STATE OF NEW JERSEY VS. JOSE D. GRAHAM (15-12-0766, 16-08-0670 AND 16-10-0801, GLOUCESTER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-2432-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE D. GRAHAM, a/k/a BOO GRAHAM,
and JOSE DANIEL GRAHAM,
Defendant-Appellant.
___________________________________
Submitted April 9, 2018 – Decided August 9, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Indictment
Nos. 15-12-0766, 16-08-0670 and 16-10-0801.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Regina M. Oberholzer, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Jose D. Graham was charged in three indictments
with crimes arising out of three separate incidents occurring in
2015 and 2016. The court denied defendant's motions to suppress
evidence in two of the matters and, after a jury found him guilty
of the charges in one indictment, he pleaded guilty to crimes in
the others. In a single sentencing proceeding, he received an
aggregate twelve-year sentence with a seven-year period of parole
ineligibility.
Defendant appeals from the orders denying his motions to
suppress evidence, and from the sentence imposed in one of the
matters. Based on our review of the record in light of the
applicable law, we reverse one of the court's suppression orders
and defendant's conviction in that matter, and remand for further
proceedings. We also vacate the sentence defendant challenges on
appeal and remand for resentencing.
I.
In 2015, defendant was charged in a six-count indictment1
(2015 indictment) with drug-related offenses arising out of a
September 1, 2015 motor vehicle stop. Defendant moved to suppress
the controlled dangerous substances — marijuana, 3,4
Methylenedioxy-ethylcalthinone and cocaine — seized from his pants
1
Gloucester County Indictment No. 15-12-0766.
2 A-2432-16T2
pocket following the stop. After a suppression hearing, the court
determined the seizure of the drugs was proper under the plain-
view exception to the warrant requirement, and denied the
suppression motion. Defendant proceeded to trial and in April
2016 was convicted by a jury of two counts of third-degree
possession of a controlled dangerous substance, cocaine and 3,4
Methylenedioxy-ethylcalthinone, respectively.
In August 2016, while awaiting sentencing following his
trial, defendant was indicted2 (August 2016 indictment) for one
count of possession of a controlled dangerous substance.
Two months later, defendant was also charged in an indictment3
(October 2016 indictment) with seven drug offenses and four weapons
offenses arising out of a November 28, 2015 motor vehicle stop.
Defendant moved to suppress a handgun seized from the vehicle and
drugs found on his person following the stop, as well as statements
he made to the police after his arrest. The court held a
testimonial hearing and, in a written opinion, denied the motion
finding there was probable cause for the search of the vehicle,
the drugs were recovered during a search incident to a lawful
2
Gloucester County Indictment No. 16-08-0670.
3
Gloucester County Indictment No. 16-10-0801.
3 A-2432-16T2
arrest and defendant's statements were voluntarily made after he
waived his Miranda4 rights.
Defendant subsequently pleaded guilty to third-degree
possession of a controlled dangerous substance, N.J.S.A. 2C:35-
10(a)(1), under the August 2016 indictment, and second-degree
certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1),
under the October 2016 indictment. In exchange for his guilty
pleas, the State agreed to withdraw its motion for a discretionary
extended term sentence, N.J.S.A. 2C:44-3, for his convictions
under the 2015 indictment, and recommend an aggregate sentence not
to exceed seven years with a five-year period of parole
ineligibility under the Graves Act, N.J.S.A. 2C:43-6, on the
charges under the August 2016 and October 2016 indictments.
The court sentenced defendant in accordance with the plea
agreement, imposing a seven-year sentence with a five-year period
of parole ineligibility on the certain persons offense under the
October 2016 indictment and a concurrent three-year sentence on
the possession of a controlled dangerous substance charge under
the August 2016 indictment. The court merged defendant's
convictions for the drug offenses in the 2015 indictment, and
imposed a five-year sentence with a two-year period of parole
4
Miranda v. Arizona, 384 U.S. 436 (1966).
4 A-2432-16T2
ineligibility consecutive to the sentences imposed under the
August 2016 and October 2016 indictments. Defendant's aggregate
sentence on the charges in the three indictments is twelve years
with a seven-year period of parole ineligibility.
Defendant appealed, and presents the following arguments for
our consideration:
POINT I
POLICE IMPERMISSIBLY PROLONGED THE DETENTION
OF [DEFENDANT] AND HIS GIRLFRIEND, WHO WAS
EIGHT MONTHS PREGNANT, DURING WHAT SHOULD HAVE
BEEN A ROUTINE VEHICLE STOP. ACCORDINGLY, THE
COURT ERRED BY DENYING THE MOTION TO SUPPRESS
ALL EVIDENCE FROM INDICTMENT NO. 16-10-
[0]0801.
POINT II
AN OFFICER CONCEDED THAT HE FAILED TO SECURE
A WAIVER OF THE MIRANDA RIGHTS BEFORE
INTERROGATING [DEFENDANT]. ACCORDINGLY, THE
COURT ERRED BY DENYING THE MOTION TO SUPPRESS
[DEFENDANT]'S STATEMENT ON INDICTMENT NO. 16-
10-[0]0801.
