Opinion
DOCKET NO. A-3998-12T3
01-09-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TAFIQ A. WARD, ENRIQUE A. MASEDA AND TODD K. WEST, Defendants-Respondents.
Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Kevin T. Flood, attorney for respondent Todd K. West. Joseph E. Krakora, Public Defender, attorney for respondent Tafiq A. Ward relies on the brief of respondent Todd K. West. Respondent Enrique A. Maseda has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-02-127.
Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Kevin T. Flood, attorney for respondent Todd K. West.
Joseph E. Krakora, Public Defender, attorney for respondent Tafiq A. Ward relies on the brief of respondent Todd K. West.
Respondent Enrique A. Maseda has not filed a brief. PER CURIAM
By leave granted, the State appeals an order suppressing 142 vials of crack cocaine seized from beneath the front passenger seat of a motor vehicle stopped for speeding and careless driving. Additional drugs carried by the passengers on their persons were not suppressed, but defendants do not appeal that determination. Although the driver signed a consent form authorizing the search of the car, the judge suppressed the cocaine found in the car because the State failed to establish facts giving rise to a "reasonable and articulable suspicion" of criminality warranting a request for consent. State v. Carty, 170 N.J. 632, 647 (2002). For the reasons that follow, we affirm.
I
As a consequence of the evidence seized during the motor vehicle stop, defendant Tafiq A. Ward, the front-seat passenger, defendant Enrique A. Maseda, the driver, and defendant Todd K. West, the back-seat passenger, were indicted and charged with third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1); second-degree possession of one-half an ounce or more of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), b(2); and second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1a. Following indictment, they filed the suppression motion.
At the suppression hearing, the State presented the testimony of Officer Joseph Vetter and Officer Michael Flowers of the Hillside Police Department. Vetter is one of the two officers who stopped the car, and Flowers is the officer who obtained Maseda's consent to search the car. None of the defendants testified at the suppression hearing.
At 12:48 a.m. on October 11, 2011, Vetter and his partner, Officer Wanat, were patrolling in a marked car on Williamson Avenue in Hillside. As they approached North Broad Street, they saw a black Hyundai Elantra speeding on North Broad through the intersection. Consequently, they turned onto Broad Street and activated the patrol car's overhead lights and sirens. Maseda continued for about 150 feet before stopping the Elantra at the intersection of Keer and Elizabeth Avenues, which is in a high-crime area of Newark known for narcotics trafficking.
The officers left their patrol car and approached the Elantra — Vetter on the passenger's side and Wanat on the driver's side. Illuminating the car's interior with his flashlight as he approached, Vetter saw the back-seat passenger, West, looking back and fumbling around and saw the front-seat passenger, Ward, duck down and crouch over, as if he were trying to conceal something. In Vetter's view, the passengers' movements were suspicious. The behavior of the driver, Maseda, also aroused his suspicion. Maseda was looking around nervously and sweating profusely. By Vetter's account, he had done many car stops and did "not usually see people act in that manner."
Vetter also testified that Maseda was questioned by Officer Wanat, but Maseda had difficulty producing his credentials and answering the questions posed by Wanat. Because Wanat did not testify these matters were not clarified. Indeed, Ward answered for Maseda. Wanat had told Vetter that Maseda's and Ward's stories conflicted, but Vetter did not hear the conversation and did not know what either Maseda or Ward had said. Vetter did not describe in any detail what Maseda did that led him to conclude that Maseda had difficulty producing his credentials.
Because of the area, the occupants' nervousness and the furtive movements of the passengers, the officers called for backup. Officer Flowers, who handles a drug-sniffing dog, was among those who responded. Leaving his dog in the car, Flowers joined Wanat and took over the questioning of Maseda. Flowers read Maseda the Hillside Police Department's consent-to-search form and advised him that he had the right to refuse consent and to withdraw his consent at any point during the search. Flowers also told Maseda that if he did not consent, Flowers would have the dog walk around the outside of the car and that if the dog detected narcotics, the car would be taken to headquarters and the officers would obtain a search warrant.
The officers' testimony on when the passengers were removed from the car was less than clear. Flowers said the passengers were removed after he obtained Maseda's consent to a search of the car and that he did not take the drug-sniffing dog out of the car until he had obtained Maseda's consent. Vetter gave several self-contradictory accounts of when the passengers were removed from the car — after he called for backup, after backup arrived, prior to Maseda's giving consent to the search of the car, and after Maseda's consent was finalized.
In any event, when the passengers were removed from the car, the officers had them stand on the sidewalk and patted them down for weapons and found none. While Ward and West were detained on the sidewalk, West reached into his pocket and moved as if he were going to throw something — a large rock substance that the officers suspected was CDS. Wanat grabbed West's arm, retrieved the substance and placed West under arrest.
Drugs were not found on Ward until after Flowers took his dog from his truck. Upon seeing the dog, Ward became more nervous. Announcing that he did not "mess with dogs," Ward told the officers he had drugs and reached into his pants. Some vials of crack cocaine dropped to the ground; others were removed from Ward's pants by the officers.
When Flowers put the dog in the car, the dog signaled on the car's front passenger seat. Consequently, Vetter searched under that seat. He retrieved a bag that held the 142 vials of crack cocaine.
