SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1288-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LANCE S. RICHARDSON,

Defendant-Appellant.

__________________________

Argued March 2, 2020 – Decided May 15, 2020

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 13-03-0272.

Alan Dexter Bowman argued the cause for appellant.

Ali Y. Ozbek, Assistant Prosecutor, argued the cause 

for respondent (Camelia M. Valdes, Passaic County 

Prosecutor, attorney; Ali Y. Ozbek, of counsel and on 

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1288-18T2

Defendant Lance S. Richardson appeals from a September 5, 2018 

judgment of conviction. Following the denial of his motion to suppress, 

defendant pled guilty to second-degree possession of a controlled dangerous 

substance with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 

N.J.S.A. 2C:35-5(b)(10),1and was sentenced to a one-year term of non-custodial 

probation. On appeal, he raises the following issues:

POINT I

THE EVIDENCE SEIZED WITHOUT PROBABLE 

CAUSE AND BASED UPON AN ILLEGAL ARREST 

MUST BE SUPPRESSED.

i. Probable Cause.

ii. Permissible Scope.

iii. Detention of [Defendant] was Unjustified in the 

Incipiency and Unreasonable.

POINT II

THE POLICE TRESPASSED ONTO BUSINESS 

PREMISES WHICH WERE NOT ACCESSIBLE TO 

THE GENERAL PUBLIC WITHOUT A WARRANT 

OR PROBABLE CAUSE AND EXIGENCY.

 

1

 A related conspiracy charge and two related possessory charges were 

dismissed.
3

A-1288-18T2

Based on the testimony elicited at the suppression hearing, we agree with Judge 

Joseph A. Portelli's conclusions that there was no expectation of privacy in the 

common area of the storage facility and that defendant was lawfully detained. 

Accordingly, we affirm. 

We discern the following facts from the suppression hearing, where a 

single witness, Captain Daniel Bachok2 of the Passaic County Prosecutor's 

Office Narcotics Unit (the Narcotics Unit) testified. 

During the summer of 2012,3the Narcotics Unit began investigating two 

individuals, Darren E. Richardson4(defendant's uncle) and J.S., after 

confidential informants (CIs) reported that Darren and J.S. were dealing 

marijuana in the Wanaque area. According to the CIs and a citizen informant,

Darren would buy marijuana in California and ship it to New Jersey through the 

mail, and an anonymous female told Detective Sergeant Charlie Sahanas of the 

Wanaque Police Department that J.S. planned to travel to San Diego with 

Darren. Although Captain Bachok did not learn this information firsthand, as 

 

2

 Captain Bachok was a lieutenant during the investigation.

3

 All events pertaining to the investigation occurred during the year 2012.

4

 We refer to Darren Richardson by his first name because he and defendant 

share the same last name. We intend no disrespect in doing so. 
4

A-1288-18T2

the investigation involved several officers, he generally understood this to be 

the basis for the investigation, and he also understood that Darren and J.S. had 

planned to ship the marijuana in a suitcase. 

Based on the CIs' tips, the Narcotics Unit prepared to apply for a 

communications data warrant (CDW), or tracker, to track the vehicle J.S. drove 

to identify the "stash location," defined as the "place[] where drug dealers would 

leave their drugs sometimes, [but] not at their personal residence." During the 

week of September 9, arrangements were made for a controlled buy of marijuana 

from J.S., and thereafter, surveillance of her and Darren continued. 

On September 20, Detective Stephen Day of the Narcotics Unit applied 

for the CDW. After the warrant was authorized, Captain Bachok installed the 

tracker on J.S.'s black BMW. Through efforts to track the vehicle, the Narcotics 

Unit observed what was believed to be "hand to hand drug transactions on 

several occasions."

