NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2858-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER A. ALBARRACIN,
Defendant-Appellant. __________________________________
Submitted August 1, 2018 – Decided August 7, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-04-0496.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Luisa M. Florez, Assistant Prosecutor, on the brief).
PER CURIAM
After the Law Division denied his suppression motion,
defendant Roger Albarracin pled guilty to conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2(a)(2) and
N.J.S.A. 2C:35-5(b)(3), and received a three-year probationary
term. Defendant now appeals, arguing the motion court should have
suppressed his statements and physical evidence because the police
initiated an unconstitutional de facto arrest without probable
cause and failed to provide timely Miranda1 warnings. We disagree
and affirm.
We discern the following facts from the motion record. On
September 25, 2015, Sergeant Delatorre2 and Detective Soto, in
plain clothes, stopped their unmarked police car at the corner of
Bergenline Avenue and an intersecting street, where they observed
two individuals — defendant and Hector Rivera — interacting;
Sergeant Delatorre described Rivera as "a known user." While
standing twenty feet away, the officers witnessed an apparent drug
transaction when they observed Rivera give defendant "U.S.
currency" in exchange for an "unknown item."
The officers followed the two men, who began walking west on
the intersecting street. Detective Soto stopped and stayed with
Rivera while Sergeant Delatorre followed defendant, who met with
a female accompanied by children. Sergeant Delatorre tapped
1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Sergeant Delatorre was the only witness at the suppression hearing.
2 A-2858-16T4 defendant on the shoulder and identified himself as a Union City
Police Officer. He then told defendant, "[C]ome with me, [S]ir,
I do not want to make a scene in front of your children." Defendant
complied, and they walked to a public parking lot about ten to
fifteen feet away. There, Sergeant Delatorre told defendant he
believed defendant had just completed a drug transaction. He then
asked defendant if he had any additional contraband, without
advising defendant of his Miranda rights. Defendant responded,
"[Y]es, I do," and then showed Sergeant Delatorre "two more bags"
of heroin. At that point, Sergeant Delatorre placed defendant
under arrest and discovered "128 wax folds of heroin" during a
search incident to that arrest.
The motion court denied defendant's motion to suppress
defendant's statements and the physical evidence seized from him,
concluding Sergeant Delatorre's initial interaction with defendant
constituted a proper investigatory stop. The court reasoned, "The
stop was brief in nature and it did not curtail [d]efendant's
freedom to a degree associated with a formal arrest. Miranda
warnings were therefore not necessary because [d]efendant was not
in custody."
Defendant raises the following points on appeal:
3 A-2858-16T4 POINT I
BY ISOLATING ALBARRACIN, MOVING HIM TO A NEARBY PARKING LOT, AND ACCUSING HIM OF CRIMINAL ACTIVITY, THE OFFICER DID NOT MERELY CONDUCT AN INVESTIGATORY STOP, BUT RATHER, SUBJECTED ALBARRACIN TO A DE FACTO ARREST. GIVEN THAT THE OFFICER LACKED THE REQUISITE PROBABLE CAUSE TO SUBJECT HIM TO THIS TYPE OF ENCOUNTER, THE FRUITS OF THE SEIZURE MUST BE SUPPRESSED.
POINT II
THE OFFICER FAILED TO APPRISE ALBARRACIN OF HIS MIRANDA RIGHTS PRIOR TO SUBJECTING HIM TO A CUSTODIAL INTERROGATION, THUS REQUIRING SUPPRESSION OF ALBARRACIN’S VERBAL AND NONVERBAL RESPONSES TO THE OFFICER’S POINTED INQUIRY REGARDING HIS INVOLVEMENT IN DRUG ACTIVITY.
I
In reviewing a motion to suppress, we "must uphold the factual
findings underlying the [judge's] decision so long as those
findings are 'supported by sufficient credible evidence in the
record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting
State v. Locurto, 157 N.J. 463, 471 (1999)).
