State v. Lurdes Rosario (077420) (Monmouth and Statewide) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0677-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LURDES ROSARIO, a/k/a LULU
ROSARIO,
Defendant-Appellant.
__________________________________________
Submitted January 19, 2016 – Decided March 10, 2016
Before Judges Accurso and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 13-10-1732.
Joseph E. Krakora, Public Defender, attorney
for appellant (Al Glimis, Assistant Deputy
Public Defender, of counsel and on the
brief).
Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney for respondent
(Paul H. Heinzel, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel; Mark W. Morris, Legal Assistant, on
the brief).
PER CURIAM
Defendant, Lurdes Rosario, appeals from the denial of her
motion to suppress statements and physical evidence. We affirm.
I.
At 11:33 p.m., Patrolman Gabriel Campan was patrolling a
residential area of Colts Neck known as "The Grande" when his
focus was drawn to a car parked in front of a residence by the
movement within of a silhouetted figure that "grabbed" his
attention. The maroon vehicle was parked "head-on into the
curb" as the officer pulled his cruiser seven to ten feet behind
the vehicle, "blocking it in," and then activated his "alley
light" for better visibility. He observed a lone occupant in
the driver's seat who looked over her right shoulder at him
"then turned back around heading towards the unoccupied
passenger seat kind of scuffling around in the vehicle." She
was "moving around fast," but he could not see what she was
doing. He became "suspicious of what was happening." As he
approached the vehicle, he noticed the window on the driver's
side was half open. He asked the occupant, the defendant, for
identification and a driver's license, which defendant supplied.
Four days earlier at the duty roll call, a "patrol notice"
was circulated to the officers, based on a tip from an anonymous
caller, which reported that Lurdes Rosario was distributing
heroin from her house in this residential area and that she
drove a burgundy Chevy Lumina. The officer did not make the
connection between the patrol notice and the silhouetted figure
in the burgundy vehicle at first, but he did when she produced
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her identification. He also then recognized her from a prior
arrest for "drug paraphernalia and possession." She did not
appear to be under the influence of drugs or alcohol.
After defendant produced her driver's license, the officer
asked "what she was doing." She replied she was "smoking a
cigarette." He did not see one. When he asked why she had
"scuffled around" on the passenger's side, defendant replied
"she was putting away makeup because she just put some on."
Defendant did not respond when he asked how she could do this in
the dark. The officer told defendant her story "is not making
sense" and then asked "if there was anything I should know about
in the vehicle." He acknowledged he was referring "to anything
illegal." She replied "yes" and then stated "it's the same
thing you arrested me before in the past." "As soon as she said
that," defendant pulled out a fur mitten that had not been
visible and from that, an eyeglass case, she then opened without
any request from the officer, revealing a white powdery
substance that he believed to be crack or heroin and other drug
paraphernalia. She was asked to step out of the vehicle and was
put under arrest for possession of drug paraphernalia.
Defendant was indicted for third-degree possession of a
controlled dangerous substance, cocaine, N.J.S.A. 2C:35-
10(a)(1). She filed a motion to suppress the evidence seized
and her statements, contending they were obtained from an
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improper investigative stop and from a custodial interrogation
without Miranda1 warnings. The State opposed the motion,
contending the evidence and statements were obtained through
constitutionally valid procedures.
In a written decision denying the motion to suppress, the
judge found the officer's initial interaction with the defendant
was a "field inquiry," but when the officer asked defendant
whether there was anything he should know about, referring to
criminal activity, the field inquiry became an investigative
stop.
The judge found the officer had a reasonable and
articulable suspicion defendant was engaged in, or about to
engage in, criminal activity. This was based on defendant's
"strange" responses to the officer, that she was smoking a
cigarette when none was evident and was putting on makeup in the
dark, plus his knowledge of her criminal history as well as the
lateness of the hour and the lack of other traffic in the area.
The judge concluded defendant had voluntarily shown the drug
paraphernalia to the officer without prompting.
The court found defendant was not in custody for Miranda
purposes. She was parked outside her residence, was familiar
with the officer, who had not indicated to her that the
1 Miranda v. Arizona, 384 U.S. 436, 477, 86 S. Ct. 1602, 1629, 16
L. Ed. 2d 694, 725 (1966).
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detention would be anything "beyond the brief period necessary
to determine what defendant was doing," he did not "unholster
his service weapon" or "make coercive statements to defendant."
After the motion was denied, defendant entered a
conditional guilty plea to third degree drug possession and was
sentenced to probationary supervision for two years consistent
with the sentence recommendation and assessed fines and
penalties.
