STATE OF NEW JERSEY VS. JAMES A. FERREN (16-11-3150, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-4430-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES A. FERREN,
Defendant-Appellant.
_____________________________
Submitted October 3, 2018 – Decided March 22, 2019
Before Judges Koblitz and Ostrer.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-11-3150.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lauren S. Michaels, Assistant Deputy Public
Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Frank Muroski, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant James A. Ferren appeals from the trial court's order denying
his motion to suppress marijuana seized from his car pursuant to a warrant.
Defendant contends police wrongfully detained him outside a friend's house in
Sicklerville until they obtained a positive canine sniff of his vehicle. Police
relied upon that and other evidence in obtaining the warrant.
The trial court held the police were authorized to detain defendant
pursuant to a previously issued warrant to search the friend's house "and all
persons present reasonably believed to be connected with said property and
investigation." The court also held that police, based on information learned
during the house search, developed a reasonable and articulable suspicion that
defendant's car contained drugs. The trial judge held that the suspicion alone
also justified defendant's detention.
After the trial court denied the motion to suppress, defendant pleaded
guilty to third-degree possession of marijuana with intent to distribute in a
school zone, N.J.S.A. 2C:35-7(a). The judge sentenced him to four years of
probation, conditioned upon 270 days in jail.
On appeal, defendant contends his detention exceeded the scope of the
house-and-persons warrant, citing Michigan v. Summers, 452 U.S. 692 (1981),
and also lacked any alternative justification. We disagree. Police were
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authorized to detain defendant while the house search was underway because he
was a person "present reasonably believed to be connected with said property
and investigation." Furthermore, police formed a reasonable and articulable
suspicion that defendant's vehicle contained contraband, which justified his
detention.
I.
Applying a deferential standard of review, we uphold the trial court's
factual findings after the suppression hearing, as they were "supported by
sufficient credible evidence in the record." State v. S.S., 229 N.J. 360, 381
(2017). The trial court found credible both defendant and Gloucester Township
Police Detective Gregory Jackson, the sole witnesses at the suppression hearing.
The judge attributed differences in their testimony to their divergent
perspectives and the vagaries of recollection.
The judge recounted that before police obtained the warrant to search the
Sicklerville house, they conducted surveillance and executed controlled buys of
marijuana with a confidential informant's help. In his affidavit seeking the
warrant, Jackson did not mention defendant, identifying only a man and woman
who resided at the target residence and took part in the controlled buys.
However, Jackson did not limit the requested search of persons to those two
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individuals. He sought a warrant that authorized the search of "all persons
present reasonably believed to be connected with said property and investigation
for evidence," such as drugs and items "used in connection with" the drugs,
including United States currency. The approved warrant authorized police to
search the house "for the property specified," which included "U.S. currency,"
"and all persons present reasonably believed to be connected with said property
and investigation."
A SWAT team of roughly twelve officers entered the house at 6:00 a.m.
while Jackson, his team of investigators, a crime-scene unit, and a canine unit
waited outside. Police found the two identified persons and five others,
including defendant. Defendant testified that a female friend had invited him
there the previous night, and he had slept over. Jackson testified that police
found $1,000 on defendant's person.
Once the SWAT team secured the house and the persons inside, Jackson's
team of investigators began searching the house. Meanwhile, police separated
the occupants. Because the house was small, police escorted defendant and two
others outside. Defendant was in handcuffs as he sat on a tree stump in the front
yard. He was not permitted to leave.
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In the house, police found drugs and paraphernalia for which other
occupants claimed responsibility. Also, during the investigation inside the
house, someone told Jackson that there were drugs in one or more of the cars
parked outside. Two cars were parked in the driveway, while defendant's sedan
was parked on the curb in front.
Jackson identified the owners of the vehicles. He secured the owners'
consent to search the cars in the driveway. Police found marijuana in one of the
vehicles. Defendant refused repeated requests for consent to search his vehicle.
Roughly an hour after police entered the home, a drug-sniffing dog indicated
that defendant's car contained drugs. At that point, police impounded the vehicle
and released defendant. Although defendant believed that police had already
completed searching the house by that time, the court credited Jackson's
testimony that the search was still ongoing.