POINT III
AFTER OFFICERS REALIZED THAT [DEFENDANT] WAS
NOT THE SUSPECT SOUGHT IN A SHOOTING, THEY
IMPERMISSIBLY PROLONGED HIS DETENTION IN ORDER
TO SEARCH HIM FOR WEAPONS. ACCORDINGLY, THE
COURT ERRED BY DENYING THE MOTION TO SUPPRESS
EVIDENCE FROM INDICTMENT NO. 15-12-[0]0766.
POINT IV
THIS COURT SHOULD REMAND FOR RESENTENCING ON
THE TRIAL CONVICTIONS.
5 A-2432-16T2
1. The trial court improperly applied
aggravating factor 1 in a straightforward case
of drug possession.
2. The Court improperly found that [defendant]
was a "professional drug dealer," even though
the jury acquitted [defendant] of all intent
to distribute charges.
II.
We first consider defendant's claim the court erred by denying
his motions to suppress evidence seized as a result of the separate
September 1 and November 28, 2015 motor vehicle stops, and
statements he made following the November 28 stop. "When reviewing
a trial court's decision to grant or deny a suppression motion,
[we] 'must defer to the factual findings of the trial court so
long as those findings are supported by sufficient evidence in the
record.'" State v. Dunbar, 229 N.J. 521, 538 (2017) (quoting
State v. Hubbard, 222 N.J. 249, 262 (2015)). "We will set aside
a trial court's findings of fact only when such findings 'are
clearly mistaken.'" Ibid. (quoting Hubbard, 222 N.J. at 262).
"We accord no deference, however, to a trial court's interpretation
of law, which we review de novo." Ibid. (citing State v. Hathaway,
222 N.J. 453, 467 (2015)).
A. The Seizure of Drugs on September 1, 2015
Defendant challenges the court's denial of his motion to
suppress evidence seized on September 1, 2015 after he was ordered
6 A-2432-16T2
to exit his vehicle following a motor vehicle stop, handcuffed,
and an officer saw a plastic bag containing marijuana and pills
in defendant's open pants pocket. Defendant argues the court
erred in finding the search was permissible under the plain-view
exception to the warrant requirement, because the officer's
observation of the plastic bag was the result of an impermissibly
prolonged seizure of defendant following the stop.
Based on the evidence presented at the suppression hearing,
the court found that on August 25, 2015, Paulsboro Police were
dispatched to investigate a shooting where the victim reported
being shot and injured by an individual named Levan Banks. A
complaint-warrant was issued charging Banks with four offenses
related to the shooting. During the investigation, Paulsboro
Patrolman Adam Chiolam was informed Banks was seen driving a black
Dodge Maxum with a specified license plate number.
On September 1, 2015, Chiolam saw a black Dodge Maxum with
the specified license plate number. The front driver's side window
was down, and Chiolam believed he saw Banks behind the wheel of
the vehicle. Chiolam could not immediately pursue the vehicle
because he was investigating another unrelated serious incident
at the time, but he advised the police department by radio of his
observations and the location of the Dodge Maxum.
7 A-2432-16T2
After completing his investigation of the unrelated incident,
Chiolam patrolled the area he last observed the Dodge Maxum. He
saw the vehicle and again thought he observed Banks driving.
Chiolam effectuated a stop of the vehicle, alerted other patrol
officers by radio that he had initiated a "high risk motor vehicle
stop" and requested assistance.
Chiolam testified he ordered the driver, who was later
identified as defendant, to turn off the vehicle, extend his hands
out of the vehicle, throw the vehicle's keys, exit the vehicle and
stand facing away from Chiolam. The driver was then ordered to
walk backwards toward Chiolam.
The court found that Chiolam waited for back-up, which "came
in the form of Officer [David] Belbin" and other officers. Chiolam
and the other officers approached the vehicle to determine if it
contained any other occupants. While that occurred, Belbin took
control of defendant, "not to arrest him, but to secure him during
the course of the high risk stop."5 Chiolam detected an odor or
marijuana coming from the passenger compartment of the vehicle,
and saw a partially consumed bottle of alcohol and a large butcher
5
The evidence showed defendant was handcuffed by Belbin, and
Belbin intended to conduct a pat-down search of defendant for
weapons. He did not, however, immediately conduct a pat-down
search because he first observed the plastic bag containing
marijuana and pills in defendant's open pants pocket.
8 A-2432-16T2
knife on the vehicle's floor. There were no other occupants in
the vehicle.
While Chiolam made his observations of the vehicle, Belbin
stood next to defendant and saw a plastic bag containing what he
knew to be marijuana and pills in a large open pocket in
defendant's pants.6 Belbin seized the plastic bag from defendant's
pocket. After Chiolam made his observations of the vehicle's
interior, he was informed by one of the officers who recognized
defendant that the driver was not Banks, but instead was defendant.