The Fourth Amendment of the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution protect
citizens against unreasonable searches and seizures. U.S. Const.
amend. IV; N.J. Const. art I, ¶ 7. Generally, law enforcement
officers must obtain a warrant based on probable cause to initiate
a constitutionally permissible search or seizure, unless the
4 A-2858-16T4 search or seizure was "justified by one of the well-delineated
exceptions to the warrant requirement." State v. Shaw, 213 N.J.
398, 409 (2012) (internal quotation marks and citation omitted);
see also State v. Maryland, 167 N.J. 471, 482 (2001). An
investigatory stop is an exception to the warrant requirement.
Terry v. Ohio, 392 U.S. 1, 30-31 (1968).
"An investigatory stop, sometimes referred to as
a Terry stop, is permissible 'if it 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.'" Shaw, 213 N.J. at 410 (quoting State v. Pineiro, 181
N.J. 13, 20 (2004)). The State bears the burden of showing "by a
preponderance of the evidence that it possessed sufficient
information to give rise to the required level of suspicion."
State v. Amelio, 197 N.J. 207, 211 (2008) (citation omitted).
"Reasonable suspicion necessary to justify an investigatory
stop is a lower standard than the probable cause necessary to
sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002)
(citing State v. Citarella, 154 N.J. 272, 279 (1998)). To meet
the reasonable suspicion standard, an officer must have "some
minimal level of objective justification for making the stop" that
is "more than an inchoate and unparticularized suspicion or hunch."
United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation
5 A-2858-16T4 marks and citations omitted). In determining whether reasonable
suspicion exists, a court should consider "the totality of the
circumstances . . . ." State v. Gamble, 218 N.J. 412, 431-32
(2014) (quoting United States v. Cortez, 449 U.S. 411, 471 (1981)).
"An officer's experience and knowledge are factors courts should
consider in applying the totality of the circumstances test."
Pineiro, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504
(1986)).
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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-2858-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER A. ALBARRACIN,
Defendant-Appellant. __________________________________
Submitted August 1, 2018 – Decided August 7, 2018
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-04-0496.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Luisa M. Florez, Assistant Prosecutor, on the brief).
PER CURIAM
After the Law Division denied his suppression motion,
defendant Roger Albarracin pled guilty to conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2(a)(2) and
N.J.S.A. 2C:35-5(b)(3), and received a three-year probationary
term. Defendant now appeals, arguing the motion court should have
suppressed his statements and physical evidence because the police
initiated an unconstitutional de facto arrest without probable
cause and failed to provide timely Miranda1 warnings. We disagree
and affirm.
We discern the following facts from the motion record. On
September 25, 2015, Sergeant Delatorre2 and Detective Soto, in
plain clothes, stopped their unmarked police car at the corner of
Bergenline Avenue and an intersecting street, where they observed
two individuals — defendant and Hector Rivera — interacting;
Sergeant Delatorre described Rivera as "a known user." While
standing twenty feet away, the officers witnessed an apparent drug
transaction when they observed Rivera give defendant "U.S.
currency" in exchange for an "unknown item."
The officers followed the two men, who began walking west on
the intersecting street. Detective Soto stopped and stayed with
Rivera while Sergeant Delatorre followed defendant, who met with
a female accompanied by children. Sergeant Delatorre tapped
1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Sergeant Delatorre was the only witness at the suppression hearing.
2 A-2858-16T4 defendant on the shoulder and identified himself as a Union City
Police Officer. He then told defendant, "[C]ome with me, [S]ir,
I do not want to make a scene in front of your children." Defendant
complied, and they walked to a public parking lot about ten to
fifteen feet away. There, Sergeant Delatorre told defendant he
believed defendant had just completed a drug transaction. He then
asked defendant if he had any additional contraband, without
advising defendant of his Miranda rights. Defendant responded,
"[Y]es, I do," and then showed Sergeant Delatorre "two more bags"
of heroin. At that point, Sergeant Delatorre placed defendant
under arrest and discovered "128 wax folds of heroin" during a
search incident to that arrest.
The motion court denied defendant's motion to suppress
defendant's statements and the physical evidence seized from him,
concluding Sergeant Delatorre's initial interaction with defendant
constituted a proper investigatory stop. The court reasoned, "The
stop was brief in nature and it did not curtail [d]efendant's
freedom to a degree associated with a formal arrest. Miranda
warnings were therefore not necessary because [d]efendant was not
in custody."
