STATE OF NEW JERSEY v. JUAN R. RUIZ-MONTANO (18-03-0039, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1070-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN R. RUIZ-MONTANO,
a/k/a JUAN R. RUIZ, and
JUAN R. MONTANO,
Defendant-Appellant.
_________________________
Argued November 15, 2021 – Decided January 7, 2022
Before Judges Fasciale and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 18-03-0039.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Peter T. Blum, of counsel
and on the briefs).
Steven A. Yomtov, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Steven A. Yomtov, of
counsel and on the brief).
PER CURIAM
Defendant Juan R. Ruiz-Montano appeals from an order denying his
motion to suppress evidence seized from his motor vehicle. He contends the
court erred by denying the suppression motion without first conducting an
evidentiary hearing. He claims an evidentiary hearing was required because
there is a fact issue as to whether the detectives who conducted the motor vehicle
stop that led to the seizure of the evidence had sufficient information to support
a reasonable and articulable suspicion he had been, or was, engaged in criminal
activity when his vehicle was stopped. Unpersuaded by defendant's arguments,
we affirm.
I.
On December 12, 2017, detectives from the New Jersey Division of
Criminal Justice (DCJ) conducted a stop of defendant's vehicle. The detectives
detained defendant and later obtained a search warrant for the vehicle. A
subsequent search of the vehicle revealed a hidden compartment in the center
console containing approximately six kilograms of cocaine, a scale, and $4,500
in cash.
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A grand jury indicted defendant and eight co-defendants with numerous
controlled dangerous substance (CDS) and other offenses. 1 The co-defendants
included Jeffrey Jaquez, Luis Peguero-Nin, Adrian Mena-Acevedo, Jose
Encarnacion, Juan Duran, Emily Aracena-Freijomil, Chamil Polanco, and John
Doe a.k.a. "Gingo."
Defendant moved to suppress the evidence recovered from his vehicle. In
part, he claimed the warrantless motor vehicle stop and his subsequent detention
while the State applied for the search warrant were unconstitutional because the
detectives lacked "reasonable suspicion or probable cause" to believe he
committed an offense.
Because defendant's suppression motion challenged the warrantless stop
of his motor vehicle, our Rules of Court required that the State first "file a brief,
including a statement of the facts as it allege[d] them to be," R. 3:5-7(b),
supporting the stop. The State filed two briefs setting forth its version of the
1
The grand jury charged defendant in the following five counts of the thirty-
seven-count indictment: second-degree conspiracy to distribute CDS, cocaine,
N.J.S.A. 2C:35-5(a)(1), (b)(1), and (c), and N.J.S.A. 2C:5-2 (count one); first-
degree possession with intent to distribute CDS, cocaine, N.J.S.A. 2C:35 -
5(a)(1), (b)(1) (count sixteen); third-degree possession of CDS, cocaine,
N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count eighteen); third-degree
possession with intent to distribute CDS, cocaine, on or within 1,000 feet of
school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:2-6 (count nineteen); and
third-degree money laundering, N.J.S.A. 2C:21-25(a) (count twenty).
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facts, and, in accordance with Rule 3:5-7(b), defendant filed letter briefs in
response to each. Based on our review of the parties' briefs, we discern that the
following facts were presented to the motion court for its consideration of the
suppression motion. 2
In June 2017, a cooperating witness informed the DCJ that Jaquez was
distributing cocaine in Paterson. Between July and November 2017, the
cooperating witness made six controlled purchases of cocaine from Jaquez.
Based on information obtained pursuant to a court authorized wiretap of Jaquez's
phone number, as well as surveillance, DCJ detectives identified Peguero-Nin
as Jaquez's cocaine supplier.
Information from a wiretap of Peguero-Nin's phone number and additional
surveillance resulted in the DCJ detectives' identification of Polanco and
Ricardo Burgos-Polanco as employees of Peguero-Nin's drug distribution
operation. DCJ detectives further identified Mena-Acevedo as Peguero-Nin's
2
The State detailed numerous facts in its initial February 7, 2019 letter brief
filed in response to defendant's suppression motion. Defendant's February 26,
2019 opposition letter brief did not dispute any of the facts relied on by the State
in support of the motor vehicle stop. In its March 6, 2019 letter reply brief, the
State provided additional facts it alleged occurred prior to the motor vehicle
stop, including those set forth in the search warrant affidavit, which the State
attached to its brief. Defendant's final brief, dated March 27, 2019, did not
contest any of the facts the State described concerning the motor vehicle stop
that were set forth in the State's two briefs and the search warrant affidavit.