Jackson later secured a warrant to search defendant's vehicle, which led
to the seizure of multiple packets of marijuana. Jackson's affidavit did not
mention the seizure of $1,000 from defendant, or the statement from an occupant
of the house that there were drugs in one or more vehicles. The judge
nonetheless credited the detective's testimony, concluding that these facts were
not essential in establishing probable cause to search defendant's vehicle.
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II.
On appeal, defendant presents the following points for our consideration:
POINT I
THE UNREASONABLE DETENTION OF
DEFENDANT, WHICH INCLUDED QUESTIONING,
HANDCUFFING, REPEATED REQUESTS TO
SEARCH HIS CAR, AND A DOG SNIFF, WENT FAR
BEYOND THE LIMITED FOURTH-AMENDMENT
AUTHORITY GRANTED TO POLICE UNDER
MICHIGAN V. SUMMERS. ALTERNATIVELY,
THE DETENTION VIOLATED ARTICLE ONE,
PARAGRAPH SEVEN OF OUR STATE
CONSTITUTION.
A. Mr. Ferren's Car, Parked on the Street, Was Not
Covered by the Warrant to Search [the Address], a
Home in Which He Was Merely a Visitor.
B. Courts Have Applied the Summers Exception
Narrowly and Have Declined to Expand It Beyond Its
Underlying Purpose and Rationale.
C. Mr. Ferren's Detention Went Well Beyond What
Michigan v. Summers Authorizes and It Was an
Unlawful De Facto Arrest Without Probable Cause.
1. The Detention Was Not Authorized by
Summers.
2. The Detention Was an Unconstitutional De
Facto Arrest.
D. In the Alternative, Even If the Detention Complied
with Summers and Its Progeny, It Violated Article One,
Paragraph Seven of Our State Constitution.
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III.
We review de novo the trial court's application of its factual findings to
the governing principles of law. State v. Jessup, 441 N.J. Super. 386, 389-90
(App. Div. 2015).
Defendant does not challenge the initial warrant to search the house and
connected persons therein. Instead, he maintains that the initial warrant did not
authorize his detention and the search of his vehicle. He further contends that
had he not been detained, he would have left the scene in his vehicle b efore the
police dog could indicate the presence of marijuana. Thus, he challenges the
search of his car because the warrant to search it was secured with the fruits of
the challenged detention. 1
Defendant contends the detention exceeds that permitted by Summers.
The issue presented in Summers was whether police were authorized to detain
the defendant, a homeowner, who was already on his porch when police arrived
1
Conceiving defendant's position as challenging the warranted search of his
vehicle, the court assigned to defendant the burden to establish the warrant's
infirmity. However, as defendant challenged the underlying detention upon
which the warrant was based, the burden rested with defendant only if the State
could demonstrate that the detention fell within the scope of the house -and-
persons warrant. See State v. Atwood, 232 N.J. 433, 438 (2018) (holding that
the State had the burden to justify a warrantless investigatory stop of a vehicle,
notwithstanding that police searched the vehicle pursuant to a warrant they
obtained based on the stop).
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to execute a warrant to search his house and seize heroin, but which did not
identify any persons to be searched. 452 U.S. at 694; see also People v.
Summers, 286 N.W.2d 226, 226 (Mich. 1979) (describing the warrant), rev'd,
Summers, 452 U.S. 692. The United States Supreme Court premised its analysis
on the fact that the warrant did not expressly cover the defendant. Summers,
452 U.S. at 694-95. The Court noted that since the defendant was already
outside the house, it would not reach the question whether the warrant to search
the house authorized the search of persons therein. Id. at 695.
The Supreme Court held that detention during the ongoing search of a
home may be reasonable on several grounds, including: detaining occupants
may "minimiz[e] the risk of harm to the officers" and prevent flight and
destruction of evidence; occupants of a house to be searched presumably have
an interest in remaining to protect their property; and detention would "add only
minimally to the public stigma associated with the search itself." Id. at 701-03.
Furthermore, where a warrant was issued based on a finding of probable cause
of criminal activity in a home, "[t]he connection of an occupant to that home
gives the police officer an easily identifiable and certain basis for determining
that suspicion of criminal activity justifies a detention of that occupant." Id. at
703-04. Thus, the Court concluded, "[A] warrant to search for contraband
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founded on probable cause implicitly carries with it the limited authority to
detain the occupants of the premises while a proper search is conducted." Id. at
705 (footnote omitted). The dissenters observed that, as a practical matter, such
detentions could last for hours. Id. at 711 (Stewart, J., dissenting).
