STATE OF NEW JERSEY v. JORGE BULTRON

Reviewing defendant's first challenge to the order denying

suppression, we recite facts presented during the October 24, 2013

suppression hearing. Testimony was provided by two of the

arresting officers.

At approximately 1:52 p.m. on October 4, 2012, plain clothes

Jersey City Police Department Officer Gregory Wojtowicz received

a tip from a reliable confidential informant, which led to the

arrest of Darrell Priester for drug distribution. Following

Priester's arrest, the same confidential informant told police a

short Hispanic man named "Jorge" supplied Priester and was expected

to deliver a large quantity of narcotics at a location on

Montgomery Street, near Ferris High School. He clarified the

exchange would take place on the Brunswick Street side. Officer

Wojtowicz and his partner Officer Daniel Sheridan, went to the







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area to conduct surveillance. Defendant challenges the judge's

finding and conclusions.

Within five minutes of receiving the information, Officer

Sheridan, who was in an unmarked police vehicle, testified he

observed a short Hispanic man, later identified as defendant,

carrying a white plastic bag, walking south on Brunswick Street

with an unidentified African American male.

Officer Sheridan watched defendant remove an object from the

bag and show it to the other man. He stated defendant "had in his

left hand what appeared to be a brick of heroin. It was . . .

essentially in his hand. He had a napkin that he unfolded . . .

and then there was a brick of heroin inside that napkin that he

was showing the other male." Officer Sheridan radioed what he saw

and the location of the suspects. Officer Sheridan exited his

vehicle and followed the men on foot.

As Officer Sheridan followed the men, he saw two plain clothes

officers approach from the other direction. Using hand signals

he informed Officer Chowanec defendant was the suspect. When

Officer Chowanec advanced within five to ten feet, defendant "threw

the item . . . in his hand, the brick of heroin, down to the

ground. And then he also released the . . . white plastic bag,

as well." Clarifying his observations, Officer Sheridan stated

he watched defendant throw the object that was in his hand, drop







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the bag and "back away from it." Officer Chowanec stopped

defendant, stating: "Don't move." He arrested defendant and

Officer Sheridan secured the other man, who was later released.

On cross-examination Officer Sheridan acknowledged some

errors in the details provided in the written report, as prepared

by Officer Wojtowicz. Further, he admitted he did not observe a

hand-to-hand drug sale or an exchange of money for an object

between defendant and the men.

Officer Sheridan logged the evidence noting police recovered

fifty glassine envelopes of heroin "stamped Lady GaGa in green

ink, wrapped in brick paper and a brown napkin . . . ." The white

bag contained another forty-nine bricks, similarly stamped. Later

forensic testing confirmed the police recovered twenty-five grams

of heroin.

Judge Joseph V. Isabella filed a written opinion on December

2, 2013 denying defendant's motion to suppress the drug evidence.

After considering the totality of the facts, including the

officers' training and extensive experience working on the

narcotics squad, the judge concluded the officers had probable

cause to stop defendant. The judge also found the objects in the

white bag were abandoned by defendant, who at that point "lost any

expectation of privacy in those items" rejecting his challenge to

the constitutionality of the warrantless search.







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The Supreme Court has explained the standard of review

applicable to our consideration of a trial judge's fact-finding

on a motion to suppress, in this way:

We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "'opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).



[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original).]



Thus, we do not determine the facts anew. State v. Heisler,

422 N.J. Super. 399, 412 (App. Div. 2011). Indeed, we must remain

mindful not to "disturb the trial court's findings merely because

'it might have reached a different conclusion were it the trial

tribunal' or because 'the trial court decided all evidence or

inference conflicts in favor of one side' in a close case."

Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J.

at 162). We reverse only when the court's findings "are so clearly







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mistaken 'that the interests of justice demand intervention and

correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).

On appeal, defendant challenges the conclusion he abandoned

the objects in the white bag. He argues abandonment requires

efforts by the suspect to distance himself from the object. He

reasons because he merely dropped the bag, legal abandonment did

not occur. We are not persuaded.

The federal and state Constitutions protect citizens "against

unreasonable searches and seizures." U.S. Const. amend IV; N.J.

