NOT FOR PUBLICATION WITHOUT THE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-1288-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LANCE S. RICHARDSON,
Defendant-Appellant.
__________________________
Argued March 2, 2020 – Decided May 15, 2020
Before Judges Fasciale and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 13-03-0272.
Alan Dexter Bowman argued the cause for appellant.
Ali Y. Ozbek, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Ali Y. Ozbek, of counsel and on
the brief).
PER CURIAM
Defendant Lance S. Richardson appeals from a September 5, 2018
judgment of conviction. Following the denial of his motion to suppress,
defendant pled guilty to second-degree possession of a controlled dangerous
substance with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(10),1 and was sentenced to a one-year term of non-custodial
probation. On appeal, he raises the following issues:
POINT I
THE EVIDENCE SEIZED WITHOUT PROBABLE
CAUSE AND BASED UPON AN ILLEGAL ARREST
MUST BE SUPPRESSED.
i. Probable Cause.
ii. Permissible Scope.
iii. Detention of [Defendant] was Unjustified in the
Incipiency and Unreasonable.
POINT II
THE POLICE TRESPASSED ONTO BUSINESS
PREMISES WHICH WERE NOT ACCESSIBLE TO
THE GENERAL PUBLIC WITHOUT A WARRANT
OR PROBABLE CAUSE AND EXIGENCY.
1
A related conspiracy charge and two related possessory charges were
dismissed.
A-1288-18T2
2
Based on the testimony elicited at the suppression hearing, we agree with Judge
Joseph A. Portelli's conclusions that there was no expectation of privacy in the
common area of the storage facility and that defendant was lawfully detained.
Accordingly, we affirm.
We discern the following facts from the suppression hearing, where a
single witness, Captain Daniel Bachok 2 of the Passaic County Prosecutor's
Office Narcotics Unit (the Narcotics Unit) testified.
During the summer of 2012, 3 the Narcotics Unit began investigating two
individuals, Darren E. Richardson4 (defendant's uncle) and J.S., after
confidential informants (CIs) reported that Darren and J.S. were dealing
marijuana in the Wanaque area. According to the CIs and a citizen informant,
Darren would buy marijuana in California and ship it to New Jersey through the
mail, and an anonymous female told Detective Sergeant Charlie Sahanas of the
Wanaque Police Department that J.S. planned to travel to San Diego with
Darren. Although Captain Bachok did not learn this information firsthand, as
2
Captain Bachok was a lieutenant during the investigation.
3
All events pertaining to the investigation occurred during the year 2012.
4
We refer to Darren Richardson by his first name because he and defendant
share the same last name. We intend no disrespect in doing so.
A-1288-18T2
3
the investigation involved several officers, he generally understood this to be
the basis for the investigation, and he also understood that Darren and J.S. had
planned to ship the marijuana in a suitcase.
Based on the CIs' tips, the Narcotics Unit prepared to apply for a
communications data warrant (CDW), or tracker, to track the vehicle J.S. drove
to identify the "stash location," defined as the "place[] where drug dealers would
leave their drugs sometimes, [but] not at their personal residence." During the
week of September 9, arrangements were made for a controlled buy of marijuana
from J.S., and thereafter, surveillance of her and Darren continued.
On September 20, Detective Stephen Day of the Narcotics Unit applied
for the CDW. After the warrant was authorized, Captain Bachok installed the
tracker on J.S.'s black BMW. Through efforts to track the vehicle, the Narcotics
Unit observed what was believed to be "hand to hand drug transactions on
several occasions."
On October 1, the Narcotics Unit observed Darren, in a blue BMW, and
J.S., in the black BMW, drive to a storage facility on Hamburg Turnpike in
Wayne (the storage facility). Captain Bachok described the storage facility as
"wide open," meaning storage units could be seen from the street. A chain link
fence surrounded the property, and the entrance was guarded by a gate and
A-1288-18T2
4
keypad. On the property, there were "a bunch of garages all over and . . .
surrounding the perimeter."
Darren drove the blue BMW into unit 3020. According to Captain
Bachok, unit 3020 was a garage-like unit accessible from the storage facility's
common space, and it was the third unit in from the perimeter. It was about 300
feet away from the entrance and could be "clearly" seen from the public street.