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cocaine supplier, and a trial court order authorized a wiretap for Mena-
Acevedo's phone number. Based on surveillance and wiretapped calls, DCJ
detectives identified Mena-Acevedo's girlfriend, Aracena-Freijomil, and Juan
Duran as employees of Mena-Acevedo's operation. Detectives also identified
Encarnacion as Mena-Acevedo's cocaine supplier and defendant as
Encarnacion's associate. Encarnacion resides on Union Avenue in Paterson.
On December 6, 2017, Encarnacion received a phone call from an
unidentified person.3 Based on his training, experience, and the investigation,
DCJ Detective Sergeant Patrick Sole believed Encarnacion and the unidentified
person discussed a narcotics transaction. Specifically, Sole believed the
unidentified person advised Encarnacion he needed to bring more cocaine
because the unidentified person diluted it too much during the cutting process.
Sole further believed, based on his training and experience, that during two
additional calls between Encarnacion and the unidentified person, the
unidentified person cut cocaine for Encarnacion and told Encarnacion to pick it
up because it was finished.
3
In the affidavit in support of the search warrant, Encarnacion is referred to as
"Lapiz."
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During surveillance of Encarnacion on December 6, 2017, DCJ detectives
observed Encarnacion meet with an individual later identified as defendant, who
was observed driving a black Honda Pilot in front of Encarnacion's Union
Avenue apartment. After meeting with defendant, Encarnacion walked into the
garage for approximately one minute, then he walked back to defendant's vehicle
and leaned into the vehicle's passenger side. Based on his training and
experience, Sole believed Encarnacion gave defendant either money or
narcotics, which Encarnacion had retrieved from the garage.
On December 8, 2017, DCJ detectives observed defendant in the black
Honda Pilot and Encarnacion, who was driving a Honda Accord, arrive at the
Union Avenue apartment. The two men then entered the apartment.
Approximately three hours later, Encarnacion and defendant exited the
apartment and stopped in front of the house before walking across the street.
Approximately five minutes later, they walked back across the street to the
apartment, and Encarnacion went into the garage for approximately one minute.
Encarnacion left the garage, walked to defendant's vehicle with a white item in
his hand, and met with defendant. Defendant then left in the black Honda Pilot.
Based on his training, experience, and the investigation, Sole believed
defendant helped Encarnacion transport cocaine to the Union Avenue apartment,
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and that when Encarnacion gave defendant a white package from the garage, he
paid defendant for helping with the transportation.
At approximately 12:54 p.m. on December 12, 2017, DCJ detectives
observed defendant arrive at Encarnacion's Union Avenue apartment in the
black Honda Pilot. After briefly waiting outside, defendant entered the
apartment. At approximately 2:13 p.m., defendant left the apartment "carrying
a red and black duffel bag" that "appeared full and weighted."
Defendant walked to the black Honda Pilot, entered the front passenger
side with the duffel bag, and then, after a few minutes, exited the vehicle
carrying a small white plastic bag, which he brought to, and placed under, a
stairwell. Defendant left the small bag under the stairwell, returned to his
vehicle, and departed. Encarnacion was observed watching defendant from his
apartment the entire time. DCJ Sergeant Mario Estrada followed defendant's
vehicle as it departed the Union Avenue apartment and conducted the
investigatory stop of the vehicle two minutes later, at approximately 2:15 p.m.
As the State detailed in its initial brief in opposition to defendant 's
suppression motion, defendant's December 6 and 8, 2017 meetings with
Encarnacion, "as well as the events of December 12, 2017, were suspected by
[DCJ] detectives to be CDS transactions based on the [DCJ] investigation and
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their training and experience. As such, detectives [including Estrada]
conducted" the stop "to investigate the suspected criminal activity." The State
further asserted that "[b]ased on the totality of the circumstances, including the
observations on December 12 and earlier in the investigation, the detectives had
a reasonable and particularized suspicion to believe that [defendant] was
engag[ed] in illegal activity . . . at the time of the investigatory stop."
Following the stop, the DCJ detectives advised defendant he was stopped
as part of the drug investigation. Defendant gave the detectives his license,
insurance, and registration. Detectives requested that defendant show them the
contents of the duffel bag, which contained a shirt and no other items.
During their investigation, detectives observed that other members
involved in the drug trafficking organization, including Jaquez, had hidden
compartments, or "traps," in their vehicles to hide contraband. Estrada asked
defendant if his vehicle had any hidden compartments. Defendant replied, "If
there is, I don't know about it."
The DCJ detectives detained defendant; they removed him from his
vehicle and placed him into the rear of a police vehicle. At approximately 3:03
p.m., a canine unit arrived at the scene, and conducted a canine drug sniff around
the outside of defendant's vehicle with negative results.
