STATE OF NEW JERSEY VS. GENESIS TORRES (17-12-0608, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-4844-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GENESIS TORRES,
Defendant-Appellant.
___________________________
Submitted May 21, 2019 – Decided June 4, 2019
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 17-12-0608.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Alycia Irene Pollice, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Genesis Torres appeals from a May 18, 2018 judgment of
conviction, following his guilty plea to third-degree possession of a controlled
dangerous substance, heroin, contrary to N.J.S.A. 2C:35-10(a)(1). He was
sentenced to a 364–day county jail term, to be followed by three years of
probation, along with applicable fines and penalties. Defendant entered his plea
following the denial of his motion to suppress. On appeal, he argues:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO SUPPRESS
EVIDENCE BECAUSE THE POLICE DID NOT
HAVE THE REQUISITE REASONABLE
SUSPICION TO CONDUCT AN INVESTIGATORY
STOP OF DEFENDANT.
POINT II
WITH NO BASIS TO BELIEVE THAT DEFENDANT
WAS ARMED AND DANGEROUS, POLICE HAD
NO LAWFUL REASON TO FRISK OR SEARCH
HIM. THEREFORE, ANY EVIDENCE FOUND ON
DEFENDANT'S PERSON MUST BE SUPPRESSED.
Having considered defendant's arguments in light of the record and
applicable legal principles, we conclude, based on the totality of the
circumstances, that the police had a reasonable articulable suspicion to stop and
frisk defendant, and seize the heroin in his pocket. Accordingly, we affirm.
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I.
At the suppression hearing, one witness testified; Detective Frederick
Bender, a seventeen-year veteran of the Trenton Police Department. Bender's
experience included a three-year assignment to the Patrol Unit in the eastern
portion of the city, twelve years in the Trenton Anti-Crime (TAC) Unit, a special
unit designed to combat street-level narcotic sales and violent offenders, and
approximately two years in the Violent Crimes Unit (VCU), where his job
responsibilities mirrored those in the TAC unit.
As a patrol officer, and member of the TAC and VCU units, Detective
Bender testified that he participated in "thousands" of narcotic investigations,
and "hundreds" of arrests, in the eastern section of Trenton where defendant was
arrested, which Bender described as a "high crime area." In addition to offenses
related to the sale and distribution of controlled dangerous substances, he also
encountered "significant weapons," including "firearms[] [and] knives,"
"numerous times" in that area.
On October 27, 2017, while he and two other officers were patrolling east
Trenton in an unmarked police vehicle, Detective Bender testified that he
observed two individuals, one of whom was on a bicycle, "huddled close
together, face-to-face" having a brief conversation on the sidewalk. Bender saw
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one of the individuals, later identified as defendant, "manipulat[e] a rectangular
object in his hand" that he had just removed from his pocket, as if "dealing a
deck of cards," and hand it to the man on the bicycle. He also stated that
defendant's actions were consistent with the way individuals distribute smaller
amounts of heroin, although he acknowledged that he did not witness the man
on the bicycle hand anything to defendant. He further testified that the
transaction lasted about twenty to thirty seconds. After the man on the bicycle
pedaled away, two officers from a different unit unsuccessfully attempted to
apprehend him.
Detective Bender and his partners exited their vehicle "to further
investigate" and "advised [defendant]. . . to stop . . . ." He testified that he placed
defendant "in a pat frisk" position because he "believed [he] witnessed a
narcotics transaction" and explained that in his experience "what comes along
with narcotics . . . is weapons," "whether there be a gun, a knife, [or] some kind
of weapon." Detective Bender acknowledged that there was nothing that
defendant specifically did at that time that indicated he had a weapon, but
explained, in his experience, "usually they're concealed . . . when [people who
deal in narcotics] see[] the police."