After Darren entered the unit, he exited his vehicle and got into the black BMW,
and he and J.S. drove away from the storage facility. The Narcotics Unit
followed the black BMW to the George Washington Bridge and then tracked it
first to John F. Kennedy Airport (JFK) and then to LaGuardia Airport
(LaGuardia).
On October 3, the Narcotics Unit tracked J.S.'s car to a parking garage at
LaGuardia. Inside the airport, it "identif[ied] the airline that [J.S.] had used to
fly out to California" and learned that she planned to return to New Jersey on
October 4. The following day, it observed J.S. depart from the airplane and
leave the LaGuardia parking lot in the black BMW.
On the morning of October 5, the Narcotics Unit tracked J.S. to her
mother's home in Wanaque, and Captain Bachok observed her accept a FedEx
package, although he was unable to see where she placed the package after she
A-1288-18T2
5
accepted it. Soon after, the Narcotics Unit observed J.S. driving away in the
black BMW and tracked her to the storage facility. By the time they arrived at
the storage facility, J.S. was driving away in the black BMW, so Captain Bachok
entered the premises through an open gate, parked in the parking lot, and asked
an employee in the office to view the security video. Upon viewing the video,
he observed J.S. park in front of unit 3020, get out of the vehicle, enter the
storage unit, and get back into the vehicle, but he could not "see her actually do
anything."
After J.S. left the storage facility, she was tracked to JFK and then to her
and Darren's Oakland residence, and Darren was observed riding in the black
BMW upon her return from JFK. Around 8 p.m., they returned to the storage
facility. J.S. was driving, Darren was in the front passenger seat, and defendant
and a woman were in the back. Darren and defendant exited the vehicle, and
J.S. and the female passenger departed in the black BMW.
Darren and defendant then opened unit 3020. A surveillance unit drove
onto the premises of the storage facility "to see what they were doing." Captain
Bachok had been unable to observe how the unit gained access to the premises
but testified that he was not aware of anyone having an access code to open the
gate. The surveillance unit parked on the far side of the storage facility, leaving
A-1288-18T2
6
the center building between them and unit 3020. Detective Sergeant Sahanas
also approached unit 3020 on foot and observed from the bushes located on the
far side of the end unit nearby. Captain Bachok remained outside the facility
and could not "see [what was] going on." At this time, neither he nor anyone
else involved in the investigation had seen any contraband on the premises.
After Darren and defendant entered unit 3020, Captain Bachok entered the
storage facility and parked his car facing the street. The facility's office was not
open at the time, but he was able to enter the premises without a key or passcode
because according to him, the gate was open. Captain Bachok watched Darren
through his rearview mirror and noticed there was light inside the unit. Then,
he and Detective Sergeant Sahanas observed Darren inside unit 3020, rolling a
suitcase toward the trunk of his vehicle, which was also inside the unit. He also
observed Darren and defendant notice his vehicle. Upon seeing Darren with the
suitcase, Captain Bachok ordered "everybody to move in to . . . further
investigate," believing that the suitcase contained marijuana. Captain Bachok
testified that it was not until he saw Darren with the suitcase that he determined
there was probable cause.
As Captain Bachok and the other officers approached unit 3020, Darren
threw the suitcase into the trunk and closed it. The officers identified
A-1288-18T2
7
themselves, informed Darren and defendant about the investigation, and read
them their Miranda5 rights. Darren verbally consented to a search of the storage
unit and his vehicle, but a decision was made to apply for a search warrant, after
a conversation with the chief assistant prosecutor.
After the storage facility was secured, within an hour of arriving at the
facility, Darren and defendant were transported to the Wayne Police Department
to be held until the search warrant was executed. According to Captain Bachok,
although he could not be sure that defendant knew there was marijuana in the
suitcase, defendant was detained because he and Darren "were together" at the
storage facility. Captain Bachok further explained that Darren had "other people
selling for him," and defendant "was [also] a target of the investigation."
While waiting to search unit 3020, a previously obtained search warrant
was executed on the Oakland residence. Outside of the home, the box that had
been delivered to J.S. the previous day was discovered. It was empty, but law
enforcement later determined that the Darren's suitcase fit inside.