Const. art. I, ¶ 7. These protections require police to first

secure a warrant before seizing a person or conducting a search

of a home, property or a person. Watts, supra, 223 N.J. at 513

14; State v. Reece, 222 N.J. 154, 167 (2015).

[B]oth the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee to New Jersey's citizens "[t]he right to walk freely on the streets of a city without fear of an arbitrary arrest." State v. Gibson, 218 N.J. 277[, 281] (2014). When evaluating the reasonableness of a detention, the "totality of circumstances surrounding the policecitizen encounter" must be considered. State v. Privott, 203 N.J. 16, 25 (2010) (quoting [State v. Davis, 104 N.J. 490, 504 (1986)]).



[State v. Coles, 218 N.J. 322, 343 (2014) (fist alteration in original).]



A reviewing court must determine whether the State has met

its burden, by a preponderance of the evidence, to establish the







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warrantless search or seizure was justified in light of the

totality of the circumstances. See Illinois v. Gates, 462 U.S.

213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983).

"Property is abandoned when one 'voluntarily discards, leaves

behind or otherwise relinquishes his interest in the property in

question so that he can no longer retain a reasonable expectation

of privacy with regard to it at the time of the search.'" State

v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999) (quoting State

v. Farinich, 179 N.J. Super. 1, 6 (App. Div.), aff'd o.b., 89 N.J.

378 (1982) (Clifford, J., dissenting)).2

Thus, the proper test for abandonment remains, for Fourth Amendment purposes, whether a defendant "retains a reasonable expectation of privacy in the property alleged to be abandoned," United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.) (alteration and citation omitted), cert. denied, 544 U.S. 1067, 125 S. Ct. 2534, 161 L. Ed. 2d 1122 (2005), and, for Article I, Paragraph 7 purposes, whether a defendant "retain[s] a proprietary, possessory, or participatory interest" in the property, Johnson, supra, 193 N.J. at 549.



[State v. Brown, 216 N.J. 508, 530 (2014).]



This court's examination of the challenge to abandonment in

Farinich, involved a suitcase believed to contain marijuana.

2 The question of whether defendant Farinich advanced property was appealed as of right because of a dissent in the Appellate Division. Defendant's additional requests for certification on other issues was denied. 88 N.J. 497 (1981).







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Farinich, supra, 179 N.J. Super. at 4. The defendant retrieved

the suitcase when his plane landed in Newark. Ibid. As police

escorted the defendant and his co-defendant to a secured area, the

defendant dropped the suitcase and ran. Ibid. We held "evidence

seized will not be suppressed if the suspect abandoned it." Id.

at 5.

In Gibson, this court also affirmed a trial judge's finding

of abandonment when a police officer observed the defendant "drop

an item from his left hand which fell onto the driveway" as the

officer "drove the police car into the driveway. . . . As the

officers exited their vehicle, [the] defendant took 'one to two

steps forward from where he dropped that item.'" Gibson, supra,

318 N.J. Super. at 5.

More recently, in Brown, the Supreme Court examined

considerations to be reviewed when determining whether real

property was abandoned. Brown, supra, 216 N.J. at 536. Although

the factors stated by the court are tailored to real estate, the

Court noted the overarching standard for examination requires

consideration "in light of the totality of the circumstances."

Ibid. See also State v. Carvajal, 202 N.J. 214, 227 (2010) ("In

determining whether a defendant voluntarily and knowingly

relinquished a possessory or ownership interest in property in







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response to police questioning, a court should apply a totality

of-the-circumstances analysis.").

Guided by those principles, we determine no basis to interfere

with Judge Isabella's conclusions denying suppression. Deferring

to the substantial credible facts found, we conclude the totality

of the circumstances supported probable cause for defendant's

arrest. See State v. Alexander, 191 N.J. Super. 573, 576 (App.

Div. 1983) ("The police may 'arrest' only if they have probable

cause; they may 'stop' for brief investigatory questioning if they

have an articulable, reasonable basis for suspicion; and they may

make an 'inquiry' without any grounds for suspicion."), certif.

denied, 96 N.J. 267 (1984).

When defendant saw Officer Chowanec approach and heard him

issue the order to stop, he threw the brick of heroin, which

Officer Sheridan saw him holding in his left hand. Next, defendant

dropped the bag containing the remaining drugs and stepped back.

