STATE OF NEW JERSEY VS. PEDRO J. GOMEZ (14-12-0674, SALEM COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3414-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PEDRO J. GOMEZ,
Defendant-Appellant.
_____________________________________________________
Submitted May 9, 2017 – Decided May 31, 2017
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Indictment
No. 14-12-0674.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Derrick Diaz,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant pleaded guilty to third-degree possession of a
controlled dangerous substance, N.J.S.A. 2C:35-10a, following the
denial of his motion to suppress evidence. He appeals the denial
of the motion, contending:
I. BECAUSE THE CONFIDENTIAL INFORMANT'S TIP
LACKED THE REQUISITE BASIS OF KNOWLEDGE TO
PROVIDE REASONABLE SUSPICION TO STOP MR.
GOMEZ'S CAR, THE EVIDENCE MUST BE SUPPRESSED.
We disagree and affirm.
At the hearing, Detective Petrutz, who the trial court found
to have extensive training and experience in the investigation of
offenses related to controlled dangerous substances, testified
that he received two telephone calls from an informant. The
informant advised the detective during the first call that a
Hispanic man, driving a silver, four-door Ford, was going to
deliver heroin to the Pilot Truck Stop at 11:15 a.m. In the second
call, the informant described the man as: approximately five feet,
seven inches tall, 130 pounds, with brown eyes, black hair, long
braids and various tattoos. The informant also said the man would
be wearing a pink baseball cap, a pink shirt and blue jeans.
The detective set up a surveillance location at the truck
stop; the informant was also present. Petrutz described the truck
stop as a high crime area known for prostitution, narcotics and
weapons possession. When a silver Ford entered the truck stop at
approximately 11:15 a.m., the informant confirmed that the driver,
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the defendant, was the same person he previously described to
Petrutz.
A passenger exited the Ford and began to look around the
parking areas. Petrutz believed he was conducting counter-
surveillance to detect the presence of law enforcement. The
passenger subsequently walked to the truck stop convenience store.
Defendant also left the vehicle and walked toward the store. He
met the passenger as he left the store and, together, they walked
back to and entered the car. Neither was observed in possession
of any packages, nor did they did buy gas.
The detective approached the suspect vehicle in his police
unit with his overhead lights activated. The detective admitted
the lights were a signal to defendant that he was not free to
leave. The detective asked the driver to exit the vehicle.
Defendant complied; a search ensued. The drugs with which
defendant was charged were discovered during the search.
Our standard of review gives deference to the trial court's
findings of fact, "so long as those findings are supported by
sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (citations omitted). "Those findings
warrant particular deference" because of the perspective the judge
gains from seeing and hearing testimony and the judge's "feel" for
the case. Ibid. "[W]e may only consider whether the motion to
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suppress was properly decided based on the evidence presented at
that time." State v. Jordan, 115 N.J. Super. 73, 76 (App.Div.),
certif. denied, 59 N.J. 293 (1971).
Our analysis of the propriety of the investigatory stop
balances the competing interests between "a citizen's privacy and
freedom of movement" and "proper law enforcement activities."
State v. Davis, 104 N.J. 490, 504-05 (1986). Investigative stops
are justified, even absent probable cause, "if the evidence, when
interpreted in an objectively reasonable manner, shows that the
encounter was preceded by activity that would lead a reasonable
police officer to have an articulable suspicion that criminal
activity had occurred or would shortly occur." Id. at 505. Courts
are to determine whether the totality of the circumstances gives
rise to an "articulable and particularized" suspicion of criminal
activity, not by use of a strict formula, but "through a sensitive
appraisal of the circumstances in each case." Ibid.
In performing a stop, a law enforcement officer cannot act
on a mere hunch. State v. Gamble, 218 N.J. 412, 428 (2014). "[T]he
level of suspicion required is 'considerably less than proof of
wrongdoing by a preponderance of the evidence,' and 'obviously
less' than is necessary for probable cause." Ibid. (citation
omitted).
