STATE OF NEW JERSEY VS. RONALD R. WALKER (15-06-1203, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 21, 2020
• Docket: A-4455-17T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4455-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD R. WALKER, a/k/a RONALD R. WALKER, 2nd, and RONALD R. WALKER, JR.,

Defendant-Appellant. ____________________________

Submitted December 9, 2019 – Decided April 21, 2020

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 15-06-1203.

Joseph E. Krakora, Public Defender, attorney for appellant (Molly O'Donnell Meng, Assistant Deputy Public Defender, of counsel and on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel and on the brief).

PER CURIAM Following his guilty plea, defendant Ronald R. Walker appeals his

conviction for second-degree possession of a controlled dangerous substance

(CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). On this

appeal as of right, R. 3:5-7(d), he advances a single argument:

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE A) THE TIP FROM THE CONFIDENTIAL INFORMANT THAT PROMPTED THE STOP WAS NOT RELIABLE AND CONSISTED ALMOST ENTIRELY OF INNOCENT IDENTIFYING DETAILS AND B) BECAUSE POLICE FAILED TO CORROBORATE THAT [DEFENDANT] WAS ENGAGED IN CRIMINAL ACTIVITY BEFORE STOPPING HIM.

Because the stop was justified under the totality of the circumstances, we affirm.

The trial court heard testimony at an evidentiary hearing from a detective

who received information from a confidential informant (CI) and thereafter

surveilled defendant. The court found the "information that defendant was

engaged in CDS activity from a reliable informant who was involved in a prior

CDS investigation with [the detective's unit,]" the detective's familiarity "with

defendant from previous CDS investigations involving defendant[,]" and the

detective's knowledge of the area in which he surveilled defendant—Manitou

Park—as "a high crime area," justified the detective's stop of defendant as he sat

in a parked car. The court also found the detective's stop placed him "lawfully

A-4455-17T1 2 in the viewing area" when, after opening the car door, he saw a vegetative matter

in plain view, justifying defendant's arrest. In the search incident thereto, police

found 770 wax folds of heroin, five grams of crack cocaine, oxycodone pills and

$6525 on defendant's person.

We give deference to findings "which 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. Elders, 192 N.J. 224,

244 (2007). "An appellate court should not disturb the trial court's findings

merely because 'it [may] have reached a different conclusion were it the trial

tribunal' or because 'the trial court decided all evidence or inference conflicts in

favor of one side' in a close case." Ibid. (quoting State v. Johnson, 42 N.J. 146,

162 (1964)). Only in those circumstances where the trial court's findings are so

clearly mistaken "that the interests of justice demand intervention and

correction" will we "appraise the record as if [we] were deciding the matter at

inception and make [our] own findings and conclusions." Ibid. (quoting

Johnson, 42 N.J. at 162). The trial court's application of its factual findings to

the law, however, is subject to plenary review. State v. Cryan, 320 N.J. Super.

325, 328 (App. Div. 1999).

A-4455-17T1 3 "[U]nder both the Fourth Amendment to the United States Constitution

and Article I, Paragraph 7 of our State Constitution, [government] . . . seizures

conducted without warrants issued upon probable cause are presumptively

unreasonable and therefore invalid." Elders, 192 N.J. at 246. "[T]he State bears

the burden of proving by a preponderance of the evidence that a warrantless

search or seizure 'falls within one of the few well-delineated exceptions to the

warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20

(2004)).

"Not all interactions between law enforcement [officers] and citizens

constitute seizures, and not all seizures are unconstitutional." Ibid. An

investigatory stop, otherwise known as a Terry stop, Terry v. Ohio, 392 U.S. 1

(1968), "is valid 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," State v. Mann, 203 N.J. 328, 338 (2010) (quoting

Pineiro, 181 N.J. at 20).

Analysis of the validity of an investigatory stop balances the competing

interests between "a citizen's privacy and freedom of movement" and "proper

law[]enforcement activities." State v. Davis, 104 N.J. 490, 504-05 (1986).

Investigative stops are justified, even absent probable cause, "if the evidence,

A-4455-17T1 4 when interpreted in an objectively reasonable manner, shows that the encounter

was preceded by activity that would lead a reasonable police officer to have an

articulable suspicion that criminal activity had occurred or would shortly occur."

