Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.
Facts:
As of that time, he had been on the police force for over five years, initially as a patrolman and thereafter as a detective in the Narcotics/Gang Unit. Officer Stinsman had been specifically trained at the police academy to recognize hand-to-hand narcotics transactions. Before the present incident, he had participated in about twenty arrests for narcotics offenses.
As described by Officer Stinsman, he was working alone in plainclothes on the day shift in the City of Camden on February 19, 2018. He noted the area was generally known by the police to be one in which drug transactions were common. He stopped his patrol car at the intersection of Sixth Street, Spruce Street, and Newton Avenue.
From his unobstructed view about ten feet away, Stinsman observed three African-American males walking down the street together. One of them, Jerry Pyles, separated from the other two when an unidentified while male approached. Stinsman saw the white male give Pyles money in exchange for small blue-colored bags. The officer also noticed two other males standing about five feet away, one of them later identified as defendant Billie Johnson and the other named Darnell Judge. As recounted by the officer, he saw Pyles, without engaging conversation, “directly” and “immediately” hand to Johnson the cash he had received from the white male.
Having perceived this apparent hand-to-hand narcotics transaction, Officer Stinsman radioed for backup officers then arrested and searched the three African-American males. The officers found on Pyles a dozen Ziploc bags containing blue wax folds that appeared to be heroin, plus $17 in currency.
Meanwhile, the search of Johnson’s person revealed eight Ziploc bags also containing blue wax folds of a powdery substance, as well as $362 in currency.
Legal Analysis :
The court likened the present situation to the circumstances in State v. Pineiro, 181 N.J. 13 (2004), in which the Supreme Court invalidated the warrantless search of a suspected drug dealer, whom the police had seen being handed a cigarette pack by another adult in a high-crime area. The State argued the cigarette pack could have contained illegal drugs. The Court held in Pineiro that the simple transfer of the cigarette pack, in and of itself, was insufficient to establish probable cause to justify the recipient’s arrest and warrantless search. Id. at 28-29.
The State in this case moved for reconsideration, which the trial court denied in an oral opinion that essentially repeated its earlier legal analysis. We granted the State’s motion for leave to appeal and have considered merits briefing from both parties.
II.
Our analysis of the trial court’s suppression ruling is guided by well-settled principles of law and appellate review. A warrantless search by a law enforcement officer is generally
unconstitutional unless it satisfies a recognized categorical exception to the warrant requirement of the Federal and New Jersey Constitutions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Witt, 223 N.J. 409, 422 (2014). In this case, the State relies on the longstanding exception for searches incident to the lawful arrest of persons based upon probable cause that they committed a criminal offense. Chimel v. California, 395 U.S. 752, 755 (1969); State v. Doyle, 42 N.J. 334, 343-44 (1964). Probable cause must be manifest before the arrest or search is performed. “A search undertaken merely for the purpose of uncovering evidence with which to arrest and convict [a person] of crime is not made lawful because the desired evidence is obtained.” Doyle, 42 N.J. at 342.
“Probable cause exists where ‘the facts and circumstances within . . . [the officers’] knowledge and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant [an officer] of reasonable certainty in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). See also State v. Moore, 181 N.J. 40, 46 (2004). The assessment of probable cause depends upon “the totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 230-31, 238 (1983); see also State v. Novembrino, 105 N.J. 95, 122-23 (1987). Probable cause is “a fluid concept- turning upon the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232 (emphasis added). This highly contextual standard “requires nothing more than a practical common-sense decision whether, given all the circumstances, . . . there is a fair probability” that a crime has been committed. State v. Johnson, 171 N.J. 192, 214 (2002).
When reviewing on appeal a trial court’s decision concerning an exception to the warrant requirement, we afford considerable deference to the factual findings of the judge who heard the pertinent testimony at the suppression hearing. We must accept the judge’s factual findings “so long as those findings are supported by sufficient evidence in the record.” State v. Hubbard, 222 N.J. 249, 262 (2015). However, we owe no such comparable deference to the judge’s legal conclusions. Id. at 263. Instead, we review such legal determinations de novo. Ibid.
Applying these standards to the present record, we accept the trial court’s factual findings about what Officer Stinsman observed at the Camden intersection on the date in question. Those factual observations are based upon the testimony of the officer, whom the trial court repeatedly found to be a credible witness. We part company, however, with the trial court’s legal assessment that the observed behavior did not rise to the level of probable cause that defendant Johnson had participated in an apparent narcotics transaction.