STATE OF NEW JERSEY VS. EDWIN FEBUS

Defendant was charged under Indictment No. 13-07-0909 with

third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count

one); second-degree possession of CDS with intent to distribute,

N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); second-degree

possession of a firearm during the course of committing a CDS

offense, N.J.S.A. 2C:39-4.1(a) (count three); and second-degree

certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)

(count four).

Thereafter, defendant filed a motion to suppress. On June

10, 2014, the court conducted a hearing on the motion. At the

hearing the State presented the affidavit of Eric Rivera, an

investigator in the Narcotics Task Force in the Mercer County

Prosecutor's Office (MCPO), which had been submitted in support

of an application for a search warrant.

In his affidavit, Rivera stated that, during the week of

April 14, 2013, the MCPO received information from a

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confidential informant (CI) regarding the illegal distribution

of cocaine in Trenton. Rivera stated that the CI has worked with

the MCPO and has provided information that has led to the arrest

of several individuals. The CI had provided information in the

past and in this matter that was proven to be reliable. The

informant had provided information that was already known to be

true, and was corroborated by other independent sources in the

past.

The CI reported that an individual known as "Edwin Febus"

regularly travels from southern New Jersey to Trenton to

distribute large quantities of cocaine. According to Rivera, the

CI noted that Febus had a conviction for assault upon police.

The CI said that Febus is a Hispanic male, about twenty-two to

twenty-five years old, approximately five feet, six inches in

height, and weighed about 160 to 180 pounds.

Rivera conducted a New Jersey motor vehicle driver inquiry

for "Edwin Febus" which revealed that Febus had a New Jersey

driver's license, with an address in Cherry Hill. Rivera also

conducted a criminal history check, which revealed that Febus

had three arrests for possession of CDS, and a conviction for

assault upon a police officer for which he had been sentenced to

two years of probation. Rivera showed a New Jersey driver's

license photo of Febus to the CI, and the CI positively

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identified the person in the photo as the person he knew as

"Edwin Febus."

The CI also stated that on April 18, 2013, Febus would be

traveling to Trenton to deliver a large quantity of cocaine. The

CI said Febus would be meeting the buyer in the area of the

Trenton train station. The CI indicated that Febus would be

wearing blue jeans, a black hooded sweatshirt, and a black hat,

and he would be carrying a gray backpack. The CI also said Febus

was in possession of a handgun.

On April 18, 2013, officers were directed to conduct

surveillance in the area of the Trenton train station in order

to locate defendant and the unknown buyer. Rivera provided the

surveillance officers with defendant's driver's license

photograph. At around 5:00 p.m., Rivera observed a Hispanic

male, whom he positively identified as defendant. He was walking

towards the front entrance of the Trenton train station.

According to Rivera, defendant "appeared to be looking

around nervously." Rivera observed defendant sit down on a

retaining wall near the entrance to the train station. Defendant

positioned his gray backpack close to his body. Law enforcement

officers were informed of Rivera's observations. At around 5:10

p.m., the officers approached defendant while he was sitting in

front of the train station.

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Defendant turned away from the officers. According to

Rivera, this caused the officers to believe defendant might be

reaching for a weapon. The officers secured defendant without

further incident. They advised defendant he was being detained

for further investigation pending application for a search

warrant of his person and his backpack. Defendant and the

backpack were transported to the MCPO.

A detective was called to the MCPO to conduct a narcotic

"sniff" of the backpack, using a narcotic detector dog. The dog

was brought to a room and he conducted a narcotic sniff. The dog

gave no indication of the presence of narcotics in the room. The

dog was removed from the room. The backpack was then placed

inside a desk drawer in the room. The detective with the dog

returned to the room. He was not told about the placement of the

backpack. The dog conducted a second sniff of the room. The

detective informed the officers that the dog gave a positive

indication of narcotics in the desk drawer.

Based on this information, Rivera sought the issuance of a

warrant to search defendant and his backpack. At approximately

7:18 p.m., a Superior Court judge determined that there was

probable cause to issue the search warrant for the defendant's

person and backpack. The search of the backpack revealed 2.61

ounces of cocaine, and a loaded .357 Smith and Wesson handgun.

