STATE OF NEW JERSEY VS. RONALD R. WALKER (15-06-1203, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4455-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD R. WALKER, a/k/a
RONALD R. WALKER, 2nd,
and RONALD R. WALKER, JR.,
Defendant-Appellant.
____________________________
Submitted December 9, 2019 – Decided April 21, 2020
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-06-1203.
Joseph E. Krakora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel and on the brief).
PER CURIAM
Following his guilty plea, defendant Ronald R. Walker appeals his
conviction for second-degree possession of a controlled dangerous substance
(CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2). On this
appeal as of right, R. 3:5-7(d), he advances a single argument:
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS BECAUSE A) THE TIP
FROM THE CONFIDENTIAL INFORMANT THAT
PROMPTED THE STOP WAS NOT RELIABLE AND
CONSISTED ALMOST ENTIRELY OF INNOCENT
IDENTIFYING DETAILS AND B) BECAUSE
POLICE FAILED TO CORROBORATE THAT
[DEFENDANT] WAS ENGAGED IN CRIMINAL
ACTIVITY BEFORE STOPPING HIM.
Because the stop was justified under the totality of the circumstances, we affirm.
The trial court heard testimony at an evidentiary hearing from a detective
who received information from a confidential informant (CI) and thereafter
surveilled defendant. The court found the "information that defendant was
engaged in CDS activity from a reliable informant who was involved in a prior
CDS investigation with [the detective's unit,]" the detective's familiarity "with
defendant from previous CDS investigations involving defendant[,]" and the
detective's knowledge of the area in which he surveilled defendant—Manitou
Park—as "a high crime area," justified the detective's stop of defendant as he sat
in a parked car. The court also found the detective's stop placed him "lawfully
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in the viewing area" when, after opening the car door, he saw a vegetative matter
in plain view, justifying defendant's arrest. In the search incident thereto, police
found 770 wax folds of heroin, five grams of crack cocaine, oxycodone pills and
$6525 on defendant's person.
We give deference to findings "which are substantially influenced by [the
trial court's] opportunity to hear and see the witnesses and to have the 'feel' of
the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224,
244 (2007). "An appellate court should not disturb the trial court's findings
merely because 'it [may] have reached a different conclusion were it the trial
tribunal' or because 'the trial court decided all evidence or inference conflicts in
favor of one side' in a close case." Ibid. (quoting State v. Johnson, 42 N.J. 146,
162 (1964)). Only in those circumstances where the trial court's findings are so
clearly mistaken "that the interests of justice demand intervention and
correction" will we "appraise the record as if [we] were deciding the matter at
inception and make [our] own findings and conclusions." Ibid. (quoting
Johnson, 42 N.J. at 162). The trial court's application of its factual findings to
the law, however, is subject to plenary review. State v. Cryan, 320 N.J. Super.
325, 328 (App. Div. 1999).
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"[U]nder both the Fourth Amendment to the United States Constitution
and Article I, Paragraph 7 of our State Constitution, [government] . . . seizures
conducted without warrants issued upon probable cause are presumptively
unreasonable and therefore invalid." Elders, 192 N.J. at 246. "[T]he State bears
the burden of proving by a preponderance of the evidence that a warrantless
search or seizure 'falls within one of the few well-delineated exceptions to the
warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20
(2004)).
"Not all interactions between law enforcement [officers] and citizens
constitute seizures, and not all seizures are unconstitutional." Ibid. An
investigatory stop, otherwise known as a Terry stop, Terry v. Ohio, 392 U.S. 1
(1968), "is valid if it is based on specific and articulable facts which, taken
together with rational inferences from those facts, give rise to a reasonable
suspicion of criminal activity," State v. Mann, 203 N.J. 328, 338 (2010) (quoting
Pineiro, 181 N.J. at 20).
Analysis of the validity of an 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,
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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. Our Supreme Court recognized the two-step
analysis set forth in United States v. Cortez, 449 U.S. 411, 418 (1981),
for determining whether the totality of circumstances
creates a "particularized suspicion." A court must first
consider the officer's objective observations. The
evidence collected by the officer is "seen and weighed
not in terms of library analysis by scholars, but as
understood by those versed in the field of law
enforcement." "[A] trained police officer draws
inferences and makes deductions . . . that might well
elude an untrained person. The process does not deal
with hard certainties, but with probabilities." Second,
a court must determine whether the evidence "raise[s] a
suspicion that the particular individual being stopped is
engaged in wrongdoing."
