NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2047-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MELVIN R. DOUGLAS, A/K/A MELVIN DENNIS, MELVIN DOUGLAS, FUQUQN HALL,
Defendant-Appellant. _______________________________
Submitted May 10, 2017 - Decided July 18, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-04-1146.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Sarah C. Hunt, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant Melvin R. Douglas appeals from a November 2, 2015
conviction, entered following his guilty plea to fourth-degree
possession of a controlled dangerous substance (CDS), marijuana,
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and third-
degree distribution of a CDS within 1000 feet of school property,
N.J.S.A. 2C:35-7. The trial judge sentenced defendant to five
years in state prison, with a two-year period of parole
ineligibility.
On appeal, defendant argues the judge erroneously denied his
motion to suppress drug evidence discovered following an illegal
arrest. More specifically, defendant asserts:
POINT I
[DEFENDANT'S] ARREST FOR LOITERING IN VIOLATION OF N.J.S.A. 2C:33-2.1 WAS INVALID BECAUSE THAT STATUTE IS UNCONSTITUTIONAL. BECAUSE THE INVALID ARREST RENDERS THE SEARCH INCIDENT THERETO CONSTITUTIONALLY DEFECTIVE, THE MARIJUANA SEIZED FROM [DEFENDANT'S] PERSON SHOULD HAVE BEEN SUPPRESSED (Not raised below).
A. New Jersey's Drug-Loitering Statute is Unconstitutionally Vague and Overbroad.
B. New Jersey's Drug-Loitering Statute Violates the Fourth Amendment Because it Allows Police to Arrest an Individual on Less Than Probable Cause.
C. [Defendant's] Invalid Arrest, Made Pursuant to an Unconstitutional Statute, Renders the Subsequent Search of his Person Constitutionally Defective.
2 A-2047-15T1 POINT II
THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE THAT [DEFENDANT] COMMITTED A VIOLATION OF N.J.S.A. 2C:33-2.1. THEREFORE, THE MARIJUANA FOUND ON [DEFENDANT'S] PERSON WAS THE PRODUCT OF AN UNLAWFUL ARREST AND MUST BE SUPPRESSED.
POINT III
OFFICER RAMIREZ ABUSED HIS DISCRETION BY SUBJECTING [DEFENDANT] TO A FULL CUSTODIAL ARREST FOR COMMITTING A DISORDERLY PERSONS OFFENSE.
We reject these arguments and affirm.
These facts were presented during the suppression hearing,
to support defendant's December 24, 2013 arrest. The State
presented testimony from the arresting officer, Hector Ramirez,
and Officer Robert Fesi, of the Camden County Police Department,
who monitored a series of live feed surveillance video streams,
while stationed at the Real Time Tactical Operations and
Information Center (Tactical Information Center).
At approximately 1 p.m., Officer Fesi turned a strategically
placed "Eye in the Sky" camera toward the intersection of Filmore
and Viola Streets, known as a "narcotics distribution area[]." He
confirmed the cameras were working properly. Officer Fesi
monitored the activity of defendant and another individual, later
identified as Keith Council, in real time. Over the course of an
3 A-2047-15T1 hour, Officer Fesi watched the two men, whom he believed, based
upon his training and experience, engaged in seven to eight "street
level narcotics distribution[s]." More specifically, Officer Fesi
testified:
[V]ehicles would pull over to the side of the road. One male would approach the vehicle, have a short transaction, conversation with the vehicle. The vehicle would pull off. After numerous times — about seven or eight times I saw this, this was consistent with CDS transaction[s].
. . . .
The vehicle would pull up -- somebody would waive [sic] the vehicle over, they would pull up, he would walk up to the driver's side of the vehicle, an interaction would take place, and then the vehicle would drive off.
Officer Fesi stated the activity he observed was consistent
with street drug sales. He radioed command, who dispatched Officer
Ramirez and his partner Jay Rivera, to the area. Officer Ramirez
established radio contact with Officer Fesi, who related a
description of the two men, based on their clothing. Officers
Ramirez and Rivera arrived on the scene; Officer Ramirez stopped
defendant and Officer Rivera stopped Council. Officer Fesi watched
the events as they occurred. Officer Ramirez relayed a physical
description of defendant and Council to Officer Fesi, and Officer
Fesi confirmed defendant and Council were the individuals he
4 A-2047-15T1 observed engaging in the transactions. Officer Ramirez placed
defendant and Council under arrest.
On cross-examination, the defense challenged the limited
training and experience of Officer Fesi, who worked for the
Tactical Information Center for one-year prior to defendant's
arrest. Officer Fesi confirmed he could not identify the suspects'
faces because of the video quality, and based his identification
only on their clothing.
