State v. Pineiro

*34 Justice LaVECCHIA,

concurring in part and dissenting in part.

Defendant, Jose Pineiro, challenges the constitutionality of the stop and search of his co-defendant, Jorge Rodriguez, which yielded a quantity of heroin that supported defendant’s conviction for third-degree conspiracy to possess a controlled dangerous substance contrary to N.J.S.A. 2C:5-2. Under the totality of the circumstances, I would hold that officer Elias Aboud’s investigatory stop of Rodriguez, and consequent search of the cigarette pack handed to him by Rodriguez, were lawful, and would affirm the Appellate Division.

Article I, paragraph 7, of the New Jersey Constitution, like the Fourth Amendment of the United States Constitution, “proteet[s] citizens against unreasonable police searches and seizures by requiring warrants upon probable cause unless the search falls within one of the few well-delineated exceptions to the warrant requirement.” State v. Johnson, 171 N.J. 192, 205 , 793 A.2d 619, 626 (2002) (internal quotation marks omitted). An investigatory stop qualifies as one such exception. It allows an officer “to make such a stop 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. Nishina, 175 N.J. 502, 510-11 , 816 A.2d 153, 158 (2003) (internal quotation marks omitted). As we stated in State v. Stovall, 170 N.J. 346, 357 , 788 A.2d 746, 752 (2002), “[i]n justifying an investigatory detention based on reasonable suspicion, a police officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” Reasonable suspicion must be based on “the totality of circumstances.” State v. Davis, 104 N.J. 490, 504 , 517 A.2d 859, 867 (1986). Therefore, “[fjacts that seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate.” Nishina, supra, 175 N.J. at 511 , 816 A.2d at 159 . The stop of Rodriguez met that standard. On that, the majority and I agree.

However, Officer Aboud not only stopped Rodriguez, he also conducted a warrantless search of the cigarette pack that Rodri *35 guez handed over to him. A warrantless search is valid “when an officer has probable cause to believe that a crime has been or is about to be committed and the officer is faced with exigent circumstances.” Id. at 515 , 816 A.2d at 161 . We have found probable cause to exist when an officer has “a well-grounded suspicion that a crime has been or is being committed,” ibid., and that “requires nothing more than a practical, common-sense decision whether, given all the circumstances, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Johnson, supra, 171 N.J. at 214 , 793 A.2d at 633 . Thus, as with reasonable suspicion, probable cause must be assessed in light of the “totality of the circumstances.” Id. at 215 , 793 A.2d at 633 . “Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief ... that certain items may be contraband ... or useful as evidence of a crime.” Ibid.

Like reasonable suspicion and probable cause, the concept of exigent circumstances “is incapable of precise definition,” Nishina, supra, 175 N.J. at 516 , 816 A.2d at 162 , and “demands a fact-sensitive, objective analysis.” Id. at 517 , 816 A.2d at 162 . For example, in Nishina we found exigent circumstances could exist where “police suspected that a drug transaction had occurred,” and “ ‘the officers ... had no time in which to procure a warrant to search defendant because the evidence very well could have been consumed, hidden or sold by the time such a warrant issued.’ ” Ibid. (quoting State v. Guerrero, 232 N.J.Super. 507, 512 , 557 A.2d 713, 715 (App.Div.1989)).

In my view, the totality of the circumstances in this case supports a finding of reasonable suspicion, probable cause, and exigency, thereby justifying Officer Aboud’s actions. From the suppression hearing, we know that Officer Aboud had extensive on-the-job training in narcotics: as a thirteen-year veteran of the Wildwood Police Department in which capacity he had conducted over three hundred drug investigations leading to arrests and convictions, and as a member for one year of the Cape May *36 County Narcotics Task force. In addition, Officer Aboud had attended narcotics and advanced narcotics classes at Camden County Community College. Officer Aboud previously had encountered defendant “clearing corners” at the same intersection, that of Roberts and Pacific Avenues. Also, Officer Aboud previously had arrested Rodriguez for a drug offense and considered Rodriguez to be a drug addict. Officer Aboud knew of intelligence reports identifying defendant as a drug dealer.