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The DCJ detectives continued defendant's detention. They transported
him, and towed his vehicle, to a police station. At approximately 7:30 p.m.,
detectives obtained a search warrant for defendant's black Honda Pilot. As
noted, the subsequent search of the vehicle resulted in the seizure of cocaine, a
scale, and cash from the hidden compartment in the center console.
In his letter briefs to the court, defendant argued the detectives lacked a
reasonable and articulable suspicion of criminal activity supporting the motor
vehicle stop. He claimed the detectives stopped his vehicle on nothing more
than a "hunch" that it contained CDS, and, for that reason, the motor vehicle
stop was unconstitutional. Defendant further claimed his subsequent detention
while the DCJ detectives sought and obtained the search warrant was
unconstitutional because it constituted a de facto arrest unsupported by probable
cause he had committed any offense.
The court heard argument on defendant's motion. Defendant's counsel
claimed the detectives did not have a reasonable and articulable suspicion
supporting the stop of defendant's vehicle and the subsequent detention of
defendant because they did not observe a motor vehicle violation; defendant had
his license, registration, and insurance; the duffel bag did not contain any
contraband; detectives did not discover contraband after initially searching the
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vehicle for weapons; and the canine sniff was negative. Defendant further
argued the seized evidence should be suppressed as fruit of the poisonous t ree
because the motor vehicle stop and his subsequent detention were unlawful.
Defendant also argued he was entitled to an evidentiary hearing, but he did not
identify any issues of fact based on the briefs submitted to the motion court.
The State argued the DCJ detectives lawfully stopped defendant's vehicle
because they had reasonable suspicion he was committing an offense based on
their ongoing investigation, including their previous surveillance of defendant 's
activities and their observations of defendant and Encarnacion on December 12,
2017. The State also argued that detectives' search of the duffel bag, which
yielded only a t-shirt from a bag that had been "full and weighted" when brought
to the vehicle, as well as other information concerning the use of hidden vehicle
compartments by others who were the subject of the investigation, further
supported probable cause defendant possessed contraband in the vehicle. The
State further asserted that even if defendant's detention was a de facto arrest, the
probable cause to search defendant's vehicle also supported probable cause to
believe defendant was engaged in illegal activities. The State asserted an
evidentiary hearing was not necessary because there were no material factual
disputes.
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The court denied defendant's suppression motion. The court found the
DCJ's ongoing investigation supported a reasonable belief Encarnacion was a
cocaine supplier and defendant was his associate. The court also found that on
December 6 and 8, 2017, DCJ detectives observed defendant arrive at
Encarnacion's apartment in the black Honda Pilot, and, on both occasions,
Encarnacion briefly entered his garage before returning to defendant and
handing him something. The court determined that on December 12, 2017, DCJ
detectives observed defendant arrive at Encarnacion's apartment and later leave
with a red and black duffel bag, which appeared full and weighted.
The court found the detectives conducted an investigatory stop of the
black Honda Pilot, advised defendant they stopped him as part of a drug
investigation, and requested to search the duffel bag, which contained only a
shirt. The court also found the detectives asked defendant whether the vehicle
had hidden compartments, and defendant denied having knowledge of any. The
court determined the DCJ detectives removed defendant from his vehicle and
placed him into the rear of a police vehicle.
The court further determined the detectives transported defendant and his
vehicle to a police station around 6:20 p.m., obtained a search warrant, and the
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search revealed contraband in a hidden compartment in the center console of
defendant's vehicle.
The court concluded an evidentiary hearing was unnecessary because
defendant did not dispute any material fact set forth in the State's letter briefs.
The court held the motor vehicle stop was lawful because detectives had a
reasonable and articulable suspicion, based on their observations during the
investigation and on December 12, 2017, that defendant was engaged in the
illegal activity of transporting drugs.
The court found a de facto arrest occurred because the detectives detained
defendant and transported him to a police station. The court found the arrest
lawful because the detectives had probable cause to believe defendant was
engaged in illegal activities. The court concluded the search of defendant's
vehicle was lawful, and it entered an order denying defendant's suppression
motion.
Defendant pleaded guilty to first-degree possession with intent to
distribute a controlled dangerous substance and the court imposed a sentence in
accordance with the plea agreement. Defendant appeals from his judgment of
conviction and the order denying his suppression motion.
Defendant presents the following argument for our consideration:
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POINT ONE
AN EVIDENTIARY HEARING SHOULD HAVE
BEEN HELD ON THE LEGALITY OF THE
INVESTIGATIVE DETENTION AND
SUBSEQUENT ARREST BECAUSE THE
ATTORNEY GENERAL'S PAPERS FAILED TO
ALLEGE WHAT INFORMATION THE DECISION-
MAKING DETECTIVE(S) HAD RELIED UPON AT
THE TIME. U.S. CONST. AMEND. IV, XIV; N.J.