At the suppression hearing, defendant expressly conceded the
validity of the motor vehicle stop and Belbin's decision to
"temporarily handcuff him" for the purpose of conducting a pat-
down search while Chiolam and the other officers determined if
there were any other occupants in the vehicle. Defense counsel
advised the court defendant "does not challenge [or] think it was
unreasonable for the officers to clear the vehicle for other
individuals who could be armed and dangerous." Defendant further
conceded the video recording of the incident confirmed Chiolam's
belief defendant was Banks when he ordered defendant out of the
6
It was later confirmed the bag contained marijuana, cocaine and
3,4 Methylenedioxy-ethylcalthinone. As noted, a jury convicted
defendant of possession of cocaine and 3,4 Methylenedioxy-
ethylcalthinone.
9 A-2432-16T2
vehicle, and Belbin was properly in the viewing area when he made
his observations of the contents of defendant's pants pocket.
Defendant's singular argument before the court was
suppression of the evidence was required because Belbin's
testimony he could see into the pants pocket was not credible.
More particularly, defendant argued Belbin's position near
defendant did not allow him to see into the pants pocket, and the
pocket was covered with a flap and therefore Belbin could not have
directly looked into the pocket as he alleged. The court rejected
the argument, making findings of fact limited to defendant's sole
contention that Belbin was not credible.
The court found credible Belbin's testimony he was in position
to see the bag, and that the pants pocket was sufficiently large
and open to permit his observations. The court determined the bag
was properly seized under the plain-view exception to the warrant
requirement because Belbin was lawfully in the viewing area,
inadvertently observed the plastic bag and immediately recognized
it contained contraband and evidence of a crime. See State v.
Earls, 214 N.J. 564, 592 (2013) (finding the plain-view exception
to the warrant requirement is established where the officer is
"lawfully in the viewing area," the discovery of the items is
inadvertent and it was immediately apparent what was seen
10 A-2432-16T2
constitutes contraband, evidence of a crime or is "otherwise
subject to seizure").7
The record reveals substantial credible evidence supporting
the court's fact-findings, see State v. Elders, 192 N.J. 224, 243-
44 (2007), and its determination Belbin properly seized the plastic
bag containing the drugs because it was in plain-view. For those
reasons, we affirm the court's order denying the motion to suppress
the evidence seized from defendant's pocket on September 1, 2015.
On appeal, defendant abandons the contention Belbin could not
have seen into defendant's pocket and, for the first time, claims
the seizure was unlawful because Belbin's plain-view discovery of
the plastic bag followed an impermissibly prolonged seizure of his
person following his exit from the vehicle. See Rodriquez v.
United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1616 (2015)
(finding extending a traffic stop beyond the time reasonably
required to complete the purpose of the stop is unlawful); Terry
v. Ohio, 392 U.S. 1, 20 (1968) (holding a determination of
reasonableness of an investigatory stop requires consideration of
"whether the officer's action was justified at its inception, and
whether it was reasonably related in scope to the circumstances
7
In State v. Gonzales, 227 N.J. 77, 100-01 (2016), the Court
prospectively modified the plain-view doctrine, eliminating the
inadvertence requirement of the prior standard.
11 A-2432-16T2
which justified the interference in the first place"); Dunbar, 229
N.J. at 533-34 (citation omitted) (finding that a police officer
may not conduct "incidental checks . . . 'in a way that prolongs
the stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual'"); State v. Coles, 218 N.J. 322,
344 (2014) (finding "the scope of the continued detention must be
reasonably related to the justification for the initial
interference").
We decline to address defendant's argument because it was not
asserted before the motion court, and does not involve
jurisdictional or public interest concerns. See State v. Robinson,
200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005);
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Moreover, defendant's decision to focus solely on Belbin's ability
to see the plastic bag as the basis for his challenge to the
seizure of the evidence rendered it unnecessary for the motion
court to make the credibility determinations and fact-findings
necessary for resolution of his newly-minted claim there was an
impermissibly prolonged seizure of his person. "Parties must make
known their positions at the suppression hearing so that the trial
court can rule on the issues before it." State v. Witt, 223 N.J.
409, 419 (2015). Here, "[t]he trial court . . . was never called
on to rule on the lawfulness," ibid., of the alleged prolonged
12 A-2432-16T2
seizure of defendant prior to Belbin's plain-view observation of
the plastic bag, and thus the issue "was not preserved for
appellate review," ibid.
B. The Seizure of the Gun and Drugs on November 28, 2015
Defendant next challenges the court's denial of his motion
to suppress evidence seized following a November 28, 2015 stop of
a pick-up truck he drove with his girlfriend as a passenger. More
particularly, following the stop and subsequent positive canine
sniff of his vehicle, the police discovered a handgun under the
vehicle's front seat and controlled dangerous substances in
defendant's possession. The discovery of the gun and drugs
resulted in the seven charges in the October 2016 indictment.