During the hearing, Officer Fesi was asked to narrate events
shown on the video taken from the Eye in the Sky camera. He
stated: "the white truck pulled up, stopped, . . . one of the
males went up to the window, and then the male ran away, returned
with something, and the truck drove off." When the red car drove
up he observed "the exact same thing."
Officer Fesi could not state which of the two men shown on
the video was defendant. Additionally, he admitted, he never saw
an actual exchange of money for an object between the vehicle's
occupants and defendant, because a tree blocked the camera's view.
After the defense played the first fifteen-minute segment of
the un-redacted one-hour video recording, the State objected.
After a lengthy colloquy, the defense declined to continue showing
the video. In the course of redirect, based on the State's
question, this colloquy occurred:
5 A-2047-15T1 THE COURT: What actions did you actually observe individuals engaging in that you concluded were drug transactions? What did you actually see?
[OFFICER FESI]: What I actually saw?
THE COURT: Based on the tree, and the arguments of counsel, I want to know exactly what you physically saw with respect to the actions.
[OFFICER FESI]: What I saw was a man standing on the corner, vehicle pull up, the man engage in short conversation with the vehicle, and then walk away and the vehicle drove away numerous times, and based on my training and experience we look at the totality of the circumstances, and that is street level narcotics distribution in a designated high CDS area.
THE COURT: All right. Did you . . . see the individual who walked up to the vehicle have anything in that individual's hand?
[OFFICER FESI]: No, not from the video, I couldn't see --
THE COURT: Did you see anything exchanged by either?
[OFFICER FESI]: No.
Next, Officer Ramirez testified. He acknowledged he received
clothing descriptions of two suspects from Officer Fesi and was
directed to their location. When Officer Fesi confirmed Officer
Ramirez had stopped the suspect he observed, Officer Ramirez placed
defendant under arrest and patted him down. Officer Rivera was
directed to, and arrested Council. On cross-examination, Officer
6 A-2047-15T1 Ramirez stated, based on the information provided by Officer Fesi,
he initially arrested defendant for loitering to commit a drug
offense.
During processing at the police station, defendant removed
his jacket and a package of marijuana fell from his sleeve.
Officer Ramirez recovered "15-20" bags of marijuana.
Consequently, the charges to which defendant pled were issued.
In an oral opinion, rendered on January 28, 2015, the judge
concluded Officer Ramirez had probable cause to arrest defendant
based upon the observations Officer Fesi communicated directly to
him. A reasonable belief defendant was engaged in criminal
activity was supported by the testimony of Officers Fesi and
Ramirez, which was found credible. The officers related their
respective personal knowledge, training and experience in drug
distribution activity, and each separately characterized the
specific area of defendant's arrest as an area known for street
drug sales.
Although Officer Fesi could not identify facial features, see
the exact exchange or hear conversation between defendant,
Council, and the drivers, he saw seven or eight vehicles stop in
the area where defendant and Council stood. He also explained the
same repeated pattern of activity: one of the two men went to the
driver's side window, ran away then returned to the driver's side
7 A-2047-15T1 window with an object, then the vehicle drove away. Officer Fesi
saw this happen "exactly the same" way, over the course of the
hour, which led him to conclude defendant was engaged in drug
distribution. The portion of the video played during Officer
Fesi's testimony corroborated his stated observations.
The clothing description of the suspects, as provided by
Officer Fesi, enabled Officer Ramirez to spot defendant and place
him under arrest. Officer Fesi verified the man in custody was
the man he observed engaged in the suspected drug activity. After
reviewing the elements of the charged offenses, the judge concluded
Officer Fesi's observations provided a well-grounded suspicion
defendant was engaged in the charged drug distribution offenses.
For the first time on appeal, defendant challenges the
constitutionality of N.J.S.A. 2C:33-2.1, which criminalizes
loitering for the purpose of distributing drugs, the basis upon
which defendant was arrested.1 Defendant argues because the
1 This court has noted:
Interestingly, the word "loitering" is contained only in the statute's title as appearing in New Jersey Statutes Annotated – "Loitering for purpose of illegally using, possessing or selling controlled substance" — and appears nowhere in the actual text of the statute, which prohibits, when coupled with other conduct, the "wander[ing], remain[ing]
8 A-2047-15T1 statute is overbroad his arrest was invalid. Recognizing he failed
to raise the issue before the trial judge, defendant maintains
freedom from constitutionally defective arrests is a matter of
great public concern, which affects fundamental due process
rights. See Spiegle v. Seaman, 160 N.J. Super. 471, 481 (App.