CONST. ART. I, PARA. 1, 7.
II.
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution guarantee "[t]he right of the people
to be secure . . . against unreasonable searches and seizures." U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. "Because warrantless . . . searches are
presumptively invalid, the State bears the burden of establishing that any
such . . . search is justified by one of the '"well-delineated exceptions" to the
warrant requirement.'" State v. Shaw, 213 N.J. 398, 409 (2012) (quoting State
v. Frankel, 179 N.J. 586, 598 (2004)). The State must prove the validity of a
warrantless search by a preponderance of the evidence. Ibid. Where an officer
obtains "physical, tangible materials . . . during or as a direct result of an
unlawful invasion," the exclusionary rule applies and will bar such materials
A-1070-19
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from trial. Wong Sun v. United States, 371 U.S. 471, 485 (1963); see also Shaw,
213 N.J. at 412-13.
A motor vehicle stop constitutes a "seizure" under the United States and
New Jersey Constitutions. State v. Scriven, 226 N.J. 20, 33 (2016). To justify
a motor vehicle stop, "a police officer must have a reasonable and articulable
suspicion that the driver of a vehicle, or its occupants, is committing a motor -
vehicle violation or a criminal or disorderly persons offense." Id. at 33-34; see
also State v. Atwood, 232 N.J. 433, 444 (2018). "The State bears the burden of
proving that an investigatory stop is valid." Atwood, 232 N.J. at 444.
"[R]easonable suspicion is neither easily defined nor 'readily, or even
usefully, reduced to a neat set of legal rules.'" State v. Stovall, 170 N.J. 346,
356 (2002) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). The
application of the reasonable suspicion standard is "highly fact sensitive." State
v. Nishina, 175 N.J. 502, 511 (2003). "Facts that might seem innocent when
viewed in isolation can sustain a finding of reasonable suspicion when
considered in the aggregate . . . ." Ibid. Thus, to determine whether an officer
had a reasonable and articulable suspicion, a court must consider the totality of
the circumstances from the standard of an objectively reasonable police officer.
Stovall, 170 N.J. at 357, 361.
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"No mathematical formula exists for deciding whether the totality of
circumstances provided the officer with an articulable or particularized
suspicion that the individual in question was involved in criminal activity." Id.
at 361 (quoting State v. Davis, 104 N.J. 490, 505 (1986)). In determining
whether the officer had a reasonable and articulable suspicion, a court may
"consider[] the officers' background and training, and permit[] them 'to draw on
their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that "might well
elude an untrained person."'" State v. Nelson, 237 N.J. 540, 555 (2019) (quoting
United States v. Arvizu, 534 U.S. 266, 273, (2002)). However, before a court
will find that an officer had a reasonable and articulable suspicion, that "officer
must 'be able to articulate something more than an "inchoate and
unparticularized suspicion or hunch."'" Stovall, 170 N.J. at 357 (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
Additionally, the facts an officer relies upon to form reasonable suspicion
must be known to him or her at the time the officer stops or detains someone
and not after the fact. See State v. Robinson, 441 N.J. Super. 33, 46 (App. Div.
2015) (quoting State v. Bruzzese, 94 N.J. 210, 221 (1983)); see also State v.
Patterson, 270 N.J. Super. 550, 561 (Law Div. 1993). "[W]here police officers
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are cooperating in the same investigation, the knowledge of one is presumed
shared by all." State v. Ford, 278 N.J. Super. 351, 356 (App. Div. 1995); see
also United States v. Belle, 593 F.2d 487, 497 n.15 (3d Cir. 1979) ("The
collective knowledge of the investigating officers is measured in determining
probable cause."); Wood v. Crouse, 436 F.2d 1077, 1078 (10th Cir. 1971)
(same).
Here, defendant argues the motion court erred by deciding his suppression
motion without conducting an evidentiary hearing. He contends the facts
presented by the State in support of the DCJ's warrantless stop of his vehicle did
not establish the detectives who stopped his vehicle possessed information
supporting a reasonable and articulable suspicion he was engaged in criminal
activity. Defendant argues the State justified the stop based on a post hoc
aggregation of information establishing the requisite suspicion for the stop. He
asserts the stop was unconstitutional because the State's proffered facts did not
establish the detectives who stopped the vehicle were aware of the aggregated
information and, as a result, the State's facts failed to establish those detectives
had a reasonable and articulable suspicion supporting the stop. Defendant
claims the motion court should have conducted an evidentiary hearing to
consider what the DCJ detectives who either ordered or conducted the stop
A-1070-19
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actually knew prior to the stop; defendant asserts that information is required to
determine if the detectives had a reasonable and articulable suspicion of criminal
activity permitting the stop. We are not persuaded.
