NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2528-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIWAN M. FLAGLER, a/k/a TUQUAN ASHLEY,
Defendant-Appellant. _________________________
Submitted February 28, 2019 – Decided April 3, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-10-1779.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Alanna M. Jereb, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Tiwan M. Flagler appeals from the November 16, 2017 Law
Division order, which denied his motion to suppress evidence seized from his
person following a motor vehicle stop. On appeal, defendant raises the
following contention:
POINT I
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE OFFICER'S TESTIMONY, OFFERED TO ESTABLISH PROBABLE CAUSE AND HEIGHTENED CAUTION, LACKED CREDIBILITY.
We reject this contention and affirm.
We derive the following facts from the evidence presented at a new
suppression hearing following a remand by this court. 1
Police Officer Gabriel Moreano of the Jersey City Police Department
testified that at approximately 8:30 p.m. on May 18, 2014, he and his partner,
Police Officer Christopher Viero, were in an unmarked patrol car traveling west
1 In defendant's prior appeal, we remanded for a new suppression hearing because the motion judge applied the wrong standard of review in assessing the State's burden of proof to justify the warrantless search of defendant's person. State v. Flagler, No. A-0825-15 (App. Div. April 6, 2017). The new hearing was before a different judge. A-2528-17T2 2 on Clinton Avenue. Moreano described the area as a high crime area known for
narcotics transactions, shootings, robberies, and assaults.
The officers were approximately two car lengths directly behind a black
four-door Toyota. As the Toyota entered the intersection of Clinton Avenue and
Kennedy Boulevard, the light turned red, but the driver did not stop and
continued traveling west on Clinton Avenue. The officers activated the
overhead lights and siren on their patrol car to conduct a motor vehicle stop.
The Toyota stopped at the next street. Moreano and Viero exited their
patrol car and immediately smelled phencyclidine (PCP) emanating from the
vehicle. Moreano was certain it was PCP that he smelled based on his training
and experience, which included more than two hundred arrests involving PCP.
The officers saw a male in the driver's seat and a male in the front passenger's
seat and saw that the driver and passenger side windows were down. The smell
of PCP became stronger as the officers approached the Toyota. Both men were
ordered to show their hands for the officers' safety, and they complied. Moreano
spoke to the passenger, later identified as defendant, while Viero spoke to the
driver, later identified as Jazmo Boyd.
Moreano testified that he asked defendant if he was "all right," and saw
that defendant "was just zombied out, frozen, his hands were out. He looked at
A-2528-17T2 3 me, his eyes were wide open. He was sweating, he was nervous. I asked him
again is he okay. He hesitated answering my question." Moreano explained that
these were all PCP-related behaviors that "put [his] danger awareness up . . . ."
Moreano also explained why he did not describe in detail defendant's demeanor
and behavior in prior hearings or in the police report.
Moreano asked Boyd to exit the Toyota because of the smell of PCP and
asked if there was anything inside the vehicle. Boyd replied there was nothing
inside the Toyota. A pat down of Boyd revealed nothing negative. Boyd was
cooperative throughout the encounter. The officers issued him motor vehicle
summonses for failure to observe a signal at the red light and failure to exhibit
a driver's license.
Moreano asked defendant to exit the Toyota for the officers' safety and
because the smell of PCP was emanating exactly from where defendant was
sitting in the vehicle. Moreano explained that PCP would impact his potential
safety because "[b]ehaviors, aggressiveness, it's . . . a bad drug. Like it's really
. . . very dangerous to [Boyd and defendant] and [the officers] and while
[defendant] was inside the vehicle I felt safer if he was able to come out [of] the
car and I could just pat him down for my safety."
A-2528-17T2 4 Moreano asked defendant if he had any weapons or anything sharp on him,
and defendant replied he had a handgun in his right pants pocket. Moreano
immediately grabbed defendant's arms, placed him under arrest, handcuffed
him, and read him his Miranda2 rights. Moreano touched the outside of
defendant's right pants pocket, felt a handgun, and retrieved it. As Moreano was
rendering the handgun safe, Viero came over to assist Moreano. Defendant told
Viero he had a bottle of PCP in his left cargo pants pocket. Viero went into the
pocket and retrieved the bottle.
Boyd testified the light was green when he proceeded through the
intersection. He heard lights and sirens, looked into his rearview mirror and saw
two or three cars behind him and an unmarked police car behind those cars. All
of the cars stopped and the patrol car pulled behind his car. Boyd claimed to
have had prior interactions with the two officers, but could give no specifics.
He admitted he had received summonses, but could not recall the outcome of
those summonses.
In denying defendant's motion to suppress, the motion judge first
addressed the stop. The judge found Moreano's testimony credible and
determined he saw the driver of the Toyota commit the traffic violation of
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-2528-17T2 5 driving through a red light. The judge noted Moreano was very confident in his
testimony; was professionally dressed; had no interest in the outcome of the
trial; had excellent recollection of the offense; candidly admitted the police
report was not fully completed as to the testimony he gave; and his testimony
was based solely on his personal observations. The judge concluded the light
was red when Boyd traveled through the intersection, and the stop was lawful
because the officers had a reasonable and articulable suspicion that the driver of
the Toyota committed a motor vehicle violation.
