STATE OF NEW JERSEY VS. GENESIS TORRES (17-12-0608, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 4, 2019
• Docket: A-4844-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4844-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GENESIS TORRES,

Defendant-Appellant. ___________________________

Submitted May 21, 2019 – Decided June 4, 2019

Before Judges Gilson and Natali.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 17-12-0608.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Alycia Irene Pollice, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Genesis Torres appeals from a May 18, 2018 judgment of

conviction, following his guilty plea to third-degree possession of a controlled

dangerous substance, heroin, contrary to N.J.S.A. 2C:35-10(a)(1). He was

sentenced to a 364–day county jail term, to be followed by three years of

probation, along with applicable fines and penalties. Defendant entered his plea

following the denial of his motion to suppress. On appeal, he argues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE POLICE DID NOT HAVE THE REQUISITE REASONABLE SUSPICION TO CONDUCT AN INVESTIGATORY STOP OF DEFENDANT.

POINT II

WITH NO BASIS TO BELIEVE THAT DEFENDANT WAS ARMED AND DANGEROUS, POLICE HAD NO LAWFUL REASON TO FRISK OR SEARCH HIM. THEREFORE, ANY EVIDENCE FOUND ON DEFENDANT'S PERSON MUST BE SUPPRESSED.

Having considered defendant's arguments in light of the record and

applicable legal principles, we conclude, based on the totality of the

circumstances, that the police had a reasonable articulable suspicion to stop and

frisk defendant, and seize the heroin in his pocket. Accordingly, we affirm.

A-4844-17T4 2 I.

At the suppression hearing, one witness testified; Detective Frederick

Bender, a seventeen-year veteran of the Trenton Police Department. Bender's

experience included a three-year assignment to the Patrol Unit in the eastern

portion of the city, twelve years in the Trenton Anti-Crime (TAC) Unit, a special

unit designed to combat street-level narcotic sales and violent offenders, and

approximately two years in the Violent Crimes Unit (VCU), where his job

responsibilities mirrored those in the TAC unit.

As a patrol officer, and member of the TAC and VCU units, Detective

Bender testified that he participated in "thousands" of narcotic investigations,

and "hundreds" of arrests, in the eastern section of Trenton where defendant was

arrested, which Bender described as a "high crime area." In addition to offenses

related to the sale and distribution of controlled dangerous substances, he also

encountered "significant weapons," including "firearms[] [and] knives,"

"numerous times" in that area.

On October 27, 2017, while he and two other officers were patrolling east

Trenton in an unmarked police vehicle, Detective Bender testified that he

observed two individuals, one of whom was on a bicycle, "huddled close

together, face-to-face" having a brief conversation on the sidewalk. Bender saw

A-4844-17T4 3 one of the individuals, later identified as defendant, "manipulat[e] a rectangular

object in his hand" that he had just removed from his pocket, as if "dealing a

deck of cards," and hand it to the man on the bicycle. He also stated that

defendant's actions were consistent with the way individuals distribute smaller

amounts of heroin, although he acknowledged that he did not witness the man

on the bicycle hand anything to defendant. He further testified that the

transaction lasted about twenty to thirty seconds. After the man on the bicycle

pedaled away, two officers from a different unit unsuccessfully attempted to

apprehend him.

Detective Bender and his partners exited their vehicle "to further

investigate" and "advised [defendant]. . . to stop . . . ." He testified that he placed

defendant "in a pat frisk" position because he "believed [he] witnessed a

narcotics transaction" and explained that in his experience "what comes along

with narcotics . . . is weapons," "whether there be a gun, a knife, [or] some kind

of weapon." Detective Bender acknowledged that there was nothing that

defendant specifically did at that time that indicated he had a weapon, but

explained, in his experience, "usually they're concealed . . . when [people who

deal in narcotics] see[] the police."