We review a trial judge's denial of an evidentiary hearing for an abuse of
discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009).
A court abuses its discretion when its "decision [is] made without a rational
explanation, inexplicably depart[s] from established policies, or rest[s] on an
impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citing
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
When a defendant moves to suppress evidence seized during a warrantless
search, the State must "file a brief, including a statement of the facts as it alleges
them to be," and the defendant must then "file a brief and counter statement of
facts." R. 3:5-7(b). A court determines whether facts are in dispute based on a
review of the briefs submitted. A court must hold an evidentiary hearing on a
motion to suppress evidence only if material facts are in dispute. R. 3:5-7(c).
A defendant's counterstatement of facts must present "something more
than the naked conclusion that the warrantless search was illegal, in order to
obtain an evidentiary hearing pursuant to [Rule] 3:5-7(c)." State v. Hewins, 166
N.J. Super. 210, 215 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div.
A-1070-19
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1981). "It is only when the defendant's counter statement places material facts
in dispute that an evidentiary hearing is required." State v. Green, 346 N.J.
Super. 87, 90-91 (App. Div. 2001) (citing Hewins, 166 N.J. Super. at 213-15);
see also State v. Kim, 412 N.J. Super. 260, 268 (App. Div. 2010) (noting "a
defendant must show there are material facts in dispute to be entitled to an
evidentiary hearing" under Rule 3:5-7(c)).
Defendant argued before the motion court he was entitled to an evidentiary
hearing, but he failed there, and also fails on appeal, to identify any pertinent
facts asserted by the State in support of the motor vehicle stop that he contest ed
or contests. In his written submissions to the motion court, defendant did not
dispute any of the salient facts the State cited in support of the motor vehicle
stop.4 Having failed to contest any of the State's facts before the motion court,
4
We are not persuaded by defendant's contention that he raised a fact issue as
to whether he was a suspect prior to the motor vehicle stop. In support of his
claim, defendant points to the statement in his February 26, 2019 brief that he
"was not a target or a suspect" when the DCJ detectives made their observations
of him with Encarnacion on December 12, 2017. Defendant's purported factual
assertion, however, is not a statement of fact at all. It is a self-serving
conclusory assertion for which defendant could not have any personal
knowledge because he was not involved in the DCJ investigation. His
declaration that he was not a suspect or target of an investigation about which
he had no knowledge did not, and does not, create a factual issue concerning the
DCJ's view of defendant—either as a suspect or target—prior to the December
12, 2017 motor vehicle stop. See State v. Kadonsky, 288 N.J. Super. 41, 46 (App.
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and further failing to identify any disputes of fact on appeal, the record is bereft
of a factual dispute warranting an evidentiary hearing. See id. at 90-91; see also
Kim, 412 N.J. Super. at 268.
As we explained in Green, "[t]he mere allegation of a warrantless search,
with the attendant burden of proof on the State to justify same, does not place
material issues in dispute, nor does defendant's assertion that he denies the truth
of the State's allegations." 346 N.J. Super. at 91 (citing Hewins, 166 N.J. Super.
at 214). "In the absence of factual allegations to support the claim that the search
and seizure were illegal, a hearing was not required . . . ." Kadonsky, 288 N.J.
Super. at 46. We reject defendant's claims to the contrary.
Defendant argued before the motion court that the facts presented in the
State's briefs did not establish a reasonable and articulable suspicion of criminal
activity sufficient to support the motor vehicle stop. On appeal, defendant
asserts a newly minted claim. He contends for the first time that even if the
DCJ's investigation provided a sufficient basis supporting the motor vehicle
Div. 1996) (noting a "conclusory assertion" does not create a fact issue
warranting an evidentiary hearing under Rule 3:5-7(c)); Hewins, 166 N.J. Super.
at 215 (explaining under Rule 3:5-7(c) a defendant must present facts that "are
sufficiently definite, specific, detailed, and nonconjectural to enable the court to
conclude that contested issues of fact going to the validity of the search are in
question" (quoting United States v. Ledesma, 499 F.2d 36, 39 (9th Cir. 1974))).
A-1070-19
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stop, the stop was unconstitutional because the facts proffered by the State to
the motion court did not demonstrate that the detectives who effectuated the stop
were personally aware of sufficient information permitting a reasonable and
articulable suspicion by them that defendant was involved in criminal activity
when the stop was made. Defendant does not argue he is entitled to an
evidentiary based on any contested issues of fact; he claims he is entitled to a
hearing to determine whether the DCJ detectives who stopped the vehicle, or the
individuals who ordered the detectives to do so, personally had knowledge of
facts supporting a reasonable and articulable suspicion defendant was engaged
in criminal activity.
