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Wednesday, June 02, 2010

Search and Seizure - Criminal Law Procedure- State v James (A-6160-08T4)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6160-08T4



STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RALPH JAMES, SHELTON JAMES
and GREGORY O'NEAL,

Defendants-Respondents.

________________________________________________________________

Submitted February 1, 2010 - Decided March 25, 2010

Before Judges Carchman and Lihotz.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 08-05-1412.

Robert D. Laurino, Acting Essex County
Prosecutor, attorney for appellant
(Barbara A. Rosenkrans, Assistant
Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender,
attorney for respondent Shelton James
(Stefan Van Jura, Assistant Deputy Public
Defendant, of counsel and on the brief).

Lorane L. Posner, attorney for respondent
Gregory O'Neal.

Respondent Ralph James has not filed a brief.

PER CURIAM

By leave of court, the State appeals from an interlocutory
order of the Law Division granting defendants Shelton James,
Ralph James and Gregory O'Neal's motion to suppress evidence
seized from a vehicle driven by O'Neal as a result of an
allegedly unlawful search. The evidence supported an indictment
against defendants charging them with third-degree possession of
heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin
with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and
possession of heroin with the intent to distribute within 1,000
feet of a school, N.J.S.A. 2C:35-7. We reverse.

These are the facts adduced at the motion to suppress. On
January 2, 2008, New Jersey State Trooper Paul Kochis
interviewed a confidential informant (CI), who, in the Trooper's
presence, allegedly contacted an individual identified as "Rock"
and set up the purchase of two bricks of heroin.1 The
transaction was scheduled for a location on Schley Street in
Newark, and Kochis, together with three other officers,
proceeded to the location where they observed the CI's vehicle
parked in front of 290 Schley Street. The officers parked their
vehicle approximately three or four car-lengths away.

1
A brick consists of 50 "decks" or glassine packets of heroin.



A-6160-08T4
2

Five to ten minutes later, at approximately 1:30 p.m., a

black Buick pulled up and parked behind the CI's vehicle in

front of 290 Schley Street. O'Neal was driving while Ralph

James and Shelton James were passengers. Kochis testified that

he was in an elevated SUV-type vehicle, used binoculars to

enhance his vision and had an unobstructed view of both the CI's

car and the black Buick.

Kochis saw the defendant O'Neal reach into the ceiling

upholstery of his car and pull out two packages that appeared to

the trooper to be glassine envelopes of heroin packaged as

bricks. O'Neal then looked in the direction of the police

surveillance vehicle and appeared "startled, just surprised."

O'Neal immediately drove away.

Without losing sight of O'Neal's car, the officers followed

O'Neal through several streets in Newark until they stopped his

car in a parking lot at a McDonald's restaurant located at the

intersection of Route 22 and Long Avenue in Hillside. Kochis

waited for O'Neal's car to clear the heavily congested

residential area around Schley Street before activating his

car's lights and sirens. All three followed the officers'

orders to exit the car and then were placed in handcuffs.

Kochis looked into the car and saw some suspected heroin on

the front passenger side floor. Kochis then entered the car and




A-6160-08T4
3

seized what turned out to be 49 decks of heroin. He then

reached into the ceiling upholstery of the car and seized

another four bricks of heroin.

Prior to this investigation, Kochis had arrested the CI for

drug offenses and registered the CI with the New Jersey State

Police. Before this incident, Kochis used the CI several times

with the information leading to arrests.2 Kochis testified that

the CI provided information with the understanding that he would

receive leniency on his pending criminal matter.

In her opinion suppressing the evidence, the judge found

Kochis to be credible but concluded that there was no probable

cause to search and detain defendants. She determined that

there were no facts that the CI was credible or reliable and

stated that "[t]he tip itself does not provide any intimate

details of the criminal operation that would be hard to know."

She also noted the absence of details as to Rock and the storage

facility in the car as well as the fact that Kochis did not hear

the CI's conversation with Rock. As the judge said:

The trooper did not overhear anything
that Rock allegedly said when dialed by the
confidential informant. The confidential
informant did not give . . . . them Rock's
cell phone numbers so that they could


2
On cross-examination, he indicated that he could not identify
the arrests.



A-6160-08T4
4

conduct any further investigation to
corroborate the tip.

How did the troopers know who the
confidential informant called? How do they
know that he did not dial information or
dial for a weather forecast? Based on the
testimony the answer is they could not know
and did not know.

Trooper Kochis didn't testify to any
fact that would indicate the informant's
base of knowledge of the criminal event.
For example, the informant did not indicate
that he or she had seen Rock selling nor was
he asked or did he or she volunteer that he
or she had previously purchased heroin from
Rock.

