State v. Alvarez

• Decision Date: 15 February 1990
• Citation: 570 A.2d 459,238 N.J.Super. 560
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Eric ALVAREZ and Paul Bartley, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 560

238 N.J.Super. 560

570 A.2d 459

STATE of New Jersey, Plaintiff-Appellant, v. Eric ALVAREZ and Paul Bartley, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Jan. 24, 1990.

Decided Feb. 15, 1990.

Jack J. Lipari, Asst. Prosecutor, for plaintiff-appellant (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Jack J. Lipari, on the letter-brief).

John L. Hehre, Asst. Deputy Public Defender, for defendant-respondent, Eric Alvarez (Thomas S. Smith, Jr., Acting Public Defender, attorney; John L. Hehre, on the letter-brief).

Defendant-respondent, Paul Bartley's brief was suppressed.

Before Judges BAIME and KEEFE.

The opinion of the court was delivered by

BAIME, J.A.D.

We granted the State's motion for leave to appeal from an order of the Superior Court, Law Division, suppressing approximately one ounce of cocaine and related drug paraphernalia seized by the police in a warrantless search of defendant Eric Alvarez's hotel room. The Law Division judge found that the search was not supported by probable cause and that the evidence was not within the plain view of the arresting police officers prior to their entry into the room. The State asserts that the Law Division judge's findings of fact are not supported by sufficient credible evidence present in the record. Alternatively, the State argues that the facts, as found by the Law Division judge, were sufficient to establish probable cause.

I.

The salient facts can be briefly summarized. At approximately twelve noon on November 23, 1988, Detective Samuel Thomas, a member of the Atlantic City police department, was on duty in uniform when he was approached by a woman who reported that there was a disturbance relating to drugs on the fourth floor of the nearby Aristocrat Hotel Armed with that information, Detective Thomas immediately proceeded to the hotel where he was told by the desk clerk that Room 402 was the only one occupied and that, although she was not aware of a disturbance, there had been numerous telephone calls and "foot traffic" to and from that room. Scanning the desk register, Detective Thomas noticed that Room 402 was registered to defendant Alvarez. Detective Thomas was familiar with Alvarez from a prior narcotics investigation.

His suspicions aroused, Detective Thomas "called for a back-up." Three plain clothes detectives who had been working nearby responded. The four officers proceeded to the fourth floor. From their vantage point in the hallway, the detectives heard a male voice from Room 402 state "if we sell one more ounce, we'll have enough to re-up." Based upon their training and experience, the detectives believed that there was an ongoing scheme to distribute drugs from the room and that after making another sale, the perpetrators would attempt to "resupply."

After knocking on the door, one of the officers, in a falsetto voice, identified himself as the maid. According to the detectives, when the door to the room was opened, they observed narcotics and drug paraphernalia in plain view. They then entered the room, seized the contraband and arrested the occupants.

The principal factual issue presented at the hearing was whether the detectives observed the drugs prior to their entry into the hotel room. We need not recount the evidence presented with respect to that question in great detail. Suffice it to say, the testimony of the four detectives deviated on that critical point.

Based upon the foregoing evidence, the Law Division judge found that the detectives had already entered the room when they observed the narcotics and drug paraphernalia. The judge determined the facts known to the officers prior to their entry into the hotel room were not sufficient to establish probable cause. Concluding that the detectives entry into the room was unlawful, the judge ordered the suppression of the evidence seized.

II.

Preliminarily, we reject the State's argument that the Law Division judge erred in finding as a fact that the detectives entered the hotel room prior to observing the contraband. Although the issue was hotly contested, we are entirely satisfied that the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record. State v. Johnson, 42 N.J. 146, 165, 199 A.2d 809 (1964). In this respect, we are obliged to review the record in light of the State's contention, but not initially from the point of view of how we would decide the matter if we were the court of first instance. Id. at 161, 199 A.2d 809. The aim of our review is to determine whether the judge's findings are supported by evidence in the hearing transcript. Id. at 162, 199 A.2d 809. In making that determination, we are duty-bound to give deference to those findings which are substantially influenced by the judge's opportunity to hear and see the witnesses and to have the "feel" of the case. Id. at 161, 199 A.2d 809. Applying these principles, we cannot fairly say that the Law Division judge went so wide of the mark, a mistake must have been made.

