STATE OF NEW JERSEY VS. RICHARD J. SABATINOÂ Â (15-04-0376, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4703-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD J. SABATINO,
Defendant-Appellant.
________________________________________________
Submitted September 18, 2017 – Decided October 13, 2017
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 15-04-0376.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the brief).
Frederic M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).
PER CURIAM
Following the denial of his motion to suppress evidence and
statements made to law enforcement, defendant Richard J. Sabatino
pled guilty to third-degree possession of heroin, N.J.S.A. 2C:35-
10(a)(1). The judge sentenced defendant to a one-year term of
probation with certain conditions. Defendant argues on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS EVIDENCE FOUND IN HIS CAR
DURING A ROUTINE TRAFFIC STOP.
A. THE EVIDENCE SHOULD HAVE BEEN
SUPPRESSED BECAUSE THE CONSENT TO
SEARCH OBTAINED FROM THE DEFENDANTS
WAS THE FRUIT OF THEIR ILLEGAL
DETENTION.
B. THE CONSENT TO SEARCH OBTAINED
FROM THE DEFENDANTS WAS NOT VALID
BECAUSE IT WAS DERIVED FROM AN
ILLEGAL SEARCH OF THE DRIVER'S
PERSON.
C. SUPPRESSION OF THE EVIDENCE WAS
ALSO REQUIRED BECAUSE THE CONSENT TO
SEARCH OBTAINED FROM THE DEFENDANTS
WAS NOT VALID.
Having considered these contentions in light of the record and
applicable legal standards, we reverse.1
I.
The judge issued a comprehensive written opinion summarizing
her factual findings following the evidentiary hearing on
1
Following the hearing, the judge also granted the State's motion
to admit certain statements made by defendant and his co-defendant,
Judith Crane. Crane participated in the motion hearing with
separate counsel. Defendant does not appeal from that portion of
the order permitting the State to introduce his and Crane's
statements into evidence.
2 A-4703-15T3
defendant's motion at which Roxbury Police Officer David Togno was
the sole witness. The judge found the officer to be credible. We
defer to the judge's factual findings, quoting from her opinion
as necessary. See State v. Gonzales, 227 N.J. 77, 101 (2016)
(citing State v. Elders, 192 N.J. 224, 243-44 (2007) ("We are
obliged to uphold the motion judge's factual findings so long as
sufficient credible evidence in the record supports those
findings.").
Togno was patrolling Route 80 at approximately 2:00 p.m. when
he stopped a Toyota Corolla because of a faulty brake light and
failure to maintain travel in the center lane. Crane was driving
and defendant was in the front passenger seat. Crane proffered a
valid license; defendant obtained a valid registration and
insurance card from the glove compartment and tendered them to the
officer.2 When the officer asked Crane why the car was swerving,
she looked to defendant, who said they were tired. Crane appeared
nervous, her hand shook as she handed over her license and her
pupils were constricted. Togno asked her to exit the car, which
she did, and he questioned her further at the rear of the vehicle.
Togno's initial suspicions that Crane might have been
impaired were dispelled after a short discussion. Crane said she
2
The car was apparently registered to defendant's father.
3 A-4703-15T3
was nervous because of prior interactions with police and prior
arrests for heroin. Togno asked if she was clean, and Crane
responded affirmatively. Togno continued the conversation, asking
if Crane "'snort[ed] it'" or "'sh[ot] it.'" Crane admitted she
used to inject heroin and Togno asked in a "conversational" tone
if Crane would show him where she injected herself with heroin.
Togno testified Crane was free to refuse, but she did not and
rolled up her sleeve. Togno observed fresh track marks.
Togno believed Crane had lied about being "clean," and, given
her demeanor, concluded, "some sort of drug activity [was] going
on." He questioned Crane about where she was coming from and what
stores she and Sabatino had visited at the mall, before asking her
to return to the car. Although Crane was not formally under arrest
at this point, Togno said she was not free to leave.
