NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1273-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SALAHUDDI F. SMART, a/k/a/ SAL DYSHON, SMART DYSHON, JAMES B. JOHNSON, DYSHON F. SMART, SALAHUDDI SMART, SALAHUDDI R. SMART, DYSHON SMART, SALAHUDDIN SMART, JAMES JOHNSON, TROY IRVIN, AMIR, and SAL SMART.
Defendant-Appellant. ____________________________
Submitted October 28, 2021 – Decided November 30, 2021
Before Judges Whipple, Geiger and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 18-02-0409 and 19-01-0169. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Hannah M. Franke, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Salahuddi F. Smart appeals from a Law Division order denying
his motion to suppress physical evidence seized from his person and a
subsequent judgment of conviction. We reverse.
I.
A Camden County grand jury returned Indictment No. 18-02-0409,
charging defendant with third-degree possession with intent to distribute a
controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(13).1 Defendant moved to suppress evidence seized from his person.
We derive the underlying facts from the motion record. Officer Justin Glass of
the Delaware River Port Authority Police Department was the sole witness at
the suppression hearing.
1 In an unrelated matter, defendant was charged with six offenses under Indictment No. 19-01-0169, including fourth-degree criminal contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9(b). A-1273-19 2 On November 14, 2017, Glass was monitoring foot traffic at the Walter
Rand Transportation Center in Camden via closed-circuit television (CCTV).
During the hearing, the State played the CCTV video that captured the initial
phase of the incident.
Glass testified that at about 7:20 p.m. on November 14, 2017, he was
monitoring foot traffic via closed-circuit television (CCTV) at the Broadway
City Hall Sector of the Walter Rand Transportation Center in Camden. He
characterized this location as a high-crime area, known for "open-air narcotics
transactions."
Glass testified that he "observed a black male sitting on a windowsill
engaging in a conversation" "with another black male, at which point [he]
observed the black male who was standing place money behind the black male
that was sitting on the windowsill. The black male on the windowsill", later
identified as defendant, "handed over an unknown object which . . . was believed
to be [CDS]." Glass identified defendant as the man sitting on the windowsill.
Glass stated he believed defendant handed over CDS because the man
standing up transferred what Glass believed to be United States currency.
However, Glass was unable to discern the object defendant transferred to the
other man. He was unable to describe the shape or size of the object. Glass
A-1273-19 3 candidly admitted he did not know what was in defendant's hand—conceding
that he had no clue what it was.
However, based on "the shape, the size[,] and the fact that it was folded,"
Glass believed but could not positively identify that the object transferred by the
man standing up to behind defendant's back was cash. Glass deduced that the
object transferred from defendant to the man standing up was CDS, even though
he could not identify the object.
Glass and two other officers then approached defendant in the lobby of
Broadway Hall. Glass "conducted a pedestrian stop." Glass told defendant that
the reason he stopped him was he "observed a hand-to-hand narcotics transaction
where there was an exchange of monetary value." Glass stated defendant "kept
repeating that it was a misunderstanding."
During this conversation, Glass "observed a bulge in [defendant's] left
pocket," which Glass believed to be a prescription pill bottle. Glass "asked
[defendant] what the item was and if he would turn the item over . . . ."
Defendant stated, "it was his prescription medicine" and turned the pill bottle
over to Glass. The pill bottle's label stated "[d]efendant's name and that the
A-1273-19 4 prescription was OxyContin2 or Oxycodone, HCL, [fifteen] milligrams," and
was filled November 13, 2017, the day before. Defendant was prescribed ninety
pills, but there were only thirty pills in the bottle.
At this point, Glass contacted dispatch and requested a warrant check of
defendant, which revealed multiple outstanding arrest warrants. Glass
subsequently placed defendant under arrest. When defendant was searched at
police headquarters, police found $22 on him, "which was believed to be the
proceeds from the narcotics transaction."
However, the CCTV video does not contain video of Glass's interaction
with defendant because "[f]or whatever reason, the person that was book
marking the incident did not bookmark the entire stop from the time of the . . .
violation to the end of when [defendant was] placed under arrest." The video
only contains the purported drug transaction between the man standing up and
defendant sitting on the windowsill.