Defendant raises the following issues on appeal:
POINT I. THE COURT BELOW ERRED IN FINDING
THAT AN INVESTIGATIVE DETENTION DID NOT
OCCUR UNTIL OFFICER CAMPAN QUESTIONED
ROSARIO. SINCE ROSARIO WAS THE SUBJECT OF
AN INVESTIGATIVE DETENTION NOT JUSTIFIED BY
THE TOTALITY OF THE CIRCUMSTANCES, THE COURT
SHOULD HAVE GRANTED DEFENDANT'S MOTION TO
SUPPRESS HER STATEMENT AND THE EVIDENCE
SEIZED BECAUSE OF HER STATEMENT.
POINT II. MS. ROSARIO'S STATEMENT TO
OFFICER CAMPAN WAS THE PRODUCT OF CUSTODIAL
INTERROGATION WITHOUT MIRANDA WARNINGS.
II.
Defendant appeals the trial court's decision denying her
suppression motion. We defer to the trial court's factual
findings unless "clearly mistaken" such that appellate
intervention is necessary in the interests of justice. State v.
Elders, 192 N.J. 224, 244 (2007). Our review of purely legal
conclusions is plenary. State v. Goodman, 415 N.J. Super. 210,
225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
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The Fourth Amendment to the United States Constitution and
Article I, ¶ 7 of the New Jersey Constitution protect the
State's citizens "against unreasonable police searches and
seizures by requiring warrants issued upon probable cause
'unless [the search and seizure] falls within one of the few
well-delineated exceptions.'" State v. Maryland, 167 N.J. 471,
482 (2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973)). Not
every interaction between a citizen and the police implicates
the Fourth Amendment's warrant requirement. An officer may
conduct a field inquiry without any "grounds for suspicion." Id.
at 484; see Elders, supra, 192 N.J. at 246. "A field inquiry is
not considered a seizure 'in the constitutional sense so long as
the officer does not deny the individual the right to move.'"
State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v.
Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S.
Ct. 83, 38 L. Ed. 2d 121 (1973)). "A permissible inquiry occurs
when an officer questions a citizen in a conversational manner
that is not harassing, overbearing, or accusatory in nature."
State v. Nishina, 175 N.J. 502, 510 (2003); see State v.
Pineiro, 181 N.J. 13, 20 (2004). Merely asking for
identification does not elevate a field inquiry to an
investigative detention. See State v. Sirianni, 347 N.J. Super.
382, 390 (App. Div.), certif. denied, 172 N.J. 178 (2002).
6 A-0677-14T3
An investigatory stop is considered more intrusive than a
field inquiry and does implicate constitutional requirements.
Elders, supra, 192 N.J. at 247. Sometimes referred to as a
Terry2 stop, an investigatory stop does not require a warrant if
it is based on "specific and articulable facts which, taken
together with rational inferences from those facts" provide a
"reasonable suspicion of criminal activity." Ibid. (quoting
Rodriquez, supra, 172 N.J. at 126 (quoting Terry, supra, 392
U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906)).
To evaluate whether the officer had a reasonable suspicion
that criminal activity had taken place or was about to take
place, a court should consider "the facts objectively and
reasonably viewed in light of the officer's expertise." State
v. Arthur, 149 N.J. 1, 10-11 (1997). The officer's "articulable
reasons" or "particularized suspicion" is based on the officer's
assessment of the totality of the circumstances. State v.
Davis, 104 N.J. 490, 504 (1986). "An anonymous tip, standing
alone, is rarely sufficient to establish a reasonable
articulable suspicion of criminal activity." Rodriguez, supra,172 N.J. at 127; see Alabama v. White, 496 U.S. 325, 329, 110 S.
Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990). Rather, the
police "must verify that the tip is reliable by some independent
2 Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed.
2d 889, 903 (1968).
7 A-0677-14T3
corroborative effort." Rodriquez, supra, 172 N.J. at 127. The
officer must use the "least intrusive means necessary to
effectuate the purpose" of the investigation, and the detention
must "last no longer than is necessary to effectuate the purpose
of the stop." State v. Coles, 218 N.J. 322, 344 (2014),
(quoting State v. Shaw, 213 N.J. 398, 411 (2012)).