We reject defendant's argument for two separate but equally dispositive
reasons. First, it was not raised before the motion court. "Generally, 'the points
of divergence developed in proceedings before a trial court define the metes and
bounds of appellate review.'" State v. Witt, 223 N.J. 409, 419 (2015) (quoting
State v. Robinson, 200 N.J. 1, 19 (2009)); see also State v. Andujar, 462 N.J.
Super. 537, 550 (App. Div. 2020). "Parties must make known their positions at
the suppression hearing so that the trial court can rule on the issues before it,"
Witt, 223 N.J. at 419, and we "will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
A-1070-19
20
is available unless the questions raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest," Robinson, 200 N.J. at 20(quoting Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973)).
These principles are especially applicable where, as here, defendant's
failure "denied the State the opportunity to confront the claim head-on; it denied
the [motion] court the opportunity to evaluate the claim in an informed and
deliberate manner; and it denied [this] court the benefit of a robust record within
which the claim could be considered." Id. at 21. As the Court explained in Witt,
"it would be unfair, and contrary to our established rules, to decide the
lawfulness of the stop when the State was deprived of the opportunity to
establish a record [in accordance with Rule 3:5-7] that might have resolved the
issue." 223 N.J. at 419. For that reason alone, we reject defendant's effort to
challenge the motor vehicle stop based on his claim the record lacked evidence
the detectives who stopped his vehicle did not have personal knowledge of the
facts supporting a reasonable and articulable suspicion defendant was engaged
in criminal activity; the argument was never made to the motion court.
The second reason we reject defendant's challenge to the motor vehicle
stop is that it is not supported by the record. Defendant's argument is based on
the premise that the facts set forth in the State's briefs did not permit the
A-1070-19
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conclusion that the DCJ detectives who conducted the stop had sufficient
information providing a reasonable and articulable suspicion defendant was
engaged in criminal activity when the stop occurred. We reject defendant's
interpretation of the facts proffered by the State in its briefs to the motion court.
Defendant principally relies on United States v. Wilbourn, 799 F.3d. 900(7th Cir. 2015), to support his argument. In Wilbourn, the Bureau of Alcohol,
Tobacco and Firearms (ATF) conducted a two-year investigation of a Chicago
drug distribution network allegedly headed by Rondell Freeman. Id. at 904-06.
The ATF's two-year investigation included surveillance, wiretaps, information
provided by informants, "garbage pulls," and audio and video recordings. Id. at
904. The government claimed its investigation showed the defendant was
involved in a conspiracy with Freeman and others to distribute CDS. Ibid.
During the investigation, ATF agents observed a Dodge vehicle registered
to the defendant's mother outside Freeman's resident. Id. at 905. ATF agents
observed defendant and two other males enter the vehicle. Id. at 906. The agents
surveilled the vehicle as it departed and later stopped at a gas station. Ibid.
While the Dodge was parked at the gas station, a Chicago police officer
assisting in the ATF investigation observed a male exit a Buick vehicle,
"approach the Dodge, and lean into the front passenger side," where the
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individual "remained . . . for approximately ten seconds before returning to" the
Buick. Ibid. The Buick then left the gas station. Ibid.
Several blocks from the gas station, two Chicago police officers stopped
the Buick. Ibid. These two officers had no involvement in the ATF
investigation. Ibid. Two females sat in the front of the Buick, and a male
passenger, Adam Sanders, sat in the back seat. Ibid. The officers recognized
Sanders, instructed him to exit the vehicle, and placed him in the rear of their
police vehicle. Ibid. A search of the rear of the Buick disclosed 120 bags of
crack cocaine packaged in a manner "associated with drugs sold by" the
defendant. Ibid.
The United States District Court denied the defendant's motion to suppress
the drugs found in the Buick, finding "the police officers had a reasonable
suspicion to stop the Buick based on facts known to them as a result of the [ATF]
investigation of the Freeman drug organization." Id. at 909. The Court of
Appeals reversed, finding the facts presented in the government's brief
supporting the warrantless vehicle stop did not establish that the "individual
officers" who conducted the stop "knew anything about the persons inside the
Buick at the time of the stop" or otherwise "had a reasonable suspicion that the
persons in the Buick were engaged in criminal activity." Ibid.