The evidence presented during the suppression hearing showed
that at approximately 9:24 p.m. on November 28, 2015, Mantua
Township Police Department patrolman Cody Moroz stopped the pick-
up truck because it had tinted windows. The court found that
following the stop, Moroz approached the vehicle, defendant
provided his driver's license and girlfriend provided the
vehicle's registration and insurance card. Moroz asked defendant
where he was traveling and defendant said "Paulsboro," but the
vehicle had been traveling in a direction away from Paulsboro.
Moroz observed an unopened beer can between defendant and his
girlfriend in the vehicle. Moroz testified that when he interacted
13 A-2432-16T2
with defendant as he sat in the vehicle there was no evidence
defendant was impaired.
Moroz testified he returned to his police car and determined
defendant's license and the vehicle's registration and insurance
card were valid. He returned to the vehicle and, based on his
observation of the beer can, requested that defendant exit so he
could assess whether defendant had been drinking. As defendant
walked from the vehicle, he held his wallet in his hand and items
fell from the wallet that defendant retrieved from the ground.
Moroz observed that defendant's pupils were slightly dilated, but
testified he did not detect the odor of alcohol on defendant's
breath, defendant's speech was not slurred, and defendant answered
his questions without difficulty. Moroz also testified that based
on his observations, he determined defendant was not impaired.
Moroz asked defendant where he and his girlfriend were
traveling, and defendant said they were "coming from Home Depot,"
and going to a WaWa store to purchase a sandwich for her. Defendant
avoided eye contact with Moroz, and instead looked at his vehicle
and the road.
Moroz also spoke with defendant's girlfriend, who explained
she and defendant had just left a Home Depot store and were going
"down there" to shop but did not have any "store in mind." Moroz
asked her if they were traveling to "Deptford" and she quickly
14 A-2432-16T2
said "yes." Moroz found the response odd because it was late in
the evening, the stores in Deptford would be closing shortly and
she readily agreed to his random suggestion of "Deptford" as
defendant and Lewis's destination.
Due to defendant and his girlfriend's conflicting accounts
about where they were traveling, Moroz continued asking questions.
He asked defendant if he had previously been arrested for
narcotics. Defendant initially said "no," but immediately changed
his response to "yes" and explained he had been arrested and "got
blamed" but was "let . . . go." The court found Moroz observed
defendant was "very fidgety, was constantly licking his lips, and
moving them from left to right[,]" and that "[d]efendant's lips
were white and chapped, and . . . [defendant] did not seem to be
able to control his blinking because at times he would squint and
just close one eye."
Moroz asked if there were any drugs in the car, and defendant
said "no." Moroz asked defendant for consent to search the
vehicle, and defendant denied the request. Moroz then told
defendant a canine would be brought to the scene to conduct a
sniff of the vehicle. Moroz testified the canine could sniff only
for the presence of narcotics.
Fourteen minutes after the initial motor vehicle stop, Moroz
requested that a neighboring police department conduct a canine
15 A-2432-16T2
sniff of defendant's vehicle because a canine was not available
from his department. Approximately thirty-one minutes later, a
canine and police officer arrived and conducted an exterior sniff
of the vehicle. The canine reacted positively to the vehicle and,
as a result, Moroz searched the vehicle and found a gun under the
front seat.
Moroz arrested defendant and his girlfriend. During a search
incident to their arrests, defendant was found in possession of
controlled dangerous substances. Moroz advised defendant of his
Miranda rights. After being transported to the police station,
defendant was searched again and additional controlled dangerous
substances were found. Defendant also admitted ownership of the
handgun after Moroz advised him that he and his girlfriend would
be charged with possession of the gun.
The court denied defendant's suppression motion, finding that
"[d]uring the course of the stop, reasonable suspicion arose
justifying calling for a [canine] unit for an exterior sniff test
of the vehicle." The court based its determination upon the
following findings:
[F]ollowing the motor vehicle stop, . . . Mroz
[sic] observed an unopened beer can in plain
view; the occupants of the vehicle provided
differing accounts as to where they were
heading; [d]efendant's nervous demeanor by
looking away and avoiding eye contact;
[d]efendant's constant licking and moving his
16 A-2432-16T2
lips, as well as [d]efendant's constant
squinting and shutting one eye; [d]efendant's
repeated dropping of items and fumbling with
them: and [d]efendant's extensive narcotics
history, which he initially denied.
The court concluded those observations, "combined with . . .
Moroz's training and experience, and rational inferences drawn
therefrom, . . . gave rise to a sufficient reasonable suspicion
to call for a [canine] officer."
Defendant argues the police impermissibly prolonged the motor
vehicle stop "by half an hour in order to effectuate" the canine
sniff that provided the basis for the search of the vehicle and
recovery of the gun, as well as defendant's arrest and the recovery
of the drugs in his possession. We agree and reverse the court's
suppression order.
"A lawful roadside stop by a police officer constitutes a
seizure under both the Federal and New Jersey Constitutions."
Dunbar, 229 N.J. at 532. "To be lawful, an automobile stop 'must
be based on reasonable and articulable suspicion that an offense,
including a minor traffic offense, has been or is being committed."