Defendant was still seated in the car, and Togno engaged him
in conversation, explaining he believed Crane had "used drugs
recently." Defendant expressed surprise, admitted being a former
heroin addict but claimed he was "clean" for several months. After
similarly asking whether defendant injected his heroin and if so
where, Togno asked if defendant would show him, and defendant
rolled up his sleeves.3 The officer then questioned defendant
3
Togno apparently made no observations of note regarding
defendant's arms.
4 A-4703-15T3
about where he had been and what stores he and Crane had visited.
Contrary to Crane, defendant told the officer they had visited
only one store.
Togno reapproached Crane, confronted her with this
inconsistency and asked "what was going on." Crane admitted she
and defendant were coming from Paterson where they had purchased
heroin. After administering Miranda4 rights to Crane, Togno
questioned her further. She admitted defendant had purchased
drugs from his dealer and the drugs were still in the car. When
backup officers arrived, Togno read defendant his Miranda rights.
Ultimately, both Crane and defendant executed consent forms to
permit a search of the vehicle. Police found heroin, syringes and
Xanax pills in the rear upholstery.
The judge reasoned that Togno's observations provided
reasonable suspicion that a motor vehicle offense had been
committed, thereby permitting him to stop the car. She rejected
defendant's argument that the investigatory stop "was so prolonged
as to exceed the bounds authorized by Terry."5 The judge also
concluded that "the scope of the stop . . . was reasonable, based
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.
2d 889, 906 (1968)).
5 A-4703-15T3
on the officer's personal observations and the initial responses
defendants gave to his questions after the stop."
The judge rejected any claim that defendants were in custody
when questioned by Togno or that the officer intimidated or
threatened them. Critically, the judge concluded, "[N]either
party indicated an unwillingness to continue speaking with [Togno]
or an unwillingness to roll up their sleeves when asked if they
'would mind' showing him where they used to inject heroin."
The judge recognized that the State needed to show Togno had
a reasonable suspicion of criminality afoot before requesting
defendants' consent. See State v. Carty, 170 N.J. 632, 635 (2002)
("[I]n order for a consent to search a motor vehicle and its
occupants to be valid, law enforcement personnel must have a
reasonable and articulable suspicion of criminal wrongdoing prior
to seeking consent to search a lawfully stopped motor vehicle.").
But, focusing on the voluntariness of each defendant's consent and
the lawfulness of the original stop, the judge rejected defendants'
argument that the reasonable suspicion supporting Togno's request
for consent was premised upon unlawful conduct, i.e., statements
made by defendants in violation of Miranda or Togno's observations
6 A-4703-15T3
of track marks on Crane's arms.6 Finally, citing State v. Chapman,
332 N.J. Super. 452, 466 (App. Div. 2000), the judge noted she
would reach the same result even if "the initial detention was
unlawful," because "defendants' consent broke any chain of
causation that could give rise to a fruit of the poisonous tree
argument."
II.
We begin by noting that "[w]e owe no deference . . . to the
'trial court's interpretation of the law . . . and the consequences
that flow from established facts[,]' which we review de novo."
State v. L.S., 444 N.J. Super. 241, 248 (App. Div. 2016) (third
and fourth alterations in original) (quoting State v. Hubbard, 222
N.J. 249, 263 (2015)). That said, we agree with several of the
judge's initial legal conclusions.
"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 Carty, supra, 170 N.J.
at 639-40). Here, the initial stop of defendant's vehicle was
6
The judge referenced observations of track marks on "defendants'
arms." However, as already noted, Togno never testified to seeing
fresh track marks on defendant's arms.
7 A-4703-15T3
based on Togno's objectively reasonable suspicion that the motor
vehicle laws had been violated.
Based on the lawfulness of the stop and nothing else, Togno
was permitted to order the vehicle's driver, Crane, out of the
car. State v. Smith, 134 N.J. 599, 611 (1994). Moreover, "[i]f
during the course of the stop or as a result of 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.
Baum, 393 N.J. Super. 275, 287 (App. Div. 2007) (alteration in
original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)),
aff'd. as mod., 199 N.J. 407 (2009).