With that background knowledge, Officer Aboud was on patrol near the intersection of Roberts and Pacific Avenues in the early evening of December 8, 2000. That particular intersection is notorious for drug trafficking, a fact so well known that defense counsel suggested that the trial court “could probably almost take judicial notice of that.” At approximately 6:16 p.m., Officer Aboud observed Rodriguez hand a hard pack of cigarettes to defendant at the northwest corner of the intersection. Officer Aboud knew that hard cigarette packs often were used in drug transactions, a fact acknowledged by defense counsel during summation at the suppression hearing and recognized as well by the motion court (unlike a soft cigarette pack, which has an open top that makes interior inspection possible, the contents of a hard pack cannot be viewed by onlookers). Officer Aboud observed that neither defendant nor Rodriguez was smoking or visibly possessed a lighter or matches, and Rodriguez did not attempt to smoke a cigarette after receiving the cigarette pack from defendant.

At the time Officer Aboud first saw defendant and Rodriguez that night, he was approximately fifteen feet from them in his patrol car. Officer Aboud’s vehicle crept slowly toward defendant and Rodriguez. When the officer was as few as eight to ten feet from them, Aboud witnessed defendant hand the hard cigarette pack to Rodriguez. Almost simultaneously, defendant and Rodriguez both looked up and, seeing Officer Aboud in his vehicle almost alongside them, exhibited shock and surprise despite, as defendant contends, merely having exchanged a pack of cigarettes. *37 Both defendant and Rodriguez immediately broke off their exchange and departed in different directions.

When stopped by Officer Aboud, Rodriguez appeared very nervous and began to cry, which the motion court took to be “a fairly extreme response.” Officer Aboud inquired about what seemed to be a transaction between Rodriguez and defendant, to which Rodriguez replied, “I don’t have any drugs.” Officer Aboud then asked to see Rodriguez’s cigarette pack, which Rodriguez handed over without incident, stating “I have no drugs on me. I have no problem. You can search me.” Inside the cigarette pack, Officer Abound found three light blue colored wax paper baggies that contained heroin. Defendant was apprehended minutes later.

The motion court found Officer Aboud to be a credible witness. On review of the court’s findings during the suppression hearing, we give deference to the trial court’s knowledge and experience in respect of locality of the purported crime, Johnson, supra, 171 N.J. at 219 , 793 A.2d at 635-36 . In this case, those findings include that the corner of Roberts and Pacific Avenues is a known drug-trafficking area, and that hard pack cigarette boxes are known to be used in narcotics street trafficking. Further, reviewing courts are exhorted to give more than “mere grudging recognition,” Davis, supra, 104 N.J. at 503 , 517 A.2d at 866 , to an officer’s training and experience, which Officer Aboud possesses in abundance. I thus find persuasive the motion court’s findings and conclusion at the suppression hearing:

The initial stop was obviously valid. When two known drug users are in a high drug area and are witnessed engaging in what appears to be a drug transaction, there is ample basis for not just an investigatory stop, but ample basis for a seizure. There was probable cause, at that juncture I find, to arrest Rodriguez as well as [defendant] for their involvement in what appeared to be a drug transaction. There [w]as obvious exigency because of the nature of the contraband in question, it’s small size, and the ease with which it could have been discarded or hidden or consumed by the defendant, for that matter.

There are, as we all know, exceptional circumstances, in which on balancing the need for effective law enforcement against the right of privacy, a warrant may be dispensed with. I find that this is one such situation. Of[fieer] Aboud had a reasonable belief, far more than mere suspicion, that a crime had been committed *38 and that he had just witnessed it. And that suspicion was not just the setting, but the defendants’ own conduct and Mr. Rodriguez’s statements.