A-4844-17T4 4 Detective Bender stated he patted "the right side of [defendant's] pants,"

and "immediately felt what [he] immediately recognized through [his] training

and experience as a bundle of distributable amount of heroin." He explained

that a "bundle" is a "couple of bags of heroin . . . held together with a rubber

band." Bender reached into defendant's front right pocket and removed ten bags

of heroin, and immediately placed him under arrest. At police headquarters,

defendant was processed, and a subsequent search uncovered additional bags of

heroin, and approximately $170.

After the suppression hearing, Judge Peter E. Warshaw made detailed

findings of fact on the record, including that Detective Bender was a credible

witness. Relying on State v. Bard, 445 N.J. Super. 145 (App. Div. 2016), Judge

Warshaw explained that he considered the totality of the circumstances and gave

weight to Detective Bender's knowledge and experience, as well as all

reasonable inferences gleaned from the facts. Specifically, the court found that

east Trenton "is an area with which Detective Bender is extremely familiar," and

that he knew it was "a high drug trafficking area" and a "high crime area," which

"includes substantial weapons." Judge Warshaw also determined that Detective

Bender believed he witnessed a narcotics transaction.

A-4844-17T4 5 After noting that Detective Bender "didn't have anything that [made it]

absolutely certain" that defendant was in possession of a weapon, Judge

Warshaw concluded that "in my judgment, he d[id] not have to." Instead, the

court noted that Detective Bender "has spent, really, his entire professional

career in that area," which included drugs and "weapons investigations there,"

and found that he knew that "those who sell drugs are frequently armed."

Having found that Detective Bender believed he had just witnessed a drug

transaction involving heroin, the court determined that he conducted a pat-down

"as a large function of being informed by his training and experience" and

"superior level of knowledge concerning the area."

Accordingly, based on the detective's testimony, the court determined that

"a reasonable police officer would perceive a threat to the safety of other police

officers in this situation," and concluded that Detective Bender was entitled to

stop and frisk defendant. Further, Judge Warshaw was "absolutely satisfied that

the State met its burden" of proving the "drugs . . . were [properly] seized in the

field," and concluded that the drugs found at police headquarters were lawfully

seized incident to an arrest.

A-4844-17T4 6 II.

In reviewing a motion to suppress, we defer to the trial court's factual and

credibility findings, "so long as those findings are supported by sufficient

credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting

State v. Elders, 192 N.J. 224, 243 (2007)). This deference is particularly

appropriate when the court's factual findings are "substantially influenced by his

[or her] opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166

(2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court

should disregard those findings only when a trial court's findings of fact are

clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). We afford no

special deference to the court's legal conclusions, however, which we review de

novo. State v. Gandhi, 201 N.J. 161, 176 (2010).

On appeal, defendant first argues that Detective Bender lacked the

reasonable, particularized suspicion of criminal activity necessary for an

investigatory detention. We disagree.

The Fourth Amendment of the United States Constitution, and Article I,

Paragraph 7 of the New Jersey Constitution, guarantee "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

A-4844-17T4 7 searches and seizures" by requiring warrants issued on probable cause. "Under

our constitutional jurisprudence, when it is practicable to do so, the police are

generally required to secure a warrant before conducting a search . . . ." State

v. Hathaway, 222 N.J. 453, 468 (2015) (citations omitted). One exception,

however, is an investigatory stop. See Elders, 192 N.J. at 246.

It is well settled that police officers may lawfully detain someone to

conduct an investigatory stop without a warrant, and on less than probable cause.

Terry v. Ohio, 392 U.S. 1, 22 (1968); State v. Stovall, 170 N.J. 346, 356 (2002).