Defendant contends that Summers did not authorize his detention during
the search because he neither owned nor resided permanently at the house.
Therefore, he asserts, he had no obvious interest in protecting property in the
house. Furthermore, the stigma of sitting handcuffed on the front lawn was
significantly greater than the minimal stigma of being found in someone else's
house upon the execution of a warrant. We are not persuaded.
The warrant in Summers authorized only a search of premises. The
warrant here, in contrast, also authorized the search of persons "reasonably
believed to be connected with said property and investigation." We have held
that a warrant authorizing the search of "persons found therein reasonably
believed to be connected to the property and investigation" to be "the equivalent
of a warrant to search all persons found on the premises other than those whose
presence is innocently explainable on its face, such as a uniformed postman or
utility meter reader." State in Interest of L.Q., 236 N.J. Super. 464, 466, 470–
71 (App. Div. 1989); see also State v. Carlino, 373 N.J. Super. 377, 395 (App.
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Div. 2004) (finding that a warrant to search "all persons arriving at, departing
from, and located" on the premises who are "reasonably believed to be
associated with this investigation" encompassed anyone whose presence at the
site was not apparently innocent). Defendant does not challenge the police's
authority to search his person, which led to the seizure of the $1,000.2
Defendant was not a passing stranger. He stayed overnight in a house
from which drugs were repeatedly sold. On that basis alone, police had a
reasonable belief he was connected to the property and investigation. We
recognize that some have interpreted Summers to apply only to residents of a
home and not mere visitors. See, e.g., Baker v. Monroe Twp., 50 F.3d 1186,
1192 (3d Cir. 1995) (stating that "Summers itself only pertains to a resident of
the house under warrant"); Wayne R. LaFave, 2 Search and Seizure § 4.9(e)
nn.142-44, 146 (5th ed. 2012) (collecting cases on this point).
2
The warrant did not simply authorize the search of "all persons found" at the
premises. Compare State v. De Simone, 60 N.J. 319, 322 (1972) (upholding
such warrants "if the individual is identified by physical nexus to the on -going
criminal event itself" provided "there is good reason to suspect or believe that
anyone present at the anticipated scene will probably be a participant"), with
State v. Sims, 75 N.J. 337, 348-51 (1978) (distinguishing De Simone and finding
that search of all persons entering a gasoline service station pursuant to a warrant
to search "any persons found therein" lacked probable cause).
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However, defendant was no mere visitor. Police established that he was
connected to the investigation based on his possession of currency. See United
States v. Bullock, 632 F.3d 1004, 1011 (7th Cir. 2011) (authorizing detention,
during the search of an apartment, of the occupant's non-resident boyfriend
where the boyfriend's activities were the subject of the investigation); Stanford
v. State, 727 A.2d 938, 943 (Md. 1999) (collecting cases from jurisdictions that
interpret Summers to "allow a detention if the police can point to reasonably
articulable facts that associate the visitor with the residence or the criminal
activity being investigated in the search warrant"); see also Cotton v. State, 872
A.2d 87, 92 (Md. 2005) (interpreting Summers to permit police, in executing a
warrant to search an "open-air drug market," to detain everyone "except for
persons who clearly are unconnected with any criminal activity and who clearly
present no potential danger . . . until, acting with reasonable expedition, they
know what they are confronting").
Although defendant may not have had an incentive to assist police in the
search of a house he did not own or lease, he – like Summers – did have an
incentive to flee before police found drugs attributed to him. Moreover, this
case provides an added factor – defendant was himself subject to the search
warrant as a "person connected with said property and investigation."
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It is of no moment that other occupants of the house claimed responsibility
for the drugs and paraphernalia found in the home. Police searched defendant
and seized $1,000. Since the warrant expressly authorized the police to search
for and seize U.S. currency as an item "used in connection with" suspected
crimes, its discovery further bolstered their belief that defendant was linked to
the investigation. That connection gave the officers "an easily identifiable and
certain basis for determining that suspicion of criminal activity justifie[d]" his
detention. Summers, 452 U.S. at 704.
