State v. Lurdes Rosario (077420) (Monmouth and Statewide)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0677-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LURDES ROSARIO, a/k/a LULU
ROSARIO,

Defendant-Appellant.
__________________________________________

Submitted January 19, 2016 – Decided March 10, 2016

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 13-10-1732.

Joseph E. Krakora, Public Defender, attorney
for appellant (Al Glimis, Assistant Deputy
Public Defender, of counsel and on the
brief).

Christopher J. Gramiccioni, Acting Monmouth
County Prosecutor, attorney for respondent
(Paul H. Heinzel, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel; Mark W. Morris, Legal Assistant, on
the brief).

PER CURIAM

Defendant, Lurdes Rosario, appeals from the denial of her

motion to suppress statements and physical evidence. We affirm.
 I.

At 11:33 p.m., Patrolman Gabriel Campan was patrolling a

residential area of Colts Neck known as "The Grande" when his

focus was drawn to a car parked in front of a residence by the

movement within of a silhouetted figure that "grabbed" his

attention. The maroon vehicle was parked "head-on into the

curb" as the officer pulled his cruiser seven to ten feet behind

the vehicle, "blocking it in," and then activated his "alley

light" for better visibility. He observed a lone occupant in

the driver's seat who looked over her right shoulder at him

"then turned back around heading towards the unoccupied

passenger seat kind of scuffling around in the vehicle." She

was "moving around fast," but he could not see what she was

doing. He became "suspicious of what was happening." As he

approached the vehicle, he noticed the window on the driver's

side was half open. He asked the occupant, the defendant, for

identification and a driver's license, which defendant supplied.

Four days earlier at the duty roll call, a "patrol notice"

was circulated to the officers, based on a tip from an anonymous

caller, which reported that Lurdes Rosario was distributing

heroin from her house in this residential area and that she

drove a burgundy Chevy Lumina. The officer did not make the

connection between the patrol notice and the silhouetted figure

in the burgundy vehicle at first, but he did when she produced

2 A-0677-14T3
her identification. He also then recognized her from a prior

arrest for "drug paraphernalia and possession." She did not

appear to be under the influence of drugs or alcohol.

After defendant produced her driver's license, the officer

asked "what she was doing." She replied she was "smoking a

cigarette." He did not see one. When he asked why she had

"scuffled around" on the passenger's side, defendant replied

"she was putting away makeup because she just put some on."

Defendant did not respond when he asked how she could do this in

the dark. The officer told defendant her story "is not making

sense" and then asked "if there was anything I should know about

in the vehicle." He acknowledged he was referring "to anything

illegal." She replied "yes" and then stated "it's the same

thing you arrested me before in the past." "As soon as she said

that," defendant pulled out a fur mitten that had not been

visible and from that, an eyeglass case, she then opened without

any request from the officer, revealing a white powdery

substance that he believed to be crack or heroin and other drug

paraphernalia. She was asked to step out of the vehicle and was

put under arrest for possession of drug paraphernalia.

Defendant was indicted for third-degree possession of a

controlled dangerous substance, cocaine, N.J.S.A. 2C:35-

10(a)(1). She filed a motion to suppress the evidence seized

and her statements, contending they were obtained from an

3 A-0677-14T3
improper investigative stop and from a custodial interrogation

without Miranda1 warnings. The State opposed the motion,

contending the evidence and statements were obtained through

constitutionally valid procedures.

In a written decision denying the motion to suppress, the

judge found the officer's initial interaction with the defendant

was a "field inquiry," but when the officer asked defendant

whether there was anything he should know about, referring to

criminal activity, the field inquiry became an investigative

stop.

The judge found the officer had a reasonable and

articulable suspicion defendant was engaged in, or about to

engage in, criminal activity. This was based on defendant's

"strange" responses to the officer, that she was smoking a

cigarette when none was evident and was putting on makeup in the

dark, plus his knowledge of her criminal history as well as the

lateness of the hour and the lack of other traffic in the area.

The judge concluded defendant had voluntarily shown the drug

paraphernalia to the officer without prompting.

The court found defendant was not in custody for Miranda

purposes. She was parked outside her residence, was familiar

with the officer, who had not indicated to her that the

1 Miranda v. Arizona, 384 U.S. 436, 477, 86 S. Ct. 1602, 1629, 16
L. Ed. 2d 694, 725 (1966).

4 A-0677-14T3
detention would be anything "beyond the brief period necessary

to determine what defendant was doing," he did not "unholster

his service weapon" or "make coercive statements to defendant."

After the motion was denied, defendant entered a

conditional guilty plea to third degree drug possession and was

sentenced to probationary supervision for two years consistent

with the sentence recommendation and assessed fines and

penalties.