Defendant raises the following points on appeal:
3 A-2858-16T4 POINT I
BY ISOLATING ALBARRACIN, MOVING HIM TO A NEARBY PARKING LOT, AND ACCUSING HIM OF CRIMINAL ACTIVITY, THE OFFICER DID NOT MERELY CONDUCT AN INVESTIGATORY STOP, BUT RATHER, SUBJECTED ALBARRACIN TO A DE FACTO ARREST. GIVEN THAT THE OFFICER LACKED THE REQUISITE PROBABLE CAUSE TO SUBJECT HIM TO THIS TYPE OF ENCOUNTER, THE FRUITS OF THE SEIZURE MUST BE SUPPRESSED.
POINT II
THE OFFICER FAILED TO APPRISE ALBARRACIN OF HIS MIRANDA RIGHTS PRIOR TO SUBJECTING HIM TO A CUSTODIAL INTERROGATION, THUS REQUIRING SUPPRESSION OF ALBARRACIN’S VERBAL AND NONVERBAL RESPONSES TO THE OFFICER’S POINTED INQUIRY REGARDING HIS INVOLVEMENT IN DRUG ACTIVITY.
I
In reviewing a motion to suppress, we "must uphold the factual
findings underlying the [judge's] decision so long as those
findings are 'supported by sufficient credible evidence in the
record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting
State v. Locurto, 157 N.J. 463, 471 (1999)).
The Fourth Amendment of the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution protect
citizens against unreasonable searches and seizures. U.S. Const.
amend. IV; N.J. Const. art I, ¶ 7. Generally, law enforcement
officers must obtain a warrant based on probable cause to initiate
a constitutionally permissible search or seizure, unless the
4 A-2858-16T4 search or seizure was "justified by one of the well-delineated
exceptions to the warrant requirement." State v. Shaw, 213 N.J.
398, 409 (2012) (internal quotation marks and citation omitted);
see also State v. Maryland, 167 N.J. 471, 482 (2001). An
investigatory stop is an exception to the warrant requirement.
Terry v. Ohio, 392 U.S. 1, 30-31 (1968).
"An investigatory stop, sometimes referred to as
a Terry stop, is permissible 'if it 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.'" Shaw, 213 N.J. at 410 (quoting State v. Pineiro, 181
N.J. 13, 20 (2004)). The State bears the burden of showing "by a
preponderance of the evidence that it possessed sufficient
information to give rise to the required level of suspicion."
State v. Amelio, 197 N.J. 207, 211 (2008) (citation omitted).
"Reasonable suspicion necessary to justify an investigatory
stop is a lower standard than the probable cause necessary to
sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002)
(citing State v. Citarella, 154 N.J. 272, 279 (1998)). To meet
the reasonable suspicion standard, an officer must have "some
minimal level of objective justification for making the stop" that
is "more than an inchoate and unparticularized suspicion or hunch."
United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation
5 A-2858-16T4 marks and citations omitted). In determining whether reasonable
suspicion exists, a court should consider "the totality of the
circumstances . . . ." State v. Gamble, 218 N.J. 412, 431-32
(2014) (quoting United States v. Cortez, 449 U.S. 411, 471 (1981)).
"An officer's experience and knowledge are factors courts should
consider in applying the totality of the circumstances test."
Pineiro, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504
(1986)).
Defendant argues Sergeant Delatorre made an unlawful de facto
arrest, without probable cause, and then failed to provide Miranda
warnings. We disagree.
The record supports the motion judge's determination that
Sergeant Delatorre's brief conversation with defendant constituted
a legal investigatory stop. Sergeant Delatorre observed defendant
receive currency from a known drug user in exchange for an item.
The exchange constituted specific and articulable facts that
provided Sergeant Delatorre with a reasonable suspicion that a
drug transaction had occurred. The transaction, coupled with
Sergeant Delatorre’s fifteen years of training and experience,
supported his suspicion of defendant's specific criminal conduct.
Based on the totality of the circumstances, Sergeant Delatorre had
a reasonable suspicion to conduct an investigatory stop of
defendant.
