, the substance
was determined to be n-ethylpentylone, a Schedule I CDS.
B.
An Ocean County grand jury indicted defendant, charging him with third
degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1), and fourth degree
operating a motor vehicle during a period of license suspension, N.J.S.A.
2C:40-26(b). Defendant moved to suppress the evidence obtained from the
search of his vehicle. After an evidentiary hearing, the court granted
defendant's motion to suppress in part and denied it in part, setting forth its
reasoning in a comprehensive written decision.
Defendant only appeals the denial of his motion to suppress based on the
validity of the motor vehicle stop, raising the following argument for our
consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE
A-2518-23 5 MOTOR VEHICLE STOP BECAUSE THE STOP WAS UNSUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE OF A REASONABLE AND ARTICULABLE SUSPICION THAT HE WAS INVOLVED IN CRIMINAL ACTIVITY.
Our analysis follows.
II.
Our review of the trial court's decision on a motion to suppress requires
the application of two different standards. We must "defer[] to the trial court's
factual findings" so long as they are supported by "sufficient credible evidence
in the record . . . ." State v. Nelson, 237 N.J. 540, 551 (2019) (quoting In re
J.A., 233 N.J. 432, 445 (2018)); see also State v. Gonzales, 227 N.J. 77, 101
(2016) ("We are obliged to uphold the motion judge's factual findings so long
as sufficient credible evidence in the record supports those findings.") . Those
factual findings warrant particular deference when they "are substantially
influenced by [the trial court's] opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot enjoy." State v.
Robinson, 200 N.J.
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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-2518-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN M. CONHEENEY,
Defendant-Appellant. ________________________
Argued March 18, 2025 – Decided April 3, 2025
Before Judges Gooden Brown and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 22-06- 1110.
Mitchell J. Ansell argued the cause for appellant (Ansell Grimm & Aaron, PC, attorneys; Mitchell J. Ansell, of counsel and on the briefs; Tara K. Walsh, on the briefs).
Kaili E. Matthews, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Kaili E. Matthews, of counsel and on the brief). PER CURIAM
Defendant Kevin M. Conheeney appeals from the portion of the April
20, 2023 Law Division order denying his motion to suppress controlled
dangerous substances (CDS), arguing the stop of his motor vehicle was not
predicated on reasonable and articulable suspicion that he was involved in
criminal activity.
After reviewing the record, we affirm substantially for the reasons
articulated by the trial court in its thorough written decision.
I.
Given the limited issue on appeal, we discern the salient facts from the
record established at the suppression hearing. The State presented the
testimony of Detectives Duncan MacRae and Samantha Sutter. Defendant did
not call any witnesses to testify.
A.
On September 29, 2020, MacRae and Sutter were assigned to the Toms
River Police Department Special Enforcement Team as plain clothes officers
and proceeded to surveille a parking lot that was known by the police for drug
trafficking. In the ten years prior to the date of defendant's arrest, MacRae
participated in approximately twenty-five narcotics-related investigations
resulting in arrests in that parking lot.
A-2518-23 2 Soon after beginning their surveillance, MacRae observed a white
Toyota truck enter the lot and park far from the stores. The driver did not exit
the vehicle. Less than five minutes later, a Hyundai parked nearby and the
driver got into the Toyota. The Toyota was driven around the parking lot for
roughly one minute before it returned to the Hyundai and dropped off the
passenger. Both vehicles then exited the parking lot. MacRae testified the
cars never left his line of sight, and neither occupant entered any of the
businesses the parking lot services. MacRae believed the two drivers engaged
in a CDS transaction, based on his observations. He then radioed headquarters
with descriptions of the vehicles, requesting the assistance of uniformed
police.