State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty,
170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351
(2002)). Here, Moroz properly stopped defendant's vehicle because
the pick-up truck had tinted windows. See State v. Cohen, 347
N.J. Super. 375, 380 (App. Div. 2002) (noting "that N.J.S.A. 39:3-
17 A-2432-16T2
74 prohibits the use of tinted windows [that] fail to meet the
applicable standard now set forth in N.J.A.C. 13:20-33.7").
Defendant does not argue otherwise.
During a lawful traffic stop, a police officer is permitted
to "inquire 'into matters unrelated to the justification for the
traffic stop,'" Dunbar, 229 N.J. at 533 (quoting Arizona v.
Johnson, 555 U.S. 323, 333 (2009)), and "may make 'ordinary
inquiries incident to [the traffic] stop,'" ibid. (alteration in
original) (quoting Rodriquez, 575 U.S. at ___, 135 S. Ct. at 1615).
"If, during the course of the stop or as a result of the reasonable
inquiries initiated by the officer, the circumstances 'give rise
to suspicions unrelated to the traffic offense, an officer may
broaden [the] inquiry and satisfy those suspicions.'" State v.
Dickey, 152 N.J. 468, 479-80 (1998) (alteration in original)
(quoting United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.
1995)).
The inquiries, however, "may not [be performed] 'in a way
that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.'" Dunbar, 229 N.J.
at 536 (quoting Rodriquez, 575 U.S. at ___, 135 S. Ct. at 1615).
A detention following a lawful stop "must be reasonable both at
its inception and throughout its entire execution." Coles, 218
N.J. at 344. Prolonging a traffic stop "beyond the time reasonably
18 A-2432-16T2
required to complete the . . . stop's purpose . . . is unlawful
absent independent reasonable suspicion of criminal activity."
Dunbar, 229 N.J. at 536.
In determining "whether an investigative detention is
unreasonable, common sense and ordinary human experience must
govern over rigid criteria." Dickey, 152 N.J. at 477 (quoting
United States v. Sharpe, 470 U.S. 675, 685 (1985)). "An officer
does not need a warrant to make [an investigatory] 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. Rodriquez,
172 N.J. 117, 126-27 (2002) (citation omitted). Our Supreme Court
has declared the "standard for reasonable suspicion required to
uphold an investigative detention is lower than the standard of
probable cause to justify an arrest[,]" State v. Nishina, 175 N.J.
502, 511 (2003) (citation omitted), and "must be based on the law
enforcement officer's assessment of the totality of the
circumstances he [or she] faced," ibid. (quoting State v. Davis,
104 N.J. 490, 504 (1986)). A detention, however, becomes unlawful
when it is longer than is reasonably necessary to diligently
investigate an officer's reasonable suspicion of criminal
activity. Dickey, 152 N.J. at 476-79.
19 A-2432-16T2
In Dunbar, the Court defined "the proper basis for a canine
sniff during a lawful traffic stop." 229 N.J. at 538. A canine
sniff of a vehicle may be properly conducted without "reasonable
suspicion independent from the justification for a traffic stop,"
but the sniff "may not add time to the stop" in the absence of a
reasonable and articulable suspicion. Id. at 540. It is only
where "an officer has articulable reasonable suspicion independent
from the reason for the traffic stop that a suspect possesses
narcotics, the officer may continue a detention to administer a
canine sniff." Ibid. (emphasis added); accord Illinois v.
Caballes, 543 U.S. 405, 408 (2005).
Here, although the court did not expressly find Moroz had an
articulable reasonable suspicion defendant possessed narcotics,
the court implicitly concluded that he did. The court found Moroz
had an "articulable reasonable suspicion" based in part on
defendant's "extensive narcotics history." The finding, however,
is not supported by any evidence in the record and therefore does
not provide a proper basis for the court's determination Moroz had
an articulable reasonable suspicion defendant possessed controlled
dangerous substances. Cf. Dunbar, 229 N.J. at 538 (finding we
defer to a motion court's fact-finding supported by sufficient
evidence in the record).
20 A-2432-16T2
The record is bereft of any evidence Moroz was aware defendant
had an extensive narcotics history or that Moroz reasonably
believed he did. The only evidence was that defendant first told
Moroz he had never been arrested for drugs, and then immediately
stated he had been arrested but was let go. Although knowledge
of a defendant's prior drug history may be considered as a
circumstance supporting a reasonable suspicion of criminal
activity, State v. Privott, 203 N.J. 16, 28-29 (2010) (finding the
officer's knowledge of the defendant's prior narcotics arrests and
gang association in part supported an investigatory stop); State
v. Mann, 203 N.J. 328, 339-40 (2010) (finding the officer's
knowledge the defendant was a known drug dealer in part supported
a reasonable and articulable suspicion for an investigatory stop),
there is no evidence showing Moroz knew defendant had a prior
narcotics history, extensive or otherwise, supporting a reasonable
suspicion defendant possessed illicit drugs during the motor
vehicle stop.