"When the officer's stop is justified at its inception, the
question becomes whether the ensuing investigation is 'reasonably
related in scope to the circumstances which justified the
interference in the first place.'" Baum, supra, 393 N.J. Super.
at 286 (quoting Terry, supra, 392 U.S. at 20, 88 S. Ct. at
1879, 20 L. Ed. 2d at 905). "[P]olice may question the occupants
[of a car], even on a subject unrelated to the purpose of the
stop, without violating the Fourth Amendment, so long as such
questioning does not extend the duration of the stop." State v.
Hickman, 335 N.J. Super. 623, 636 (App. Div. 2000). However,
"[e]ven a stop that lasts no longer than necessary to complete the
8 A-4703-15T3
investigation for which the stop was made may amount to an illegal
arrest if the stop is more than minimally intrusive." Dickey,
supra, 152 N.J. at 478 (internal quotations omitted).
Here, unlike the defendants in Hickman and Chapman, Crane and
defendant furnished valid credentials. Furthermore, Togno
acknowledged that any suspicions about Crane's possible impairment
were fully dispelled after a brief conversation at the rear of the
car. Yet, Togno continued to question Crane about her nervousness,
and she admitted having prior dealings with police and her prior
use of heroin. This questioning alone may not have violated the
Fourth Amendment. See State v. Pegeese, 351 N.J. Super. 25, 31-
32 (App. Div. 2002) (citing Hickman and Chapman and holding that
brief questioning about recent whereabouts while awaiting computer
check of credentials did not violate the state or federal
constitutions). However, we focus on what happened next.
We agree with defendant that Togno's request to have Crane
show her arms exceeded the proper scope of an investigative
detention. See State v. Privott, 203 N.J. 16, 31 (2010) (officer's
decision to lift suspect's shirt led to observations of drugs and
exceeded scope of investigative detention). That Togno made the
request in a conversational tone and did not issue a command, or
that Crane did not protest and rolled up her sleeves willingly,
are inconsequential facts. "To establish that defendant waived
9 A-4703-15T3
h[er] Fourth Amendment rights, the State must show that defendant
had 'knowledge of the right to refuse consent.'" State v. Legette,
227 N.J. 460, 474-75 (2017) (quoting State v. Johnson, 68 N.J.
349, 353-54 (1975)). Clearly, there was no evidence in the record
and the judge did not find that Crane knew she could refuse to
show the officer her arms.
The result of Togno's improper request and observations of
Crane's arms led to further detention and investigation,
questioning of Crane and then defendant and ultimately obtaining
their consent to search.7 In Carty, supra, 170 N.J. at 647, the
Court held for the first time "that consent searches following a
lawful stop of a motor vehicle should not be deemed valid . . .
unless there is reasonable and articulable suspicion to believe
that an errant motorist or passenger has engaged in, or is about
to engage in, criminal activity." Any reasonable suspicion formed
by Officer Togno was wholly inseparable from the unlawful request
that Crane show her arms without advising her that she could
refuse.
The State has not argued, nor did it argue before the motion
judge, that the consent to search was sufficiently attenuated from
7
Crane may have indeed been under arrest, because Togno testified
that she was no longer free to leave after he ordered her back to
the car.
10 A-4703-15T3
the unlawful conduct. Relying on Chapman, supra, 332 N.J. Super.
at 466, however, the judge concluded the consent broke the chain
of events resulting from any possible illegality of the stop.
However, there is no attenuation issue presented when, in the
first instance, police improperly obtain the information that
supports the reasonable suspicion underlying a request for consent
to search. See, e.g., State v. Smith, 155 N.J. 83, 101 (1998) ("A
consent to search that is attributable to police misconduct
involving the violations of constitutional rights may be regarded
as the product of that unconstitutional conduct and an invalid
basis on which to justify a search.") (citing State v. Johnson,
120 N.J. 263, 288 (1990)).
Reversed.
11 A-4703-15T3