Id. at 505. Courts are to determine whether the totality of the circumstances

gives rise to an "articulable [and] particularized" suspicion of criminal activity,

not by use of a strict formula, but "through a sensitive appraisal of the

circumstances in each case." Ibid. Our Supreme Court recognized the two-step

analysis set forth in United States v. Cortez, 449 U.S. 411, 418 (1981),

for determining whether the totality of circumstances creates a "particularized suspicion." A court must first consider the officer's objective observations. The evidence collected by the officer is "seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." "[A] trained police officer draws inferences and makes deductions . . . that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities." Second, a court must determine whether the evidence "raise[s] a suspicion that the particular individual being stopped is engaged in wrongdoing."

[Davis, 104 N.J. at 501 (alterations in original) (citations omitted) (quoting Cortez, 449 U.S. at 418).]

Here, several circumstances gave rise to a particularized, reasonable suspicion

that defendant was engaged in criminal activity.

A-4455-17T1 5 As the trial court found, the CI informed the detective, a member of the

Ocean County Prosecutor's Office special operations group (SOG), that

defendant—whom he identified by name and as "Boobie"—was in the area of

Manitou Park, traveling in a black Jeep Grand Cherokee. The CI also informed

that defendant was in possession of heroin and crack cocaine which he was

selling to individuals. The detective knew defendant used "Boobie" as a street

name, and was familiar with him from prior CDS investigations. The court

found the CI was reliable based on his involvement in a prior SOG investigation

involving CDS. We note the detective testified that the CI provided

"information and cooperation" that "resulted in the arrest of an individual for

CDS[-]related charges."

We agree with defendant that the CI's tip, standing alone, did not give rise

to a reasonable and articulable suspicion justifying the stop of defendant. In the

context of establishing probable cause, the totality of the circumstances under

which a CI's tip must be analyzed includes the CI's "veracity" and "basis of

knowledge." State v. Smith, 155 N.J. 83, 92-93 (1998). We are unconvinced

that the single instance of undetailed "information and cooperation" previously

provided by the CI established his veracity. See State v. Zutic, 155 N.J. 103,

111 (1998). Further, the basis for the CI's knowledge was not provided, nor

A-4455-17T1 6 does the CI's general information—which does not describe the criminal activity

or establish "hard-to-know future events," provide that basis. Smith, 155 N.J.

at 95. But the totality of the circumstances included much more that the CI's

information.

The trial court's findings from the detective's credited testimony reveal

that the detective traveled to the Manitou Park area and observed defendant in

the Jeep described by the CI, and eventually followed defendant when he drove

to the intersection of Second Avenue and Third Street; the trial court credited

the detective's testimony that he knew frequent CDS transactions and CDS-

related arrests took place in that area. After the detective radioed for assistance

from his SOG unit, he surveilled defendant exit the Jeep, speak with several

individuals, return to the Jeep to retrieve an item through the driver's side door,

and speak on several occasions on his cell phone. When a gray Dodge Charger

arrived, the driver, Gregory Stone, exited the Charger, spoke to defendant and

removed something from the Jeep. Thereafter, Patrick Howard came on the

scene, and all three men were seen in the Charger engaging in what the detective

believed, based on his training and experience, to be a drug transaction. That

corroboration in tandem with the detective's trained deduction that defendant

engaged in a drug sale, comprised a part of the totality of circumstances that

A-4455-17T1 7 must be considered in determining whether the stop was valid. Id. at 98

(holding, in the context of a probable cause analysis, "[e]ven where the tip lacks

sufficient detail to establish a basis of knowledge, independent police

investigation and corroboration of the detail in the tip must be considered

because it may in some circumstances add to the evidentiary weight of factors

as well as the overall circumstances").

