STATE OF NEW JERSEY IN THE INTEREST OF D.H.(FJ-09-306-16, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-2816-15T2

STATE OF NEW JERSEY
IN THE INTEREST OF D.H.,
a Juvenile.
________________________

Submitted May 17, 2017 – Decided August 10, 2017

Before Judges Fuentes, Simonelli and
Farrington.

On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Hudson
County, Docket No. FJ-09-306-16.

Joseph E. Krakora, Public Defender, attorney
for appellant D.H. (Solmaz F. Firoz, Assistant
Deputy Public Defender, of counsel and on the
briefs).

Esther Suarez, Hudson County Prosecutor,
attorney for respondent State of New Jersey
(Rookmin Cecilia Beepat, Assistant
Prosecutor, on the brief).

PER CURIAM

Defendant entered a conditional plea to acts, which, if

committed by an adult, would constitute third-degree possession

of heroin with intent to distribute, N.J.S.A., 2C:35-5a. The

juvenile appeals from the denial of his motion to suppress the
heroin found on his person during a pat-down search after his

arrest. We affirm.

On September 7, 2015, officers of the Jersey City Police

Department received a radio transmission advising all available

units to respond to Cator and Ocean Avenues on the report of a

person fitting the description of an individual suspected in

connection with a shooting homicide observed in the area. The

report was based upon information received from a citizen caller

who advised he had seen a picture of the suspect in the newspaper.

The suspect was described as "a black male," weighing 121 pounds,

and standing five-foot-six-inches tall. The caller described the

person he believed to be the suspect as wearing a white sleeveless

t-shirt, black pants with a white stripe down the sides, and Afro

style hair.

Detective Javier Toro testified he contacted the caller after

the Sheriff's Department reported the call. The caller confirmed

the description he had given previously and provided Toro with the

location of the individual. Detective Toro called the local

precinct and requested they send an officer to the location.

Thereafter, Detective Ray Weber drove past the location and

observed a person fitting the description with two other males.

Perimeter units were called in and approached the individuals.

2 A-2816-15T2
Officer Collin Congleton handcuffed D.H.,1 who he believed to be

the homicide suspect, and patted him down. He immediately

identified through the thin material of D.H.'s athletic pants what

turned out to be ninety bags of heroin. The officer testified

packaged heroin has a "distinct size, shape and texture", which

was immediately recognizable to him because of the years he had

spent in narcotics and on the street and the many hundreds of

times he had encountered heroin in this way.

Officer Congleton testified that D.H. was cooperative in

identifying himself and that he stated his name was D.H. Despite

the name being different from that of the homicide suspect, the

arresting officers testified that they were unable to ascertain

D.H. was not the suspect. D.H.'s appearance, an African American

male, five-foot-six-inches tall, weighing 130-140 pounds, wearing

clothing matching the description given by the caller, and strong

physical resemblance to the wanted notice picture, caused them to

doubt his identity until they returned to headquarters. There the

1
Although the juvenile refers to his encounter as a "stop" or
investigative detention, we deem the facts indicate he was
arrested. A stop must be "'justified at its inception' by a
reasonable and articulable suspicion of criminal activity." State
v. Rosario, ___ N.J. ___, ___ (2017) (slip op. at 16) (citing
State v. Dickey, 152 N.J. 468, 476 (1998)). "An arrest . . .
requires probable cause and generally is supported by an arrest
warrant or by demonstration of grounds that would have justified
one." Id. (slip op. at 11) (citations omitted).

3 A-2816-15T2
officers determined from the computer aided dispatch system (CAD)

that D.H. had a chest tattoo, and the suspect did not. D.H. now

appeals raising the following contention:

POINT I

THE BASIS FOR STOPPING D.H. WAS AN
UNCORROBORATED ANONYMOUS TIP WITH UNKNOWN
RELIABILITY, THE STOP WAS UNCONSTITUTIONAL AND
THE FRUITS THEREFROM MUST BE SUPPRESSED.

The Fourth Amendment of the United States Constitution and

Article 1, paragraph 7 of the New Jersey Constitution guarantee

the right "of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures[.]" U.S. Const. amend. IV; N.J. Const. art. I, § 7.