Defendant had control of the bag prior to the police stop; he

knowingly and voluntarily threw the heroin and dropped the bag,

which could only have belonged to him. See Carvajal, supra, 202

N.J. at 225 (identifying factors to consider when assessing

abandonment). We conclude, as did Judge Isabella, sufficient

credible evidence based on the totality of the circumstances, show



Officer Sheridan's objectively reasonable belief defendant

abandoned the white plastic bag and its contents.

Defendant next maintains evidence that contradicted Officer

Sheridan's trial testimony required reopening the suppression

hearing. When questioned regarding the man stopped with defendant

the officer was asked whether he checked for outstanding warrants,

to which he replied "I believe on that day I did." However, the

police department had no record of a warrant check being requested.

Defendant argued this fact tears at Officer Sheridan's

credibility, requiring the order denying suppression to be

vacated. The trial judge denied defendant's motion. Defendant

maintains the determination was erroneous. We disagree and

conclude the argument lacks sufficient merit to warrant extensive

discussion, R. 2:11-3(e)(1)(E). We add these brief comments.

Defendant ably attempted to strip Officer Sheridan's

testimony of credibility during trial cross-examination. He

capitalized on the fact neither Officer Sheridan nor his fellow

officer recalled any details regarding the man, they released, but

arrested defendant. Omission of details from the written police

report were also highlighted. Finally, the lack of substantiation

for Officer Sheridan's warrant check assertion was emphasized.

Suppression did not turn on whether Officer Sheridan ran a

warrant check of the second man. This fact was not germane to the

heart of the judge's conclusion denying suppression. In fact, the

issue never arose until the first trial. At that time, the defense

capitalized on Officer Sheridan's misstatement. In denying the

motion to vacate the suppression order, Judge Isabella noted the

erroneous statement regarding a warrant check was collateral, not

material, and did not require reopening of the suppression motion.

We agree and reject defendant's claim the denial of his motion was

an abuse of discretion.

Defendant's next argument suggests Officer Sheridan's

testimony exceeded provision of a recitation of facts, and instead

offered expert opinion, even though he was not qualified as an

expert. Defendant further maintains this testimony intruded upon

the province of the jury.

During trial, Officer Sheridan recited his qualifications,

experience as a police officer, and the number of drug

investigations he worked. He was then shown a photograph of the

seized heroin, which he identified as "several hundred bags of

heroin stamped Lady GaGa in green ink." He was asked about the

discarded brick of heroin and its brown paper wrapping. Further,

he described the manner in which the heroin was bundled. The next

question was: "Officer, based upon your knowledge of heroin and

its street value, how much is a brick worth?" He responded and

was asked the cost of "an individual bag."







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No objections were made throughout this testimony. Because

defendant did not raise an objection before the trial judge, we

review his argument under the "plain error" standard, which

mandates reversal only for errors "of such a nature as to have

been clearly capable of producing an unjust result." R. 2:10-2.

Accordingly, the test to apply is whether the possibility of

injustice is "sufficient to raise a reasonable doubt as to whether

the error led the jury to a result it otherwise might not have

reached." State v. Macon, 57 N.J. 325, 336 (1971).

Officer Sheridan described the narcotics seized in this

matter. He was then asked whether he knew the value of street

heroin. He responded he did and answered the question. Unlike

the officer in State v. McLean, 205 N.J. 438 (2011), Officer

Sheridan did not testify defendant had been involved in drug

dealing or possessed the drugs for sale. Id. at 461-62. His

testimony was brief and evoked no objection from the defense. In

fact, he never commented on why defendant possessed the heroin.

Further, the number of packets of heroin seized, nearly 2500,

supported the State's theory of distribution. Here, the province

of the jury was not intruded and jurors were left to sort through

the evidence and "using their common sense to make simple logical

deductions." State v. Cain, 224 N.J. 410, 427 (2016). We reject

defendant's claim of plain error.

In a pro se supplemental brief, defendant suggests the verdict

was against the weight of the evidence, his arrest was the result

of selective enforcement because of race and the use of an

informant violated his rights to due process. We note both a merits brief and a reply brief were filed on

defendant's behalf. Absent leave of court, there is no provision

in our rules of procedure permitting a defendant, who is

represented by counsel, to separately file an additional brief.