Defendant raises the following issues on appeal:

POINT I. THE COURT BELOW ERRED IN FINDING
THAT AN INVESTIGATIVE DETENTION DID NOT
OCCUR UNTIL OFFICER CAMPAN QUESTIONED
ROSARIO. SINCE ROSARIO WAS THE SUBJECT OF
AN INVESTIGATIVE DETENTION NOT JUSTIFIED BY
THE TOTALITY OF THE CIRCUMSTANCES, THE COURT
SHOULD HAVE GRANTED DEFENDANT'S MOTION TO
SUPPRESS HER STATEMENT AND THE EVIDENCE
SEIZED BECAUSE OF HER STATEMENT.

POINT II. MS. ROSARIO'S STATEMENT TO
OFFICER CAMPAN WAS THE PRODUCT OF CUSTODIAL
INTERROGATION WITHOUT MIRANDA WARNINGS.

II.

Defendant appeals the trial court's decision denying her

suppression motion. We defer to the trial court's factual

findings unless "clearly mistaken" such that appellate

intervention is necessary in the interests of justice. State v.

Elders, 192 N.J. 224, 244 (2007). Our review of purely legal

conclusions is plenary. State v. Goodman, 415 N.J. Super. 210,

225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

5 A-0677-14T3
 The Fourth Amendment to the United States Constitution and

Article I, ¶ 7 of the New Jersey Constitution protect the

State's citizens "against unreasonable police searches and

seizures by requiring warrants issued upon probable cause

'unless [the search and seizure] falls within one of the few

well-delineated exceptions.'" State v. Maryland, 167 N.J. 471,

482 (2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973)). Not

every interaction between a citizen and the police implicates

the Fourth Amendment's warrant requirement. An officer may

conduct a field inquiry without any "grounds for suspicion." Id.

at 484; see Elders, supra, 192 N.J. at 246. "A field inquiry is

not considered a seizure 'in the constitutional sense so long as

the officer does not deny the individual the right to move.'"

State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v.

Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S.

Ct. 83, 38 L. Ed. 2d 121 (1973)). "A permissible inquiry occurs

when an officer questions a citizen in a conversational manner

that is not harassing, overbearing, or accusatory in nature."

State v. Nishina, 175 N.J. 502, 510 (2003); see State v.

Pineiro, 181 N.J. 13, 20 (2004). Merely asking for

identification does not elevate a field inquiry to an

investigative detention. See State v. Sirianni, 347 N.J. Super.

382, 390 (App. Div.), certif. denied, 172 N.J. 178 (2002).

6 A-0677-14T3
 An investigatory stop is considered more intrusive than a

field inquiry and does implicate constitutional requirements.

Elders, supra, 192 N.J. at 247. Sometimes referred to as a

Terry2 stop, an investigatory stop does not require a warrant if

it is based on "specific and articulable facts which, taken

together with rational inferences from those facts" provide a

"reasonable suspicion of criminal activity." Ibid. (quoting

Rodriquez, supra, 172 N.J. at 126 (quoting Terry, supra, 392

U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906)).

To evaluate whether the officer had a reasonable suspicion

that criminal activity had taken place or was about to take

place, a court should consider "the facts objectively and

reasonably viewed in light of the officer's expertise." State

v. Arthur, 149 N.J. 1, 10-11 (1997). The officer's "articulable

reasons" or "particularized suspicion" is based on the officer's

assessment of the totality of the circumstances. State v.

Davis, 104 N.J. 490, 504 (1986). "An anonymous tip, standing

alone, is rarely sufficient to establish a reasonable

articulable suspicion of criminal activity." Rodriguez, supra,

172 N.J. at 127; see Alabama v. White, 496 U.S. 325, 329, 110 S.

Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990). Rather, the

police "must verify that the tip is reliable by some independent

2 Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed.
2d 889, 903 (1968).

7 A-0677-14T3
corroborative effort." Rodriquez, supra, 172 N.J. at 127. The

officer must use the "least intrusive means necessary to

effectuate the purpose" of the investigation, and the detention

must "last no longer than is necessary to effectuate the purpose

of the stop." State v. Coles, 218 N.J. 322, 344 (2014),

(quoting State v. Shaw, 213 N.J. 398, 411 (2012)).

A field inquiry can be transformed into an investigative

stop when "a reasonable person would have believed that he was

not free to leave." United States v. Mendenhall, 446 U.S. 544,

554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); see

Rodriguez, supra, 172 N.J. at 126. The question is not

dependent upon the officer's "subjective intent." Rodriguez,

supra, 172 N.J. at 126. Rather, "[a]n encounter becomes more

than a mere field inquiry when an objectively reasonable person

feels that his or her right to move has been restricted." Ibid.