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Detective Bender stated he patted "the right side of [defendant's] pants,"
and "immediately felt what [he] immediately recognized through [his] training
and experience as a bundle of distributable amount of heroin." He explained
that a "bundle" is a "couple of bags of heroin . . . held together with a rubber
band." Bender reached into defendant's front right pocket and removed ten bags
of heroin, and immediately placed him under arrest. At police headquarters,
defendant was processed, and a subsequent search uncovered additional bags of
heroin, and approximately $170.
After the suppression hearing, Judge Peter E. Warshaw made detailed
findings of fact on the record, including that Detective Bender was a credible
witness. Relying on State v. Bard, 445 N.J. Super. 145 (App. Div. 2016), Judge
Warshaw explained that he considered the totality of the circumstances and gave
weight to Detective Bender's knowledge and experience, as well as all
reasonable inferences gleaned from the facts. Specifically, the court found that
east Trenton "is an area with which Detective Bender is extremely familiar," and
that he knew it was "a high drug trafficking area" and a "high crime area," which
"includes substantial weapons." Judge Warshaw also determined that Detective
Bender believed he witnessed a narcotics transaction.
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After noting that Detective Bender "didn't have anything that [made it]
absolutely certain" that defendant was in possession of a weapon, Judge
Warshaw concluded that "in my judgment, he d[id] not have to." Instead, the
court noted that Detective Bender "has spent, really, his entire professional
career in that area," which included drugs and "weapons investigations there,"
and found that he knew that "those who sell drugs are frequently armed."
Having found that Detective Bender believed he had just witnessed a drug
transaction involving heroin, the court determined that he conducted a pat-down
"as a large function of being informed by his training and experience" and
"superior level of knowledge concerning the area."
Accordingly, based on the detective's testimony, the court determined that
"a reasonable police officer would perceive a threat to the safety of other police
officers in this situation," and concluded that Detective Bender was entitled to
stop and frisk defendant. Further, Judge Warshaw was "absolutely satisfied that
the State met its burden" of proving the "drugs . . . were [properly] seized in the
field," and concluded that the drugs found at police headquarters were lawfully
seized incident to an arrest.
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II.
In reviewing a motion to suppress, we defer to the trial court's factual and
credibility findings, "so long as those findings are supported by sufficient
credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting
State v. Elders, 192 N.J. 224, 243 (2007)). This deference is particularly
appropriate when the court's factual findings are "substantially influenced by his
[or her] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166
(2015) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "An appellate court
should disregard those findings only when a trial court's findings of fact are
clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). We afford no
special deference to the court's legal conclusions, however, which we review de
novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
On appeal, defendant first argues that Detective Bender lacked the
reasonable, particularized suspicion of criminal activity necessary for an
investigatory detention. We disagree.
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 in their persons, houses, papers, and effects, against unreasonable
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searches and seizures" by requiring warrants issued on probable cause. "Under
our constitutional jurisprudence, when it is practicable to do so, the police are
generally required to secure a warrant before conducting a search . . . ." State
v. Hathaway, 222 N.J. 453, 468 (2015) (citations omitted). One exception,
however, is an investigatory stop. See Elders, 192 N.J. at 246.
It is well settled that police officers may lawfully detain someone to
conduct an investigatory stop without a warrant, and on less than probable cause.
Terry v. Ohio, 392 U.S. 1, 22 (1968); State v. Stovall, 170 N.J. 346, 356 (2002).