A field inquiry can be transformed into an investigative
stop when "a reasonable person would have believed that he was
not free to leave." United States v. Mendenhall, 446 U.S. 544,
554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); see
Rodriguez, supra, 172 N.J. at 126. The question is not
dependent upon the officer's "subjective intent." Rodriguez,
supra, 172 N.J. at 126. Rather, "[a]n encounter becomes more
than a mere field inquiry when an objectively reasonable person
feels that his or her right to move has been restricted." Ibid."The officer's demeanor is relevant to the analysis." Ibid.There would not be a seizure "if his questions were put in a
conversational manner, if he did not make demands or issue
orders, and if his questions were not overbearing or harassing
in nature." Ibid. (quoting Davis, supra, 104 N.J. at 497 n.6).
It is against this background that we evaluate the appeal.
We agree with the trial court that the initial encounter between
the officer and defendant was a field inquiry, not an
investigatory detention. The officer asked for identification
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and a driver's license. The mere request for this is not an
investigative stop. Sirianni, supra, 347 N.J. Super. at 391.
There was no testimony that his manner was overbearing or
harassing. He did not draw his weapon. He did park
perpendicular to defendant, approximately seven to ten feet away
which prevented her from backing out, but in this case she also
was parked in front of her residence allowing her access to
leave. See State v. Stampone, 341 N.J. Super. 247, 252 (App.
Div. 2001) (finding no Terry stop while occupant of car was free
to refuse general request for information).
We agree the field investigation became an investigative
stop when the officer asked whether there was anything in the
vehicle that he should be aware of. Looking at the totality of
the circumstances, by that point the alley light was on; the
patrol car was parked behind the vehicle; the officer
acknowledged he suspected criminal activity. The record
supports the trial court's conclusion this had become an
investigatory stop.
We further agree the record is sufficient to demonstrate a
reasonable suspicion that criminal activity had occurred or was
about to occur by the time the encounter had evolved into an
investigatory stop. The defendant had given strange responses
to the officer when he made inquiry about smoking and applying
makeup in the dark. The officer recognized her from a prior
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drug arrest. She was observed "scurrying" around when he pulled
up behind her. The hour was late. We agree with the trial
judge that all those factors combine to provide a particularized
and objective basis for suspecting criminal activity.
III.
Defendant contends she was in "custody" when she stated to
the officer she was in possession of "the same thing as you
arrested me before in the past" and because she did not receive
a Miranda warning, the court erred in not suppressing her
statement.
"Miranda 'warnings must be given before a suspect's
statement made during custodial interrogation [may] be admitted
in evidence.'" State v. Carlucci, 217 N.J. 129, 143-44 (2014)
(quoting Dickerson v. United States, 530 U.S. 428, 431-32, 120
S. Ct. 2326, 2329, 147 L. Ed. 2d 405, 412 (2000)). An
interrogation in custody means "questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any
significant way." Id. at 144 (quoting Miranda, supra, 384 U.S.
at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). Custody "is an
objective determination." Ibid.; see State v. P.Z., 152 N.J.
86, 103 (1997). "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,
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including the time and place of the interrogation, the status of
the interrogator, the status of the suspect, and other such
factors." Carlucci, supra, 217 N.J. at 144 (quoting P.Z.,
supra, 152 N.J. at 103). Brief and non-coercive questioning
during an investigative stop does not require the police to
first give Miranda advice. See Berkemer v. McCarthy, 468 U.S.
420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-35
(1984); State v. Smith, 374 N.J. Super. 425, 431 (App. Div.
2005).
Typically Miranda warnings depend upon "circumstances
include[ing] the duration of the detention, the place and time
of the interrogation, the nature of the questions and the
language employed by the interrogator, the conduct of the
police, the status of the interrogator, the status of the
suspect, and other relevant circumstances." State v. Brown, 352
N.J. Super. 338, 353-56 (App. Div.) certif. denied, 174 N.J. 544(2002).
We find no error in the trial court's application of these
principles. Although the field investigation evolved into an
investigatory stop, we agree that the defendant was not in
custody for Miranda purposes at the time she made her statement.
The trial court found the interaction with the officer "lasted
. . . mere minutes" and the "exchange was less intrusive than a
routine traffic stop." She was in her vehicle parked outside
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her residence. She was familiar with the officer. He did not
unholster his service weapon or make coercive statements. An
officer is not required to give Miranda warnings before asking
questions reasonably related to dispelling or confirming
suspicions that justify the detention. Smith, supra, 374 N.J.
Super. at 431. The record supports that there was nothing to
substantiate her argument that the statements were obtained
involuntarily. Her statement was volunteered. "Miranda does
not apply to volunteered statements." See State v. Coburn, 221
N.J. Super. 586, 598 (App. Div. 1987), certif. denied, 110 N.J.
300 (1998). We agree defendant was not in custody at the time
the statement was made.
Affirmed.
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