The court's conclusion Moroz had an articulable reasonable
suspicion of criminal activity based on his "training and
experience" is also not supported by the record. Moroz never
testified he based his determination there was reasonable
suspicion justifying the request for the canine upon his prior
21 A-2432-16T2
training and experience.8 He did not testify, for example, that
based on his training and experience he concluded defendant's
actions or appearance provided a reasonable suspicion of drug
possession.
"When determining if the [police] officer's actions were
reasonable," the court must consider the reasonable inferences
that the police officer is entitled to draw "in light of his
experience." State v. Arthur, 149 N.J. 1, 8 (1997) (quoting Terry,
392 U.S. at 27). But here there is no evidence Moroz had any
experience supporting an articulable reasonable suspicion
defendant possessed drugs based on the circumstances presented.
Moroz testified only that he worked as a "Class II Special Officer"
for "the summer months of 2013" in a municipality and for a year
in another municipality prior to being hired as full-time patrolman
in Mantua Township in 2014, but he did not provide any information
about his experience during those periods of employment.
Similarly, Moroz was employed as a patrolman for one year prior
8
The only testimony Moroz provided that is arguably based on his
experience is that when he saw the beer can he thought defendant
might have been drinking because impaired drivers will often take
a beer "for the road." That observation, even if based on his
experience, did not support a reasonable suspicion defendant
possessed drugs. His suspicion defendant may have consumed alcohol
prior to the stop is unrelated to the possession of drugs and
Moroz testified that prior to his request for the canine, he
determined defendant was not impaired.
22 A-2432-16T2
to the November 28, 2015 motor vehicle stop, but other than stating
he made traffic stops and arrests, there is no evidence he made
any prior drug arrests or had any experience supporting a
reasonable suspicion defendant possessed drugs based on the
circumstances presented during the motor vehicle stop.
Moroz testified he attended a single training class covering
circumstances where a person is smuggling and selling narcotics,
including "signs to look for deceptive behavior in that regard."
He did not, however, testify that defendant exhibited any of those
"signs" or that any of the circumstances showing a person is
smuggling or selling narcotics about which he was taught were
present during the motor vehicle stop. Thus, there is no evidence
supporting the court's determination Moroz's experience and
training provided a basis for a reasonable suspicion defendant
possessed any controlled dangerous substances when Moroz requested
the canine.
To justify defendant's prolonged detention while awaiting the
canine's arrival, Moroz must have had a particularized articulable
reasonable suspicion that defendant possessed illicit drugs.
Dunbar, 229 N.J. at 538. The canine could only sniff for
controlled dangerous substances, so there was no purpose for
defendant's prolonged detention other than to determine if
defendant possessed such substances.
23 A-2432-16T2
In determining whether there were objective facts supporting
an articulable reasonable suspicion defendant possessed illicit
drugs, we consider the totality of the circumstances presented.
State v. Stovall, 170 N.J. 346, 356 (2002). "Neither 'inarticulate
hunches' nor an arresting officer's subjective good faith can
justify an infringement of a citizen's constitutionally guaranteed
rights. Rather, the officer 'must be able to point to specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant [the] intrusion.'"
Arthur, 149 N.J. at 8 (alteration in original) (citations omitted).
"Moreover, the court should scrutinize the reasons for the
particularized suspicion." State v. Amelio, 197 N.J. 207, 212
(2008) (citation omitted).
Here, when stripped of the motion court's unfounded reliance
on Moroz's knowledge of defendant's purported extensive narcotics
record and Moroz's experience and training, we are convinced there
are insufficient objective facts supporting an articulable
reasonable suspicion defendant possessed illicit drugs. The court
found only two other factors supporting its determination there
was reasonable suspicion justifying defendant's prolonged
detention awaiting the canine's arrival. The court first cited
Moroz's observations of defendant's nervous demeanor, including
his dropping of items from his wallet and later a cigarette, his
24 A-2432-16T2
failure to make eye contact with Moroz, the licking and movement
of his lips and his squinting and shutting of one eye. Second,
the court relied on defendant and his girlfriend's inconsistent
versions of where they were traveling.
"[A]nxiety or nervousness in the face of approaching police
officers can be common among the innocent and cannot alone betoken
criminal activity or justify reasonable suspicion that an anxious
or nervous person had or was engaged in criminal activity." State
v. Williams, 381 N.J. Super. 572, 589 (App. Div. 2005), rev'd on
other grounds, 192, N.J. 1 (2007). An "appearance of nervousness
is not sufficient grounds for the reasonable and articulable
suspicion necessary to extend the scope of a detention beyond the
reason for the original stop" of a motor vehicle. Carty, 170 N.J.
at 648. It is only where a defendant's nervousness is accompanied
by other factors that it supports a reasonable suspicion of
criminal activity. Mann, 203 N.J. at 339-40; see also Stovall,
170 N.J. at 367 (collecting cases where a suspect's nervousness
in part supported reasonable suspicion for an investigatory
detention).