An investigatory stop allows an officer to detain an individual temporarily for

questioning if the officer can articulate "some minimum level of objective

justification" based on "something more" than an "inchoate and unparticularized

suspicion or hunch" of wrongdoing. United States v. Sokolow, 490 U.S. 1, 7

(1989) (citation and internal quotation marks omitted); accord State v. Nishina,

175 N.J. 502, 511 (2003).

A warrantless investigative stop is valid when an "officer observes

unusual conduct which leads [the officer] reasonably to conclude in light of his

[or her] experience that criminal activity may be afoot . . . ." Terry, 392 U.S. at

30. The stop must be "based on specific and articulable facts which, taken

together with rational inferences from those facts, give rise to a reasonable

A-4844-17T4 8 suspicion of criminal activity." State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting

Nishina, 175 N.J. at 510-11). Reasonable suspicion "involves a significantly

lower degree of objective evidentiary justification than does the probable cause

test," State v. Davis, 104 N.J. 490, 501 (1986), and is found when an officer has

"a particularized and objective basis for suspecting the person stopped of

criminal activity." Stovall, 170 N.J. at 356 (quoting Ornelas v. United States,

517 U.S. 690, 696 (1996)).

A reviewing court "must look at the 'totality of the circumstances' of each

case to see whether the detaining officer has a 'particularized and objective basis'

for suspecting legal wrongdoing" by the detained individual. United States v.

Arvizu, 534 U.S. 266, 273 (2002). In evaluating the totality of the circumstances

"giving rise to the officer's suspicion of criminal activity, courts are to give

weight to 'the officer's knowledge and experience' as well as 'rational inferences

that could be drawn from the facts objectively and reasonably viewed in light of

the officer's expertise.'" State v. Richards, 351 N.J. Super. 289, 299-300 (App.

Div. 2002) (quoting State v. Arthur, 149 N.J. 1, 10–11 (1997)). Thus, a police

officer may conduct an investigatory stop if, based on the totality of the

circumstances, there is reasonable suspicion to believe an individual has just

A-4844-17T4 9 engaged in, or about to engage in, criminal activity. State v. Maryland, 167 N.J.

471, 487 (2001).

A "stop" and "frisk" under Terry are judged under two separate inquiries:

[T]he facts that allow the detaining officer to make a stop do not automatically permit that officer to search for weapons. While the right to search may flow from the same set of facts that permitted the stop, "in situations where . . . the officers have no prior indication that the suspect is armed, more is required to justify a protective search."

[State v. Garland, 270 N.J. Super. 31, 41-42 (App. Div. 1994) (quoting Thomas, 110 N.J. at 680).]

Addressing the Terry investigatory stop first, we are satisfied that the trial

court's findings of fact are supported by sufficient credible evidence . Detective

Bender testified that while patrolling an area known for high narcotics and

illegal weapons activities, he witnessed two individuals huddle together and

engage in what the detective believed was a narcotics transaction. Specifically,

Detective Bender testified that he observed defendant pull "an unknown white

object, light in color, [and] rectangular," which defendant manipulated before

handing to another individual. Based on Detective Bender's "training and

experience in these investigations" and the manner in which defendant

manipulated the object, the detective specifically believed the object was heroin.

These are articulable facts to support an objectively reasonable determination

A-4844-17T4 10 that defendant engaged in criminal activity sufficient to justify the Terry stop.

See Pineiro, 181 N.J. at 26 ("the reputation or history of an area" as being a high-

crime area "and an officer's experience with and knowledge of the suspected transfer

of narcotics" are "relevant factors to determine the validity of a Terry stop").

III.

Defendant next contends that the police lacked any reasonable suspicion

to warrant a pat-down search. Specifically, he claims that because Detective

Bender "conducted the search simply because of his generalized belief that drugs

and weapons went hand-in-hand with one another," the frisk of defendant's

person for weapons was not objectively reasonable. As a result, defendant

contends the heroin should have been suppressed. Again, we disagree.

Under Terry, once stopped, the "officer may conduct a reasonable search

for weapons if he [or she] is 'justified in believing that the individual whose

suspicious behavior he [or she] is investigating at close range is armed and

presently dangerous to the officer or to others.'" Richards, 351 N.J. Super. at

299 (quoting Terry, 392 U.S. at 24). "The officer need not be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent [person]

in the circumstances would be warranted in the belief that his [or her] safety[,]

or that of others[,] was in danger." Terry, 392 U.S. at 27. "The protective search

A-4844-17T4 11 'must therefore be confined in scope to an intrusion reasonably designed to

discover guns, knives, clubs, or other hidden instruments for the assault of the

police officer.'" State v. Jackson, 276 N.J. Super. 623, 629 (App. Div. 1994)

(quoting Terry, 392 U.S. at 29). "[T]he same conduct that justifies an

investigatory stop may also present the officer with a specific and particularized

reason to believe that the suspect is armed." State v. Privott, 203 N.J. 16, 30

(2010). The existence of reasonable suspicion to frisk "is based on the totality

of the circumstances." Roach, 172 N.J. at 27.