On October 1, the Narcotics Unit observed Darren, in a blue BMW, and 

J.S., in the black BMW, drive to a storage facility on Hamburg Turnpike in 

Wayne (the storage facility). Captain Bachok described the storage facility as 

"wide open," meaning storage units could be seen from the street. A chain link 

fence surrounded the property, and the entrance was guarded by a gate and
5

A-1288-18T2

keypad. On the property, there were "a bunch of garages all over and . . . 

surrounding the perimeter."

Darren drove the blue BMW into unit 3020. According to Captain 

Bachok, unit 3020 was a garage-like unit accessible from the storage facility's 

common space, and it was the third unit in from the perimeter. It was about 300 

feet away from the entrance and could be "clearly" seen from the public street. 

After Darren entered the unit, he exited his vehicle and got into the black BMW, 

and he and J.S. drove away from the storage facility. The Narcotics Unit 

followed the black BMW to the George Washington Bridge and then tracked it

first to John F. Kennedy Airport (JFK) and then to LaGuardia Airport 

(LaGuardia). 

On October 3, the Narcotics Unit tracked J.S.'s car to a parking garage at 

LaGuardia. Inside the airport, it "identif[ied] the airline that [J.S.] had used to 

fly out to California" and learned that she planned to return to New Jersey on 

October 4. The following day, it observed J.S. depart from the airplane and 

leave the LaGuardia parking lot in the black BMW. 

On the morning of October 5, the Narcotics Unit tracked J.S. to her 

mother's home in Wanaque, and Captain Bachok observed her accept a FedEx 

package, although he was unable to see where she placed the package after she 
6

A-1288-18T2

accepted it. Soon after, the Narcotics Unit observed J.S. driving away in the 

black BMW and tracked her to the storage facility. By the time they arrived at 

the storage facility, J.S. was driving away in the black BMW, so Captain Bachok 

entered the premises through an open gate, parked in the parking lot, and asked 

an employee in the office to view the security video. Upon viewing the video, 

he observed J.S. park in front of unit 3020, get out of the vehicle, enter the 

storage unit, and get back into the vehicle, but he could not "see her actually do 

anything."

After J.S. left the storage facility, she was tracked to JFK and then to her 

and Darren's Oakland residence, and Darren was observed riding in the black 

BMW upon her return from JFK. Around 8 p.m., they returned to the storage 

facility. J.S. was driving, Darren was in the front passenger seat, and defendant

and a woman were in the back. Darren and defendant exited the vehicle, and

J.S. and the female passenger departed in the black BMW. 

Darren and defendant then opened unit 3020. A surveillance unit drove 

onto the premises of the storage facility "to see what they were doing." Captain 

Bachok had been unable to observe how the unit gained access to the premises

but testified that he was not aware of anyone having an access code to open the 

gate. The surveillance unit parked on the far side of the storage facility, leaving 
7

A-1288-18T2

the center building between them and unit 3020. Detective Sergeant Sahanas

also approached unit 3020 on foot and observed from the bushes located on the 

far side of the end unit nearby. Captain Bachok remained outside the facility 

and could not "see [what was] going on." At this time, neither he nor anyone 

else involved in the investigation had seen any contraband on the premises. 

After Darren and defendant entered unit 3020, Captain Bachok entered the 

storage facility and parked his car facing the street. The facility's office was not 

open at the time, but he was able to enter the premises without a key or passcode 

because according to him, the gate was open. Captain Bachok watched Darren 

through his rearview mirror and noticed there was light inside the unit. Then, 

he and Detective Sergeant Sahanas observed Darren inside unit 3020, rolling a 

suitcase toward the trunk of his vehicle, which was also inside the unit. He also 

observed Darren and defendant notice his vehicle. Upon seeing Darren with the

suitcase, Captain Bachok ordered "everybody to move in to . . . further 

investigate," believing that the suitcase contained marijuana. Captain Bachok 

testified that it was not until he saw Darren with the suitcase that he determined 

there was probable cause.

As Captain Bachok and the other officers approached unit 3020, Darren

threw the suitcase into the trunk and closed it. The officers identified 
8

A-1288-18T2

themselves, informed Darren and defendant about the investigation, and read 

them their Miranda5rights. Darren verbally consented to a search of the storage 

unit and his vehicle, but a decision was made to apply for a search warrant, after 

a conversation with the chief assistant prosecutor.

After the storage facility was secured, within an hour of arriving at the 

facility, Darren and defendant were transported to the Wayne Police Department

to be held until the search warrant was executed. According to Captain Bachok, 

although he could not be sure that defendant knew there was marijuana in the 

suitcase, defendant was detained because he and Darren "were together" at the 

storage facility. Captain Bachok further explained that Darren had "other people 

selling for him," and defendant "was [also] a target of the investigation."

While waiting to search unit 3020, a previously obtained search warrant

was executed on the Oakland residence. Outside of the home, the box that had 

been delivered to J.S. the previous day was discovered. It was empty, but law

enforcement later determined that the Darren's suitcase fit inside.

Around 1:20 a.m. on October 6, a Wayne municipal court judge signed 

the search warrant for unit 3020, including Darren's vehicle. At 1:35 a.m., law 

 

5

 Miranda v. Arizona, 384 U.S. 436 (1966).
9

A-1288-18T2

enforcement returned to the storage facility through an open gate and executed 

the search warrant, recovering a medium-sized suitcase containing seventeen 

pounds of marijuana and a safe holding $9500 in cash. 

Captain Bachok returned to the storage facility one morning about a month 

before the suppression hearing to record a video of the premises. During his 

visit, the gate was open. He also testified that he had "driven there many times 

after [5 p.m.] and at times it was open."

At the conclusion of the suppression hearing, the judge found Captain 

Bachok to be credible but explained that his testimony alone would not 

determine the outcome, as the ultimate issue was whether law enforcement was 

lawfully on the premises of the storage facility. After reciting the pertinent facts, 

the judge concluded that law enforcement had "reasonably articulable suspicion 

that criminal activity was occurring." Then, setting aside the issue of the 

lawfulness of the entry into the storage facility, the judge concluded that "[a]ll 

of this activity by the police and the way they conducted their investigation here 

and the eventual confiscation of the suitcase is all lawful." 

Turning to law enforcement's entry into the storage facility, the judge 

noted that "[t]here are some very fine lines to be drawn here with respect to what 

the police can and cannot do and what they did in this case." He explained that 
10 A-1288-18T2

"[c]learly there would be a [F]ourth [A]mendment violation if there was a home 

involved," but here "it [got] dicey," as the area at issue was "a semi-public 

business" entitled to "a much lesser expectation of privacy." However, he 

acknowledged that areas in a business "not open to the general public" are 

entitled to Fourth Amendment protection. 

The judge found that "the area where [Darren] had his storage facility[]

was not open to the general public," and his unit "was visible from the street, 

making it more . . . visible to the public." Additionally, it was problematic that 

lessees of other units could have observed Darren's and defendant's activities on 

the premises. The judge acknowledged that it was "a fine line" and concluded,

I'm not comfortable with the way law enforcement 

acted when they got to the storage facility. I'm not sure 

that they should have entered in the way that they did 

without a warrant.

But because it's not a home, because it's a 

business establishment, where there are others who rent 

there and have access to the area, . . . there is a lesser 

expectation of privacy, . . . and I can't ignore [that] you 

can also see this unit from the street. So, where is the 

expectation of privacy?

Accordingly, he denied the motion to suppress.

On appeal, defendant contends that law enforcement unlawfully entered 

the premises of the storage facility because it was not accessible to the public. 

Consequently, his warrantless detention and the search of unit 3020 were 
11 A-1288-18T2

unlawful because they were direct results of the unlawful entry. Additionally, 

he argues that law enforcement unlawfully detained him because there was no 

evidence that he knew the suitcase contained marijuana.

When reviewing the denial of a motion to suppress, we "must uphold the 

factual findings underlying the trial court's decision, provided that those 

findings are 'supported by sufficient credible evidence in the record.'" State v. 

Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 

(2016)). Deference is especially appropriate if the judge's findings "are 

substantially influenced by his [or her] opportunity to hear and see the witnesses 

and to have the 'feel' of the case, which a reviewing court cannot enjoy." State 

v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 

(1964)). However, we need not defer to the judge's legal conclusions, which we 

review de novo. Boone, 232 N.J. at 426. 

The United States Constitution and the New Jersey Constitution both 

guarantee "[t]he right of the people to be secure in their persons, houses, papers, 

and effects, against unreasonable searches and seizures." U.S. Const. amend IV; 

N.J. Const. art. I, ¶ 7. Generally, to search or seize a person or a person's

property, law enforcement must secure a warrant issued upon probable cause, 

unless one of the well-delineated exceptions applies. Schneckloth v. 
12 A-1288-18T2

Bustamonte, 412 U.S. 218, 219 (1973); State v. Maryland, 167 N.J. 471, 482 

(2001); see State v. Hill, 115 N.J. 169, 173-74 (1989) (listing the various 

exceptions to the warrant requirement).

To determine whether law enforcement has conducted a search in 

violation of the Fourth Amendment of the United States Constitution, the judge 

must consider two prongs: (1) whether "a person . . . exhibited an actual 

(subjective) expectation of privacy" and (2) whether "the expectation [is] one 

that society is prepared to recognize as 'reasonable.'" State v. Hempele, 120 N.J. 

182, 198 (1990) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) 

(Harlan, J., concurring)). However, under Article I, Paragraph 7 of the New 

Jersey Constitution, the judge need only consider the second, objective prong. 

Id. at 200 ("[T]he New Jersey Constitution requires only that an expectation of 

privacy be reasonable."). 

"[E]xpectations of privacy are established by general social norms." Ibid.

(quoting Robbins v. California, 453 U.S. 420, 428 (1981) (plurality opinion), 

overruled on other grounds, United States v. Ross, 456 U.S. 798 (1982)). The 

relevant inquiry is whether, if a warrantless search is held constitutional, "the 

amount of privacy and freedom remaining to citizens would be diminished to a 

compass inconsistent with the aims of a free and open society." Id. at 201 
13 A-1288-18T2

(quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 

Minn. L. Rev. 349, 403 (1974)).

We have not previously considered the reasonable expectation of privacy 

on the premises of a privately owned storage facility. Accordingly, in addition 

to reviewing our limited case law on the reasonable expectation of privacy on 

the premises of a business generally, we consider principles our courts have 

relied on in addressing privacy interests in other contexts. In doing so, we keep

in mind that our Supreme Court has "extended [constitutional] protections 

beyond those dictated by the United States Supreme Court in many situations." 

Kevin G. Byrnes, New Jersey Arrest, Search & Seizure § 2:4-1 (2019-2020)

(collecting cases); see, e.g., Hempele, 120 N.J. at 223 (holding that under Article 

I, Paragraph 7 of the New Jersey Constitution, law enforcement must obtain a 

warrant to search a garbage bag left at the curb for collection, in contrast with 

the United States Supreme Court's holding in California v. Greenwood, 486 U.S. 

35, 40-41 (1988)).

Our Supreme Court has acknowledged that "[w]hat a person knowingly 

exposes to the public . . . is not a subject of Fourth Amendment protection," but 

"[w]hat a person . . . seeks to preserve as private, even in an area accessible to 

the public, may be constitutionally protected." Hempele, 120 N.J. at 209 (first 
14 A-1288-18T2

and fourth alterations in original) (first quoting Greenwood, 486 U.S. at 41; then 

quoting Katz, 389 U.S. at 351). For example, law enforcement may lawfully

enter a business premises without a warrant and search the areas not sought to 

be kept private from the general public. See State v. Williams, 84 N.J. 217, 220

(1980) (holding that a warrantless entry into the locked, basement storage room

of a bar was unlawful); State v. Boynton, 297 N.J. Super. 382, 384 (App. Div. 

1997) (holding that a warrantless entry into the unlocked, single-occupancy

restroom of a bar was lawful).

In considering the reasonable expectation of privacy in a garbage bag left 

at the curb for collection, our Supreme Court noted that because garbage

contains "[c]lues to people's most private traits and affairs," it is reasonable that 

they would "prefer that [their] garbage remain private." Hempele, 120 N.J. at 

201, 202. "The accessibility of garbage to outsiders, however, is not dispositive,

because a person can maintain a privacy interest in something that is not 

completely invulnerable to prying eyes." Id. at 204. If the opposite were true, 

"[A]rticle I, [P]aragraph 7 would protect only that which is under lock-and-key." 

Ibid. Quoting from Justice Brennan's Greenwood dissent, the Court explained,

The mere possibility that unwelcome meddlers might 

open and rummage through [trash] containers does not 

negate the expectation of privacy in its contents any 

more than the possibility of a burglary negates an 
15 A-1288-18T2

expectation of privacy in the home; or the possibility of 

a private intrusion negates an expectation of privacy in 

an unopened package; or the possibility that an operator 

will listen in on a telephone conversation negates an 

expectation of privacy in the words spoken on the 

telephone.

[Ibid. (alteration in original) (quoting Greenwood, 486 

U.S. at 54 (Brennan, J., dissenting)).]

See also Amsterdam, 58 Minn. L. Rev. at 406 (explaining that the government 

cannot conduct a warrantless search of parked cars even though "[e]very person 

who parks his or her car on a side street in Greenwich Village voluntarily runs 

the risk that it will be burglarized").

The Court explained that "a person's expectation of privacy can differ in 

regard to different classes of people." Hempele, 120 N.J. at 205. "Although a 

person may realize that an unwelcome scavenger might sort through his or her 

garbage, 'such expectations would not necessarily include a detailed, 

systematized inspection of the garbage by law enforcement personnel.'" Ibid.

(quoting Smith v. State, 510 P.2d 793, 803 (Alaska 1973) (Rabinowitz, C.J., 

dissenting)); see also State v. McAllister, 184 N.J. 17, 31 (2005) ("A bank 

customer may not care that employees of the bank know a lot about his financial 

affairs, but it does not follow that he is indifferent to having those affairs 

broadcast to the world or disclosed to the government." (quoting Richard Posner, 
16 A-1288-18T2

The Economics of Justice 342 (1981))); State v. Sencion, 454 N.J. Super. 25, 29

(App. Div. 2018) (holding that there is "a reasonable expectation of privacy from 

a forced police entry into the locked common area of [an] apartment building"); 

State v. Jefferson, 413 N.J. Super. 344, 350-52 (App. Div. 2010) (holding that 

police unlawfully entered the common hallway of an apartment building when 

a sergeant "wedged herself in the doorway" to prevent the defendant from 

closing the door, which was normally kept locked).

In the present case, the judge reasoned that law enforcement lawfully 

entered the premises of the storage facility because unit 3020 was visible from

the street, and lessees of other storage units could have viewed the contents of 

unit 3020 had they been on the premises at the time. Considering the principles 

our courts have relied on in determining whether an expectation of privacy exists 

in other contexts, and based on Captain Bachok's testimony, we conclude, for a 

different reason, that there was no expectation of privacy on the premises of the 

storage facility. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) 

("[I]t is well-settled that appeals are taken from orders and judgments and not 

from opinions, oral decisions, informal written decisions, or reasons given for 

the ultimate conclusion.").
17 A-1288-18T2

We first note that the judge's reliance on the fact that unit 3020 could be 

seen from the street does not alone support his conclusion. Our Court has 

explained that "a person can maintain a privacy interest in something that is not 

completely invulnerable to prying eyes." Hempele, 120 N.J. at 204. Moreover, 

it is not clear from the record that the suitcase containing the marijuana, located 

inside unit 3020, was visible from the street or another public space.6 

Additionally, that lessees of other storage units could have observed 

Darren and defendant while on the premises would not preclude a determination 

that there was a reasonable expectation of privacy where it is clear that a 

particular space was intended to be kept private from the public. See Hempele, 

120 N.J. at 209; Williams, 84 N.J. at 222; Sencion, 454 N.J. Super. at 29; 

Jefferson, 413 N.J. Super. at 350-52. A fence surrounded the storage facility 

and a gate and keypad guarded entry to the premises, so it is reasonable to 

 

6

 Captain Bachok's testimony is unclear as to precisely where Detective

Sergeant Sahanas was located when he was in the bushes, and the Captain

indicated that it was possible he was standing outside of the facility. In its 

appellate brief, the State asserts that members of law enforcement located 

outside of the facility observed all of Darren's and defendant's actions inside unit 

3020. However, a review of the record, including the judge's factual findings, 

does not support the State's assertions, as there appears to be no definitive 

testimony that any of the officers were outside of the facility when the suitcase 

was observed. 
18 A-1288-18T2

conceive that the owner of the storage facility and the lessees might have

expected privacy under certain circumstances. 

However, Captain Bachok testified that the gate was open when he entered 

the storage facility and that it may have been open when other officers entered

because he was unaware of anyone having the passcode. The judge found this 

testimony credible, and we have no reason to question his findings. See Boone, 

232 N.J. at 425-26. We have held that where the record is clear that an entrance 

to a residential space was locked to prevent the public from entering, law 

enforcement's entry without permission violated a reasonable expectation of 

privacy, see Sencion, 454 N.J. Super. at 29 (forcing entry at a locked door); 

Jefferson, 413 N.J. Super. 350-52 (preventing the defendant from closing a door 

he normally kept locked), and "[w]e consider the fact of whether a door is locked 

or unlocked a . . . reliable predictor of a reasonable expectation of privacy," 

State v. Nunez, 333 N.J. Super. 42, 51 (App. Div. 2000) (holding that where the 

record "would not support a finding that both doors to [a multi-family] building 

were routinely locked and that no one was permitted to enter without the assent 

of a resident," the police were not required to knock before entering the building 

to execute a warrant on the second floor apartment); State v. Brown, 282 N.J.

Super. 538, 547 (App. Div. 1995) ("[A] tenant does not have a reasonable 
19 A-1288-18T2

expectation of privacy in the common areas of a building merely because doors 

to the common areas are normally kept locked and require a key for access.").

Although in State v. Williams, 461 N.J. Super. 1, 17-19 (App. Div. 2019), 

certif. granted, 240 N.J. 429 (2020), we held that law enforcement may not enter 

the common areas of a boarding house without permission and explained that 

where a door with a lock is left unlocked, for law enforcement to enter lawfully 

without a warrant, the State must demonstrate that "the communal areas were 

open to the public," Williams does not apply here. "We stress[ed] that our 

decision [was] limited to the specific facts of [that] case," given that the living 

arrangements in a boarding house are different from those in an apartment 

building. Id. at 15. We cannot conclude that a storage facility is more similar 

to a rooming house than it is to an apartment building and therefore entitled to 

greater protection than an apartment building.

Because the storage facility was unlocked when law enforcement arrived, 

and the record is devoid of evidence showing that law enforcement was required 

to obtain authorization before entering the premises, we conclude that their entry 

did not violate an expectation of privacy. Therefore, any observations made 

after they entered the facility were lawful and could be used to support the 

application for the search warrant for unit 3020 and the detention of defendant. 
20 A-1288-18T2

We now address defendant's contention that law enforcement unlawfully 

detained him. It is well established that an investigatory stop by law 

enforcement "implicates our constitutional protections." State v. Mann, 203 N.J. 

328, 337 (2010). An investigatory stop, or Terry7stop, occurs "when an 

objectively reasonable person feels that his or her right to move has been 

restricted." State v. Rodriguez, 172 N.J. 117, 126 (2002). Absent a warrant, 

such a stop is lawful "if it is based on '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, 392 U.S. at 21). Our 

Supreme Court has further explained,

An investigatory stop is valid only if the officer has a 

"particularized suspicion" based upon an objective 

observation that the person stopped has been or is about 

to engage in criminal wrongdoing. The "articulable 

reasons" or "particularized suspicion" of criminal 

activity must be based upon the law enforcement 

officer's assessment of the totality of circumstances 

with which he is faced. Such observations are those 

that, in view of [the] officer's experience and 

knowledge, taken together with rational inferences 

drawn from those facts, reasonabl[y] warrant the 

limited intrusion upon the individual's freedom.

[Id. at 127 (alterations in original) (quoting State v. 

Davis, 104 N.J. 490, 504 (1986)).]

 

7

 Terry v. Ohio, 392 U.S. 1 (1968).
21 A-1288-18T2

When an investigatory stop is based on a tip from an informant, the "informant's 

'veracity,' 'reliability,' and 'basis of knowledge' are 'relevant in determining the 

value of his report.'" Ibid. (quoting Alabama v. White, 496 U.S. 325, 328

(1990)). Therefore, law enforcement generally "must verify that the tip is 

reliable by some independent corroborative effort." Ibid.

A continued investigatory stop is lawful if it is "reasonable at its 

inception," and "the scope of the continued detention [is] reasonably related to 

the justification for the initial interference." State v. Coles, 218 N.J. 322, 344 

(2014). Law enforcement "must use the least intrusive means necessary to 

effectuate the purpose of the investigative detention." Ibid. However, if a stop

is more intrusive than necessary, it becomes a de facto arrest. State v. Dickey, 

152 N.J. 468, 478 (1998). There is no bright line test to determine the point at 

which a stop becomes a de facto arrest, but our Supreme Court has identified 

several guiding factors: unnecessary delay, fear and humiliation resulting from 

law enforcement's conduct, transportation of the detained person to another 

location, isolation of the person, or confinement of the person. Id. at 479. 

A de facto arrest is lawful only if supported by probable cause. Id. at 478. 

Probable cause is not precisely defined, but our courts have explained that it 

"exists when, considering 'the totality of the circumstances,' a person of 
22 A-1288-18T2

'reasonable caution' would be justified in believing that evidence of a crime 

exists in a certain location." State v. Smith, 212 N.J. 365, 388 (2012) (quoting 

Schneider v. Simonini, 163 N.J. 336, 361 (2000)). Where informants' tips are 

involved, probable cause exists if, "given all the circumstances set forth in the 

affidavit[,] . . . including the 'veracity' and 'basis of knowledge' of persons 

supplying hearsay information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place." State v. Sullivan, 169 

N.J. 204, 212 (2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). An 

informant's reliability in prior instances is "probative of veracity." Id. at 213

(quoting State v. Smith, 155 N.J. 83, 94 (1998)). With respect to the informant's 

basis of knowledge, the informant may disclose how he or she knew of the 

criminal activity or provide a tip with "sufficient detail . . . that could not 

otherwise be attributed to circulating rumors or be easily gleaned by a casual 

observer." Ibid. (quoting Smith, 155 N.J. at 95). Alternatively, if law 

enforcement is able to "corroborate 'information from which it can be inferred 

that the informant's tip was grounded on inside information, this corroboration 

is sufficient to satisfy the basis of knowledge prong' as well as the veracity 

prong." Id. at 214 (quoting Smith, 155 N.J. at 96).
23 A-1288-18T2

Here, the judge correctly concluded that law enforcement had reasonable 

suspicion that criminal activity was occurring on the premises of the storage 

facility. Considering the length of defendant's detention, we add that even if the 

stop became a de facto arrest, it was lawful because it was reasonable for law 

enforcement to believe there was a fair probability that marijuana would be 

found inside unit 3020 and that defendant knew of its presence. 