Around 1:20 a.m. on October 6, a Wayne municipal court judge signed
the search warrant for unit 3020, including Darren's vehicle. At 1:35 a.m., law
5
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1288-18T2
8
enforcement returned to the storage facility through an open gate and executed
the search warrant, recovering a medium-sized suitcase containing seventeen
pounds of marijuana and a safe holding $9500 in cash.
Captain Bachok returned to the storage facility one morning about a month
before the suppression hearing to record a video of the premises. During his
visit, the gate was open. He also testified that he had "driven there many times
after [5 p.m.] and at times it was open."
At the conclusion of the suppression hearing, the judge found Captain
Bachok to be credible but explained that his testimony alone would not
determine the outcome, as the ultimate issue was whether law enforcement was
lawfully on the premises of the storage facility. After reciting the pertinent facts,
the judge concluded that law enforcement had "reasonably articulable suspicion
that criminal activity was occurring." Then, setting aside the issue of the
lawfulness of the entry into the storage facility, the judge concluded that "[a]ll
of this activity by the police and the way they conducted their investigation here
and the eventual confiscation of the suitcase is all lawful."
Turning to law enforcement's entry into the storage facility, the judge
noted that "[t]here are some very fine lines to be drawn here with respect to what
the police can and cannot do and what they did in this case." He explained that
A-1288-18T2
9
"[c]learly there would be a [F]ourth [A]mendment violation if there was a home
involved," but here "it [got] dicey," as the area at issue was "a semi-public
business" entitled to "a much lesser expectation of privacy." However, he
acknowledged that areas in a business "not open to the general public" are
entitled to Fourth Amendment protection.
The judge found that "the area where [Darren] had his storage facility[]
was not open to the general public," and his unit "was visible from the street,
making it more . . . visible to the public." Additionally, it was problematic that
lessees of other units could have observed Darren's and defendant's activities on
the premises. The judge acknowledged that it was "a fine line" and concluded,
I'm not comfortable with the way law enforcement
acted when they got to the storage facility. I'm not sure
that they should have entered in the way that they did
without a warrant.
But because it's not a home, because it's a
business establishment, where there are others who rent
there and have access to the area, . . . there is a lesser
expectation of privacy, . . . and I can't ignore [that] you
can also see this unit from the street. So, where is the
expectation of privacy?
Accordingly, he denied the motion to suppress.
On appeal, defendant contends that law enforcement unlawfully entered
the premises of the storage facility because it was not accessible to the public.
Consequently, his warrantless detention and the search of unit 3020 were
A-1288-18T2
10
unlawful because they were direct results of the unlawful entry. Additionally,
he argues that law enforcement unlawfully detained him because there w as no
evidence that he knew the suitcase contained marijuana.
When reviewing the denial of a motion to suppress, we "must uphold the
factual findings underlying the trial court's decision, provided that those
findings are 'supported by sufficient credible evidence in the record.'" State v.
Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40
(2016)). Deference is especially appropriate if the judge's findings "are
substantially influenced by his [or her] 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) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). However, we need not defer to the judge's legal conclusions, which we
review de novo. Boone, 232 N.J. at 426.
The United States Constitution and the New Jersey Constitution both
guarantee "[t]he 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. Generally, to search or seize a person or a person's
property, law enforcement must secure a warrant issued upon probable cause,
unless one of the well-delineated exceptions applies. Schneckloth v.
A-1288-18T2
11
Bustamonte, 412 U.S. 218, 219 (1973); State v. Maryland, 167 N.J. 471, 482
(2001); see State v. Hill, 115 N.J. 169, 173-74 (1989) (listing the various
exceptions to the warrant requirement).
To determine whether law enforcement has conducted a search in
violation of the Fourth Amendment of the United States Constitution, the judge
must consider two prongs: (1) whether "a person . . . exhibited an actual
(subjective) expectation of privacy" and (2) whether "the expectation [is] one
that society is prepared to recognize as 'reasonable.'" State v. Hempele, 120 N.J.
182, 198 (1990) (quoting Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring)). However, under Article I, Paragraph 7 of the New
Jersey Constitution, the judge need only consider the second, objective prong.
Id. at 200 ("[T]he New Jersey Constitution requires only that an expectation of
privacy be reasonable.").
"[E]xpectations of privacy are established by general social norms." Ibid.
(quoting Robbins v. California, 453 U.S. 420, 428 (1981) (plurality opinion),
overruled on other grounds, United States v. Ross, 456 U.S. 798 (1982)). The
relevant inquiry is whether, if a warrantless search is held constitutional, "the
amount of privacy and freedom remaining to citizens would be diminished to a
compass inconsistent with the aims of a free and open society." Id. at 201
A-1288-18T2
12
(quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58
Minn. L. Rev. 349, 403 (1974)).
We have not previously considered the reasonable expectation of privacy
on the premises of a privately owned storage facility. Accordingly, in addition
to reviewing our limited case law on the reasonable expectation of privacy on
the premises of a business generally, we consider principles our courts have
relied on in addressing privacy interests in other contexts. In doing so, we keep
in mind that our Supreme Court has "extended [constitutional] protections
beyond those dictated by the United States Supreme Court in many situations."
Kevin G. Byrnes, New Jersey Arrest, Search & Seizure § 2:4-1 (2019-2020)
(collecting cases); see, e.g., Hempele, 120 N.J. at 223 (holding that under Article
I, Paragraph 7 of the New Jersey Constitution, law enforcement must obtain a
warrant to search a garbage bag left at the curb for collection, in contrast with
the United States Supreme Court's holding in California v. Greenwood, 486 U.S.
35, 40-41 (1988)).
Our Supreme Court has acknowledged that "[w]hat a person knowingly
exposes to the public . . . is not a subject of Fourth Amendment protection," but
"[w]hat a person . . . seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected." Hempele, 120 N.J. at 209 (first
A-1288-18T2
13
and fourth alterations in original) (first quoting Greenwood, 486 U.S. at 41; then
quoting Katz, 389 U.S. at 351). For example, law enforcement may lawfully
enter a business premises without a warrant and search the areas not sought to
be kept private from the general public. See State v. Williams, 84 N.J. 217, 220
(1980) (holding that a warrantless entry into the locked, basement storage room
of a bar was unlawful); State v. Boynton, 297 N.J. Super. 382, 384 (App. Div.
1997) (holding that a warrantless entry into the unlocked, single-occupancy
restroom of a bar was lawful).
In considering the reasonable expectation of privacy in a garbage bag left
at the curb for collection, our Supreme Court noted that because garbage
contains "[c]lues to people's most private traits and affairs," it is reasonable that
they would "prefer that [their] garbage remain private." Hempele, 120 N.J. at
201, 202. "The accessibility of garbage to outsiders, however, is not dispositive,
because a person can maintain a privacy interest in something that is not
completely invulnerable to prying eyes." Id. at 204. If the opposite were true,
"[A]rticle I, [P]aragraph 7 would protect only that which is under lock-and-key."
Ibid. Quoting from Justice Brennan's Greenwood dissent, the Court explained,
The mere possibility that unwelcome meddlers might
open and rummage through [trash] containers does not
negate the expectation of privacy in its contents any
more than the possibility of a burglary negates an
A-1288-18T2
14
expectation of privacy in the home; or the possibility of
a private intrusion negates an expectation of privacy in
an unopened package; or the possibility that an operator
will listen in on a telephone conversation negates an
expectation of privacy in the words spoken on the
telephone.
[Ibid. (alteration in original) (quoting Greenwood, 486
U.S. at 54 (Brennan, J., dissenting)).]
See also Amsterdam, 58 Minn. L. Rev. at 406 (explaining that the government
cannot conduct a warrantless search of parked cars even though "[e]very person
who parks his or her car on a side street in Greenwich Village voluntarily runs
the risk that it will be burglarized").
The Court explained that "a person's expectation of privacy can differ in
regard to different classes of people." Hempele, 120 N.J. at 205. "Although a
person may realize that an unwelcome scavenger might sort through his or her
garbage, 'such expectations would not necessarily include a detailed,
systematized inspection of the garbage by law enforcement personnel.'" Ibid.