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The law enforcement officer's perspective is a factor in
assessing whether a reasonable, articulable suspicion is
established. State v. Nishina, 175 N.J. 502, 511 (2003). We
consider if the totality of the circumstances known to the officer,
in light of his or her experience and knowledge, taken together
with "rational inferences drawn from those facts," justify the
limited restriction on an individual's liberty during an
investigatory stop. Davis, supra, 104 N.J. at 504.
A tip from a confidential informant can establish reasonable
suspicion. An informant’s tip is also analyzed under the totality
of the circumstances. State v. Smith, 155 N.J. 83, 92, cert.
denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).
"Two factors generally considered to be highly relevant, if not
essential, that are included in the 'totality of the circumstances'
are the informant's 'veracity' and the informant's 'basis of
knowledge.'" Id. at 93 (citing Illinois v. Gates, 462 U.S. 213,
238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). The
Smith Court adopted the flexible analysis espoused in Gates:
[N]either of these factors, though relevant,
is an essential element under the totality of
the circumstances test . . . [A] deficiency
in one of the . . . factors "may be compensated
for, in determining the overall reliability
of a tip, by a strong showing as to the other,
or by some other indicia of reliability.
[Ibid. (citation omitted).]
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The evidence relating to both factors establishes that the
informant's tip to Petrutz was sufficiently reliable to justify
the investigatory stop.
An informant's veracity can be established by providing
reliable information to law enforcement. Id. at 93-94. Petrutz
"used" this informant on seven prior occasions. Each tip resulted
in an arrest; the detective did not know if any of the arrests led
to convictions. The informant's veracity was not diminished
because Petrutz did not provide details about the informant's
previous tips. Our Supreme Court has "in the past accepted a
similarly undetailed endorsement of an informant as satisfying the
veracity requirement." State v. Novembrino, 105 N.J. 95, 123
(1987) (citation omitted).
The informant's basis of knowledge was not revealed; it can
be established, however, not only by "direct evidence of the manner
in which the informant learned of the criminal activity" but,
also, "by a prediction of hard-to-know future events." State v.
Williams, 364 N.J. Super. 23, 34-35 (App. Div. 2003).
We agree with the trial judge that State v. Birkenmeier, 185
N.J. 552 (2006), is analogous to this case. The confidential
informant in Birkenmeier gave police:
defendant's name; defendant's address;
defendant's physical description; the make,
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model and license tag number of defendant's
car; the fact that defendant would be leaving
his home at 4:30 p.m. to make a marijuana
delivery; and the fact that defendant would
be carrying the drugs in a laundry tote bag.
[Id. at 561.]
The Court held that the information supplied by the informant was
sufficient to give rise to a reasonable and articulable suspicion
to justify a stop after it was corroborated. Ibid.
The information contained in the tip to Petrutz was not as
specific as that provided by the informant in Birkenmeier. The
tip did not provide the defendant's name, the model and plate
number of the vehicle, or the type of container in which the drugs
would be packaged for transportation.
Petrutz did, however, corroborate the color and make of the
vehicle, as well as defendant's race, sex, height and the articles
of clothing described by the informant. While that information
may not be "hard to know," the time defendant entered the truck
stop and the description of defendant's distinctive pink hat and
shirt are details that establish the informant's familiarity with
the defendant and his criminal activity. Significantly, the
informant also positively identified defendant and the vehicle at
the scene.
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An additional factor that must be taken into account is the
seasoned detective's knowledge that the truck stop was an area
rife with drug activity.1
This was not an anonymous tip. Information was provided by
a proven informant to an experienced detective. That information
was corroborated by the detective and the informant. Once the
informant's tip was corroborated, Petrutz had reasonable suspicion
to conduct a stop to further investigate criminal wrongdoing.
Affirmed.
1
We do not give any weight to the detective's conclusion that the
passenger alighted from the car and conducted counter-surveillance
of the area. The trial judge found the detective’s conclusion
that the passenger’s actions were more "than just a casual look
around" to be "a stretch."
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