III.

While the scope of our review of the judge's factual findings is narrow and restricted, we are not similarly confined in assessing the validity of the legal conclusions he reached. Accepting the Law Division judge's findings of fact, we are nevertheless convinced that probable cause existed prior to the police entry into defendant's hotel room. Putting aside the detectives' observations of the contraband, we are of the view that the officers harbored a good faith and reasonable belief that the occupants of the room were engaged in criminal conduct.

Probable cause is an elusive concept incapable of precise definition. It is more than mere suspicion but less than legal evidence necessary to convict. State v. Mark, 46 N.J. 262, 271, 216 A.2d 377 (1966). It has been described by our Supreme Court as a "well grounded" suspicion that an offense has been committed. State v. Burnett, 42 N.J. 377, 387, 201 A.2d 39 (1964); see also State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972); State v. Dilley, 49 N.J. 460, 463-464, 231 A.2d 353 (1967). Our courts have eschewed technisms in reviewing factual circumstances to determine whether probable cause exists. State v. Esteves, 93 N.J. 498, 503, 461 A.2d 1128 (1983). Probable cause must be drawn from "practical considerations of everyday life" as tested by reasonably prudent persons. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949). In dealing with probable cause, as the very name implies, we are concerned with probabilities. Ibid. Resolution of such issues is rarely susceptible to abstract contemplation. Rather, the answer must be found in the "tumult of the streets." State v. Gerardo, 53 N.J. 261, 264, 250 A.2d 130 (1969). Hence, the decisions of police officers which, as here, often must be made on the spur of the moment, cannot be viewed from the vantage point of twenty-twenty hindsight. State v. Grant, 196 N.J.Super. 470, 476, 483 A.2d 411 (App.Div.1984).

In this case, we are dealing with law enforcement efforts to eradicate one of the chief instrumentalities of human catastrophe, the distribution of dangerous drugs. The business is carried on warily and guardedly and in as many different ways and by as many conceivable methods as human ingenuity can devise in order to escape detection. Cf. State v. Romeo, 43 N.J. 188, 207, 203 A.2d 23 (1964). That drug abuse constitutes an ancient foe of society does not, of course, detract from the need to insure the protection of Fourth Amendment rights. We point to the magnitude of the problem merely to emphasize that "[l]aw enforcement officers have an even higher and more detailed degree of knowledge than judges of the devious ways" of the drug distributor. State v. Contursi, 44 N.J. 422, 431-432, 209 A.2d 829 (1965). In all respects, "the common and specialized experience and work-a-day knowledge of police [officers] must be taken into account." Id. at 431, 209 A.2d 829.

Against that backdrop, we are satisfied that the circumstances known to the detectives were such as to establish a reasonable belief that a crime was being committed in their presence. Initially, we note that the information received from the citizen informant that a disturbance relating to drugs had occurred at the Aristocrat Hotel clearly called for further investigation. Detective Thomas was not dealing with a tip received from a faceless and anonymous member of the criminal milieu, but rather from an ordinary citizen presumably having "no ties or connections with the underworld...." State v. Lakomy, 126 N.J.Super. 430, 435, 315 A.2d 46 (App.Div.1974). "Consequently, an individual of this kind may [generally] be regarded as trustworthy and information imparted by [her] to a police [officer] concerning a criminal event would not especially entail further exploration or verification of [her] personal credibility or reliability before appropriate police action is undertaken." Ibid. In these circumstances, the officer would have been derelict in his duty had he failed to investigate.

The detective's suspicions were further aroused when he learned that there had been numerous telephone calls and "foot traffic" to and from Room 402. Moreover, the room was registered to defendant Alvarez, an individual known to the detective by reason of a prior drug investigation.

The final piece of the mosaic was the conversation relating to drugs which the officers overheard from their vantage point in the hallway of the hotel, a place in which they had a right to be. Perhaps to the uninitiated or the layperson, this conversation could be given an innocent construction. However, the detectives, based upon their training and experience, understood that the defendants were discussing their success in selling the drugs in their possession and the need to obtain additional inventory for their trade.

Perhaps, no single circumstance was...