The judge next addressed Moreano asking defendant to exit the Toyota.
The judge acknowledged defendant made no furtive movements, but found
Moreano had a reasonable suspicion based on the totality of the circumstances
that defendant was engaged in criminal activity and a heightened caution
justifying asking defendant to exit the Toyota. The judge also found that based
on the totality of the circumstances, Moreano had sufficient probable cause to
Free access — add to your briefcase to read the full text and ask questions with AI
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-2528-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIWAN M. FLAGLER, a/k/a TUQUAN ASHLEY,
Defendant-Appellant. _________________________
Submitted February 28, 2019 – Decided April 3, 2019
Before Judges Simonelli and Firko.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-10-1779.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Alanna M. Jereb, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Tiwan M. Flagler appeals from the November 16, 2017 Law
Division order, which denied his motion to suppress evidence seized from his
person following a motor vehicle stop. On appeal, defendant raises the
following contention:
POINT I
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE OFFICER'S TESTIMONY, OFFERED TO ESTABLISH PROBABLE CAUSE AND HEIGHTENED CAUTION, LACKED CREDIBILITY.
We reject this contention and affirm.
We derive the following facts from the evidence presented at a new
suppression hearing following a remand by this court. 1
Police Officer Gabriel Moreano of the Jersey City Police Department
testified that at approximately 8:30 p.m. on May 18, 2014, he and his partner,
Police Officer Christopher Viero, were in an unmarked patrol car traveling west
1 In defendant's prior appeal, we remanded for a new suppression hearing because the motion judge applied the wrong standard of review in assessing the State's burden of proof to justify the warrantless search of defendant's person. State v. Flagler, No. A-0825-15 (App. Div. April 6, 2017). The new hearing was before a different judge. A-2528-17T2 2 on Clinton Avenue. Moreano described the area as a high crime area known for
narcotics transactions, shootings, robberies, and assaults.
The officers were approximately two car lengths directly behind a black
four-door Toyota. As the Toyota entered the intersection of Clinton Avenue and
Kennedy Boulevard, the light turned red, but the driver did not stop and
continued traveling west on Clinton Avenue. The officers activated the
overhead lights and siren on their patrol car to conduct a motor vehicle stop.
The Toyota stopped at the next street. Moreano and Viero exited their
patrol car and immediately smelled phencyclidine (PCP) emanating from the
vehicle. Moreano was certain it was PCP that he smelled based on his training
and experience, which included more than two hundred arrests involving PCP.
The officers saw a male in the driver's seat and a male in the front passenger's
seat and saw that the driver and passenger side windows were down. The smell
of PCP became stronger as the officers approached the Toyota. Both men were
ordered to show their hands for the officers' safety, and they complied. Moreano
spoke to the passenger, later identified as defendant, while Viero spoke to the
driver, later identified as Jazmo Boyd.
Moreano testified that he asked defendant if he was "all right," and saw
that defendant "was just zombied out, frozen, his hands were out. He looked at
A-2528-17T2 3 me, his eyes were wide open. He was sweating, he was nervous. I asked him
again is he okay. He hesitated answering my question." Moreano explained that
these were all PCP-related behaviors that "put [his] danger awareness up . . . ."
Moreano also explained why he did not describe in detail defendant's demeanor
and behavior in prior hearings or in the police report.
Moreano asked Boyd to exit the Toyota because of the smell of PCP and
asked if there was anything inside the vehicle. Boyd replied there was nothing
inside the Toyota. A pat down of Boyd revealed nothing negative. Boyd was
cooperative throughout the encounter. The officers issued him motor vehicle
summonses for failure to observe a signal at the red light and failure to exhibit
a driver's license.
Moreano asked defendant to exit the Toyota for the officers' safety and
because the smell of PCP was emanating exactly from where defendant was
sitting in the vehicle. Moreano explained that PCP would impact his potential
safety because "[b]ehaviors, aggressiveness, it's . . . a bad drug. Like it's really
. . . very dangerous to [Boyd and defendant] and [the officers] and while
[defendant] was inside the vehicle I felt safer if he was able to come out [of] the
car and I could just pat him down for my safety."
A-2528-17T2 4 Moreano asked defendant if he had any weapons or anything sharp on him,
and defendant replied he had a handgun in his right pants pocket. Moreano
immediately grabbed defendant's arms, placed him under arrest, handcuffed
him, and read him his Miranda2 rights. Moreano touched the outside of
defendant's right pants pocket, felt a handgun, and retrieved it. As Moreano was
rendering the handgun safe, Viero came over to assist Moreano. Defendant told
Viero he had a bottle of PCP in his left cargo pants pocket. Viero went into the
pocket and retrieved the bottle.