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In addition to Rivera's affidavit, the State presented

testimony from Detective Kevin Searing and Sergeant James

Francis. Searing works in the Special Investigations Unit of the

MCPO, which is engaged in large-scale narcotics investigations.

He stated that he was part of the unit that detained defendant

at the Trenton train station.

Searing stated that when he told defendant to show his

hands, defendant immediately went to grab the backpack that was

sitting next to him. Searing said defendant was taken into

custody for safety reasons. There were "a lot of people" around

the train station, and the officers had information that

defendant might be carrying a weapon and he had "some previous

encounters" with police officers.

Francis was also part of the unit that detained defendant.

Francis explained that defendant was taken to the prosecutor's

office because of his prior record of assaulting a police

officer, information that defendant might be armed, and the fact

that there were fifty to one hundred persons at the train

station.

Francis noted that defendant had not been compliant when

Searing approached him. He also explained that the officers had

information that defendant was going to meet the buyer, and the

officers did not know if the reported buyer was present. The

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officers thought the buyer might be "lying in wait," and they

decided that defendant should be removed to the prosecutor's

office for safety reasons. Francis said that given the

possibility that an unknown confederate was present at the

scene, the officers had concern of potential injury to the

public.

On June 12, 2014, the motion judge filed a written opinion

in which he concluded that the motion to suppress must be

denied. The judge found that based on the informant's tip and

the police observations, the law enforcement officers properly

detained defendant for further investigation and the application

for a search warrant.

The judge also found that the scope of the detention was

reasonably related to the initial stop, since defendant was

detained pending further investigation. Moreover, defendant's

detention was relatively brief and reasonable, since defendant

was detained during the rush hour at a public train station, the

officers had information suggesting defendant would be armed,

and defendant was initially reluctant to cooperate when

confronted by the police. The judge entered an order dated June

12, 2014, denying defendant's motion to suppress.

Thereafter, defendant entered a conditional guilty plea to

count two of the indictment, charging second-degree possession

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of CDS with intent to distribute. Defendant was sentenced to a

five-year custodial term, with two and one-half years of parole

ineligibility, to run concurrent with another sentence imposed

in Camden County. The judge dismissed the other charges in the

indictment. This appeal followed.

On appeal, defendant raises the following argument:

WHEN THE POLICE POINTED A GUN AT DEFENDANT, HANDCUFFED HIM, SEIZED HIS BACKPACK, REMOVED HIM FROM THE TRAIN STATION, AND HELD HIM AT THE PROSECUTOR'S OFFICE FOR TWO HOURS, HE WAS UNDER ARREST. BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST HIM, THE EVIDENCE SEIZED IN THE SUBSEQUENT SEARCH OF HIS BACKPACK MUST BE SUPPRESSED.

II.

Defendant argues that the trial court erred by denying his

motion to suppress. He contends that although the officers may

have had reasonable suspicion to make an investigatory stop, the

nature and duration of the investigatory detention was excessive

and amounted to a de facto arrest. Defendant contends that,

although the officers obtained a search warrant after they

conducted a dog sniff, the evidence seized was the product of an

illegal arrest and should have been suppressed. We disagree.

We are required to uphold a trial court's factual findings

on a motion to suppress if the court's findings are supported by

sufficient credible evidence in the record. State v. Elders, 192

N.J. 224, 243-44 (2007) (citations omitted). We need not,

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however, defer to the trial court's determination of any legal

issue because such determinations are reviewed de novo. State v.

Vargas, 213 N.J. 301, 327 (2013).

The Fourth Amendment to the United States Constitution and

Article I, paragraph 7 of the New Jersey Constitution protect

citizens from unreasonable searches and seizures by requiring

law enforcement officers to obtain warrants for any such search

or seizure, issued upon probable cause unless a recognized

exception to the warrant requirement applies. State v.

Rodriguez, 172 N.J. 117, 125 (2002) (citing State v. Maryland,

167 N.J. 471, 482 (2001)). However, not all encounters between

the police and citizens constitute searches or seizures for

purposes of the warrant requirement. Ibid. (citing Maryland,

supra, 167 N.J. at 483).

A warrant is not required when an officer makes an

investigatory stop or detention. Id. at 126-27 (citing Terry v.

Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889,

906 (1968)). However, the stop must be based upon "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, supra, 392 U.S. at 21,

88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Reasonable suspicion

necessary for an investigatory stop is a lower standard than the

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probable cause required for an arrest. Id. at 127 (quoting State

v. Stovall, 170 N.J. 346, 356 (2002)).

When determining whether the State has shown a valid basis

for an investigatory stop, a reviewing court must undertake "a

careful review of the totality of the circumstances." State v.

Mann, 203 N.J. 328, 338 (2010) (citation omitted). The focus of

the analysis is upon the events leading up to the stop, viewed

from the standpoint of an objectively reasonable police officer.

Stovall, supra, 170 N.J. at 357 (citation omitted). If the

officer can articulate some minimal level of objective

justification, indicating that the suspicion of criminal

activity is based on more than an unparticularized hunch, the

stop will be found to be reasonable. See State v. Nishina, 175

N.J. 502, 511 (2003).

"[T]he fact that a suspect's behavior may be consistent

with innocent behavior does not control the analysis." Mann,

supra, 203 N.J. at 338 (citing State v. Arthur, 149 N.J. 1,

11-12 (1997)). "[S]imply because a defendant's actions might

have some speculative innocent explanation does not mean that

they cannot support articulable suspicions if a reasonable

person would find the actions are consistent with guilt." Id. at

338 (quoting Arthur, supra, 149 N.J. at 11).

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Information provided by a CI "may assist the court in

evaluating whether the police officer had reasonable suspicion

to stop a person." State v. Amelio, 197 N.J. 207, 212 (2008).

Standing alone, the informant's tip is "rarely sufficient to

establish a reasonable articulable suspicion of criminal

activity." Ibid. (citations omitted). The informant's veracity,

reliability, and basis of knowledge are relevant in determining

the value of the report. Ibid. (citation omitted).

A CI's veracity may be established by showing that the CI

has provided dependable information in prior police

investigations. State v. Keyes, 184 N.J. 541, 555 (2005)

(citation omitted). The informant's basis of knowledge can be

shown "if the tip itself relates expressly or clearly how the

informant knows of the criminal activity." State v. Jones, 179

N.J. 377, 389 (2004) (citation omitted). In addition, "the

nature and details revealed in the tip may imply that the

informant's knowledge of the alleged criminal activity is

derived from a trustworthy source." State v. Smith, 155 N.J. 83,

94 (1998), cert. denied sub. nom., New Jersey v. Smith, 525 U.S.

1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).

"A deficiency in one of those factors 'may be compensated

for, in determining the overall reliability of a tip, by a

strong showing as to the other, or by some other indicia of

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reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998)

(quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317,

2329, 76 L. Ed. 2d 527, 545 (1983)). Thus, if a CI's tip does

not demonstrate veracity or a basis of knowledge, the court may

nevertheless find reasonable suspicion if other facts justify

such a determination. Id. at 113.

Here, the motion judge determined that the officers had

reasonable articulable suspicion to conduct an investigatory

stop of defendant. The judge noted that the CI had previously

provided the MCPO with information that led to several arrests.

The CI provided information about defendant, which he obtained

through personal knowledge, observations, and conversations with

individuals known to the CI.

The CI indicated that defendant regularly travels from

southern New Jersey to Trenton to distribute large quantities of

cocaine, and that defendant had a prior criminal conviction for

assault upon a police officer. The CI said that defendant would

be traveling to the Trenton train station on a specific date,

described the clothes defendant was wearing, and said he would

be carrying a gray backpack.

The officers corroborated much of the information provided

by the CI. Rivera confirmed that defendant had an address in

Cherry Hill, and had a prior conviction for assaulting a police

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officer. Officers observed defendant arrive at the Trenton train

station on the date the CI indicated he would be arriving there.

In addition, defendant was carrying the gray backpack. Moreover,

Sergeant Francis testified that defendant appeared to be looking

around nervously when he sat down outside the train station, and

positioned the backpack next to his body.

We are convinced that there is sufficient credible evidence

to support the motion judge's finding that the officers had

reasonable articulable suspicion that defendant was engaged in

criminal activity. Defendant argues, however, that he was not

subjected to an investigatory stop. He contends that by placing

him in handcuffs, seizing his backpack, transporting him to the

prosecutor's officer, and holding him there for more than two

hours, he was arrested. Defendant contends that the officers did

not have probable cause to arrest him.

