SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0962-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY PREVILON,

Defendant-Appellant.

________________________

Argued October 4, 2021 – Decided November 19, 2021

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 17-09-2434 

and 17-09-2436.

Tamar Y. Lerer, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Tamar Y. Lerer, of counsel 

and on the briefs).

Caitlinn Raimo, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Theodore N. Stephens II, Acting Essex 

County Prosecutor, attorney; Caitlinn Raimo, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-0962-19

PER CURIAM

After pleading guilty, defendant appeals from his conviction for seconddegree possession of a firearm while committing a violation of N.J.S.A. 2C:35-

5, N.J.S.A. 2C:39-4.1(a).

1

 He primarily challenges an order denying his motion 

to suppress, contending that the evidence was the fruit of an unlawful search and 

seizure and that the motion judge erred by finding probable cause for the arrest 

and search incident to the arrest. In addition, defendant generally argues that 

the sentencing judge imposed an excessive sentence without adequate 

explanation. The judges correctly denied the motion and imposed the sentence. 

We therefore affirm. 

Two officers, Officer Kevin Wright and Detective Henry Suarez, who 

were in their police vehicle, saw defendant as he walked in the middle of the 

1

 A grand jury indicted and charged defendant with third-degree possession of 

a controlled dangerous substance (CDS) heroin, N.J.S.A. 2C:35-10(a); thirddegree possession of CDS heroin with intent to distribute, N.J.S.A. 2C:35-

5(a)(1), N.J.S.A. 2C:35-5(b)(3); second-degree possession of CDS heroin within 

500 feet of a public housing facility, N.J.S.A. 2C:35-7.1(a); third-degree 

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

CDS cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-

5(b)(3); second-degree possession of CDS cocaine within 500 feet of a public 

housing facility, N.J.S.A. 2C:35-7.1(a); second-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a firearm while 

attempting to commit a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1(a); 

and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-

7(b)(1). 
3

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street with what appeared to be a medicine bottle. They stopped him because 

defendant had been "staggering, [and] walking . . . side to side." The officers 

then pulled over their vehicle to question defendant and inspect the bottle he 

was carrying. 

After Wright exited the car, with his badge and police vest visible, 

defendant said, "my bad, officers, it's just a little syrup." Wright took the bottle 

and examined its contents. He looked inside and determined, because of the 

"smell and[ ]thickness" of the liquid and the scratched-off label, that it "appeared 

that it could be possibly cough syrup." Wright then asked defendant "if he had 

a prescription for the bottle," and defendant replied he did not. 

Wright then detained and arrested defendant. He removed defendant's 

backpack to handcuff him, and when the officer put the backpack on the ground, 

Wright and Suarez "heard a clink" sound, "as if metal was hitting concrete." 

Suarez searched defendant incident to the arrest and seized a plastic bag in 

defendant's waistband containing eighteen glassine envelopes, five vials, eight 

jugs of CDs, and two nylon bags of loose cocaine. For their safety, Wright 

searched the backpack suspecting it contained a firearm due to the backpack's 

weight, the sound it made when he put it down, and the immediate area, which 
4

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from the officers' background and training had been known "as a high narcotic, 

violence area." The backpack contained a firearm. 

At the suppression hearing, defendant argued that the initial stop, the 

arrest, and the searches were illegal. The judge found the officers had 

reasonable suspicion to stop defendant because he was staggering in the middle 

of the road with the bottle. The judge also found that they had probable cause 

to arrest defendant after observing him drink from the bottle, hearing him admit 

the bottle was "a little bit of syrup," and examining the bottle itself. The judge 

found the police had authority to search defendant incident to the arrest, and that 

the search of the backpack was within defendant's immediate control and not 

remote. He held that the discovery of the handgun was inevitable once they 

brought defendant to the police station.

On appeal, defendant raises the following points for this court's

consideration:

POINT I

THE SEIZURE AND SEARCH OF DEFENDANT'S 

BELONGINGS WERE ILLEGAL. 

A. Defendant's Belongings Were Seized And 

Searched Without Probable Cause Or An 

Exception To The Warrant Requirement.
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B. Even If There Were Probable Cause That 

Defendant Committed A Disorderly Persons 

Offense, Defendant Should Have Been Issued 

A Summons And Released. Therefore, The 

Custodial Arrest And Search Incident To That 

Arrest Were Illegal.