2 "Oxycodone is a synthetic drug derived from opium." N.J. Div. of Youth & Fam. Servs. v. Y.N., 431 N.J. Super. 74, 79 n.4 (App. Div. 2013) (citing United States v. Ilayayev, 800 F. Supp. 2d 417, 429 (E.D.N.Y. 2011)). "OxyContin is a controlled-release encapsulation of oxycodone." Ibid. (citing Ilayayev, 800 F. Supp. 2d at 430). Both are prescription narcotic painkillers classified as Schedule II CDS under N.J.S.A. 24:21-6.
A-1273-19 5 The other male walked away and was not apprehended. Accordingly, the
police did not seize the suspected CDS that defendant allegedly distributed.
At the conclusion of the testimony, defendant, who was then pro se,
argued that Glass had only a "subjective hunch" that defendant was involved in
a hand-to-hand CDS transaction. Defendant noted the failure to preserve CCTV
video of the pedestrian stop was "suspicious."
In response, the State argued that "a trained officer draws inferences and
makes deductions that might well [e]lude an untrained person, [and] that is what
we are looking at." The State explained that Glass, who is trained in hand-to-
hand transactions and pill identification, witnessed the transaction between
defendant and the other man in a high-crime area, and was able to formulate an
"articulable and reasonable suspicion" to perform an investigatory stop.
Therefore, Glass conducted a lawful investigatory stop.
The State further argued that Glass had probable cause to arrest defendant
under the totality of the circumstances. In any event, because defendant had
outstanding warrants, the contents of the prescription bottle would inevitably
have been discovered during a search incident to arrest.
The judge issued an oral decision and order denying the suppression
motion. The judge found Glass credible, noting he "maintained his candor[,]"
A-1273-19 6 "was willing to answer questions[,] and [] didn't show any reluctance to answer
any questions."
The judge made the following findings of fact. First, defendant, sitting
down, and the other man, standing up, were "milling around and the male
[standing up] clearly passe[ed] something from his right hand to the right hand
of the defendant." The court stated: "Glass felt that was money. I would tell
you the [c]ourt's observation that it appeared to be money and also . . . the [c]ourt
would say simultaneously there was a transaction of . . . another object [from]
the [d]efendant to the person [standing up]." The judge further explained that
even if the man standing up did not hand over U.S. currency, "clearly[] there
was some quid pro quo exchange . . . ." From there, the court stated:
there . . . appeared to be a bottle in [defendant's] right hand and then a transaction from [defendant's left hand] to the gentleman [standing up], . . . [which] based upon the officer's knowledge and experience, gave . . . rise to at least an absolute minimum that there was a reasonable suspicion existed at that moment of. . . a suspected drug transaction observation.
Further, the judge found the State approached defendant "in the least
intrusive manner," and began to perform a Terry3 stop. The court then stated:
"Thereafter, certainly on a pat-down and their observation, they did find the
3 Terry v. Ohio, 392 U.S. 1 (1968). A-1273-19 7 narcotics bottle. I do find that that was a lawful search under the totality of the
circumstances." The judge concluded that Glass had probable cause to arrest
defendant and that the prescription that bottle was found during a search incident
to arrest, so a warrant was not needed. Finally, the judge stated:
[T]he [c]ourt has to make a practical and commonsense determination that given all of the circumstances there was a fair probability that that contraband or evidence would be found in a particular place . . . . [(1T138:8-15)].
Following the denial of the suppression motion, defendant entered a guilty
plea to third-degree possession with intent to distribute CDS under Indictment
No. 18-02-0409, and fourth-degree criminal contempt under Indictment No. 19-
01-0169. In exchange, the State agreed to recommend a four year-term on the
CDS count, a concurrent eighteen-month term on the criminal contempt count,
and to dismiss the remaining counts at sentencing. The State had no objection
to defendant being placed on intensive supervised parole (ISP). Defendant was
sentenced in accordance with the plea agreement and the remaining five counts
of Indictment No. 19-01-0169 were dismissed. This appeal followed.
On appeal, defendant argues:
THE PILL BOTTLE SHOULD BE SUPPRESSED BECAUSE THE POLICE LACKED THE REASONABLE AND ARTICULABLE SUSPICION
A-1273-19 8 NEEDED TO CONDUCT AN INVESTIGATORY STOP OF DEFENDANT.
II.