MacRae and his partner followed the Toyota, driven by Christopher
McDermott, and eventually stopped the vehicle after he parked in a driveway
in a nearby neighborhood. McDermott was read his Miranda1 rights after
exiting the vehicle. McDermott, appearing nervous, cooperated with MacRae
and told the detective he was in the parking lot for a football pool, but could
not say "which way the money went," meaning who won the pool. McDermott
consented to a search of his person and the Toyota, which yielded a plastic bag
1 Miranda v. Arizona, 384 U.S. 436 (1966).
A-2518-23 3 containing clear capsules and white powder. When a field test revealed the
powder was cocaine, MacRae arrested McDermott.2
Meanwhile, Sutter was following the Hyundai driven by defendant. As
Sutter tailed him, she radioed for assistance of uniformed officers driving
marked police vehicles. Corporal Westfall responded and effectuated the stop
of defendant's vehicle, which was captured on his mobile video recorder
(MVR).
Sutter then spoke to defendant, describing the incidents MacRae
witnessed in the parking lot. When asked if defendant had anything illegal in
the car, he responded no, but refused to consent to a search of the vehicle.
Sutter then requested a Sheriff canine to conduct a sniff of the vehicle.
According to the MVR, defendant appeared calm and cooperative. A
computer search revealed defendant's driver's license was suspended, and
Westfall issued a summons to defendant.
The MVR reviewed at the suppression hearing showed Sutter received a
cell phone call approximately ten minutes into the stop. Sutter testified the
call was from MacRae, informing her of McDermott's arrest based on the CDS
identified during the field test. Sutter told MacRae she also observed clear
2 The CDS obtained during that vehicle search was later laboratory tested and determined to be AP238, which is not categorized as a CDS.
A-2518-23 4 capsules matching MacRae's description in plain view on the front seat of
defendant's vehicle. After seizing the capsules, Sutter canceled the canine
sniff, placed defendant under arrest, and frisked him.
"A quantity of money" was seized from defendant upon a frisk of his
person. During the search of defendant's vehicle, the police found a small bag
filled with white powder that tested positive in the field for cocaine, along with
four capsules containing suspected cocaine. Upon lab testing, the substance
was determined to be n-ethylpentylone, a Schedule I CDS.
B.
An Ocean County grand jury indicted defendant, charging him with third
degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1), and fourth degree
operating a motor vehicle during a period of license suspension, N.J.S.A.
2C:40-26(b). Defendant moved to suppress the evidence obtained from the
search of his vehicle. After an evidentiary hearing, the court granted
defendant's motion to suppress in part and denied it in part, setting forth its
reasoning in a comprehensive written decision.
Defendant only appeals the denial of his motion to suppress based on the
validity of the motor vehicle stop, raising the following argument for our
consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE
A-2518-23 5 MOTOR VEHICLE STOP BECAUSE THE STOP WAS UNSUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE OF A REASONABLE AND ARTICULABLE SUSPICION THAT HE WAS INVOLVED IN CRIMINAL ACTIVITY.
Our analysis follows.
II.
Our review of the trial court's decision on a motion to suppress requires
the application of two different standards. We must "defer[] to the trial court's
factual findings" so long as they are supported by "sufficient credible evidence
in the record . . . ." State v. Nelson, 237 N.J. 540, 551 (2019) (quoting In re
J.A., 233 N.J. 432, 445 (2018)); see also State v. Gonzales, 227 N.J. 77, 101
(2016) ("We are obliged to uphold the motion judge's factual findings so long
as sufficient credible evidence in the record supports those findings.") . Those
factual findings warrant particular deference when they "are substantially
influenced by [the trial court's] opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot enjoy." State v.
Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 244
(2007)).
"[A] trial court's findings should be disturbed only if they are so clearly
mistaken that the interests of justice demand intervention and correction. "
A-2518-23 6 Ibid. "A trial court's interpretation of the law, however, and the consequences
that flow from established facts are not entitled to any special deference " and
its "legal conclusions are reviewed de novo." State v. Gamble, 218 N.J. 412,
425 (2014).
