STATE OF NEW JERSEY VS. TRACY S. ANDERSON (16-02-0303, 16-04-0666, 17-03-0437, 16-11-1871 AND 16-11-1872, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 7, 2020
• Docket: A-5130-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5130-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACY S. ANDERSON, a/k/a DWAYNE ANDERSON, and TYQUAM,

Defendant-Appellant. _____________________________

Argued telephonically June 1, 2020 – Decided July 7, 2020

Before Judges Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 16-02- 0303, 16-04-0666, 17-03-0437, and Accusation Nos. 16-11-1871, 16-11-1872.

Zachary Gilbert Markarian, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Zachary Gilbert Markarian, of counsel and on the briefs). Maura Kathryn Tully, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Maura Kathryn Tully, of counsel and on the brief).

PER CURIAM

Defendant Tracy S. Anderson appeals from a July 14, 2017 order that

denied his motion to suppress. After the judge entered the order, defendant pled

guilty to third-degree possession of a controlled dangerous substance (CDS),

N.J.S.A. 2C:35-10(a)(l), and second-degree possession of a CDS with intent to

distribute while on or within 500 feet of a public housing facility, N.J.S.A.

2C:35-7.1.1

On appeal, defendant raises the following arguments:

POINT I

OFFICERS LACKED SPECIFIC, ARTICULABLE FACTS SUPPORTING THEIR DECISION TO IMMEDIATELY FRISK [DEFENDANT] AFTER STOPPING HIM FOR A TRAFFIC VIOLATION. THE NARCOTICS FOUND AS A RESULT OF THE FRISK MUST BE SUPPRESSED.

POINT II

OFFICER LEDET'S QUESTIONING OF [DEFENDANT] DURING THE PAT[-]DOWN SEARCH EXCEEDED THE PERMISSIBLE SCOPE

1 Defendant previously pled guilty on separate drug charges and was awaiting sentencing on the prior conviction at the time of the instant offenses. A-5130-17T4 2 OF THE FRISK FOR WEAPONS AND VIOLATED HIS RIGHT AGAINST SELF-INCRIMINATION.

Finding no merit in defendant's arguments, we affirm substantially for the

reasons expressed in Judge Leslie-Ann M. Justus' oral opinion. Thus, we

summarize the pertinent facts and add only the following.

Between September 2015 and August 2016, defendant was arrested on

four separate occasions for various offenses related to the sale of a CDS. In

November 2016, defendant pled guilty to third-degree possession of a CDS,

N.J.S.A. 2C:35-10(a)(l); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3);

and two separate instances of third-degree possession of heroin with intent to

distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7.

After defendant's November 2016 plea, but before sentencing, a

confidential informant (CI), who had provided helpful information in prior

narcotics investigations, informed Patrolman Mysonn Ledet of the Neptune

Township Police Department (NTPD) that defendant was selling narcotics in

Neptune Township (Neptune) in the parking lots for the Parke Warner

Pharmacy, Wawa, and Auto Zone. Law enforcement considered these locations

to be high-crime areas. The CI detailed that defendant would arrange for buyers

to meet him at these places, and he would sell them drugs while he remained in

A-5130-17T4 3 his car. The CI also informed Ledet that defendant drove a Ford Taurus with

license plate number K68HHA.

The CI's report was corroborated by the Asbury Park Street Crime Unit,

which informed Ledet that defendant was selling drugs in Neptune, and by

individuals the NTPD had arrested, who told the police that defendant was

selling narcotics. Based on this information, the NTPD began to surveil

defendant, and Ledet conducted thorough background checks. Ledet discovered

defendant's prior arrests and criminal record, which included aggravated assault

against law enforcement officers and resisting arrest. Ledet also obtained a

photograph of defendant and confirmed that he owned a Ford Taurus with

On January 31, 2017, the CI informed the NTPD that defendant would

shortly be en route to sell heroin in the Parke Warner Pharmacy parking lot.

Around 4:00 p.m. on that day, Ledet and another officer positioned themselves

at the intersection of Heck Avenue and Atkins Avenue in Neptune. After about

ten minutes, Ledet observed defendant's Ford Taurus speed past him, and Ledet

began to follow. Defendant subsequently made a sudden right-hand turn without

signaling, and Ledet activated his overhead emergency lights and siren. Ledet

A-5130-17T4 4 then observed defendant reach around both the front seat and passenger seat

areas, as if to retrieve or conceal something.

Defendant did not come to an immediate stop. He continued and

eventually rolled over a curb in the Parke Warner Pharmacy parking lot, while

still shuffling around inside his car. He entered the parking lot at a section at

which there was no entrance. Defendant did not park in the first available

parking spot, passing by several spots before stopping.

After defendant parked, Ledet exited his vehicle and approached

defendant's vehicle, confirming that defendant was the driver and his girlfriend

was the front-seat passenger. Ledet ordered defendant to exit the vehicle and

show his hands. Defendant complied, and Ledet patted him down. At this time,

three other officers arrived on scene in separate vehicles to provide backup.