[Davis, 104 N.J. at 501 (alterations in original)
(citations omitted) (quoting Cortez, 449 U.S. at 418).]
Here, several circumstances gave rise to a particularized, reasonable suspicion
that defendant was engaged in criminal activity.
A-4455-17T1
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As the trial court found, the CI informed the detective, a member of the
Ocean County Prosecutor's Office special operations group (SOG), that
defendant—whom he identified by name and as "Boobie"—was in the area of
Manitou Park, traveling in a black Jeep Grand Cherokee. The CI also informed
that defendant was in possession of heroin and crack cocaine which he was
selling to individuals. The detective knew defendant used "Boobie" as a street
name, and was familiar with him from prior CDS investigations. The court
found the CI was reliable based on his involvement in a prior SOG investigation
involving CDS. We note the detective testified that the CI provided
"information and cooperation" that "resulted in the arrest of an individual for
CDS[-]related charges."
We agree with defendant that the CI's tip, standing alone, did not give rise
to a reasonable and articulable suspicion justifying the stop of defendant. In the
context of establishing probable cause, the totality of the circumstances under
which a CI's tip must be analyzed includes the CI's "veracity" and "basis of
knowledge." State v. Smith, 155 N.J. 83, 92-93 (1998). We are unconvinced
that the single instance of undetailed "information and cooperation" previously
provided by the CI established his veracity. See State v. Zutic, 155 N.J. 103,
111 (1998). Further, the basis for the CI's knowledge was not provided, nor
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does the CI's general information—which does not describe the criminal activity
or establish "hard-to-know future events," provide that basis. Smith, 155 N.J.
at 95. But the totality of the circumstances included much more that the CI's
information.
The trial court's findings from the detective's credited testimony reveal
that the detective traveled to the Manitou Park area and observed defendant in
the Jeep described by the CI, and eventually followed defendant when he drove
to the intersection of Second Avenue and Third Street; the trial court credited
the detective's testimony that he knew frequent CDS transactions and CDS-
related arrests took place in that area. After the detective radioed for assistance
from his SOG unit, he surveilled defendant exit the Jeep, speak with several
individuals, return to the Jeep to retrieve an item through the driver's side door,
and speak on several occasions on his cell phone. When a gray Dodge Charger
arrived, the driver, Gregory Stone, exited the Charger, spoke to defendant and
removed something from the Jeep. Thereafter, Patrick Howard came on the
scene, and all three men were seen in the Charger engaging in what the detective
believed, based on his training and experience, to be a drug transaction. That
corroboration in tandem with the detective's trained deduction that defendant
engaged in a drug sale, comprised a part of the totality of circumstances that
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must be considered in determining whether the stop was valid. Id. at 98
(holding, in the context of a probable cause analysis, "[e]ven where the tip lacks
sufficient detail to establish a basis of knowledge, independent police
investigation and corroboration of the detail in the tip must be considered
because it may in some circumstances add to the evidentiary weight of factors
as well as the overall circumstances").
Additional circumstances gave rise to a reasonable, particularized
suspicion that defendant engaged in criminal activity. As the detective
approached the Charger, he observed that defendant and Howard were focused
on another police vehicle as it approached. In testimony credited by the t rial
court, the detective said he then observed defendant "moving around in his
waistband, in his lap, attempting to what [the detective] believe[d] to be either
conceal[ing] or tuck[ing] away something under the seat in that area, the driver's
seat area." Based on the gang activity, violence and gun use in that area, the
detective believed defendant was trying to conceal "gun[s], drugs, whatever" as
he walked to the car. The detective testified the other SOG members were still
approaching in their vehicles; the detective "was there by [him]self with the
three subjects in the Charger." He, therefore, grabbed the driver's door handle
and opened the door. As the trial court found, "[a]fter opening the door, [the
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detective] identified himself as a police officer and requested defendant to step
out of the vehicle."