Accordingly, if a police officer conducts a pat-down search of an

individual and detects an object in the clothing of the individual that the officer

does not recognize as a weapon, nor identify as contraband, any nonthreatening

contraband seized may not be used against the individual in a criminal

prosecution. Jackson, 276 N.J. Super. at 630. However:

[i]f a police officer lawfully pats down a suspect's outer clothing[,] and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical consideration that adhere in the plain view context.

[Id. at 630-31 (emphasis omitted) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993)).]

A-4844-17T4 12 Here, we conclude that Detective Bender's pat-down search of defendant

was justified. Detective Bender testified that the part of Trenton in which this

incident occurred was a high-crime area and that he had encountered weapons

"numerous times in that area." "Although a stop in a high-crime area does not

by itself justify a Terry frisk . . . , the location of the investigatory stop can

reasonably elevate a police officer's suspicion that a suspect is armed." State v.

Valentine, 134 N.J. 536, 547 (1994) (citing Maryland v. Buie, 494 U.S. 325,

334–35 n.2 (1990)). Further, Detective Bender stated that he believed he

"witnessed a narcotics transaction" between defendant and the other individual.

"[E]ven apart from [an officer's] personal experiences," courts "have recognized

that to 'substantial dealers in narcotics' firearms are as much 'tools of the trade'

as are most commonly recognized articles of narcotics paraphernalia." United

States v. Oakes, 560 F.2d 45, 62 (2d Cir. 1977) (quoting United States v. Wiener,

534 F.2d 15, 18 (2d Cir. 1976)). In this case, the detective used his "training

and experience in these investigations" and his observation of how defendant

manipulated the drug to conclude specifically that he had witnessed a transaction

in heroin.

Thus, the particularized suspicion that defendant had a weapon was that

Detective Bender believed, based on his experience and training, he just

A-4844-17T4 13 witnessed defendant provide heroin to another individual before the suspects

swiftly departed. See State v. Ramos, 282 N.J. Super. 19, 21 (App. Div. 1995)

(finding an officer's observations in "an area of high drug activity," "considered

in light of [the officer's] training and experience, supported a reasonable

suspicion that defendant was engaging in a drug transaction"). Those factors,

coupled with Detective Bender's testimony that, based on his familiarity with

this particular area and his experience investigating crimes in it, people who

engage in narcotics transactions there tend to have weapons on them, render his

decision to pat defendant down for a weapon objectively reasonable. See

Valentine, 134 N.J. at 547 ("Terry itself acknowledges that police officers must

be permitted to use their knowledge and experience in deciding whether to frisk

a suspect"); id. at 543 (explaining that although "the Terry standard is an

objective one, . . . '[t]he process does not deal with hard certainties, but with

probabilities'") (second alteration in original) (quoting United States v. Cortez,

449 U.S. 411, 418 (1981)).

Therefore, the frisk was justified under the circumstances. As a result,

and because the detective immediately identified the object in defendant's

pocket as contraband without first manipulating it, the seizure of the heroin was

lawful. See State v. Toth, 321 N.J. Super. 609, 616-17 (App. Div. 1999)

A-4844-17T4 14 (holding that a pat-down in which an officer immediately identifies an object as

contraband without "in any way[] manipulat[ing] or explor[ing]" it "with his

fingers" was a valid Terry frisk under the plain-feel doctrine).1

Affirmed.

1 In light of our decision, we need not address the State's alternative argument that Detective Bender had probable cause to arrest defendant and that the seizure of heroin from his person resulted from a search incident to a lawful arrest. A-4844-17T4 15