....

[F]actual information that was related to
Trooper Kochis by the confidential
informant does not confirm any personal
knowledge of the criminal or the criminal
enterprise. Therefore, in the instant case
in a totality of the circumstances analysis
without any showing of the informant having
personal knowledge of intimate details of
the criminal operation [and] without any
factual basis for the court to conclude
that [the] informant is credible and
reliable, this court finds there was no
probable cause based on the informant's tip
that would support the seizure of the
defendants and the subsequent search of the
automobile . . . .

The judge further found that there were no exigent

circumstances warranting the police entry into the vehicle to

seize the heroin absent a search warrant.

On appeal, the State argues:




A-6160-08T4
5

POINT I:

THE TRIAL COURT UNJUSTIFIABLY REQUIRED THE
STATE TO MEET AN ONEROUS BURDEN OF PROOF BY
REQUIRING A RELIABLE TIP FROM A CONFIDENTIAL
INFORMANT TO SHOW "INTIMATE DETAILS OF THE
CRIMINAL OPERATION." PROBABLE CAUSE EXISTED
WHEN THE INFORMANT'S TIP WAS CORROBORATED BY
THE TROOPER'S OBSERVATION OF ONE DEFENDANT
RETRIEVE HEROIN FROM A SECRET AREA IN THE
CAR IN THE PRESENCE OF THE TWO OTHER
DEFENDANTS AND A DEFENSE WITNESS PLACING THE
DEFENDANTS IN THE AREA AT THE TIME OF THE
SALE.

POINT II:

THE SEARCH OF THE DEFENDANTS' CAR FELL
WITHIN THE PLAIN VIEW AND AUTOMOBILE
EXCEPTIONS TO THE WARRANT REQUIREMENT. THE
HEROIN WAS IN PLAIN VIEW ON THE CAR'S FLOOR
AND IN THE CAR'S STASH AREA. EXIGENT
CIRCUMSTANCES WERE PRESENT BECAUSE IT WAS
NOT FEASIBLE TO GUARD THE CAR, STOPPED IN A
PARKING LOT OF A FAST FOOD RESTAURANT WITH A
STEADY STREAM OF CUSTOMERS, WHILE OFFICERS
TRIED TO SECURE A SEARCH WARRANT.

A. The police saw the drugs in the
defendants' car while lawfully in the
area from where they made their
observations.

B. Exigent circumstances existed
because anyone could have gained access
to the car stopped in the parking lot
of a fast-food restaurant with a steady
stream of customers.

Our standard of review of search and seizure appeals is

simply stated.

[A]n appellate court reviewing a motion to
suppress must uphold the factual findings
underlying the trial court's decision so


A-6160-08T4
6

long as those findings are supported by
sufficient credible evidence in the record.
. . . [A] trial court's findings should be
disturbed only if they are so clearly
mistaken that the interests of justice
demand intervention and correction.
[State v. Robinson,
200 N.J. 1, 15 (2009)
(quoting State v. Elders,
192 N.J. 224, 243-
44 (2007)).]

We will intervene, however, where the legal conclusions

based on those factual findings are in error. State v. Elders,


192 N.J. 224, 252 (2007) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,
140 N.J. 366, 378 (1991)).

The focal point of the motion judge's decision was that the

CI, whose information prompted the investigation and ultimately

the search, was not established to be a reliable basis so as to

establish probable cause.

Although we later consider whether consideration of the

CI's reliability should have prompted suppression of the search,

we briefly address the relevant factors for determining

reliability. The reliability of a CI must be considered by

indicia of his veracity and his basis of knowledge. State v.

Keyes,
184 N.J. 541, 555-56 (2005). Veracity and basis of

information are two factors in determining the totality of the

circumstance. State v Zutic,
155 N.J. 103, 110-11 (1998). In

determining veracity, a court must consider past reliability,

while basis of knowledge may be premised on the level of detail




A-6160-08T4
7

and information provided by the CI. Keyes, supra,
184 N.J. at
555-56.

Here the CI's veracity was established by Kochis'

confirmation that the CI's past information had resulted in

three or four arrests. While Kochis later contradicted that

information by indicating that he did not know of any arrests,

that fact does not end the inquiry. In terms of the CI's basis

of knowledge, the CI indicated that he had purchased from Rock

in the past, and on this occasion, he was able to establish both

the time and place of Rock's arrival as well as the presence of

heroin in the vehicle.

Our difficulty with the judge's analysis is her over-

reliance and concern on the bona fides of the CI. The flaw in

the reasoning is that the CI's tip and information did not

create the probable cause; simply stated, it brought the

officers to the scene. The judge found the officers to be

credible, and while the CI's reliability based on past

information may not have been established, his reliability and

veracity as to the present information was confirmed by the

events that transpired at the scene. The CI provided the

previews of what ultimately became the main event. What the

officers observed on a legitimate stakeout, prompted by the CI's

information or at best, a tip, established at least reasonable




A-6160-08T4
8

suspicion if not probable cause to proceed further in the

investigation ultimately leading to the arrest of defendants.

Kochis went to Schley Street with information of a pending

sale of heroin to the CI. Shortly after arriving, Kochis saw a

Buick pull up behind the informant's car and then saw O'Neal

reach into a storage area cut from the Buick's roof upholstery

and take out bound, glassine envelopes, commonly used to package

heroin. He observed what he believed to be the elements a drug

transaction. Later, after stopping the car and detaining the

occupants, Kochis saw glassine envelopes lying on the floor of

the car. The trooper made a "practical, common-sense decision

. . . given all the circumstances [that] there is a fair

probability that contraband or evidence" of a drug crime would

be found in the car and that the defendants committed the crime.

State v. Johnson,
171 N.J. 192, 214 (2002).

The trial judge overlooked Kochis's observation of the

packaged heroin that O'Neal took from the roof upholstery of the

car while Shelton and Ralph James were present. Although she

mentioned Kochis's observations in her summary of the testimony,

she failed to include any analysis of those observations in her

findings of fact. Kochis never contradicted himself when

testifying about what he saw, and Officer Spivey's testimony




A-6160-08T4
9

corroborated Kochis's testimony as to the time of day and length

of time that defendants were on Schley Street.

Applying a totality of the circumstances analysis, Kochis'

direct observations, combined with the information provided by

the CI, support a finding of, at a minimum, reasonable suspicion

to stop the vehicle and ultimately, probable cause to arrest

defendants and search the vehicle. Courts must look at the

totality of the circumstances when determining whether probable

cause exists in a warrantless search and seizure case. State v.

O'Neal,
190 N.J. 601, 612 (2007). An informant whose inherent

reliability has not been shown can nevertheless be relied upon

where the veracity of the informant's information is bolstered

by the totality of the circumstances, which include the

observations of the police during an investigation. State v.

Zapata,
297 N.J. Super. 160, 172 (App. Div. 1997) (citing State

v. Probasco,
220 N.J. Super. 355, 358 (App. Div. 1987), certif.

denied,
117 N.J. 72 (1989)), certif. denied,
156 N.J. 405

(1998). Kochis' observations of the defendants' conduct on

Schley Street, including the presence of a stash area in the

car, corroborated the informant's information about a pending

drug sale.

As defendants concede, the trial judge, in her decision,

makes little mention of the events that transpired when Kochis




A-6160-08T4
10

observed O'Neal reach up in the vehicle and extract what

appeared to be contraband. While they suggest that such

findings were implicit, we disagree. We find nothing in the

judge's findings relevant to a precipitating basis for the

officers following the vehicle and ultimately stopping it in the

parking lot of a fast-food restaurant.

This case is similar to State v. Birkenmeier,
185 N.J. 552,

555-56 (2006), where police's observations corroborated the

confidential informant's information that the defendant, at a

specified time, would make a delivery of drugs that would be

carried in a laundry bag using a particular make and model of

car. The police then pulled over the defendant's car, saw a bag

on the passenger seat and smelled marijuana emanating from the

car. Id. at 556-57. The Court held that the police's

observations corroborating the tip and the smell of marijuana

gave to a reasonable suspicion to stop and ultimately, probable

Id. at 561-
cause to arrest the defendant and search the car.

63.

In State v. Williams,
364 N.J. Super. 23, 37 (App. Div.

2003), there was less evidence corroborating a confidential

informant's tip than in this case, and we held that the evidence

generated a reasonable ground of suspicion justifying an

In Williams, an informant
investigatory stop of the defendant.




A-6160-08T4
11

arranged a drug buy with a man named Andre. An officer

accompanied the informant to the train station where she used a

public telephone to call Andre, "confirmed that she was known to

him and placed an order for delivery to the train station by him

Id. at 28. The officer
of two twenty-dollar 'pieces.'"

overheard this conversation.

Within fifteen minutes, a green Mazda arrived at the train

station and parked. The informant identified the passenger of

the car as Andre. No other information, such as a description

of Andre, his clothes, his mode of transportation or the

presence of companions, corroborated the identification. Ibid.