In support of his argument, defendant cites State v.

Dickey, 152 N.J. 468 (1998). In that case, the defendant was a

passenger in a car stopped at around 10:36 p.m. by a State

Trooper on an interstate highway. Id. at 472. The vehicle had

been traveling thirty-four miles per hour in a fifty-five mile

per hour zone. Ibid. The driver did not provide proof of

registration or insurance when requested to do so. Ibid.

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In addition, the driver appeared nervous and his eyes were

bloodshot. Ibid. The trooper asked the defendant to exit the

car. Ibid. He appeared "extremely agitated." Ibid. He told the

trooper they were traveling in his cousin's car, but he could

not provide his cousin's full name or address. Id. at 473. The

defendant and the driver refused to consent to a search of the

car. Ibid.

The trooper asked the two individuals to return with him to

the State Police barracks because he had to verify ownership of

the car. Ibid. They agreed and the trooper informed them of

their Miranda1 rights. Ibid. The driver told the trooper that

there was nothing in the trunk, but the trooper suspected drugs

might be present. Ibid. He called a "K-9 unit" to have the

narcotics detection dog brought to the State Police barracks.

Ibid. The car was towed to the barracks. Ibid. At the

barracks, the trooper informed the defendant and the driver that

they were not free to leave until he completed his

investigation.

The trooper identified the owner of the car, but was unable

to obtain the owner's phone number. Ibid. There was no

indication the car had been stolen. Ibid. Around one or two

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

A-4366-14T3 15

o'clock in the morning, the K-9 unit's dog signaled the presence

of narcotics in the trunk of the car. Ibid. At around 2:45 a.m.,

the defendant signed a consent form permitting a search of the

trunk. The trooper discovered about two kilograms of cocaine in

the trunk. Ibid.

The defendant and the driver were both charged with

first-degree possession of cocaine with intent to distribute,

and third-degree possession of cocaine. Id. at 474. The

defendant filed a motion to suppress, which the court denied.

Ibid. The defendant entered a conditional plea of guilty to the

first-degree charge, and appealed the denial of his motion to

suppress. Ibid.

The Court held that "the combination of the duration of the

detention and the degree of intrusion upon the liberty of the

motorists exceeded that measure authorized by Terry and its

progeny." Id. at 479. The Court noted that the initial stop was

valid, and the occupants' failure to provide a registration for

the vehicle justified further investigation. Id. at 480. The

Court stated that in several instances extended investigatory

detentions had been upheld, and a stop of over two hours could

be permissible, "but any detention of that duration must be

justified by the circumstances." Id. at 482.

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The Court also stated that the nature of the detention in

that case went beyond a minimal intrusion upon the defendant's

Fourth Amendment interests, noting that the defendant had been

transported in handcuffs a substantial distance to the State

Police barracks, where they were placed periodically in

handcuffs and told they could not leave until the investigation

was concluded. Id. at 482-83. The Court noted that, while the

defendant voluntarily accompanied the trooper to the barracks,

"he truly was left with no other option." Id. at 483.

We find defendant's reliance on Dickey is misplaced. In

this matter, the motion judge correctly determined that the

detention was not for an unduly long period of time. The judge

noted that defendant had been removed to the MCPO because he had

been stopped at the Trenton train station around rush hour.

Detective Searing testified that this was done for safety

reasons. He noted that there was a lot of foot traffic in the

area. Searing also noted that the officers had information

defendant might be carrying a weapon, and he had "some previous

encounters" with police officers.

Defendant was detained at around 5:10 p.m., while the

officers continued their investigation using the

narcotics-detection dog. The judge stated that the search

warrant was issued at 7:18 p.m. During the two hours before the

A-4366-14T3 17

warrant was issued, the officers conducted the dog sniff,

confirmed the presence of narcotics in the backpack, drafted the

affidavit and accompanying search warrant, and presented the

application to the judge.

Thus, the time between defendant's detention and the

positive indication he was in possession of CDS was

substantially less than two hours. At that point, the officers

had probable cause to arrest defendant. The motion judge

properly found that the detention was "relatively brief" and

justified under the circumstances. There is sufficient credible

evidence in the record to support conclusion.