POINT II

DEFENDANT'S SENTENCE IS EXCESSIVE AND 

THE [JUDGE] FAILED TO EXPLAIN THE 

REASONS FOR ITS IMPOSITION. THEREFORE, 

THE SENTENCE MUST BE VACATED AND THE 

MATTER REMANDED FOR RESENTENCING. 

I.

We begin with defendant's first argument—that the police illegally 

searched him without probable cause or an exception to the warrant requirement; 

and even if there was probable cause that he had committed a disorderly persons 

offense, the police should have issued a summons and released him rather than 

arresting and detaining him. 

In our review of the grant or denial of a motion to suppress, we "must 

defer" to the motion judge's factual findings "so long as those findings are 

supported by sufficient evidence in the record." State v. Dunbar, 229 N.J. 521, 

538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). We ordinarily 

defer to those findings because they "are substantially influenced by [the 

judge's] opportunity to hear and see the witnesses and to have the 'feel' of the 
6

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case, which a reviewing [judge] cannot enjoy." State v. Lamb, 218 N.J. 300, 

313 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We will 

disregard those findings only when a judge's findings of fact are "so clearly 

mistaken that the interests of justice demand intervention and correction." State 

v. Hagans, 233 N.J. 30, 37-38 (2018) (quoting State v. Gamble, 218 N.J. 412, 

425 (2014)). We review a motion judge's legal conclusions de novo. Dunbar, 

229 N.J. at 538. 

There are three types of interactions with law enforcement, each involving 

different constitutional implications depending on the event's impact on an 

individual's freedom to leave the scene. First, a "field inquiry is essentially a 

voluntary encounter between the police and a member of the public in which the 

police ask questions and do not compel an individual to answer." State v. 

Rosario, 229 N.J. 263, 271 (2017). The individual is free to leave; therefore, 

field inquiries do not require a well-grounded suspicion of criminal activity 

before commencement.2 Id. at 271-72; see also Elders, 192 N.J. at 246. Second, 

an investigatory stop or detention, sometimes referred to as a Terry3stop, 

involves a temporary seizure that restricts a person's movement. A Terry stop 

2

 This first interaction is not an issue on appeal.

3

 Terry v. Ohio, 392 U.S. 1 (1968). 
7

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implicates a constitutional requirement that there be "'specific and articulable 

facts which, taken together with rational inferences from those facts,' give rise 

to a reasonable suspicion of criminal activity." Elders, 192 N.J. at 247 (quoting 

State v. Rodriguez, 172 N.J. 117, 126 (2002)). Third, an arrest requires 

"probable cause and generally is supported by an arrest warrant or by 

demonstration of grounds that would have justified one." Rosario, 229 N.J. at 

272. 

To establish that a stop was valid, the State has the burden of proving that 

the police were aware of "specific and articulable facts which, taken together 

with rational inferences from those facts, [gave] rise to a reasonable suspicion 

of criminal activity." State v. Mann, 203 N.J. 328, 338 (2010) (quoting State v. 

Pineiro, 181 N.J. 13, 20 (2004)); see Terry, 392 U.S. at 20. To determine 

whether reasonable suspicion exists, a judge must consider the totality of the 

circumstances, viewing the "whole picture" rather than taking each fact in 

isolation. State v. Nelson, 237 N.J. 540, 554 (2019) (quoting State v. Stovall, 

170 N.J. 346, 361 (2002)). This analysis also considers police officers' 

"background and training," id. at 555, including their ability to "make inferences 

from and deductions about the cumulative information available to them that 
8

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'might well elude an untrained person.'" Ibid. (quoting United States v. Arvizu, 

534 U.S. 266, 273 (2002)). 

Investigative stops are justified, even absent probable cause, "if the 

evidence, when interpreted in an objectively reasonable manner, shows that the 

encounter was preceded by activity that would lead a reasonable police officer 

to have an articulable suspicion that criminal activity had occurred or would 

shortly occur." State v. Davis, 104 N.J. 490, 505 (1986). Judges are to 

determine whether the totality of the circumstances gives rise to an "articulable 

or particularized suspicion" of criminal activity, not by use of a strict formula, 

but "through a sensitive appraisal of the circumstances in each case." Ibid. The 

judge adhered to these rules. 