The judge found that the officers lawfully stopped the car for speeding or careless driving. And, the judge credited Vetter's testimony describing the following: Maseda's delay in producing his credentials; Ward's answering questions posed to Maseda; the passengers' furtive movements; and the characteristics of the area in which the car was stopped. On that basis, the judge determined the officers had reason to be concerned for their safety, which warranted removal of all three occupants and the pat-down searches for weapons.
The judge concluded, however, that Vetter's description of the furtive movements made by the passengers and the character of the area in which the car was stopped was not enough to give the officers a reasonable and articulable suspicion of ongoing criminality in the car. Accordingly, the judge suppressed the cocaine found in the car.
As previously noted, the propriety of the judge's denial of the defendants' motion to suppress either the block-like substance West pulled from his pocket to throw away or the vials of cocaine Ward admitted to carrying when Flowers took his dog from the patrol car is not before us. Accordingly, we do not address his ruling on that evidence.
II
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), but concluding that this court misapplied the standard it recited). An appellate court cannot disturb findings just because it would have reached another conclusion. Id. at 244. Such action is permissible only when the judge's findings are so "'clearly mistaken' or 'so wide of the mark' that the interests of justice required appellate intervention. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)." Elders, supra, 192 N.J. at 245.
The State had the burden of proving by a preponderance of the evidence that the 142 vials of cocaine found under the front seat of the car were lawfully obtained. Id. at 246. And the State's proffered justification for the search of the car was Maseda's consent.
To establish the validity of a consent search under article I, paragraph 7 of the New Jersey Constitution, 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, 353-54 (1975). In addition, where the consent is obtained from a motorist whose car has been stopped for a traffic violation, the State must establish that the officers had a "reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity." Carty, supra, 170 N.J. at 647.
We cannot conclude that the judge erred in deciding that the State failed to establish the requisite articulable suspicion. The State cannot rely on the cocaine held by Ward or West, which those defendants disclosed after they had been removed from the car and subjected to a pat-down search for weapons. After all, the State acknowledges that the passengers were removed from the car "[w]hile Officer Flowers was getting consent to search from defendant Maseda." Thus, when Flowers asked for Maseda's consent he knew nothing about the cocaine that West and Ward later extracted from their clothing.
The State's evidence left the judge with little information about what the officers saw and heard that led them to suspect there was evidence of criminality in the car. Prior to the stop the car was speeding, and the driver stopped it in response to the officers' signals after traveling no more than 150 feet. The area where the officers stopped the car was a high-crime area known for drug trade, but there was no evidence that the defendants were doing anything other than passing through that area.
Apart from the foregoing evidence, the judge had only general and vague descriptions about the officers' observations. Vetter testified that the defendants were nervous and made "furtive" movements — West's fumbling and looking back at the officers as they approached the car, Ward's ducking and crouching as if he were trying to hide something, and Maseda's looking all around and sweating profusely. Although Vetter said that Maseda had difficulty finding his credentials and answering Wanat's questions, he did not describe the difficulty at all. Similarly, although Vetter was able to testify that Wanat told him Maseda's and Ward's answers conflicted, Vetter acknowledged that he could not say what the conflict was.
In short, the judge was left with nothing other than vague and general descriptions of nervousness and furtive gestures in the context of a motor vehicle stop for speeding in a high-crime area. As Judge Triarsi recognized, decisions of our Supreme Court support his determination that such evidence is inadequate to permit a police officer to prolong a motor vehicle stop by seeking consent to search. In Carty, the Supreme Court observed:
"Nervousness 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. Lund, 119 N.J. 35, 47 (1990) (alteration in original) (quoting State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989)).
[170 N.J. at 648.]
Lund provides additional guidance on the significance of furtive gestures made by occupants of motor vehicles. In Lund, the Court cited with approval decisions by courts of other jurisdictions that found gestures similar to those Vetter observed inadequate to support a reasonable suspicion. 119 N.J. at 47; see Spence v. State, 525 So. 2d 442 (Fla. Dist. Ct. App. 1988) (an observation of a person leaning down as if to put something on the floor did not justify suspicion of criminal activity); People v. Mills, 450 N.E.2d 935 (Ill. App. 3d 1983) (a defendant's leaning forward as an officer approached the car did not create reasonable suspicion justifying a stop). Indeed, the Court relied on those decisions and other authorities in observing:
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 possesses criminal contraband. Examples of such factors are additional evasive action, lying to the police, the presence of other incriminating information about the motorist or occupants of the car, the absence of identification, and even the lateness of the hour.
[Lund, supra, 119 N.J. at 48.]
In this case, there was very little to give the gestures and nervousness the flavor of criminal activity. The hour, 12:48 a.m., was late, but not so late as to suggest something other than ordinary social activity. The police stopped the car in a high-crime area, but there was no evidence giving rise to an inference that the driver and his passengers were doing anything other than passing through that area quickly.
In our view, there is no basis for disturbing the judge's determination that the State's proofs were inadequate to establish the validity of this consent search under Carty. The Court's purpose in requiring the State to show reasonable suspicion was to "prevent[] the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop." Carty, supra, 170 N.J. at 647. In this case, the vagueness and generality of the testimony about the facts giving rise to suspicion of criminal activity strongly suggests a stop that was followed by a fishing expedition based on a hunch that proved to be correct. But the Court adopted an "'objective standard'" limiting police discretion to conduct consent searches in order to avoid "'intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.'" Elders, supra, 192 N.J. at 240 (quoting Carty, supra, 170 N.J. at 641).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION