State v. Zutic

• Decision Date: 23 October 1996
• Citation: 294 N.J.Super. 367,683 A.2d 575
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph R. ZUTIC, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 367

294 N.J.Super. 367

683 A.2d 575

STATE of New Jersey, Plaintiff-Respondent, v. Joseph R. ZUTIC, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 16, 1996.

Decided Oct. 23, 1996.

Matthew T. Priore, Mahwah, for appellant (Baldi & Marotta, attorneys; Mr. Priore, on the brief).

Gary H. Schlyen, Chief Assistant Prosecutor, for respondent (Ronald S. Fava, Passaic County Prosecutor, attorney; Mr. Schlyen, of counsel, and on the brief).

Before Judges HAVEY, ¹ KESTIN and EICHEN.

The opinion of the court was delivered by

EICHEN, J.A.D.

The primary issue on this appeal is whether a telephone tip from an untested informant consisting entirely of innocuous details concerning defendant's alleged criminal activities, even though the details were corroborated by independent police work, exhibited sufficient indicia of reliability to establish probable cause to search defendant and his motor vehicle under the Fourth Amendment. We conclude that it did not and reverse the denial of the motion to suppress.

Following the denial of his motion to suppress evidence in the Wayne Municipal Court, defendant Joseph R. Zutic was convicted of possession of a controlled dangerous substance (CDS), namely, approximately fifteen grams of marijuana, N.J.S.A. 2C:35-10(a)(4); resisting arrest, N.J.S.A. 2C:29-2a; possession of CDS in a motor vehicle, N.J.S.A. 39:4-49.1; and making an unsafe lane change, N.J.S.A. 39:4-88(b). Defendant was acquitted of possession of drug paraphernalia, N.J.S.A. 2C:36-2. The municipal court merged the possession of CDS in a motor vehicle into the drug possession conviction and imposed appropriate fines and penalties.

Defendant appealed to the Law Division where the trial judge, following a trial de novo on the record, denied the motion to suppress and again found defendant guilty of the offenses, imposing the same fines and penalties as the municipal court. This appeal is taken from the Law Division judgment of conviction.

Defendant makes the following arguments on appeal:

POINT I

THE POLICE OFFICER LACKED PROBABLE CAUSE TO STOP THE DEFENDANT'S VEHICLE ON THE BASIS OF THE ALLEGED MOTOR VEHICLE VIOLATION.

POINT II

THE POLICE OFFICER LACKED PROBABLE CAUSE TO SEARCH THE DEFENDANT'S VEHICLE UNDER ANY EXCEPTION TO THE WARRANT REQUIREMENT.

POINT III

THE SUPERIOR COURT ERRED IN UPHOLDING THE SEARCH AND SEIZURE BASED ON THE TIP THAT THE OFFICER RECEIVED.

A. There was an incomplete and insufficient record from the municipal court with respect to the details of the tip, its veracity and the reliability and basis of knowledge of the confidential informant.

B. The facts of the case at bar are distinguishable from the facts in State v. Foreshaw, and the search of the defendant's vehicle was not objectively reasonable.

POINT IV

THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE IMPROPERLY MERGED THE TESTIMONY FROM THE MOTION TO SUPPRESS AND SUBSTITUTED THAT TESTIMONY IN ITS ENTIRETY AS THE STATE'S CASE IN CHIEF.

The relevant facts are not in dispute. On July 26, 1993, Detective Michael O'Connor of the Narcotics Bureau of the Wayne Police Department set up surveillance at approximately 6:15 p.m. on Route 23 North in Wayne. He testified that the basis for the surveillance was

information that [was] received from a confidential reliable ² informer that a vehicle, bearing registration BC-584V, ... a '93 red Toyota, would be travelling up 23 North from New York City after the party had purchased marijuana.

The informant's tip had been received at approximately 6:00 p.m. At that time, the informant related that defendant had just departed for New York City in order to purchase marijuana. The officer then testified that a round-trip to New York City for the purpose of purchasing drugs could take between forty minutes and two hours depending on the location of purchase.