The judge believed the officers had properly concluded the investigative 

stop was justified. They stopped defendant because he was in a high crime and 

narcotics area, walking in the middle of the road, staggering from side-to-side, 

carrying and drinking from a medicine bottle, and defendant immediately said, 

"my bad, officers, it's just a little syrup." We have no reason to disturb the 

judge's findings, which are supported by the credible evidence in this record. 

The Fourth Amendment of the United States Constitution and Article I, 

paragraph 7 of the New Jersey Constitution protect citizens against unreasonable 
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searches and seizures and require a showing of probable cause prior to an arrest 

or the issuance of a warrant. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "The 

probable-cause requirement is the constitutionally-prescribed standard for 

distinguishing unreasonable searches from those that can be tolerated in a free 

society[.]" State v. Novembrino, 105 N.J. 95, 106 (1987). "A warrantless search 

[or seizure] is presumed invalid unless it falls within one of the recognized 

exceptions to the warrant requirement." Gamble, 218 N.J. at 425 (quoting State 

v. Cooke, 163 N.J. 657, 664 (2000)). The State, as the party seeking to validate 

the warrantless search, "has the burden of proving the validity of the search [or 

seizure]." State v. Maryland, 167 N.J. 471, 489 (2001). 

The standards for determining probable cause to arrest and probable cause 

to search are identical. State v. Smith, 155 N.J. 83, 92 (1998). Our Supreme 

Court has stated that the probable cause standard "is not susceptible of precise 

definition." State v. Moore, 181 N.J. 40, 45 (2004) (citing State v. Wilson, 178 

N.J. 7, 13 (2003)). Nevertheless, the Court has consistently held that "a 

principal component of the probable cause standard 'is a well-grounded 

suspicion that a crime has been or is being committed.'" Ibid. (quoting State v. 

Nishina, 175 N.J. 502, 515 (2003)); see also Maryland v. Pringle, 540 U.S. 366, 
10 A-0962-19

371 (2003) (holding that "[t]he substance of all the definitions of probable cause 

is a reasonable ground for belief of guilt").

Probable cause, however, "is not a stringent standard." State in Int. of 

J.G., 151 N.J. 565, 591 (1997). It does not require the suspicion that a crime 

has been or is being committed "be correct or more likely true than false." State 

v. Johnson, 171 N.J. 192, 207 (2002) (internal citation omitted). Rather, 

probable cause simply requires "a practical, common-sense decision whether, 

given all the circumstances . . . there is a fair probability that contraband or 

evidence of a crime will be found in a particular place." Id. at 214 (internal 

quotation marks and citation omitted); see also Florida v. Harris, 568 U.S. 237, 

244 (2013). 

The judge concluded that "based on all the foregoing facts, without 

isolating any particular fact, the [officers] in this case had probable cause to 

arrest [defendant]." The judge found that because he blurted out, "my bad, 

officers, it's just a little bit of syrup" upon seeing the officers, the suspicions 

were reasonably heightened that defendant was engaged in criminal activity. 

Because of this now heightened suspicion, Wright took the bottle and 

"determined that it contained cough syrup based on the smell and thickness of 

the liquid." Wright saw that someone scratched the label off the bottle, and after 
11 A-0962-19

defendant was asked, defendant admitted he did not have a prescription for the 

cough syrup. This all combined to create probable cause to arrest defendant. 

From there, the judge found that the searches of defendant's person and 

backpack were lawful searches incident to arrest. 

Defendant essentially argues that because he did not immediately appear

to be carrying cough syrup that clearly required a prescription there was no 

probable cause to arrest him after the investigatory stop. But this ignores the 

totality of the situation. The judge determined that because immediately after 

the stop defendant said he was drinking "syrup" and the similarity to State v. 

Waltz, 61 N.J. 83 (1972), there were grounds to suspect further criminal 

conduct. In Waltz, our Court held that although a medicine bottle might not 

ordinarily contain illicit drugs, it is reasonable for an officer to see a medicine 

bottle and have probable cause to believe there are illicit drugs contained 

therein. Id. at 88. There is sufficient credible evidence to support the motion 

judge's holding of probable cause. State v. Handy, 206 N.J. 39, 44 (2011) 

(quoting Elders, 192 N.J. at 243) (quotations omitted). 