In Elders, 192 N.J. at 248-50, the Court determined the police
lacked reasonable suspicion that the defendants were engaged in
criminal activity justifying a request to search their vehicle.
The Court affirmed the trial court's finding the police did not
25 A-2432-16T2
have a reasonable and articulable suspicion "that drugs [were]
being secreted in the vehicle" based on their observations of the
"defendants' nervous behavior, their conflicting statements" about
where they were traveling and their vehicle's "fallen-off gas
tank." Ibid. (alteration in original). Finding that whether the
police "possessed the necessary suspicion [was a] close call[],"
and that "nervousness and conflicting statements, along with
indicia of wrongdoing, can be cumulative factors in a totality of
circumstances analysis that leads to a finding of reasonable and
articulable suspicion of ongoing criminality[,]" the Court
affirmed the trial court's determination that the officer's
observations "gave rise to nothing more than a 'hunch' that
'something was wrong.'" Id. at 250.
Moroz's observations of defendant's nervous movements and
defendant and his girlfriend's conflicting versions of where they
were traveling did not support a reasonable and articulable
suspicion that defendant possessed a controlled dangerous
substance because they are untethered to any other "indicia of
wrongdoing." Ibid. Moroz determined defendant was not under the
influence of drugs, and the record is otherwise devoid any of any
other circumstances presented supporting a reasonable suspicion
defendant possessed illicit drugs. See, e.g., Privott, 203 N.J.
at 29 (finding the officer's knowledge of the defendant's prior
26 A-2432-16T2
narcotics arrests and gang association in part supported a
reasonable suspicion of criminal activity); Stovall, 170 N.J. at
358 (finding it permissible for a police officer to rely on a
"drug courier profile" as a circumstance supporting reasonable
suspicion); Williams, 381 N.J. Super. at 583-84 (finding the
defendant's presence in an area known for drug trafficking
supported a reasonable and articulable suspicion the defendant
possessed a controlled dangerous substance). Therefore, the
totality of the circumstances here is insufficient to establish
the articulable reasonable suspicion defendant possessed
controlled dangerous substances necessary to justify defendant's
delayed and prolonged detention while waiting for the canine.
Dunbar, 229 N.J. at 540.
We reverse the court's order denying defendant's motion to
suppress the gun from the vehicle under the October 2016
indictment. Because the gun was seized illegally, we also reverse
the court's denial of defendant's request to suppress the drugs
found during the searches incident to defendant's arrest for
possession of the gun at the scene of the motor vehicle stop and
later at the police station. See State v. Richards, 351 N.J.
Super. 289, 308 (App. Div. 2002) (finding that evidence seized
following an illegal protective search must be suppressed under
the exclusionary rule).
27 A-2432-16T2
C. Defendant's Statements on November 28, 2015
Defendant also claims the court erred by failing to suppress
statements he made at the police station following his arrest on
November 28, 2015. Defendant contends the State failed to prove
beyond a reasonable doubt that defendant knowingly waived his
Miranda rights and, therefore, the court erred by finding his
statement acknowledging ownership of the gun was inadmissible. We
reverse the court's order denying defendant's suppression motion
because he made the statements following his arrest, which we have
determined was founded solely on the illegal seizure of the gun
from the vehicle and drugs from his possession. See State v.
Rosario, 229 N.J. 263, 277 (2017); see also Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963).
Absent that determination, we would otherwise reject
defendant's claim the State did not prove he knowingly and
voluntarily waived his Miranda rights. The court's determination
that Moroz properly administered the Miranda rights and defendant
knowingly and voluntarily waived his rights is supported by
substantial credible evidence. See Elders, 192 N.J. at 243-44.
Defendant's argument to the contrary lacks sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). In any
event, because defendant's statements were made following his
28 A-2432-16T2
arrest based on illegally seized evidence, the court erred by
denying his suppression motion.
III.
In its sentencing determination under the 2015 indictment,
the court found aggravating factor one, "[t]he nature and
circumstances of the offense," N.J.S.A. 2C:44-1 (a)(1), and gave
it "very slight weight," and gave substantial weight to aggravating
factors three, the risk defendant will commit another offense,
N.J.S.A. 2C:44-1(a)(3), six, the extent and seriousness of
defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and nine, the
need to deter defendant and others from violating the law, N.J.S.A.
2C:44-1(a)(9). The court did not find any mitigating factors, see
N.J.S.A. 2C:44-1(b)(1)-(13), concluded it was clearly convinced
the aggravating factors substantially outweighed the non-existent
mitigating factors and imposed a five-year sentence with a two-
year period of parole ineligibility.
Defendant challenges only the sentence imposed by the court
on the charges in the 2015 indictment, claiming the court erred
by finding aggravating factor one, and by basing its sentencing
decision on a finding defendant was a "professional drug dealer."
We review a "trial court's 'sentencing determination under a
deferential [abuse of discretion] standard of review.'" State v.
Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214
29 A-2432-16T2
N.J. 594, 606 (2013)). We affirm a sentence if: (1) the trial
court followed the sentencing guidelines; (2) its findings of fact
and application of aggravating and mitigating factors were based
on competent, credible evidence in the record; and (3) the
application of the law to the facts does not "shock[] the judicial
conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a
trial court's sentencing decision, we will not "substitute [our]
judgment for that of the sentencing court." State v. Fuentes, 217
N.J. 57, 70 (2014) (citation omitted).
Applying these standards, we are persuaded the court did not
abuse its discretion by finding aggravating factor one, the nature
and circumstances of the offense. N.J.S.A. 2C:44-1(a)(1).
Defendant was convicted of possession of 10.94 grams of cocaine
and 1.02 grams of 3,4 Methylenedioxy-ethylcalthinone. The court
found aggravating factor one based on the weight of the controlled
dangerous substances, reasoning the weight of each drug exceeded
the "trace amount" required to establish the commission of the
third-degree possessory offenses. See, e.g., State v. Wells, 336
N.J. Super. 139, 144-45 (Law Div. 2000) (finding possession of a
trace amount of cocaine constitutes commission of a possessory
drug offense under N.J.S.A. 2C:35-10).
30 A-2432-16T2
Possession of drugs in excess of the amounts required to
prove the offense charged supports a finding of aggravating factor
one. See State v. Henry, 418 N.J. Super. 481, 492 (App. Div.
2010) (finding "a court may consider as an aggravating factor
facts reflecting that a defendant exceedingly satisfied a
quantity-related element of an offense"); State v. Varona, 242
N.J. Super. 474, 490 (App. Div. 1990) (finding evidence showing
the defendant possessed seven times the amount of cocaine required
to prove a first-degree possession with intent charge supports a
finding of aggravating factor one); State v. Toro, 229 N.J. Super.
215, 226 (App. Div. 1988) (finding "the 'nature and circumstances'
of a drug offense include the amount of drugs involved").9 Thus,
the court did not abuse its discretion by relying on the weight
of the drugs defendant possessed to support its finding of
aggravating factor one and, in our view, properly tempered its
finding by assigning only very slight weight to the factor.
The sentence was also imposed, in part, based on the court's
finding "defendant is a professional drug dealer" and conclusion
that "unless there's a substantial change in attitude, it is this
[c]ourt's feeling . . . defendant is highly likely to reoffend."
9
Our decision in Toro was reversed on other grounds in State v.
Velez, 119 N.J. 185, 187 (1990).
31 A-2432-16T2
Although the court did not expressly rely on its finding to support
its determination of a particular aggravating factor,10 it clearly
relied on defendant's putative status as a "professional drug
dealer" as part of its sentencing calculus.
The court erred, however, because its finding is not supported
by credible evidence. See State v. Dalziel, 182 N.J. 494, 505
(2005) (noting the "well-established rule that aggravating and
mitigating factors must be supported by credible evidence").
Defendant has a lengthy and varied criminal and offense history,
but it shows only one conviction for distribution of a controlled
dangerous substance, marijuana, for an offense committed in 2000.
His other drug related offenses – a 1997 juvenile offense, and
three as an adult – were possessory crimes. Under the 2015
indictment, defendant was not charged with distribution, was found
not guilty of four possession with intent to distribute charges,
and was convicted of two possessory offenses.11 Moreover, the
presentence investigation report and the sentencing record is
otherwise bereft of any evidence defendant is a professional drug
10
The court's determination, if supported by credible evidence,
would support a finding of aggravating factors three and nine.
See N.J.S.A. 2C:44-1(a)(3), (9).
11
Similarly, defendant pleaded guilty under the August 2016
indictment to possession of a controlled dangerous substance.
32 A-2432-16T2
dealer. We therefore vacate the sentence imposed by the court
under the 2015 indictment, and remand for resentencing.
We further observe that the judgment of conviction under the
2015 indictment incorrectly states that the sentence imposed shall
"run consecutive to #15-12-[00]766[-I] and #16-08-[00]670[-I]."
This is an obvious error because the sentence imposed under
Indictment No. 15-12-0766 could not run consecutive to itself. At
the sentencing proceeding, the court actually ordered that the
sentence imposed under Indictment 15-12-00766 run consecutive to
the sentences imposed under Indictment Nos. 16-10-0801 and 16-08-
0670. On remand, if the court imposes a consecutive sentence on
the charges for which defendant was convicted under the 2015
indictment, the judgment of conviction should accurately reflect
the sentences imposed.
We reverse the court's order denying defendant's suppression
motion and reverse his conviction under the October 2016 indictment
(Gloucester County Indictment No. 16-10-0801), and remand for
further proceedings. We affirm the court's order denying
defendant's suppression motion and affirm his conviction under the
2015 indictment (Gloucester County Indictment No. 15-12-0766). We
vacate the court's sentence under the 2015 indictment (Gloucester
County Indictment No. 15-12-0766) and remand for resentencing. We
do not retain jurisdiction.
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34 A-2432-16T2