The motion court’s holding, affirmed by the Appellate Division, fully comports with our prior jurisprudence that applies a totality of the circumstances analysis for probable cause. See, e.g., Johnson, supra, 171 N.J. at 220 , 793 A.2d at 636 (holding that probable cause existed under totality of circumstances because of facts known to police officer and reasonable inferences drawn thereof); State v. Toth, 321 N.J.Super. 609, 613-14 , 729 A.2d 1069, 1071 (App.Div.1999) (finding probable cause to seize suspected package of drugs from defendant’s shorts where totality of circumstances included “defendant’s evident nervousness; his query to the trooper, ‘Can’t you just let us go?’; his desire to shield the bulge from inspection; and the sheer size and mass of the bulge itself’); State v. Jones, 287 N.J.Super. 478, 484, 497 , 671 A.2d 586, 588-89, 595 (App.Div.1996) (holding that totality of circumstances provided sufficient probable cause for police officer to search canister in defendant’s car when defendant made furtive gestures and was unable to produce a driver’s license; his eyes were bloodshot and dilated; and he was nervous).

Indeed, as Justice Zazzali explained about a totality of the circumstances analysis, albeit in the context of finding reasonable suspicion:

We take the facts as we find them; they cannot be neatly packaged. One can either patch together those factors into a quilt of reasonable suspicion or parse those same factors to unravel the evidence of guilt. The better view, based on this evidence and the template of common sense, is that [the detective in this case] had more than a “hunch.” He had the responsibility not to turn a blind eye to what he heard and saw; he had the concomitant right to act as he did. Based on the totality of the circumstances, we are satisfied that [the detective] had reasonable suspicion to detain defendant.

[Stovall, supra, 110 N.J. at 370-371, 788 A.2d at 760-61 .]

Based on the totality of the circumstances here, I am satisfied that Officer Aboud had reasonable suspicion to stop Rodriguez, and that probable cause and exigent circumstances justified Officer Aboud’s search of the cigarette pack handed to him by Rodriguez. Indeed, the trial court’s finding of exigent circumstances was a *39 prescient recitation of the rationale for our finding that exigent circumstances existed in Nishina, supra, 175 N.J. at 517 , 816 A.2d at 162-63 .

In my view, only by taking an unintegrated, rather than holistic, view of the facts presented here can the majority conclude that Officer Aboud’s actions were constitutionally infirm. Officer Aboud had considerable experience in narcotics investigations; he was on patrol in a high drug-trafficking area; he had previously encountered defendant “clearing corners” in that location and identified defendant as a drug dealer; defendant received a known container for illegal narcotics from Rodriquez; when Aboud approached, defendant appeared shocked and surprised; defendant and his cohort immediately fled; and when later confronted by Aboud, defendant began to cry, and seemed nervous and defensive in his responses. I simply cannot agree that the totality of those circumstances do not give rise to probable cause sufficient to justify the search. The majority notes Aboud’s failure to witness an exchange of currency, finding that omission as significant in forming its conclusion that these circumstances do not amount to probable cause that a crime was being committed. That reasoning, however, divorces the “omitted fact” from context. The alleged “failure” to witness an exchange of currency for drugs should be recognized for what it was: an interrupted drug transaction caused by the participants’ realization that Aboud was virtually next to them in his patrol car. And, Aboud, as a trained professional, had every reason to perceive what he was observing as such, and to act thereupon by following the evidence of the crime he had just witnessed. Given the circumstances, Officer Aboud reasonably concluded that he had probable cause to stop and search Rodriguez. The lower courts credited his practical and common-sense decision to pursue that evidence, and so would I. I believe that, by holding as it does, the Court creates a constitutionally unnecessary barrier to the ability of law enforcement authorities to effectuate searches and seizures in respect of consummated, albeit also ongoing, criminal activities. I therefore respectfully dissent.

*40 Justice ZAZZALI joins in this opinion.

For reversal—Chief Justice PORITZ, Justices VERNIERO, ALBIN and WALLACE—4.

Concurring in part; dissenting in part—Justices LaVECCHIA and ZAZZALI—2.