Two hours later, at approximately 8:00 p.m., defendant's red Toyota was observed by Detective O'Connor on Route 23 North in the vicinity of Packanack Lake Road. After defendant's vehicle passed Detective O'Connor, the officer proceeded to follow the automobile on Route 23 North in an unmarked van which remained approximately two or three car lengths behind defendant's vehicle. The officer testified he observed defendant effectuate a "sudden change of lanes" from the center to the right lane of the highway without signalling. The officer then indicated that defendant exited from the highway into the parking lot of a service station adjacent to the roadway. Again, defendant purportedly failed to utilize his right turn signal.

Detective O'Connor followed defendant's vehicle into the service station parking lot. As the officer approached, defendant, who had previously exited his vehicle, was re-entering the Toyota. Detective O'Connor identified himself as a police officer and obtained defendant's driving credentials, which apparently verified his identity as Joseph Zutic. According to the officer, defendant appeared "nervous and jittery" and responded evasively to questions concerning the route he had travelled that day. Believing defendant was not answering his questions truthfully, Detective O'Connor advised defendant of his Miranda ³ rights and asked him if there were any drugs in the automobile. After receiving a negative response, the officer proceeded to conduct a search of the Toyota and discovered a cigarette box on the right front seat which apparently, when opened, revealed marijuana "roaches." Noticing that defendant was motioning towards the front portion of his belt line, and observing a "bulge," the officer asked defendant whether he had any drugs in his possession, to which defendant replied "no." Not satisfied, the officer attempted to investigate the bulge further with his hand. A struggle ensued, culminating in the recovery of a plastic bag containing suspected marijuana from inside defendant's sweatpants.

Relying primarily on an opinion of this court in State v. Foreshaw, 245 N.J.Super. 166, 584 A.2d 832 (App.Div.), certif. denied, 126 N.J. 327, 598 A.2d 886 (1991), the Law Division judge determined that the State had demonstrated probable cause to make a warrantless stop and search "upon Detective O'Connor's sighting of the vehicle described by the informant and [his subsequent] verification of the informant's details." We disagree and reverse the denial of the suppression motion under the "totality of the circumstances" approach for determining when an informant's data is sufficient to establish probable cause. ⁴ See Illinois v. Gates, 462 U.S. 213, 237-38, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983).

In Illinois v. Gates, an affidavit submitted in support of the application for a search warrant indicated that an anonymous letter had informed the police in Bloomingdale, Illinois of defendants' alleged drug trafficking activities and provided details as to an imminent transaction. The letter read as follows:

This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.

They brag about the fact they never have to work, and make their entire living on pushers.

I guarantee if you watch them carefully you will make a big catch. They are friends with some big drug dealers, who visit their house often.

[462 U.S. at 225, 103 S.Ct. at 2325, 76 L.Ed.2d at 540.]

Through surveillance the details of the letter were corroborated "in major part," 462 U.S. at 243, 103 S.Ct. 2317, 76 L.Ed.2d at 551, and a search warrant was issued. Subsequently, the police executed the warrant when the defendants returned from a thirty-six hour excursion to Florida, seizing drugs and weapons from defendants' car and home.

The Court upheld the search by indicating that information obtained from an informant whose reliability has not been demonstrated in the record may be used to establish probable cause if the totality of the circumstances are sufficient to bolster the informant's veracity. Id. at 237-38, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. In so holding, the Court determined that the letter "contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." 462 U.S. at 245, 103 S.Ct. at 2335-36, 76 L.Ed.2d at 552. Accordingly, the Court decided that the judge issuing the warrant "had 'a substantial basis for conclud[ing]' that probable cause existed" to search defendants' car and home. 462 U.S. at 246, 103 S.Ct. at 2336, 76 L.Ed.2d at 553.

Similarly, in State v. Probasco, 220 N.J.Super. 355, 358, 532 A.2d 262 (App.Div.1987), certif. denied, 117 N.J. 72, 563 A.2d 835 (1989), we concluded that detailed information obtained from an untested informant and subsequently corroborated by the observations of the police was sufficient to establish probable cause to search the defendant's motor vehicle. In that case, a police surveillance team was advised by an informant:

[T]hat between 8:00 and 10:00 p.m. that night a white male named David would drive a maroon Ford to a stated address in the municipality to deliver drugs. David would be alone and "possibly armed...." [T]he stated address was in a neighborhood known for illegal drug activity.

[Id. at 356, 532 A.2d 262.]

Operating on the information, the surveillance team staked out the address and, at about...