Div. 1978) (finding it "necessary to determine propositions not
raised below in order to protect the fundamental rights of a
party").
"Generally, an appellate court will not consider issues, even
constitutional ones, which were not raised below." State v.
Galicia, 210 N.J. 364, 383 (2012); see also State v. Walker, 385
N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83
(2006). Two well-established exceptions to the overarching rule
allow review of issues regarding challenges to the court's
jurisdiction, and to "matters of great public interest." State
v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973)). We nonetheless conclude the
statute passes constitutional scrutiny.
or prowl[ing]" in a public place. N.J.S.A. 2C:33-2.1(b)(1).
[State v. Gibson, 425 N.J. Super. 523, 529 n.4 (App. Div. 2012), rev'd on other grounds, 218 N.J. 277 (2014).]
9 A-2047-15T1 General loitering statutes have successfully been challenged
as overbroad. When the prohibited conduct is vague, such statutes
will not withstand due process scrutiny. See Giaccio v.
Pennsylvania, 382 U.S. 399, 402-03, 86 S. Ct. 518, 520, 15 L. Ed.
2d 447 (1966) ("It is established that a law fails to meet the
requirements of the Due Process Clause if it is so vague and
standardless that it leaves the public uncertain as to the conduct
it prohibits . . . ."). The United State Supreme Court recognized
the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274, 21 S. Ct. 128, 45 L. Ed. 186 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage," Kent v. Dulles, 357 U.S. 116, 126, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).
[City of Chi. v. Morales, 527 U.S. 41, 53-54, 119 S. Ct. 1849, 1857-58, 144 L. Ed. 2d 67, 78-79 (1999) (footnotes omitted).]
10 A-2047-15T1 New Jersey has no general anti-loitering laws. See State v.
Crawley, 90 N.J. 241, 247 (1982) ("In view of this legislative
history, we conclude that the absence of a loitering proscription
from the Code reflects a state policy to decriminalize such
activity.").
Applying these standards, we examine the challenged criminal
statute to determine whether the prohibited conduct is
sufficiently described. See State v. Galloway, 133 N.J. 631, 658-
59 (1993) (holding courts must "construe penal statutes
strictly"). Defendant's arrest was based on N.J.S.A. 2C:33-
2.1(b), which provides:
[a] person . . . commits a disorderly persons offense if (1) he wanders, remains or prowls in a public place with the purpose of unlawfully . . . distributing a controlled dangerous substance . . . ; and (2) engages in conduct that, under the circumstances, manifests a purpose to . . . distribute a controlled dangerous substance.
Subsection (c) lists "[c]onduct that may, where warranted
under the circumstances, be deemed adequate to manifest a purpose
to obtain or distribute a controlled dangerous substance or
controlled substance analog" to include, but is not limited to:
(1) Repeatedly beckoning to or stopping pedestrians or motorists in a public place;
(2) Repeatedly passing objects to or receiving objects from pedestrians or motorists in a public place;
11 A-2047-15T1 (3) Repeatedly circling in a public place in a motor vehicle and on one or more occasions passing any object to or receiving any object from a person in a public place.
Subsection (d) of the statute further instructs the activity used
to satisfy element (1) may not be used to satisfy element (2).
N.J.S.A. 2C:33-2.1(d). Therefore, the State must prove a defendant
(a) was wandering, remaining, or prowling (b) in a public place,
(c) with the purpose of unlawfully distributing CDS, and (d)
engaged in activities tending to manifest the purpose to unlawfully
distribute CDS. Ibid.
On its face, N.J.S.A. 2C:33-2.1 is not directed to general
loitering. "It is apparent . . . the statute was enacted to
protect the quality of life in public places by interdicting
persons who linger or circulate there for the specific purpose of
engaging in drug transactions." State v. Kazanes, 318 N.J. Super.
421, 425 (App. Div. 1999). "In too many neighborhoods in New
Jersey, drug dealers and drug buyers have transformed street
corners into open-air drug markets. Meanwhile, residents and
legitimate merchants see their neighborhoods filled with the decay
and violence that inevitably accompany the drug trade." Id. at
425 n.1 (quoting Governor Florio's statement to Legislature
regarding P.L. 1991, c. 383).
12 A-2047-15T1 The Supreme Court has made clear the standards governing
arrest for the criminal conduct described therein.
The right to walk freely on the streets of a city without fear of arbitrary arrest is one of the guarantees protected by the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. A person cannot be arrested unless there is probable cause to believe that he has committed or is committing an offense. An arrest without probable cause is an unreasonable seizure in violation of both the Federal and State Constitutions.
[State v. Gibson, 218 N.J. 277, 281 (2014).]