We review a trial court's ruling on a motion to suppress evidence "with
substantial deference to the trial court's factual findings, which we 'must uphold
. . . so long as those findings are supported by sufficient credible evidence in the
record.'" State v. Hinton, 216 N.J. 211, 228 (2013) (quoting State v. Handy, 206
N.J. 39, 44 (2011)). This deference applies to "factual findings based on a video
recording or documentary evidence" to ensure that trial courts remain "the finder
of the facts." State v. S.S., 229 N.J. 360, 381 (2017). We review a trial court's
legal conclusions de novo. Id. at 380.
The Fourth Amendment of the United States Constitution and Article I,
paragraph 7 of the New Jersey Constitution generally require police to obtain "a
warrant based on probable cause . . . prior to any search or seizure." State v.
Harris, 211 N.J. 566, 581 (2012). As such, warrantless searches are
presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v.
Patino, 83 N.J. 1, 7 (1980)). The State carries the burden to demonstrate that
"[the search] falls within one of the few well-delineated exceptions to the
warrant requirement." Ibid. (alterations in original) (quoting State v. Maryland,
167 N.J. 471, 482 (2001)).
A-1273-19 9 III.
We first address the constitutionality of the investigatory stop. An
exception to the warrant requirement is an investigatory stop, also known as a
Terry stop, State v. Rosario, 229 N.J. 263, 272 (2017), which allows police to
"detain an individual temporarily for questioning." Maryland, 167 N.J. at 486.
To effectuate a lawful investigatory stop, an officer must show "'specific and
articulable facts which, taken together with rational inferences from those facts,'
give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172
N.J. 117, 126 (2002) (quoting Terry, 392 U.S at 21). "The 'articulable reasons'
or 'particularized suspicion' of criminal activity must be based upon the law
enforcement officer's assessment of the totality of the circumstances . . . ." State
v. Davis, 104 N.J. 490, 504 (1986). "There must be 'some objective
manifestation that the person [detained] is, or is about to be engaged in criminal
activity.'" Pineiro, 181 N.J. at 22 (alteration in original) (quoting United States
v. Cortez, 449 U.S. 411, 417-18 (1981)). However, "[t]he suspicion need not
rise to the 'probable cause necessary to justify an arrest.'" Id. at 20 (quoting
State v. Nishina, 175 N.J. 502, 511 (2003)).
While a suspect's presence in a high-crime area is not in any way
dispositive, it may be considered when determining whether there was a
A-1273-19 10 legitimate reasonable suspicion of criminal activity. Compare State v. Bard, 445
N.J. Super. 145, 157-58 (App. Div. 2016) (citing the officer's knowledge that a
suspect's location was a high-crime area); with State v. Richards, 351 N.J. Super.
289, 307 (App. Div. 2002) (noting "[t]he neighborhood was not a high -crime
area and guns were not a frequent concern in the area.").
Even where the initial stop is deemed constitutional, the court must
"determine whether the subsequent scope of the seizure was justified by the
particular facts and circumstances of the case." Davis, 104 N.J. at 504. Further,
when viewed by an experienced and knowledgeable officer, even a suspect's
somewhat innocuous conduct may give rise to a sufficient reasonable suspicion.
See State v. Citarella, 154 N.J. 272, 275-76, 279-80 (1998) (deeming an officer's
reasonable suspicion legitimate where, among other innocuous facts, the officer
observed the suspect riding a bicycle in a hurried fashion over the George
Washington bridge, then placing his bicycle in the back of a pickup truck; the
officer knew the suspect from prior drug crimes and knew defendant lived over
two miles in the opposite direction he was headed); Pineiro, 181 N.J. at 13
(finding a police officer justifiably assumed, based on his experience, that
cigarette packs were often used to transfer drugs).
A-1273-19 11 A reviewing court evaluates the totality of the circumstances, "balancing
the State's interest in effective law enforcement against the individual's right to
be protected from unwarranted and/or overbearing police intrusions." Davis,
104 N.J. at 504. We consider the officer's experience and knowledge. Pineiro,
181 N.J. at 22 (citing Davis, 104 N.J. at 504).
Defendant claims Glass merely had a "hunch" that defendant was engaged
in criminal activity, seeing only the exchange of something resembling U.S.
currency for an item Glass could not discern. The State argues the trial court
correctly found Glass had sufficient information, based on his training and
experience, to conduct the investigative stop. The State points to the trial court's
finding of a money-for-item exchange in a high-crime area known for drug
transactions.