We first observe our Supreme Court's recognition that "[n]ervousness and
furtive gestures may, in conjunction with other objective facts, justify a Terry
search, but ordinarily '[m]ere furtive gestures of an occupant of an automobile
do not give rise to an articulable suspicion suggesting criminal activity.'" State
v. Carty, 170 N.J. 632, 648 (2002) (second alteration in original) (quoting State
v. Lund, 119 N.J. 35, 47 (1990)), modified on other grounds, 174 N.J. 351
(2002). But as the Court in Lund observed: "Obviously there are some cases in
which 'furtive' movements or gestures by a motorist, accompanied by other
circumstances, will ripen into a reasonable suspicion that the person may be
armed and dangerous or probable cause to believe that the person possess es
criminal contraband." 119 N.J. at 48.
In addition to the observed furtive movements, the information provided
by the CI, and the observations by the SOG detective, buttressed by his training,
experience and knowledge of both defendant and the area in which the
observations took place, provided a reasonable, particularized suspicion that
defendant engaged in illegal drug activity, justifying his stop. The stop was a
proper investigative measure. As we explained in State v. Williams:
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Precedent establishes that "[b]ased [on the] whole
picture[,] the detaining officers must have a
particularized and objective basis for suspecting the
particular person stopped of criminal activity." Cortez,
449 U.S. at 417-18 (emphasis added). In this context,
we recognize that the level of proof required to justify
an investigative stop is less than that required to
demonstrate probable cause. "The Fourth Amendment
does not require a policeman who lacks the precise
level of information necessary for probable cause to
arrest to simply shrug his shoulders and allow a crime
to occur or a criminal to escape." [Adams v. Williams,
407 U.S. 143, 145 (1972).]
[364 N.J. Super. 23, 36 (App. Div. 2003) (first
alteration in original) (citations omitted).]
Defendant contests only the stop, not any further action the detective took
prior to the seizure of the items found in the car and on defendant's person. We
briefly address those issues for the sake of completeness.
Opening a car door is analyzed under the same test utilized in determining
police authority to order a passenger from a motor vehicle. As to both police
actions, our Supreme Court has held:
We see no reason to depart from the elegant reasoning
that undergirds this settled principle in making the
parallel determination of whether a police officer has
the authority to open a vehicle door as part of issuing
an order to exit the vehicle. In the realm of defining
reasonable searches and seizures, no meaningful or
relevant difference exists between the grant of authority
to order an occupant of a vehicle to exit the vehicle and
the authority to open the door as part of issuing that
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lawful order. Plain logic demands that the principles
that govern whether a passenger of a vehicle lawfully
can be ordered out of the vehicle must apply with equal
force to whether a police officer is entitled, as a
corollary and reasonable safety measure, to open the
door as part of issuing a proper order to exit. See State
v. Matthews, 330 N.J. Super. 1, 6 (App. Div. 2000)
(holding that "[s]ince the officer was entitled to order
defendant out of the car, he was equally entitled to open
the door to accomplish that object").
[State v. Mai, 202 N.J. 12, 22-23 (2010) (alteration in
original).]
To justify an order to a passenger to step out of a vehicle,
the officer need not point to specific facts that the
occupants are "armed and dangerous." Rather, the
officer need point only to some fact or facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to alight from the car.
[State v. Smith, 134 N.J. 599, 618 (1994).]
Under the totality of the circumstances as we have recited, the detective
was justified in opening the car door for his protection and control of the scene.
In Mai, the Court "reaffirmed that 'a police officer could order a passenger out
of an automobile if the officer had an articulable suspicion short of probable
cause to believe that a crime had been committed.'" 202 N.J. at 25 (quoting
State v. Tucker, 136 N.J. 158, 167 (1994)). Inasmuch as ordering a driver out
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of a vehicle requires even less cause, see Smith, 134 N.J. at 609-11 (adopting
the Fourth Amendment analysis set forth in Pennsylvania v. Mimms, 434 U.S.
106, 111 (1977), and holding the safety of police officers during traffic stops far
outweighs the de minimis intrusion on a driver who is asked to alight from a
vehicle even if no suspicious behavior was detected prior to the request), the
detective's order to defendant to step out of the vehicle was proper.
For the reasons set forth in the trial court's oral opinion, the plain view
seizure of the substance believed to be marijuana, subsequent arrest of defendant
and search incident thereto—unchallenged by defendant—were proper.
Affirmed.
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