The non-exhaustive examples of behavior that may be consistent
with someone attempting to buy drugs includes some form of contact
with other people or motorists, including passing objects or
beckoning to pedestrians. The identified conduct is specific and
cannot be described as "mere loitering."2 Unlike general statutory
prohibitions, N.J.S.A. 2C:33-2.1 defines conduct with a purpose
and intent not simply hanging around in a place for no apparent
reason. Accordingly, a police officer cannot arrest an individual
unless that individual's behavior is corroborative of some illegal
activity.
2 "As commonly understood, loitering suggests remaining or lingering in a location for some indefinite period for no apparent purpose." Gibson, supra, 218 N.J. at 289-90 (citing various dictionary definitions of the word "loiter").
13 A-2047-15T1 We reject defendant's vagueness challenges. We conclude the
statute sufficiently provides standards that inform the public of
the nature of prohibited conduct.3 Despite defendant's arguments
to the contrary, our review of the record of the suppression
hearing satisfies us the State proved not only reasonable
suspicion, but also probable cause to stop and arrest defendant
for violating N.J.S.A. 2C:33-2.1.
Generally, probable cause "means less than legal evidence
necessary to convict though more than mere naked suspicion." State
v. Daniels, 393 N.J. Super. 476, 486 (App. Div. 2007) (quoting
State v. Mark, 46 N.J. 262, 271 (1966)). "Probable cause has been
characterized 'as a common-sense, practical standard.'" Ibid.
(quoting State v. Novembrino, 105 N.J. 95, 120 (1987). "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.'"
Ibid. (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The
standard is objective and considers the totality of all facts and
3 Recently, the New Jersey Supreme Court discussed N.J.S.A. 2C:33-2.1, without triggering constitutionality questions. See State v. Miles, __ N.J. __ (2017) (vacating successive prosecutions for loitering for the purpose of distributing drugs and then distribution of drugs in a school-zone because the former included the same elements of proof established by the same evidence, making it the same offense, barred by double jeopardy). In Gibson, the Court cited N.J.S.A. 2C:33-2.1 with approval as providing a satisfactory description of conduct amounting to loitering. Gibson, supra, 218 N.J. at 290.
14 A-2047-15T1 circumstances. "Although several factors considered in isolation
may not be enough, cumulatively those pieces of information may
'become sufficient to demonstrate probable cause.'" Ibid.
(quoting State v. Zutic, 155 N.J. 103, 113 (1998)).
Here, for an hour, police surveilled an area known for open-
air drug transactions. Defendant moved about the block, as he and
Council approached seven or eight motorists who pulled over.
Defendant or Council spoke to each driver, left briefly, then
returned to the stopped car with an object. After an interaction,
the driver pulled away. Although Officer Fesi acknowledged he
could not see an actual transfer of money for small objects because
of a tree blocking the camera view, the repeated conduct was
consistent with the examples of conduct deemed to manifest a
purpose to distribute drugs. While in a public place defendant
repeatedly met stopped motorists to whom he passed objects.
Officer Ramirez relied on Officer Fesi's information and clothing
description, see State v. Crawley, 187 N.J. 440, 457 (permitting
police to rely on information transmitted by one officer to
another), cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed.
2d 563 (2006), to arrest defendant.
Considering all of the facts recited above, we conclude the
officers had "a 'well grounded' suspicion that a crime . . . [was]
being committed." Waltz, supra, 61 N.J. at 87. Consequently,
15 A-2047-15T1 probable cause existed to arrest defendant for the disorderly
persons offense of wandering, in violation of N.J.S.A. 2C:33-2.1.
Daniels, supra, 393 N.J. Super. at 485.
Next, the fact defendant was initially arrested for
wandering, in violation of N.J.S.A. 2C:33-2.1, is immaterial.
Subsequent discovery of twenty-one bags of marijuana in his jacket
sleeve, during the search incident to arrest, provided the basis
to charge him with fourth-degree intent to distribute, N.J.S.A.
2C:35-5(a)(1), and third-degree intent to distribute in a school
zone, N.J.S.A. 2C:35-7, the drug offenses to which he pled guilty.
The initial arrest on the lesser charge did not invalidate the
arrest or the final charges.
Following review of defendant's remaining arguments, we
reject them as lacking merit. We reject, as invited error, the
claim regarding the judge's failure to view the entire one-hour
video. See State v. Simon, 79 N.J. 191, 205 (1979) (stating that
errors originating with a defendant generally cannot serve as a
basis for reversal on appeal). Defendant was given numerous
opportunities to present the video evidence in its entirety, and
specifically informed the judge it was not necessary.
Affirmed.
16 A-2047-15T1