Here, the judge found Glass to be credible. Glass testified that he
observed two males on CCTV in an area known for drug trafficking. He
observed defendant with what he believed was an orange prescription pill bottle
in his right hand, but he was not certain. Glass observed defendant "hand[] over
an unknown object" in his left hand, which Glass "believed to be a CDS," but
he once again was not certain, conceding he still did not know what it was. Glass
clarified that he believed the item that defendant handed over was CDS because
A-1273-19 12 the "Walter Rand Transportation Center is an open-air narcotic [location]" and
"[b]ecause of the transfer of the United States currency prior to the transfer of
that item."
Glass has worked in law enforcement since 2010. He started as a Class 2
Special Officer. In 2014, he attended the Gloucester County Police Academy
and began working as a full-time police officer. Glass testified that he had made
thirty to forty prior drug arrests, had received training in recognizing narcotics
distribution at the academy, and had subsequently received specialized training
in narcotics, including a drug identification course.
Glass observed defendant engage in a hand-to-hand exchange with the
other male. The exchange was captured on a video recording. Without being
certain as to what he saw, the officer's observations gave rise to a reasonable
suspicion that a drug transaction had taken place. We conclude that based on
his knowledge, experience, training, and observations, coupled with the location
of the exchange, Glass presented a sufficiently particularized suspicion to
effectuate a lawful investigatory stop of defendant.
IV.
We next address the constitutionality of the search and seizure and
resulting arrest. A warrantless arrest must be based on probable cause. Pineiro,
A-1273-19 13 181 N.J. at 19-21. As we noted above, the federal and state constitutions
generally require police to obtain a warrant based on probable cause before
conducting a search or seizure. Harris, 211 N.J. at 580-81. "The standards for
determining probable cause to arrest and probable cause to search are identical."
State v. Moore, 181 N.J. 40, 45 (2004) (citing State v. Smith, 155 N.J. 83, 92
(1998)). To be constitutionally permissible, a warrantless search must fall
within a recognized exception to the warrant requirement. Pineiro, 181 N.J. at
19.
Probable cause "is a well-grounded suspicion that a crime has been or is
being committed." Nishina, 175 N.J. at 515 (quoting State v. Sullivan, 169 N.J.
204, 211 (2001)). "Probable cause exists where the facts and circumstances
within . . . [the officers'] knowledge," based on "reasonably trustworthy
information" would "warrant a [person] of reasonable caution" to believe "that
an offense has been or is being committed." Pineiro, 181 N.J. at 21 (alterations
in original) (quoting Moore, 181 N.J. at 46). In determining whether probable
cause existed, courts review the totality of the circumstances and consider the
"officer's 'common and specialized experience.'" Moore, 181 N.J. at 46 (quoting
Schneider v. Simonini, 163 N.J. 336, 362 (2000)). Courts also consider evidence
A-1273-19 14 of the high crime rate of an area. Ibid. (citing State v. Johnson, 171 N.J. 192,
217 (2002)).
We first note there is no evidence in the record, other than a passing
comment by the trial court, that Glass or the other officers conducted a pat-down
on defendant before he was arrested. Instead, the record indicates Glass noticed
a bulge in defendant's left pocket that resembled a pill bottle and "asked
[defendant] what the item was and if he would turn the item over, which he
[did]." An officer eventually conducted a pat-down on defendant after he had
turned over the prescription pill bottle in his pocket and was arrested on the
outstanding warrants.
Viewed objectively, the video depicts defendant handing an unidentified
item to the other male in exchange for what may have been folded money. There
was no observation of narcotics or of packaging commonly used in drug
transactions. Nor was the officer able to confirm that he saw the other male
hand currency to defendant.4 In any event, defendant only had $22 on him, an
4 In his affidavit of probable cause, Glass stated that he "observed via CCTV a black male approach the [d]efendant and place money behind the [d]efendant's back. I observed the [d]efendant remove a prescription pill bottle from his pants pocket." Glass testified that he believed the item to be U.S. currency because it "appear[ed] to be a rectangle that's folded in half." However, Glass could not positively identify that it was money. A-1273-19 15 amount hardly indicative of the sale of narcotic painkillers. The police did not
intercept or recover any OxyContin from the other male. The State lacked any
direct evidence that defendant handed OxyContin to the other male. It relies
instead on admittedly uncertain observations of what was in defendant's left and
right hands, and what was placed behind defendant by the other male, and
inferences drawn from those observations. Despite the officer's experience and
training, and his testimony that the location was used for drug transactions, this
paucity of facts did not establish probable cause justifying the arrest or
warrantless search of defendant's person. Considering that Glass could not
confirm what defendant had in his hands or that money had been handed to him,
this amounted to acting on unverified assumptions.