The defendant exited the car, walked and looked around, but did

not engage in any suspicious activity before re-entering the

car. As the driver sought to drive off, the police boxed the

car with their own vehicles and then detained the defendant

Williams and the driver. The driver consented to the search of

the car, where the police recovered two foil packets of cocaine.

Id. at 28-29.
The police arrested both men.

We held that the informant's on-scene identification of the

defendant, along with the fact that the officer overheard the

informant's conversation with the defendant proposing a drug

transaction, sufficiently met the reasonableness standard

required for an investigatory stop. We reached the conclusion




A-6160-08T4
12

even though the informant was seeking favorable treatment on a

drug matter of her own. Id. at 37.

As in Williams, because Kochis overheard the conversation

setting up the drug sale, "the imminence of criminal conduct was

not substantially in question." Ibid. Additionally, like the

informant in Williams, the CI's veracity in this case was

increased because he expected leniency regarding his pending

charges. It is "inconceivable" that the CI would have

"consciously misidentified" the defendant, when the informant

knew that Kochis would not assist him with his pending charge if

We recognize that both Birkenmeier and Williams are
he lied.

reasonable suspicion cases, yet here, Kochis' observations of

what appeared to be part of a drug transaction, provided

stronger indicia of criminal activity.

Following the apprehension of the vehicle in the restaurant

parking lot, the officers observed what appeared to be heroin on

the front passenger's seat and observed 49 bags of heroin on the

floor of the vehicle. They then arrested defendants, entered

the vehicle and conducted a search, discovering another four

bricks of heroin. The judge concluded that a search warrant was

necessary, focusing on the lack of exigent circumstances.

The New Jersey Supreme Court has made it clear that under

Article I, para. 7 of the State Constitution, a separate finding




A-6160-08T4
13

of exigent circumstances is required in addition to the

existence of probable cause for the lawful search of an

State v. Pena-Flores,
198 N.J. 6 (2009); State v.
automobile.

Cooke,
163 N.J. 657, 670-71 (2000).

The court reaffirmed the automobile exception to the

warrant requirement, including the requirement that the State

prove exigent circumstances to justify a warrantless search

pursuant to that exception. In Pena-Flores, supra, the Court

held:

[I]n accordance with "our unwavering
precedent," the warrantless search of an
automobile in New Jersey is permissible
where (1) the stop is unexpected; (2) the
police have probable cause to believe that
the vehicle contains contraband or evidence
of a crime; and (3) exigent circumstances
exist under which it is impracticable to
obtain a warrant. The notion of exigency
encompasses far broader considerations than
the mere mobility of the vehicle.

[
198 N.J. at 28 (citations omitted).]

Whether or not exigency exists to justify a warrantless

search is determined on a case-by-case basis in light of "the

totality of circumstances," but the critical issues for

consideration remain "officer safety and the preservation of

evidence." Id. at 28-29. Explaining further, the Court

detailed a non-exclusive set of circumstances for consideration

in determining exigency, including:




A-6160-08T4
14

for example, the time of day; the location
of the stop; the nature of the neighborhood;
the unfolding of the events establishing
probable cause; the ratio of officers to
suspects; the existence of confederates who
know the location of the car and could
remove it or its contents; whether the
arrest was observed by passersby who could
tamper with the car or its contents; whether
it would be safe to leave the car unguarded
and, if not, whether the delay that would be
caused by obtaining a warrant would place
the officers or the evidence at risk. As we
have previously noted, "[f]or purposes of a
warrantless search, exigent circumstances
are present when law enforcement officers do
not have sufficient time to obtain any form
of warrant."

[Id. at 29-30 (citations omitted).]

While the trial judge found no exigency, we disagree.

There were three defendants (and four officers in one vehicle)

present at the scene in a McDonald's Restaurant parking lot

during lunch hour at 1:30 in the afternoon. The restaurant is

located on Route 22, a heavily trafficked thoroughfare, and the

circumstances of the stop, location and persons in the area are

fraught with dangers, both known and unknown. The stop resulted

from a chase, albeit not at high speeds but through an urban

area, after police observed defendants in the initial stages of

participate in a drug transaction. We have little doubt that

the totality of these circumstances create an exigency

envisioned by the Court in Pena-Flores. The circumstances here




A-6160-08T4
15

were too dynamic to conclude otherwise. We are satisfied that

the warrantless search of the vehicle was proper.

We conclude that the trial judge erred in granting the

motion to suppress.

Reversed.




A-6160-08T4
16