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The court noted the record describing the ATF's investigation "offered
extensive evidence to establish that other officers had reason to suspect that the
persons in the Buick had committed a crime," but the government "offered no
evidence to suggest that anyone communicated any basis for those suspicions
to" the two officers that actually stopped the vehicle. Ibid. Thus, the court
determined these two officers were not "able to articulate any grounds to justify
the stop," and the court concluded the stop was not supported by the requisite
reasonable and articulable suspicion. Ibid.; see also id. at 909-10 (explaining
"[t]he Fourth Amendment allows officers to 'stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity "may be afoot"'" (quoting United States
v. Sokolow, 490 U.S. 1, 7 (1989))).
Here, the State's briefs before the motion court proffered facts establishing
circumstances different than those extant in Wilbourn. The State's briefs
described the DCJ's ongoing investigation into the drug distribution operation,
including the observations of defendant's interactions with Encarnacion on
December 6 and 8, 2017, and the suspicious activity on December 12, when DCJ
detectives observed defendant exit Encarnacion's apartment with a full and
weighted duffel bag; enter the passenger side of his Honda Pilot for a few
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moments; exit from the passenger side; deposit a small bag under a stairwell;
and drive away after returning to the vehicle's driver's seat.
Unlike the two officers in Wilbourn, who stopped the Buick without any
knowledge of the ATF's investigation, it can be reasonably inferred the DCJ
detectives who stopped defendant in his Honda Pilot were fully aware defendant
was suspected of involvement in the drug distribution operation the DCJ was
investigating. As the State explained in its briefs to the motion court, and the
search warrant affidavit it submitted to the court, defendant's interactions with
Encarnacion on December 6, 8, and 12, 2017, which were surveilled by DCJ
detectives, were "suspected by [DCJ] detectives to be [controlled dangerous
substance] transactions based on the [DCJ] investigation and [the detectives']
training and experience." The State further represented that "[a]s such, [DCJ]
detectives conducted a . . . stop of [defendant's] vehicle to investigate the
suspected criminal activity." In other words, the State explained the DCJ's
detectives suspected defendant was engaged in criminal activity based on their
knowledge of the investigation, as well as their training and experience, and the
detectives therefore conducted the motor vehicle stop.
The State's submissions to the motion court establish the DCJ detectives
who stopped defendant's vehicle are wholly different from the officers in
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Wilbourn, who did not have any knowledge the defendant was either being
investigated by the ATF or was suspected of having committed any offense.
According to the State's uncontradicted version of the facts, the detectives who
stopped defendant's vehicle were directly involved in the DCJ's investigation
and they suspected defendant's involvement in criminal activity based on
surveillance of defendant and Encarnacion, and other information developed
during the investigation.
The court in Wilbourn based its suppression of the evidence on the fact
that the officers who stopped the car could not articulate the reason for the motor
vehicle stop, but here the DCJ detectives explained the reason for the stop at the
moment it occurred — they told defendant he was stopped as part of their "drug
investigation." That reference made by the detectives immediately upon
stopping defendant's vehicle could only logically be to the surveillance of
defendant and other information developed during the DCJ's ongoing
investigation of a drug distribution operation that included defendant. The
officers in Wilbourn did not make a similar statement because, unlike the
detectives here, they had no knowledge of the ATF's investigation, and they
otherwise could not articulate any reason supporting the motor vehicle stop.
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Additionally, as the State explained in its briefs and the search warrant
affidavit supplied to the motion court, the DCJ detectives who stopped defendant
were directly involved in the investigation and were present near Encarnacion's
apartment on December 12, 2017. See, e.g., State v. Arthur, 149 N.J. 1, 4-5, 12
(1997) (upholding an investigatory stop of a vehicle when officers surveilling
an area known for drug trafficking observed what they suspected was, based on
their knowledge and experience, a drug transaction despite never encountering
the occupants of the vehicle prior to that day). The State's briefs and the search
warrant affidavit explained that the DCJ detectives who stopped defendant
"followed" him after he left Encarnacion's apartment. The detectives could have
only followed defendant from the apartment if they had been there in the first
instance, participating in the investigation.
Thus, defendant's reliance on Wilbourn is misplaced. There, the two
officers who stopped the vehicle had no knowledge of the ATF investigation,
and they provided no reasonable and articulable suspicion for conducting the
stop. Here, the State explained the DCJ detectives who stopped defendant were
directly involved in the investigation, they suspected defendant's involvement
in criminal activity based on the investigation, and they stopped defendant
following the December 12, 2017 events at Encarnacion's apartment based on
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that suspicion. The motion court's determination there was a reasonable and
articulable suspicion defendant was engaged in criminal activity permitting the
motor vehicle stop is amply supported by a fair reading of the facts the State
proffered pursuant to Rule 3:5-7.