While patting down defendant, Ledet asked him, "Do you have anything

on you that I need to know about[?]" Defendant responded that he had

Oxycodone in his pocket, and he handed Ledet a napkin containing five

Oxycodone tablets. Ledet arrested and handcuffed defendant around 4:04 p.m.

and then searched his person, finding $1,328 in cash. While defendant was still

handcuffed and was standing between both vehicles, Ledet asked him for

consent to search his car.

A-5130-17T4 5 Defendant granted Ledet consent to search the car and signed a consent to

search form. The form stipulated that defendant was advised of his rights

pertaining to the search of his car, and it listed those rights. Ledet read the entire

form to defendant, provision by provision. Defendant initialed the form under

each of the provisions as they were read, and Ledet and another officer signed

the form. The form indicated that it was executed at 4:10 p.m. To allow

defendant to both sign and initial the document, Ledet had removed the

handcuffs from defendant's right hand while he reviewed the form with

defendant.

Two officers removed defendant's girlfriend from the vehicle and began

to search it, while three officers remained with defendant next to Ledet's patrol

vehicle. The officers searched the area by the front passenger seat, where

defendant had been observed reaching toward while being followed, and they

discovered a plastic bag between the front passenger side door and seat that

contained heroin. The officers arrested defendant's girlfriend and transported

her and defendant to police headquarters.

Ledet read defendant his Miranda2 rights at police headquarters, and

defendant waived his rights. Defendant admitted that when he was stopped, he

2 See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). A-5130-17T4 6 was on his way to sell heroin. He also stated that after he realized Ledet was

pulling him over, he gave the heroin to his girlfriend.

A Monmouth County grand jury indicted defendant on two counts of third-

degree possession of a CDS, N.J.S.A. 2C:35-10(a)(l) (counts one and five); one

count of third-degree possession of a CDS with intent to distribute, N.J.S.A.

2C:35-5(b)(3) (count two); one count of third-degree possession of a CDS with

intent to distribute, while on or within 1000 feet of school property, N.J.S.A.

2C:35-7 (count three); and one count of second-degree possession of a CDS with

intent to distribute while on or within 500 feet of a public housing facility,

N.J.S.A. 2C:35-7.1 (count four).

In April 2017, defendant moved to suppress his inculpatory statements

and the physical evidence of heroin and Oxycodone. Judge Justus held a hearing

on June 13, 2017. At the hearing, the State called Ledet as a witness. As to his

decision to frisk defendant, Ledet testified on direct,

I conducted the pat[-]down for weapons obviously because of [defendant's] movements in the vehicle. He was reaching under the seat. He was reaching under the passenger seat. I didn't know what he was reaching for as well as the information that him selling narcotics, I know that drug dealers usually carry weapons on them, you know for their own protection of their property and also their drugs. So for officer safety, I patted him down, make sure he had any weapons.

A-5130-17T4 7 On July 14, 2017, Judge Justus denied defendant's motion to suppress.

She found Ledet credible and accepted his testimony, and she found that the CI

was reliable. The judge determined that defendant's failure to use his turn signal

when turning was a violation of N.J.S.A. 39:4-126, thereby justifying the stop.

Given defendant's initial failure to stop, his movements inside the vehicle, and

the fact that the stop occurred in a high crime area, it was reasonable for Ledet

to ask defendant to exit his vehicle. Ledet's question during the pat-down was

appropriate, as it was intended to ensure the officer's safety. Further, the judge

concluded that the evidence seized from defendant's vehicle should not be

suppressed, as defendant knowingly and voluntarily consented to the search.

Defendant signed the consent form while he was still outside of the patrol car.

Additionally, he had signed consent forms on two prior occasions, and during

one of those instances, he initially refused to consent. The judge found

defendant was "well aware of his right not to consent."

On December 8, 2017, defendant pled guilty to third-degree possession of

a CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3), and second-degree

possession of a CDS with intent to distribute while on or within 500 feet of a

public housing facility, N.J.S.A. 2C:35-7.1. In return, the State agreed to

dismiss all remaining charges in the indictment and recommended a total of ten

A-5130-17T4 8 years' imprisonment, subject to fifty-seven months of parole ineligibility, to run

consecutive to the sentences imposed in defendant's other pending matters.

On March 23, 2018, the sentencing judge sentenced defendant to the

recommended term and ordered that it run concurrent to his other sentences.

The judge entered corresponding judgments of conviction and orders for

commitment. This appeal ensued.

Our review of a determination of a motion to suppress evidence is limited,

and we defer to "the [trial] judge's factual findings so long as sufficient credible

evidence in the record supports those findings." State v. Gonzales, 227 N.J. 77,

101 (2016). Such findings will not be disturbed, even if an opportunity for

independent review might lead to a different conclusion. State v. Johnson, 42

N.J. 146, 162 (1964). However, a trial judge's legal conclusions are not afforded

the same deference. State v. Handy, 206 N.J. 39, 45 (2011). Whether

established facts warrant the grant or denial of a suppression motion is a legal

question subject to de novo review. Ibid.; see State v. Mann, 203 N.J. 328, 337

(2010).