Defendant contends that once the search of his person was complete, the
police were obliged to let him leave. We recognize that at that point, his
detention could not be justified solely by the authority to search his person. See
State v. Watts, 223 N.J. 503, 515 (2015) (stating that "[a] warrant for the search
of a person carries with it implicit authority to detain that person for a reasonable
period to complete the objective of the search"). But, just as the police had a
reasonable basis to detain the homeowner in Summers until they completed the
search of the premises, the police had a reasonable basis to detain defendant,
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who was reasonably connected to the premises and the investigation, until they
completed the house search. 3
Defendant complains that his detention was unjustifiably prolonged and
constituted a de facto arrest, requiring a showing of probable cause. We
disagree. We do not minimize the impact on a person of being detained in
handcuffs for roughly an hour where he is visible to passersby. Yet, the length
of defendant's detention was not unreasonable. The continuing house search and
the succession of police discoveries – drugs in the house, $1,000 on defendant's
person, the information that drugs were in one or more vehicles, and the
confirmation of that information – justified defendant's continued detention.
See State v. Chisum, ___ N.J. ___, ___ (2019) (slip op. at 19-20) (stating that
the duration of an investigative stop must be reasonable, in light of the totality
of the circumstances and the necessities of legitimate investigation). As the
Summers dissenters noted, a house search may take hours to complete. See
Search and Seizure § 4.9(e) (stating that for a detention during a warranted
3
Defendant also misplaces reliance on Bailey v. United States, 568 U.S. 186,
199 (2013), wherein the United States Supreme Court limited Summers to
detentions in "the immediate vicinity of the premises to be searched." First,
defendant was searched in the immediate vicinity of the house to be searched.
Second, the warrant covered defendant. See Watts, 223 N.J. at 519 (noting that
Bailey did not involve a warrant to search a person).
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search under Summers, "a somewhat greater period of time is permissible . . .
than for the typical street-corner investigation," although the time presumably
is shortened if the person is in handcuffs).
Nor did the use of handcuffs convert defendant's detention into an arrest.
See Baker, 50 F.3d at 1193 ("There is no per se rule that pointing guns at people,
or handcuffing them, constitutes an arrest."). "Inherent in Summers'
authorization to detain an occupant of the place to be searched is the authority
to use reasonable force to effectuate the detention." Muehler v. Mena, 544 U.S.
93, 98-99 (2005). In Muehler, the police detained a civil rights plaintiff in
handcuffs for two to three hours during a warranted search of a house for guns.
Id. at 109. Acknowledging that the intrusion was greater than that in Summers,
the Court nonetheless held that "[t]he officers' use of force in the form of
handcuffs to effectuate Mena's detention in the garage . . . was reasonable
because the governmental interests outweigh the marginal intrusion." Id. at 99.
Defendant's detention was also justified on the independent basis that
police had formed a reasonable and articulable suspicion that his vehicle
contained drugs. In determining whether police may conduct an investigatory
stop of a vehicle and its owner, a court considers the totality of the
circumstances. See State v. Gamble, 218 N.J. 412, 432 (2014) (stating that a
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court must determine "whether the totality of the circumstances provided the
officer with an articulable and particularized suspicion that the individual was
involved in criminal activity, within the context of the officer's relative
experience and knowledge").
In this case, police found defendant was an overnight guest in a suspected
drug dealer's house in which drugs and paraphernalia were seized, and defendant
was found to possess a large amount of currency. "The fact that purely innocent
connotations can be ascribed" to these facts does not preclude a finding of
reasonable suspicion. State v. Citarella, 154 N.J. 272, 279-80 (1998); see also
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 . . . ."). In addition, police were informed once
inside the house that one or more of the vehicles contained drugs. That
information was soon corroborated by the consent search of one of the vehicles.
Thus, police had a reasonable and articulable suspicion to detain defendant and
his vehicle in order to conduct its investigation. See State v. Davis, 104 N.J.
490, 505 (1986) (noting that "[n]o mathematical formula exists for" determining
reasonable suspicion to justify an investigatory stop).
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During that permissible detention, police conducted the canine sniff,
which required no further justification. See State v. Dunbar, 229 N.J. 521, 538-
40 (2017). On the basis of the canine sniff, police established probable cause to
believe the vehicle contained contraband. They then impounded the car,
obtained a warrant to search it, and ultimately seized the marijuana that gave
rise to defendant's conviction.
In sum, we discern no violation of defendant's right to be free from
unlawful searches and seizures. To the extent not addressed, defendant's
remaining arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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