Additional circumstances gave rise to a reasonable, particularized

suspicion that defendant engaged in criminal activity. As the detective

approached the Charger, he observed that defendant and Howard were focused

on another police vehicle as it approached. In testimony credited by the t rial

court, the detective said he then observed defendant "moving around in his

waistband, in his lap, attempting to what [the detective] believe[d] to be either

conceal[ing] or tuck[ing] away something under the seat in that area, the driver's

seat area." Based on the gang activity, violence and gun use in that area, the

detective believed defendant was trying to conceal "gun[s], drugs, whatever" as

he walked to the car. The detective testified the other SOG members were still

approaching in their vehicles; the detective "was there by [him]self with the

three subjects in the Charger." He, therefore, grabbed the driver's door handle

and opened the door. As the trial court found, "[a]fter opening the door, [the

A-4455-17T1 8 detective] identified himself as a police officer and requested defendant to step

out of the vehicle."

We first observe our Supreme Court's recognition that "[n]ervousness and

furtive gestures may, in conjunction with other objective facts, justify a Terry

search, but ordinarily '[m]ere furtive gestures of an occupant of an automobile

do not give rise to an articulable suspicion suggesting criminal activity.'" State

v. Carty, 170 N.J. 632, 648 (2002) (second alteration in original) (quoting State

v. Lund, 119 N.J. 35, 47 (1990)), modified on other grounds, 174 N.J. 351

(2002). But as the Court in Lund observed: "Obviously there are some cases in

which 'furtive' movements or gestures by a motorist, accompanied by other

circumstances, will ripen into a reasonable suspicion that the person may be

armed and dangerous or probable cause to believe that the person possess es

criminal contraband." 119 N.J. at 48.

In addition to the observed furtive movements, the information provided

by the CI, and the observations by the SOG detective, buttressed by his training,

experience and knowledge of both defendant and the area in which the

observations took place, provided a reasonable, particularized suspicion that

defendant engaged in illegal drug activity, justifying his stop. The stop was a

proper investigative measure. As we explained in State v. Williams:

A-4455-17T1 9 Precedent establishes that "[b]ased [on the] whole picture[,] the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18 (emphasis added). In this context, we recognize that the level of proof required to justify an investigative stop is less than that required to demonstrate probable cause. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." [Adams v. Williams, 407 U.S. 143, 145 (1972).]

[364 N.J. Super. 23, 36 (App. Div. 2003) (first alteration in original) (citations omitted).]

Defendant contests only the stop, not any further action the detective took

prior to the seizure of the items found in the car and on defendant's person. We

briefly address those issues for the sake of completeness.

Opening a car door is analyzed under the same test utilized in determining

police authority to order a passenger from a motor vehicle. As to both police

actions, our Supreme Court has held:

We see no reason to depart from the elegant reasoning that undergirds this settled principle in making the parallel determination of whether a police officer has the authority to open a vehicle door as part of issuing an order to exit the vehicle. In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that

A-4455-17T1 10 lawful order. Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit. See State v. Matthews, 330 N.J. Super. 1, 6 (App. Div. 2000) (holding that "[s]ince the officer was entitled to order defendant out of the car, he was equally entitled to open the door to accomplish that object").

[State v. Mai, 202 N.J. 12, 22-23 (2010) (alteration in original).]

To justify an order to a passenger to step out of a vehicle,

the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.

[State v. Smith, 134 N.J. 599, 618 (1994).]

Under the totality of the circumstances as we have recited, the detective

was justified in opening the car door for his protection and control of the scene.

In Mai, the Court "reaffirmed that 'a police officer could order a passenger out

of an automobile if the officer had an articulable suspicion short of probable

cause to believe that a crime had been committed.'" 202 N.J. at 25 (quoting

State v. Tucker, 136 N.J. 158, 167 (1994)). Inasmuch as ordering a driver out

A-4455-17T1 11 of a vehicle requires even less cause, see Smith, 134 N.J. at 609-11 (adopting

the Fourth Amendment analysis set forth in Pennsylvania v. Mimms, 434 U.S.

106, 111 (1977), and holding the safety of police officers during traffic stops far

outweighs the de minimis intrusion on a driver who is asked to alight from a

vehicle even if no suspicious behavior was detected prior to the request), the

detective's order to defendant to step out of the vehicle was proper.

For the reasons set forth in the trial court's oral opinion, the plain view

seizure of the substance believed to be marijuana, subsequent arrest of defendant

and search incident thereto—unchallenged by defendant—were proper.

Affirmed.

A-4455-17T1 12