(quoting Smith v. State, 510 P.2d 793, 803 (Alaska 1973) (Rabinowitz, C.J.,
dissenting)); see also State v. McAllister, 184 N.J. 17, 31 (2005) ("A bank
customer may not care that employees of the bank know a lot about his financial
affairs, but it does not follow that he is indifferent to having those affairs
broadcast to the world or disclosed to the government." (quoting Richard Posner,
A-1288-18T2
15
The Economics of Justice 342 (1981))); State v. Sencion, 454 N.J. Super. 25, 29
(App. Div. 2018) (holding that there is "a reasonable expectation of privacy from
a forced police entry into the locked common area of [an] apartment building");
State v. Jefferson, 413 N.J. Super. 344, 350-52 (App. Div. 2010) (holding that
police unlawfully entered the common hallway of an apartment building when
a sergeant "wedged herself in the doorway" to prevent the defendant from
closing the door, which was normally kept locked).
In the present case, the judge reasoned that law enforcement lawfully
entered the premises of the storage facility because unit 3020 was visible from
the street, and lessees of other storage units could have viewed the contents of
unit 3020 had they been on the premises at the time. Considering the principles
our courts have relied on in determining whether an expectation of privacy exists
in other contexts, and based on Captain Bachok's testimony, we conclude, for a
different reason, that there was no expectation of privacy on the premises of the
storage facility. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)
("[I]t is well-settled that appeals are taken from orders and judgments and not
from opinions, oral decisions, informal written decisions, or reasons given for
the ultimate conclusion.").
A-1288-18T2
16
We first note that the judge's reliance on the fact that unit 3020 could be
seen from the street does not alone support his conclusion. Our Court has
explained that "a person can maintain a privacy interest in something that is not
completely invulnerable to prying eyes." Hempele, 120 N.J. at 204. Moreover,
it is not clear from the record that the suitcase containing the marijuana, located
inside unit 3020, was visible from the street or another public space.6
Additionally, that lessees of other storage units could have observed
Darren and defendant while on the premises would not preclude a determination
that there was a reasonable expectation of privacy where it is clear that a
particular space was intended to be kept private from the public. See Hempele,
120 N.J. at 209; Williams, 84 N.J. at 222; Sencion, 454 N.J. Super. at 29;
Jefferson, 413 N.J. Super. at 350-52. A fence surrounded the storage facility
and a gate and keypad guarded entry to the premises, so it is reasonable to
6
Captain Bachok's testimony is unclear as to precisely where Detective
Sergeant Sahanas was located when he was in the bushes, and the Captain
indicated that it was possible he was standing outside of the facility. In its
appellate brief, the State asserts that members of law enforcement located
outside of the facility observed all of Darren's and defendant's actions inside unit
3020. However, a review of the record, including the judge's factual findings,
does not support the State's assertions, as there appears to be no definitive
testimony that any of the officers were outside of the facility when the suitcase
was observed.
A-1288-18T2
17
conceive that the owner of the storage facility and the lessees might have
expected privacy under certain circumstances.
However, Captain Bachok testified that the gate was open when he entered
the storage facility and that it may have been open when other officers entered
because he was unaware of anyone having the passcode. The judge found this
testimony credible, and we have no reason to question his findings. See Boone,
232 N.J. at 425-26. We have held that where the record is clear that an entrance
to a residential space was locked to prevent the public from entering, law
enforcement's entry without permission violated a reasonable expectation of
privacy, see Sencion, 454 N.J. Super. at 29 (forcing entry at a locked door);
Jefferson, 413 N.J. Super. 350-52 (preventing the defendant from closing a door
he normally kept locked), and "[w]e consider the fact of whether a door is locked
or unlocked a . . . reliable predictor of a reasonable expectation of privacy,"
State v. Nunez, 333 N.J. Super. 42, 51 (App. Div. 2000) (holding that where the
record "would not support a finding that both doors to [a multi-family] building
were routinely locked and that no one was permitted to enter without the assent
of a resident," the police were not required to knock before entering the building
to execute a warrant on the second floor apartment); State v. Brown, 282 N.J.
Super. 538, 547 (App. Div. 1995) ("[A] tenant does not have a reasonable
A-1288-18T2
18
expectation of privacy in the common areas of a building merely because doors
to the common areas are normally kept locked and require a key for access.").