An investigatory stop allows an officer to detain an individual temporarily for
questioning if the officer can articulate "some minimum level of objective
justification" based on "something more" than an "inchoate and unparticularized
suspicion or hunch" of wrongdoing. United States v. Sokolow, 490 U.S. 1, 7
(1989) (citation and internal quotation marks omitted); accord State v. Nishina,
175 N.J. 502, 511 (2003).
A warrantless investigative stop is valid when an "officer observes
unusual conduct which leads [the officer] reasonably to conclude in light of his
[or her] experience that criminal activity may be afoot . . . ." Terry, 392 U.S. at
30. The stop must be "based on specific and articulable facts which, taken
together with rational inferences from those facts, give rise to a reasonable
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suspicion of criminal activity." State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting
Nishina, 175 N.J. at 510-11). Reasonable suspicion "involves a significantly
lower degree of objective evidentiary justification than does the probable cause
test," State v. Davis, 104 N.J. 490, 501 (1986), and is found when an officer has
"a particularized and objective basis for suspecting the person stopped of
criminal activity." Stovall, 170 N.J. at 356 (quoting Ornelas v. United States,
517 U.S. 690, 696 (1996)).
A reviewing court "must look at the 'totality of the circumstances' of each
case to see whether the detaining officer has a 'particularized and objective basis'
for suspecting legal wrongdoing" by the detained individual. United States v.
Arvizu, 534 U.S. 266, 273 (2002). In evaluating the totality of the circumstances
"giving rise to the officer's suspicion of criminal activity, courts are to give
weight to 'the officer's knowledge and experience' as well as 'rational inferences
that could be drawn from the facts objectively and reasonably viewed in light of
the officer's expertise.'" State v. Richards, 351 N.J. Super. 289, 299-300 (App.
Div. 2002) (quoting State v. Arthur, 149 N.J. 1, 10–11 (1997)). Thus, a police
officer may conduct an investigatory stop if, based on the totality of the
circumstances, there is reasonable suspicion to believe an individual has just
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engaged in, or about to engage in, criminal activity. State v. Maryland, 167 N.J.
471, 487 (2001).
A "stop" and "frisk" under Terry are judged under two separate inquiries:
[T]he facts that allow the detaining officer to make a
stop do not automatically permit that officer to search
for weapons. While the right to search may flow from
the same set of facts that permitted the stop, "in
situations where . . . the officers have no prior
indication that the suspect is armed, more is required to
justify a protective search."
[State v. Garland, 270 N.J. Super. 31, 41-42 (App. Div.
1994) (quoting Thomas, 110 N.J. at 680).]
Addressing the Terry investigatory stop first, we are satisfied that the trial
court's findings of fact are supported by sufficient credible evidence . Detective
Bender testified that while patrolling an area known for high narcotics and
illegal weapons activities, he witnessed two individuals huddle together and
engage in what the detective believed was a narcotics transaction. Specifically,
Detective Bender testified that he observed defendant pull "an unknown white
object, light in color, [and] rectangular," which defendant manipulated before
handing to another individual. Based on Detective Bender's "training and
experience in these investigations" and the manner in which defendant
manipulated the object, the detective specifically believed the object was heroin.
These are articulable facts to support an objectively reasonable determination
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that defendant engaged in criminal activity sufficient to justify the Terry stop.
See Pineiro, 181 N.J. at 26 ("the reputation or history of an area" as being a high-
crime area "and an officer's experience with and knowledge of the suspected transfer
of narcotics" are "relevant factors to determine the validity of a Terry stop").
III.
Defendant next contends that the police lacked any reasonable suspicion
to warrant a pat-down search. Specifically, he claims that because Detective
Bender "conducted the search simply because of his generalized belief that drugs
and weapons went hand-in-hand with one another," the frisk of defendant's
person for weapons was not objectively reasonable. As a result, defendant
contends the heroin should have been suppressed. Again, we disagree.
Under Terry, once stopped, the "officer may conduct a reasonable search
for weapons if he [or she] is 'justified in believing that the individual whose
suspicious behavior he [or she] is investigating at close range is armed and
presently dangerous to the officer or to others.'" Richards, 351 N.J. Super. at
299 (quoting Terry, 392 U.S. at 24). "The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent [person]
in the circumstances would be warranted in the belief that his [or her] safety[,]
or that of others[,] was in danger." Terry, 392 U.S. at 27. "The protective search
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'must therefore be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the assault of the
police officer.'" State v. Jackson, 276 N.J. Super. 623, 629 (App. Div. 1994)
(quoting Terry, 392 U.S. at 29). "[T]he same conduct that justifies an
investigatory stop may also present the officer with a specific and particularized
reason to believe that the suspect is armed." State v. Privott, 203 N.J. 16, 30
(2010). The existence of reasonable suspicion to frisk "is based on the totality
of the circumstances." Roach, 172 N.J. at 27.