Importantly, the OxyContin that defendant possessed was prescribed for
him. It was contained in a labelled prescription pill bottle. Defendant was
lawfully in possession of the OxyContin for his own use. It only became illegal
if he possessed the OxyContin with intent to distribute it to others. In our view,
the totality of the circumstances here prior to the search of the object in
defendant's pocket and warrant check fall short of probable cause.
On appeal, the State does not contend that defendant voluntarily and
knowingly consented to the search of the object in his pocket. After noticing a
A-1273-19 16 bulge in defendant's left pocket, Glass simply "asked [defendant] what the item
was and if he would turn the item over, which he [did]." The State has the
burden of demonstrating that the consent to search exception applies. State v.
Legette, 227 N.J. 460, 472 (2017). The State "has the burden of showing that
the consent was voluntary, an essential element of which is knowledge of the
right to refuse consent." State v. Johnson, 68 N.J. 349, 354 (1975); see also
State v. Shaw, 237 N.J. 588, 618-19 (2019) ("The consent must be voluntary,
that is, 'unequivocal and specific' and 'freely and intelligently given.'") (quoting
State v. King, 44 N.J. 346, 352 (1965)). "One cannot be held to have waived a
right if he was unaware of its existence." Johnson, 68 N.J. at 354.
Defendant was not advised that he had the right to refuse to consent to the
search. Defendant turned over the pill bottle, which prompted Glass to request
a warrant check. This led to defendant's arrest. Absent being advised of the
right to refuse consent, it was not a valid consent to search. State v. Todd, 355
N.J. Super. 132, 138-39 (App. Div. 2002).
The State's fallback position is that the pill bottle and OxyContin would
have been inevitably discovered because of defendant's active warrants. Under
the inevitable discovery exception, evidence that was unlawfully seized is
admissible if it "would inevitably have been discovered lawfully." State v.
A-1273-19 17 Holland, 176 N.J. 344, 361 (2003) (quoting State v. Sugar (Sugar II), 100 N.J.
214, 238 (1985)). The State must show "by clear and convincing evidence that
had the illegality not occurred, it would have pursued established investigatory
procedures that would have inevitably resulted in the discovery of the
controverted evidence, wholly apart from its unlawful acquisition." Id. at 362
(quoting Sugar II, 100 N.J. at 239-40).
The warrant check was conducted after the pill bottle was requested and
turned over. The record does not indicate that Glass would have ordered the
warrant check if the item in defendant's left pocket was innocuous. See Wong
Sun v. United States, 371 U.S. 471, 479-80, 83 S. Ct. 407, 413, 9 L. Ed. 2d 441,
450-51 (1963) (noting that after acquired facts could not bolster probable cause);
State v. L.F., 316 N.J. Super. 174, 181 (App. Div. 1998) (noting that facts known
at the time "cannot be transmuted into something more nefarious by a hindsight
focus on the results of a [subsequent] search the police had no right to conduct").
The State acknowledges that the pill bottle was not discovered as the result of a
pat-down5 and that the trial court found Glass had probable cause to arrest
5 Moreover, Glass had no objective basis to believe that defendant was armed. Accordingly, there was no lawful basis to conduct a protective frisk for weapons. See State v. Thomas, 110 N.J. 673, 685 (1988) (stating that evidence discovered during a pat-down search of the defendant was suppressed because the "record
A-1273-19 18 defendant only after discovery of the pill bottle. Therefore, the inevitable
discovery exception does not apply.
The State did not establish probable cause for the warrantless search of
defendant's person. We reverse the denial of defendant's suppression motion,
vacate his guilty plea to possession of CDS with intent to distribute under count
one of Indictment No. 18-02-409, vacate his conviction and sentence on that
count, and remand for further proceedings.
Reversed in part, vacated in part, and remanded for further proceedings.
We do not retain jurisdiction.
[did] not establish a specific, particularized basis for an objectively reasonable belief that defendant was armed and dangerous"). A-1273-19 19