Although in State v. Williams, 461 N.J. Super. 1, 17-19 (App. Div. 2019),
certif. granted, 240 N.J. 429 (2020), we held that law enforcement may not enter
the common areas of a boarding house without permission and explained that
where a door with a lock is left unlocked, for law enforcement to enter lawfully
without a warrant, the State must demonstrate that "the communal areas were
open to the public," Williams does not apply here. "We stress[ed] that our
decision [was] limited to the specific facts of [that] case," given that the living
arrangements in a boarding house are different from those in an apartment
building. Id. at 15. We cannot conclude that a storage facility is more similar
to a rooming house than it is to an apartment building and therefore entitled to
greater protection than an apartment building.
Because the storage facility was unlocked when law enforcement arrived,
and the record is devoid of evidence showing that law enforcement was required
to obtain authorization before entering the premises, we conclude that their entry
did not violate an expectation of privacy. Therefore, any observations made
after they entered the facility were lawful and could be used to support the
application for the search warrant for unit 3020 and the detention of defendant.
A-1288-18T2
19
We now address defendant's contention that law enforcement unlawfully
detained him. It is well established that an investigatory stop by law
enforcement "implicates our constitutional protections." State v. Mann, 203 N.J.
328, 337 (2010). An investigatory stop, or Terry7 stop, occurs "when an
objectively reasonable person feels that his or her right to move has been
restricted." State v. Rodriguez, 172 N.J. 117, 126 (2002). Absent a warrant,
such a stop is lawful "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." Ibid. (quoting Terry, 392 U.S. at 21). Our
Supreme Court has further explained,
An investigatory stop is valid only if the officer has a
"particularized suspicion" based upon an objective
observation that the person stopped has been or is about
to engage in criminal wrongdoing. The "articulable
reasons" or "particularized suspicion" of criminal
activity must be based upon the law enforcement
officer's assessment of the totality of circumstances
with which he is faced. Such observations are those
that, in view of [the] officer's experience and
knowledge, taken together with rational inferences
drawn from those facts, reasonabl[y] warrant the
limited intrusion upon the individual's freedom.
[Id. at 127 (alterations in original) (quoting State v.
Davis, 104 N.J. 490, 504 (1986)).]
7
Terry v. Ohio, 392 U.S. 1 (1968).
A-1288-18T2
20
When an investigatory stop is based on a tip from an informant, the "informant's
'veracity,' 'reliability,' and 'basis of knowledge' are 'relevant in determining the
value of his report.'" Ibid. (quoting Alabama v. White, 496 U.S. 325, 328
(1990)). Therefore, law enforcement generally "must verify that the tip is
reliable by some independent corroborative effort." Ibid.
A continued investigatory stop is lawful if it is "reasonable at its
inception," and "the scope of the continued detention [is] reasonably related to
the justification for the initial interference." State v. Coles, 218 N.J. 322, 344
(2014). Law enforcement "must use the least intrusive means necessary to
effectuate the purpose of the investigative detention." Ibid. However, if a stop
is more intrusive than necessary, it becomes a de facto arrest. State v. Dickey,
152 N.J. 468, 478 (1998). There is no bright line test to determine the point at
which a stop becomes a de facto arrest, but our Supreme Court has identified
several guiding factors: unnecessary delay, fear and humiliation resulting from
law enforcement's conduct, transportation of the detained person to another
location, isolation of the person, or confinement of the person. Id. at 479.
A de facto arrest is lawful only if supported by probable cause. Id. at 478.
Probable cause is not precisely defined, but our courts have explained that it
"exists when, considering 'the totality of the circumstances,' a person of
A-1288-18T2
21
'reasonable caution' would be justified in believing that evidence of a crime
exists in a certain location." State v. Smith, 212 N.J. 365, 388 (2012) (quoting
Schneider v. Simonini, 163 N.J. 336, 361 (2000)). Where informants' tips are
involved, probable cause exists if, "given all the circumstances set forth in the
affidavit[,] . . . including the 'veracity' and 'basis of knowledge' of persons
supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place." State v. Sullivan, 169
N.J. 204, 212 (2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). An
informant's reliability in prior instances is "probative of veracity." Id. at 213
(quoting State v. Smith, 155 N.J. 83, 94 (1998)). With respect to the informant's
basis of knowledge, the informant may disclose how he or she knew of the
criminal activity or provide a tip with "sufficient detail . . . that could not
otherwise be attributed to circulating rumors or be easily gleaned by a casual
observer." Ibid. (quoting Smith, 155 N.J. at 95). Alternatively, if law
enforcement is able to "corroborate 'information from which it can be inferred
that the informant's tip was grounded on inside information, this corroboration
is sufficient to satisfy the basis of knowledge prong' as well as the veracity
prong." Id. at 214 (quoting Smith, 155 N.J. at 96).