Accordingly, if a police officer conducts a pat-down search of an
individual and detects an object in the clothing of the individual that the officer
does not recognize as a weapon, nor identify as contraband, any nonthreatening
contraband seized may not be used against the individual in a criminal
prosecution. Jackson, 276 N.J. Super. at 630. However:
[i]f a police officer lawfully pats down a suspect's outer
clothing[,] and feels an object whose contour or mass
makes its identity immediately apparent, there has been
no invasion of the suspect's privacy beyond that already
authorized by the officer's search for weapons; if the
object is contraband, its warrantless seizure would be
justified by the same practical consideration that adhere
in the plain view context.
[Id. at 630-31 (emphasis omitted) (quoting Minnesota
v. Dickerson, 508 U.S. 366, 375-76 (1993)).]
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Here, we conclude that Detective Bender's pat-down search of defendant
was justified. Detective Bender testified that the part of Trenton in which this
incident occurred was a high-crime area and that he had encountered weapons
"numerous times in that area." "Although a stop in a high-crime area does not
by itself justify a Terry frisk . . . , the location of the investigatory stop can
reasonably elevate a police officer's suspicion that a suspect is armed." State v.
Valentine, 134 N.J. 536, 547 (1994) (citing Maryland v. Buie, 494 U.S. 325,
334–35 n.2 (1990)). Further, Detective Bender stated that he believed he
"witnessed a narcotics transaction" between defendant and the other individual.
"[E]ven apart from [an officer's] personal experiences," courts "have recognized
that to 'substantial dealers in narcotics' firearms are as much 'tools of the trade'
as are most commonly recognized articles of narcotics paraphernalia." United
States v. Oakes, 560 F.2d 45, 62 (2d Cir. 1977) (quoting United States v. Wiener,
534 F.2d 15, 18 (2d Cir. 1976)). In this case, the detective used his "training
and experience in these investigations" and his observation of how defendant
manipulated the drug to conclude specifically that he had witnessed a transaction
in heroin.
Thus, the particularized suspicion that defendant had a weapon was that
Detective Bender believed, based on his experience and training, he just
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witnessed defendant provide heroin to another individual before the suspects
swiftly departed. See State v. Ramos, 282 N.J. Super. 19, 21 (App. Div. 1995)
(finding an officer's observations in "an area of high drug activity," "considered
in light of [the officer's] training and experience, supported a reasonable
suspicion that defendant was engaging in a drug transaction"). Those factors,
coupled with Detective Bender's testimony that, based on his familiarity with
this particular area and his experience investigating crimes in it, people who
engage in narcotics transactions there tend to have weapons on them, render his
decision to pat defendant down for a weapon objectively reasonable. See
Valentine, 134 N.J. at 547 ("Terry itself acknowledges that police officers must
be permitted to use their knowledge and experience in deciding whether to frisk
a suspect"); id. at 543 (explaining that although "the Terry standard is an
objective one, . . . '[t]he process does not deal with hard certainties, but with
probabilities'") (second alteration in original) (quoting United States v. Cortez,
449 U.S. 411, 418 (1981)).
Therefore, the frisk was justified under the circumstances. As a result,
and because the detective immediately identified the object in defendant's
pocket as contraband without first manipulating it, the seizure of the heroin was
lawful. See State v. Toth, 321 N.J. Super. 609, 616-17 (App. Div. 1999)
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(holding that a pat-down in which an officer immediately identifies an object as
contraband without "in any way[] manipulat[ing] or explor[ing]" it "with his
fingers" was a valid Terry frisk under the plain-feel doctrine).1
Affirmed.
1
In light of our decision, we need not address the State's alternative argument
that Detective Bender had probable cause to arrest defendant and that the seizure
of heroin from his person resulted from a search incident to a lawful arrest.
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