A police officer may conduct a pat-down search for weapons if he or she

has a reasonable belief that the suspect is armed and dangerous, regardless of

whether there is probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 27 (1968);

A-5130-17T4 9 see State v. Thomas, 110 N.J. 673, 679 (1988). "The reasonableness of the

search . . . is to be measured by an objective standard. . . . The officer must be

able 'to point to particular facts from which he [or she] reasonably inferred that

the individual was armed and dangerous.'" Thomas, 110 N.J. at 679 (quoting

Sibron v. New York, 392 U.S. 40, 64 (1968)). To determine whether an

objectively reasonable suspicion exists, the judge must look at the totality of the

circumstances and determine whether "the circumstances create[d] an

objectively reasonable concern for the officer['s] safety." State v. Roach, 172

N.J. 19, 29 (2002). "Facts that might seem innocent when viewed in isolation

can sustain a finding of reasonable suspicion when considered in the aggregate,

so long as the officer maintains an objectively reasonable belief that the

collective circumstances are consistent with criminal conduct." State v. Nishina,

175 N.J. 502, 511 (2003).

Here, the judge concluded that the CI's information, considered jointly

with the other facts, gave Ledet sufficient reason to pat-down defendant after he

exited the vehicle.3 She found that by reaching toward the passenger seat,

3 We find no reason to disturb the judge's finding that the CI was credible as that finding is amply supported by evidence in the record: the CI had proven reliable in the past, see State v. Sullivan, 169 N.J. 204, 213 (2001); the CI provided specific information that was accurate on the date of defendant's arrest,

A-5130-17T4 10 defendant appeared to be giving something to his girlfriend that he did not want

the police to find. 4 The judge also stressed that defendant did not immediately

pull over after Ledet activated his lights and siren, and went over the curb to

park in the parking lot through an area that lacked an entrance. She also

emphasized that defendant did not immediately park in vacant spaces in the lot,

unnecessarily moving down several spaces, and this stop occurred in an area

with high rates of drug activity. Thus, the judge concluded that based on the

totality of the circumstances, there were specific and articulable facts creating a

reasonable suspicion that defendant was armed and dangerous. This finding is

amply supported by the record, and we see no basis to disturb it.

We also reject defendant's argument that Ledet impermissibly questioned

him during the pat-down without reading him his Miranda rights, so his

statement that he had unprescribed Oxycodone in his pocket should have been

see State v. Smith, 155 N.J. 83, 95 (1998) (explaining that a CI's basis of knowledge may be deemed reliable where he or she "provid[es] sufficient detail in the tip or recount[s] information that could not otherwise be attributed to circulating rumors or be easily gleaned by a casual observer"); and the NTPD, other arrestees, and background checks revealing defendant's extensive drug - dealing activities corroborated the CI's tip, see Sullivan, 169 N.J. at 214. 4 Contrary to defendant's arguments, when considered jointly with the other circumstances, nervousness and furtive gestures may ripen into a reasonable suspicion that a person is armed or dangerous. See State v. Carty, 170 N.J. 632, 648, modified on other grounds, 174 N.J. 351 (2002). A-5130-17T4 11 suppressed. "[T]he protections provided by Miranda are only invoked when a

person is both in custody and subjected to police interrogation." State v.

Hubbard, 222 N.J. 249, 266 (2015). "The critical determinant of custody is

whether there has been a significant deprivation of the suspect's freedom of

action based on the objective circumstances, including the time and place of the

interrogation, the status of the interrogator, the status of the suspect, and other

such factors." State v. P.Z., 152 N.J. 86, 103 (1997). Interrogation refers to

express questioning or "any words or actions on the part of the police . . . that

the police should know are reasonably likely to elicit an incriminating response."

Hubbard, 222 N.J. at 267 (quoting Rhode Island v. Innis, 446 U.S. 291, 301

(1980)).

Here, the judge concluded that Ledet's questioning whether defendant had

anything on him that Ledet should know about was not an interrogation. She

determined that "[Ledet] testified credibly that he asked defendant this question

while patting [defendant] down so that . . . [he] would be aware of any weapons

or sharp objects that would harm [him] doing the pat[-]down." The judge found

that while defendant was in custody at this time, this inquiry was investigatory

but not an interrogation; thus, Ledet did not need to read defendant his Miranda

rights before asking the question. See Hubbard, 222 N.J. at 266.

A-5130-17T4 12 We agree with the judge's determination that Ledet was not interrogating

defendant. "Despite the restraint on freedom of action involved in Terry and

traffic stops, an officer is not required to give Miranda warnings before asking

questions reasonably related to dispelling or confirming suspicions that justify

the detention." State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005);

Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984). Ledet's inquiry occurred

during the pat-down and was intended to gauge whether defendant possessed

anything that could harm the officer, and such inquiry was justified by a

reasonable suspicion that defendant had a weapon. The questioning was brief

and not intended to elicit anything further than what was necessary to ensure the

officer's safety.

To the extent we have not addressed any of the parties' remaining

arguments, we conclude that they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-5130-17T4 13