"Warrantless searches presumptively violate those protections, but

'not all police-citizen encounters constitute searches or seizures

for purposes of the warrant requirement.'" State v. Rosario, ___

N.J. ___, ___ (2017) (slip op. at 9) (quoting State v. Rodriquez,

172 N.J. 117, 125 (2002)).

In Rosario, our Supreme Court noted "[i]n escalating order

of intrusiveness upon a citizen's rights, three categories of

encounters with police have been "identified by the courts: (1)

field inquiry; (2) investigative detention; and (3) arrest." Ibid.

The circumstances of D.H.'s detention make it clear that his

encounter with the police began as an arrest. Officer Congleton

4 A-2816-15T2
testified he handcuffed D.H. before patting him down. Prior to

his arrest, D.H. was standing outside a house with other people

when he was surrounded by several police officers who intended to

arrest him as a homicide suspect. It is indisputable that D.H.

was not free to leave. Having determined that D.H.'s encounter

with the police was an arrest, "we then must consider the second

question of whether, based on a totality of the circumstances,"

there was probable cause for the arrest, and in the absence of an

arrest warrant, grounds which would have justified one. Id.

The circumstances leading to the arrest commenced with

information from a citizen caller. Anonymous telephone calls

standing alone, have long been recognized as "inherently lack[ing]

the reliability necessary to support reasonable suspicion because

the informant's 'veracity . . . is by hypothesis largely unknown,

and unknowable.'" Ibid. (citing Rodriguez, supra, 172 N.J. at

127-28). As noted by the motion court in its decision on the

record, the caller was not anonymous, and the information was

confirmed by both Detectives Toro and Weber. Moreover, the caller

was not reporting "knowledge of concealed criminal activity[,]"

but his personal observations. Id. (slip op. at 16-17).

The court found the testifying police officers to be credible.

Based on their testimony and experience, Judge Alvaro L. Iglesias

concluded, "So, given the circumstances, given the fact that the

5 A-2816-15T2
suspect that was being sought was a suspect in a shooting homicide,

and in light of all the circumstances, the search was justified

under the warrant exception."

We find the motion judge properly found, based upon the

testimony of the police and the totality of the circumstances,

there was both probable cause and grounds, which would have

supported an arrest warrant on the facts then known to the police.

We next consider whether the pat-down of D.H. was conducted

within the confines of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,

20 L. Ed. 2d 889 (1968). We find the court correctly determined

Officer Congleton acted as "a reasonably prudent [officer] in the

circumstances would [and was] warranted in the belief that his

safety or that of others was in danger." State v. Thomas, 110

N.J. 673, 685 (1988) (quoting id. at 27, 88 S. Ct. at 1883, 20 L.

Ed. 2d at 909). Acting under the reasonable premise that D.H. was

the homicide suspect, the pat-down of D.H.'s outer clothing was a

minimal intrusion. D.H.'s cooperation with the police, by giving

them his correct name, does not negate the reasonable and

articulable suspicion for the arrest or the subsequent pat-down.

Here, as in State v. Toth, 321 N.J. Super. 609, 614-16 (App.

Div. 1999), certif. denied, 165 N.J. 531 (2000), the motion court

found Officer Congleton immediately knew, without manipulation,

6 A-2816-15T2
what he felt in D.H.'s pocket was heroin and not a weapon. As the

judge noted,

[Congelton] performed the pat-down -- a pat-
down of the outer clothing. And he testified,
and I find he did it in a methodical way,
looking for a weapon because the police
officers knew that the suspect could be armed
and dangerous . . . [for] his protection and
the protection of others. While he was doing
the pat-down, he felt over the clothing what
he recognized as a bundle of heroin from many
prior experiences which he -- I believe he
stated hundreds of cases. This was 90 bags
or nine bundles. And he felt it, because of
his experience, he knew that that was heroin.
That happened as he was doing the pat-down for
weapons for the protection of everyone.

The judge found the seizure, conducted during the pat-down,

did not exceed Terry's boundaries. The "plain feel" doctrine has

been analogized to the "plain view" doctrine. "[O]ur Supreme

Court has recognized the applicability of the totality-of-the-

circumstances approach to plain-view searches. There is no reason

in law, logic, or policy that would justify a different analysis

when analyzing a plain-feel matter." Toth, supra, 321 N.J. Super.

at 615 (citing State v. Demeter, 124 N.J. 374, 381 (1991)).

We find the motion court correctly found there was no invasion

of D.H.'s privacy, beyond that already authorized by the officer's

search for weapons, in the warrantless seizure of the heroin from

his person, in a plain-feel context.

Affirmed.

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