Finally, under State v. Dangerfield, 171 N.J. 446 (2002), the officers were 

well within their discretion to arrest defendant versus issuing him a summons. 

In Dangerfield, our Court recognized that while there is a preference for the 
12 A-0962-19

issuances of citations and summonses, officers still had discretion to choose 

between a citation and a custodial arrest. Id. at 458. "[W]e do not disturb the 

authority of the police to arrest for disorderly and petty disorderly persons 

offenses that occurred in their presence." Id. at 460. As we clarified in State v. 

Daniels, if the arrest is not pretextual, there is not a bright-line limit to the extent 

of a search incident to that arrest. 393 N.J. Super. 476, 491 (App. Div. 2007). 

For this reason, the officers were justified in arresting defendant. 

II.

We reject defendant's argument that the sentencing judge imposed an 

excessive sentence of eight years in prison with four years of parole ineligibility. 

We conclude the judge gave sufficient reasons for her findings of aggravating 

and non-existing mitigating factors. And—contrary to defendant's contention—

we see no basis that the judge incorrectly thought she was bound by the 

"escalating plea offers."

We review a sentencing court's imposition of sentence for abuse of 

discretion. State v. Jones, 232 N.J. 308, 318 (2018). And we do so "in 

accordance with a deferential standard." State v. Trinidad, 241 N.J. 425, 453 

(2020) (quoting State v. Fuentes, 217 N.J. 57, 70 (2014)). We ordinarily defer 

to the sentencing judge's factual findings; we do not "second-guess" them. State 
13 A-0962-19

v. Case, 220 N.J. 49, 65 (2014). Under this standard, we affirm the sentence

"unless: (1) the sentencing guidelines were violated; (2) the findings of 

aggravating and mitigating factors were not 'based upon competent credible 

evidence in the record;' or (3) 'the application of the guidelines to the facts' of 

the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 

(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). The standard also 

applies to "sentences that result from guilty pleas, including those guilty pleas 

that are entered as part of a plea agreement." State v. Sainz, 107 N.J. 283, 292 

(1987). 

Defendant had an extensive criminal history. He had five juvenile 

adjudications, twenty-six adult arrests, five prior indictable convictions, ten 

prior disorderly persons convictions, and one ordinance violation. Defendant 

served one prior prison term. 

The judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk 

that defendant will commit another offense); aggravating factor six, N.J.S.A. 

2C:44-1(a)(6) (the extent of defendant's prior criminal record and the 

seriousness of the offenses of which defendant has been convicted); and 

aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterring 

defendant and others from violating the law). She found no mitigating factors. 
14 A-0962-19

Applying our deferential standard of review, Case, 220 N.J. at 65, we discern no 

basis to disturb the judge's weighing of the aggravating factors, or her imposition 

of sentence. 

Although the State previously offered defendant a seven with forty-two, 

defendant rejected the offer knowing full well that in the future the State's offer 

would be "off the table." At sentencing, defendant admitted that although he 

wanted the earlier offer, he was willing to accept the eight with a four. And that

is exactly what the judge imposed.

Defendant argues that the judge improperly considered the Attorney 

General's escalating plea bargain policy. Under the Attorney General's 

guidelines, a County Prosecutor's Office must strictly "provide for a longer 

sentence if the defendant pleads guilty after indictment to account for the 

additional investment of resources to prosecute the case and the unwillingness 

of the defendant to accept responsibility in a timely fashion." Attorney General 

Law Enforcement Directive No. 2016-6 v3.0, "Modification of Directive 

Establishing Interim Policies, Practices, and Procedures to Implement Criminal 

Justice Reform Pursuant to P.L. 20154, c. 31" (Sept. 27, 2017). The judge was 

not indicating that she was bound by this policy in her sentencing but rather was 

informing defendant why the initial seven-year plea was "off the table." 
15 A-0962-19

Accordingly, the judge did not abuse her discretion, and defendant's sentence is 

not manifestly excessive.

To the extent that we have not addressed defendant's remaining 

arguments, we conclude that they lack sufficient merit to warrant discussion in 

a written opinion. R. 2:11-3(e)(2).

Affirmed.