Boyd testified the light was green when he proceeded through the
intersection. He heard lights and sirens, looked into his rearview mirror and saw
two or three cars behind him and an unmarked police car behind those cars. All
of the cars stopped and the patrol car pulled behind his car. Boyd claimed to
have had prior interactions with the two officers, but could give no specifics.
He admitted he had received summonses, but could not recall the outcome of
those summonses.
In denying defendant's motion to suppress, the motion judge first
addressed the stop. The judge found Moreano's testimony credible and
determined he saw the driver of the Toyota commit the traffic violation of
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-2528-17T2 5 driving through a red light. The judge noted Moreano was very confident in his
testimony; was professionally dressed; had no interest in the outcome of the
trial; had excellent recollection of the offense; candidly admitted the police
report was not fully completed as to the testimony he gave; and his testimony
was based solely on his personal observations. The judge concluded the light
was red when Boyd traveled through the intersection, and the stop was lawful
because the officers had a reasonable and articulable suspicion that the driver of
the Toyota committed a motor vehicle violation.
The judge next addressed Moreano asking defendant to exit the Toyota.
The judge acknowledged defendant made no furtive movements, but found
Moreano had a reasonable suspicion based on the totality of the circumstances
that defendant was engaged in criminal activity and a heightened caution
justifying asking defendant to exit the Toyota. The judge also found that based
on the totality of the circumstances, Moreano had sufficient probable cause to
arrest and search defendant. Thus, the judge concluded the search incident to
defendant's arrest was lawful.
On appeal, defendant contends the State failed to establish there was
probable cause for the stop because Moreano's testimony was not credible
because Moreano waivered about where the Toyota was located when the light
A-2528-17T2 6 turned red and failed to explain discrepancies between his testimony and the
police report. Defendant argues that because the stop was unlawful, his removal
from the Toyota and seizure of the handgun and PCP found on his person were
fruits-of-the-poisonous tree that should have been suppressed.
Our Supreme Court has established the standard of review applicable to
consideration of a trial judge's ruling on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo."
[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original) (citations omitted) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Vargas, 213 N.J. 301, 327 (2013)).]
The trial court's "credibility determinations are entitled to deference and
those factual findings must be sustained as long as they are supported by
sufficient, credible evidence in the record." State v. Yohnnson, 204 N.J. 43, 62
(2010). We owe deference to "trial courts' credibility findings that are often
A-2528-17T2 7 influenced by matters such as observations of the character and demeanor of
witnesses and common human experience that are not transmitted by the
record." State v. Locurto, 157 N.J. 463, 474 (1999). On appeal, we are not
"permitted to 'weigh the evidence, assess the credibility of witnesses, or make
conclusions about the evidence.'" Id. at 472 (quoting State v. Barone, 147 N.J.
599, 615 (1997)).
Here, the motion judge found that any inconsistencies in Moreano's
testimony actually bolstered his credibility. The judge found Moreano was
credible based on his personal observations and the fact that he candidly
admitted the police report was not fully completed. The judge also found
Moreano was confident in his testimony, had a good recollection of the offense,
and had no interest in the outcome of the trial.
Further, Moreano explained why he did not describe defendant's
demeanor and behavior in the prior hearing or the police report, stating it was
not customary to include each and every detail in a police report, and he was not
previously asked questions about defendant's demeanor and behavior. While
there were some discrepancies, Moreano's testimony in the current hearing was
substantially the same as in the prior proceedings. Moreano consistently
testified that he saw the Toyota run the red light. Accordingly, the judge
A-2528-17T2 8 properly found Moreano was credible and the light was red when Boyd travelled
through the intersection.
"It is firmly established that a police officer is justified in stopping a motor
vehicle when he has an articulable and reasonable suspicion that the driver has
committed a motor vehicle offense." Locurto, 157 N.J. at 470 (1999) (quoting
State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Ultimately, "courts
will not inquire into the motivation of a police officer whose stop of an
automobile is based upon a traffic violation committed in his presence." State
v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991). "The fact that the
justification for the stop was pretextual . . . [is] irrelevant[,]" id. at 29, and the
State need not prove that the suspected motor vehicle violation has in fact
occurred. Locurto, 157 N.J. at 470. Rather, the inquiry is "whether the officer
could have an objectively reasonable belief, even if mistaken, that the
defendant's driving behavior 'affected traffic,' to justify the stop. State v.
Sutherland, 231 N.J. 429, 439 (2018).
The officers in this case had a reasonable and articulable suspicion that
Boyd committed a motor vehicle violation in their presence. Even if they were
mistaken, their reasonable belief that Boyd ran the red light was sufficient to
A-2528-17T2 9 conduct the stop. Accordingly, the stop of the Boyd's vehicle was lawful, and
the judge properly denied defendant's motion to suppress.
Affirmed.
A-2528-17T2 10