A-1288-18T2
22
Here, the judge correctly concluded that law enforcement had reasonable
suspicion that criminal activity was occurring on the premises of the storage
facility. Considering the length of defendant's detention, we add that even if the
stop became a de facto arrest, it was lawful because it was reasonable for law
enforcement to believe there was a fair probability that marijuana would be
found inside unit 3020 and that defendant knew of its presence.
The Narcotics Unit received several CI tips that Darren and J.S. were
dealing marijuana, allowing the officers to organize a controlled buy from J.S.
and to secure a tracker for the black BMW. By using the tracker, law
enforcement was able to observe what they believed were "hand to hand drug
transactions," and they were able to locate what appeared to be Darren and J.S.'s
"stash location": unit 3020 at the storage facility. Further, they verified that
Darren and J.S. flew to California separately and quickly returned to New
Jersey. Soon after, they observed J.S. receive a FedEx package and almost
immediately drive to the storage facility. Then, on the night of October 5, mere
hours after Darren apparently returned from California, law enforcement
observed him wheeling a suitcase inside of unit 3020, or the "stash location."
Having been able to corroborate the CIs' tips, we conclude that it was reasonable
A-1288-18T2
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for law enforcement to believe there was a fair probability that the suitcase
Darren was wheeling contained marijuana.
We disagree with defendant's contention that law enforcement should not
have detained him because there was no direct evidence that he knew the
suitcase contained marijuana. We recognize that "possession cannot be based
on mere presence at the place where contraband is located." State v. Scott, 398
N.J. Super. 142, 150 (App. Div. 2006), aff'd o.b., 193 N.J. 227 (2008) (quoting
State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd o.b., 133 N.J.
481 (1993)). Whether defendant was in constructive possession of the marijuana
inside the suitcase depends on his "knowledge of [the marijuana's] character"
and his "intention to exercise control over it manifested in circumstances where
it is reasonable to infer that the capacity to do so exists." State v. Brown, 80
N.J. 587, 597 (1979). These elements may be inferred from circumstantial
evidence. See Scott, 398 N.J. Super. at 150-51; cf. State v. Palacio, 111 N.J.
543, 545, 552 (1988) (affirming our reversal of a judgment of acquittal where
drugs were found in a secret compartment in the back seat of a vehicle because
any occupant had access to the drugs, which were of substantial quantity and
value, and the defendant was acting "overly nervous"); State v. Shipp, 216 N.J.
Super. 662, 663-66 (App. Div. 1987) (reversing the defendant's conviction
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24
where his stepmother, a passenger in the back seat, was carrying a substantial
amount of heroin in her personal handbag).
Here, we find that it was reasonable for law enforcement to believe there
was a fair probability that defendant had the requisite knowledge and intent to
constructively possess the marijuana inside the suitcase. Although the
investigation in the days leading up to defendant's arrest was focused largely on
Darren and J.S., law enforcement received confidential tips that Darren used
other people to assist in selling marijuana, other than J.S., and defendant was
possibly one of them. Therefore, when law enforcement believed that Darren
was wheeling a suitcase containing marijuana, it was reasonable to infer that
defendant also knew what was inside the suitcase and that Darren brought
defendant to the facility to assist him. Cf. Palacio, 111 N.J. at 554 ("An
inference that a drug smuggler carrying a very large quantity of drugs would
travel with a known companion, and not an 'innocent' passenger or stranger, is
not only reasonable, it is likely."). The fact that Darren physically possessed
the suitcase does not change our conclusion, as "possession can be jointly shared
by several persons." Brown, 80 N.J. at 597. Accordingly, because we conclude
that law enforcement had probable cause to detain defendant once they observed
Darren with the suitcase, the approximately four-hour long detention was lawful.
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To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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