The Narcotics Unit received several CI tips that Darren and J.S. were 

dealing marijuana, allowing the officers to organize a controlled buy from J.S.

and to secure a tracker for the black BMW. By using the tracker, law 

enforcement was able to observe what they believed were "hand to hand drug 

transactions," and they were able to locate what appeared to be Darren and J.S.'s 

"stash location": unit 3020 at the storage facility. Further, they verified that 

Darren and J.S. flew to California separately and quickly returned to New 

Jersey. Soon after, they observed J.S. receive a FedEx package and almost 

immediately drive to the storage facility. Then, on the night of October 5, mere 

hours after Darren apparently returned from California, law enforcement 

observed him wheeling a suitcase inside of unit 3020, or the "stash location." 

Having been able to corroborate the CIs' tips, we conclude that it was reasonable 
24 A-1288-18T2

for law enforcement to believe there was a fair probability that the suitcase 

Darren was wheeling contained marijuana.

We disagree with defendant's contention that law enforcement should not 

have detained him because there was no direct evidence that he knew the

suitcase contained marijuana. We recognize that "possession cannot be based 

on mere presence at the place where contraband is located." State v. Scott, 398 

N.J. Super. 142, 150 (App. Div. 2006), aff'd o.b., 193 N.J. 227 (2008) (quoting 

State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd o.b., 133 N.J. 

481 (1993)). Whether defendant was in constructive possession of the marijuana 

inside the suitcase depends on his "knowledge of [the marijuana's] character" 

and his "intention to exercise control over it manifested in circumstances where 

it is reasonable to infer that the capacity to do so exists." State v. Brown, 80 

N.J. 587, 597 (1979). These elements may be inferred from circumstantial 

evidence. See Scott, 398 N.J. Super. at 150-51; cf. State v. Palacio, 111 N.J. 

543, 545, 552 (1988) (affirming our reversal of a judgment of acquittal where 

drugs were found in a secret compartment in the back seat of a vehicle because 

any occupant had access to the drugs, which were of substantial quantity and 

value, and the defendant was acting "overly nervous"); State v. Shipp, 216 N.J. 

Super. 662, 663-66 (App. Div. 1987) (reversing the defendant's conviction 
25 A-1288-18T2

where his stepmother, a passenger in the back seat, was carrying a substantial 

amount of heroin in her personal handbag).

Here, we find that it was reasonable for law enforcement to believe there 

was a fair probability that defendant had the requisite knowledge and intent to 

constructively possess the marijuana inside the suitcase. Although the

investigation in the days leading up to defendant's arrest was focused largely on 

Darren and J.S., law enforcement received confidential tips that Darren used 

other people to assist in selling marijuana, other than J.S., and defendant was 

possibly one of them. Therefore, when law enforcement believed that Darren 

was wheeling a suitcase containing marijuana, it was reasonable to infer that 

defendant also knew what was inside the suitcase and that Darren brought 

defendant to the facility to assist him. Cf. Palacio, 111 N.J. at 554 ("An 

inference that a drug smuggler carrying a very large quantity of drugs would 

travel with a known companion, and not an 'innocent' passenger or stranger, is 

not only reasonable, it is likely."). The fact that Darren physically possessed 

the suitcase does not change our conclusion, as "possession can be jointly shared 

by several persons." Brown, 80 N.J. at 597. Accordingly, because we conclude 

that law enforcement had probable cause to detain defendant once they observed 

Darren with the suitcase, the approximately four-hour long detention was lawful.
26 A-1288-18T2

To the extent we have not specifically addressed any of defendant's 

remaining arguments, we conclude they lack sufficient merit to warrant 

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

Affirmed.