"The officer's demeanor is relevant to the analysis." Ibid.

There would not be a seizure "if his questions were put in a

conversational manner, if he did not make demands or issue

orders, and if his questions were not overbearing or harassing

in nature." Ibid. (quoting Davis, supra, 104 N.J. at 497 n.6).

It is against this background that we evaluate the appeal.

We agree with the trial court that the initial encounter between

the officer and defendant was a field inquiry, not an

investigatory detention. The officer asked for identification

8 A-0677-14T3
and a driver's license. The mere request for this is not an

investigative stop. Sirianni, supra, 347 N.J. Super. at 391.

There was no testimony that his manner was overbearing or

harassing. He did not draw his weapon. He did park

perpendicular to defendant, approximately seven to ten feet away

which prevented her from backing out, but in this case she also

was parked in front of her residence allowing her access to

leave. See State v. Stampone, 341 N.J. Super. 247, 252 (App.

Div. 2001) (finding no Terry stop while occupant of car was free

to refuse general request for information).

We agree the field investigation became an investigative

stop when the officer asked whether there was anything in the

vehicle that he should be aware of. Looking at the totality of

the circumstances, by that point the alley light was on; the

patrol car was parked behind the vehicle; the officer

acknowledged he suspected criminal activity. The record

supports the trial court's conclusion this had become an

investigatory stop.

We further agree the record is sufficient to demonstrate a

reasonable suspicion that criminal activity had occurred or was

about to occur by the time the encounter had evolved into an

investigatory stop. The defendant had given strange responses

to the officer when he made inquiry about smoking and applying

makeup in the dark. The officer recognized her from a prior

9 A-0677-14T3
drug arrest. She was observed "scurrying" around when he pulled

up behind her. The hour was late. We agree with the trial

judge that all those factors combine to provide a particularized

and objective basis for suspecting criminal activity.

III.

Defendant contends she was in "custody" when she stated to

the officer she was in possession of "the same thing as you

arrested me before in the past" and because she did not receive

a Miranda warning, the court erred in not suppressing her

statement.

"Miranda 'warnings must be given before a suspect's

statement made during custodial interrogation [may] be admitted

in evidence.'" State v. Carlucci, 217 N.J. 129, 143-44 (2014)

(quoting Dickerson v. United States, 530 U.S. 428, 431-32, 120

S. Ct. 2326, 2329, 147 L. Ed. 2d 405, 412 (2000)). An

interrogation in custody means "questioning initiated by law

enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any

significant way." Id. at 144 (quoting Miranda, supra, 384 U.S.

at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). Custody "is an

objective determination." Ibid.; see State v. P.Z., 152 N.J.

86, 103 (1997). "The critical determinant of custody is whether

there has been a significant deprivation of the suspect's

freedom of action based on the objective circumstances,

10 A-0677-14T3
including the time and place of the interrogation, the status of

the interrogator, the status of the suspect, and other such

factors." Carlucci, supra, 217 N.J. at 144 (quoting P.Z.,

supra, 152 N.J. at 103). Brief and non-coercive questioning

during an investigative stop does not require the police to

first give Miranda advice. See Berkemer v. McCarthy, 468 U.S.

420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-35

(1984); State v. Smith, 374 N.J. Super. 425, 431 (App. Div.

2005).

Typically Miranda warnings depend upon "circumstances

include[ing] the duration of the detention, the place and time

of the interrogation, the nature of the questions and the

language employed by the interrogator, the conduct of the

police, the status of the interrogator, the status of the

suspect, and other relevant circumstances." State v. Brown, 352

N.J. Super. 338, 353-56 (App. Div.) certif. denied, 174 N.J. 544

(2002).

We find no error in the trial court's application of these

principles. Although the field investigation evolved into an

investigatory stop, we agree that the defendant was not in

custody for Miranda purposes at the time she made her statement.

The trial court found the interaction with the officer "lasted

. . . mere minutes" and the "exchange was less intrusive than a

routine traffic stop." She was in her vehicle parked outside

11 A-0677-14T3
her residence. She was familiar with the officer. He did not

unholster his service weapon or make coercive statements. An

officer is not required to give Miranda warnings before asking

questions reasonably related to dispelling or confirming

suspicions that justify the detention. Smith, supra, 374 N.J.

Super. at 431. The record supports that there was nothing to

substantiate her argument that the statements were obtained

involuntarily. Her statement was volunteered. "Miranda does

not apply to volunteered statements." See State v. Coburn, 221

N.J. Super. 586, 598 (App. Div. 1987), certif. denied, 110 N.J.

300 (1998). We agree defendant was not in custody at the time

the statement was made.

Affirmed.

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