The State's presentation of the pertinent facts did not, as defendant
contends, constitute a post hoc aggregation of facts that were unknown to the
DCJ detectives prior to the motor vehicle stop. See Bruzzese, 94 N.J. at 221(explaining a seizure must be supported by the facts extant and known at the
time of the seizure); see also Patterson, 270 N.J. Super. at 561 (explaining facts
learned by an officer who conducts a motor vehicle stop from another off icer
after the motor vehicle stop "cannot be subsequently combined" with facts
known at the time of the stop "to justify the stop"). Although detailed generally,
the State's proffered facts describe what was known to the DCJ detectives prior
to the motor vehicle stop—defendants' interactions with suspected drug dealer
Encarnacion that were consistent with drug transactions—and the facts
established a reasonable and articulable basis to suspect defendant was engaged
in criminal activity as he was followed from Encarnacion's apartment on
December 12, 2017. Thus, based on the facts presented by the State, the DCJ
detectives had a reasonable and articulable suspicion defendant was involved in
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criminal activity prior to, and at the time of, the motor vehicle stop. See
Bruzzese, 94 N.J. at 221. We therefore discern no basis to conclude the court
erred by denying defendant's suppression motion without an evidentiary hearing.
Defendant also argues his lengthy detention by DCJ detectives following
the motor vehicle stop, and while awaiting the issuance of the search warrant,
constituted an unconstitutional de facto arrest. "An investigative stop becomes
a de facto arrest when '"the officers" conduct is more intrusive than necessary
for an investigative stop.'" State v. Dickey, 152 N.J. 468, 478 (1998) (quoting
United States v. Jones, 759 F.2d 633, 636 (8th Cir. 1985)); see also State v.
Shaw, 237 N.J. 588, 612-13 (2019) (detailing factors to be considered in
determining whether an investigative stop has transformed into a de facto
arrest).
A de facto arrest must be supported by probable cause to believe the
defendant has committed or is committing an offense. State v. Coles, 218 N.J.
322, 346 (2014); see also Dickey, 152 N.J. at 478. "Probable cause" is a
"practical, nontechnical conception" that is similarly "not readily, or even
usefully, reduced to a neat set of legal rules." State v. Basil, 202 N.J. 570, 585
(2010) (quoting Gates, 462 U.S. at 231-32). It "'is more than a mere suspicion
of guilt,' but 'less evidence than is needed to convict at trial.'" State v. Ingram,
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230 N.J. 190, 213-14 (2017) (citations omitted) (first quoting Basil, 202 N.J. at
585; and then State v. Brown, 205 N.J. 133, 144 (2011)). Officers must have a
"well[-]grounded suspicion that a crime has been or is being committed," but
that suspicion need not "be correct or more likely true than false." State v.
Johnson, 171 N.J. 192, 214-15 (2002) (citations omitted) (first quoting State v.
Sullivan, 169 N.J. 204, 211 (2001); and then Bruzzese, 94 N.J. at 237). "[I]n
determining whether there was probable cause to make an arrest, a court must
look to the totality of the circumstances and view those circumstances from the
standpoint of an objectively reasonable police officer." State v. Gibson, 218
N.J. 277, 293 (2014) (quoting Basil, 202 N.J. at 585).
The State does not dispute the investigatory stop of defendant and his
vehicle became a de facto arrest after the detectives spoke to defendant
following the motor vehicle stop and learned the duffel bag, that appeared fully
filled and weighted when defendant carried it from Encarnacion's apartment,
was completely empty, except for a shirt. However, in our view, the same facts
and information that supported the DCJ detectives' reasonable and articulable
suspicion defendant was engaged in criminal activity permitting the motor
vehicle stop, also provided probable cause to believe defendant had committed,
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and was committing, a criminal offense permitting his arrest once the stop was
effectuated.
As explained in the State's briefs, and the search warrant affidavit that
accompanied its second brief, the investigation and surveillance of defendant
with Encarnacion, about which the DCJ detectives were aware, supported a
"well[-]grounded suspicion," Johnson, 171 N.J. at 214-15, defendant had
committed, or was committing, a criminal offense by engaging in drug
distribution activities with Encarnacion. The information learned directly by
the detectives immediately following the motor vehicle stop—including the
suspicious and inexplicable absence of the contents of what had been a filled
and weighted duffel bag—only added to the totality of the circumstances known
to the DCJ detectives that established probable cause to arrest prior to the stop.
Thus, defendant's de facto arrest was supported by probable cause.
Defendant also claims the search warrant was improvidently granted
because it was the product of the unlawful motor vehicle stop and de facto arrest.
We reject defendant's argument because, for the reasons noted, we are not
convinced that either the motor vehicle stop or the de facto arrest was improper.
Defendant offers no other argument challenging the validity of the search
warrant.
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Any of defendant's arguments we have not expressly addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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