"[B]oth the United States and the New Jersey Constitutions protect
citizens against unreasonable searches and seizures." State v. Johnson, 476
N.J. Super. 1, 20 (App. Div. 2023) (quoting State v. Mann, 203 N.J. 328, 337
(2010)). The Fourth Amendment to the United States Constitution and Article
I, Paragraph 7 of the New Jersey Constitution guarantee the right of people to
be secure against unreasonable searches and seizures and "impose a standard
of reasonableness on the exercise of discretion by government officials to
protect persons against arbitrary invasions." U.S. Const. amend. IV; N.J.
Const. art. I, ¶ 7; Gamble, 218 N.J. at 425 (quoting State v. Maristany, 133
N.J. 299, 304 (1993)).
In Terry v. Ohio, the United States Supreme Court established the
bedrock principle that a warrantless investigative stop is valid only if it is
based on a reasonable and articulable suspicion of involvement in criminal
activity or a motor vehicle infraction. 392 U.S. 1, 21 (1968); see also Elders,
192 N.J. at 247 ("An investigatory stop or detention is constitutional only if it
A-2518-23 7 is based on specific and articulable facts which, taken together with rational
inferences from those facts, give rise to a reasonable suspicion of criminal
activity.") (internal quotation marks omitted). "Determining whether
reasonable and articulable suspicion exists . . . is a highly fact-intensive
inquiry that demands evaluation of 'the totality of circumstances surrounding
the police-citizen encounter, balancing the State's interest in effective law
enforcement against the individual's right to be protected from unwarranted
and/or overbearing police intrusions.'" State v. Nyema, 249 N.J. 509, 528
(2022) (quoting State v. Privott, 203 N.J. 16, 25-26 (2010)); see also State v.
Stovall, 170 N.J. 346, 363 (2002) ("It is fundamental to a totality of the
circumstances analysis of whether reasonable suspicion exists that courts may
consider the experience and knowledge of law enforcement officers.")
We are unconvinced MacRae violated defendant's constitutional rights in
conducting the motor vehicle stop. Here, MacRae surveilled a parking lot
known to the officers for CDS transactions. Based on MacRae's training and
experience regarding arrests in that specific lot, the officer testified that his
observations led him to believe defendant and McDermott engaged in a CDS
transaction. MacRae testified that neither defendant nor McDermott entered
any of the stores in the parking lot, but rather MacRae saw defendant enter
A-2518-23 8 McDermott's vehicle and drive around the parking lot before being dropped off
at his Hyundai and immediately driving the vehicle out of the lot.
Considering the totality of the circumstances and "based on specific
articulable facts," MacRae's observations of defendant's vehicle gave "rise to a
reasonable suspicion of criminal activity." See State v. Alessi, 240 N.J. 501,
518 (2020) (internal quotation marks omitted). Thus, we discern no error in
the trial court's finding that the motor vehicle stop comported with prevailing
law for the reasons detailed by the trial court.
Defendant attempts to distinguish this matter from that of State v.
Pineiro, 181 N.J. 13 (2004), and other decisional law, arguing MacRae did not
observe behavior or actions indicative of a CDS transaction. We are
unpersuaded, based on the trial court's finding that the officers testified
credibly as to their observations of defendant, coupled with their knowledge of
CDS transactions and arrests in the same parking lot. See Id. at 25 (finding a
motor vehicle stop constitutional and that officers had reasonable and
articulable suspicion considering the totality of the circumstances and
observations of the vehicle while patrolling a high drug, high crime area); see
also State v. Arthur, 149 N.J. 1, 16 (1997) (upholding the search of the
defendant's vehicle because the totality of the circumstances supported a
A-2518-23 9 reasonable and articulable suspicion the defendant was engaged in illegal drug
activity).
Based on our conclusion that the stop comported with prevailing law, we
need not address the State's attenuation argument relating to defendant's guilty
plea to driving with a suspended license.
Any arguments not addressed in this decision are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-2518-23 10