6 A-2858-16T4 Defendant further argues that Sergeant Delatorre was
"undoubtedly intimidating" and lacked the requisite suspicion to
isolate defendant from the children and female with whom he was
standing. While an investigatory stop becomes a de facto arrest
when it is more than "minimally intrusive," State v. Dickey, 152
N.J. 468, 478 (1998), that did not occur here. We discern nothing
improper regarding Sergeant Delatorre's decision to speak with
defendant away from the children, whom he thought were defendant's
children. The exchange with defendant took place in a public
parking lot, several feet from defendant's original location, and
lasted less than a minute. We do not find Sergeant Delatorre's
behavior intimidating or coercive, nor did defendant object to the
questioning. We conclude the interaction constituted a lawful
investigatory stop and the motion court correctly denied
defendant's motion to suppress.
II
Defendant further argues that because he did not receive
Miranda warnings, the court should suppress his statements and
physical evidence. We disagree.
Miranda warnings attach only when there is custodial
interrogation, which is when law enforcement initiates questioning
after taking a person into custody or otherwise depriving that
person of freedom of action in a significant way. See Miranda,
7 A-2858-16T4 384 U.S. at 444; State v. Smith, 307 N.J. Super. 1, 8-9 (App. Div.
1997). The rights provided in Miranda are "not implicated when
the detention and questioning is part of an investigatory procedure
rather than a custodial interrogation." State v. Pierson, 223
N.J. Super. 62, 66 (App. Div. 1988). "[W]hether a suspect is in
custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned." State v.
O’Neal, 190 N.J. 601, 615 (2007). Factors to consider in
evaluating whether the suspect was subject to custodial
interrogation include: "the time, place[,] and duration of the
detention; the physical surroundings; the nature and degree of the
pressure applied to detain the individual; language used by the
officer; and objective indications that the person questioned is
a suspect." State v. Smith, 374 N.J. Super. 425, 431 (App. Div.
2005). In addition, "[t]he determinative consideration is whether
a reasonable innocent person in such circumstances would conclude
that after brief questioning[,] he or she would or would not be
free to leave." Pierson, 223 N.J. Super. at 67 (citation omitted).
Here, the record supports the court's finding that defendant
was not in custody when Sergeant Delatorre approached defendant,
requested defendant step away from the children, and asked
defendant if he had any additional contraband. The interaction
8 A-2858-16T4 between Sergeant Delatorre and defendant lasted less than one
minute and involved one question. Although Sergeant Delatorre
testified defendant was not free to leave during the questioning,
Sergeant Delatorre did not disclose that to defendant. An
officer’s subjective intent is only relevant if disclosed to the
suspect, in which case it would likely affect a reasonable person's
belief they were free to leave. State v. Brown, 352 N.J. Super.
338, 352-53 (App. Div. 2002). The record shows Sergeant Delatorre
conducted a brief investigatory stop that did not curtail
defendant's freedom to the degree associated with a formal arrest.
Therefore, it was permissible for Sergeant Delatorre to question
defendant about the suspected drug transaction without
administering Miranda warnings.
Furthermore, a voluntary statement by a defendant is
admissible at trial. State v. Miller, 76 N.J. 392, 402 (1978).
In determining the issue of voluntariness, "a court should assess
the totality of all the surrounding circumstances." Ibid.
"[R]elevant factors [to consider] include the suspect’s age,
education and intelligence, advice as to constitutional rights,
length of detention, whether the questioning was repeated and
prolonged in nature and whether physical punishment or mental
exhaustion was involved." Ibid.
9 A-2858-16T4 Here, defendant voluntarily accompanied Sergeant Delatorre
without objection. Sergeant Delatorre asked defendant only one
question, which did not involve any physical or psychological
coercion. Although defendant gave an incriminating response and
produced two additional bags of drugs from his person, Sergeant
Delattore neither coerced defendant into making that statement nor
was defendant in custody. Accordingly, the motion court correctly
determined the challenged statements and physical evidence were
admissible and established probable cause to arrest defendant.
Affirmed.
10 A-2858-16T4