RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2816-15T2

STATE OF NEW JERSEY

IN THE INTEREST OF D.H.,

a Juvenile.

________________________

Submitted May 17, 2017 – Decided 

Before Judges Fuentes, Simonelli and 

Farrington.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, Hudson 

County, Docket No. FJ-09-306-16.

Joseph E. Krakora, Public Defender, attorney 

for appellant D.H. (Solmaz F. Firoz, Assistant 

Deputy Public Defender, of counsel and on the 

briefs).

Esther Suarez, Hudson County Prosecutor, 

attorney for respondent State of New Jersey 

(Rookmin Cecilia Beepat, Assistant 

Prosecutor, on the brief).

PER CURIAM

Defendant entered a conditional plea to acts, which, if 

committed by an adult, would constitute third-degree possession 

of heroin with intent to distribute, N.J.S.A., 2C:35-5a. The 

juvenile appeals from the denial of his motion to suppress the 

NOT FOR PUBLICATION WITHOUT THE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.

August 10, 2017
2 A-2816-15T2

heroin found on his person during a pat-down search after his 

arrest. We affirm.

On September 7, 2015, officers of the Jersey City Police 

Department received a radio transmission advising all available 

units to respond to Cator and Ocean Avenues on the report of a 

person fitting the description of an individual suspected in 

connection with a shooting homicide observed in the area. The 

report was based upon information received from a citizen caller

who advised he had seen a picture of the suspect in the newspaper. 

The suspect was described as "a black male," weighing 121 pounds,

and standing five-foot-six-inches tall. The caller described the 

person he believed to be the suspect as wearing a white sleeveless 

t-shirt, black pants with a white stripe down the sides, and Afro 

style hair. 

Detective Javier Toro testified he contacted the caller after 

the Sheriff's Department reported the call. The caller confirmed 

the description he had given previously and provided Toro with the 

location of the individual. Detective Toro called the local 

precinct and requested they send an officer to the location. 

Thereafter, Detective Ray Weber drove past the location and 

observed a person fitting the description with two other males. 

Perimeter units were called in and approached the individuals. 
3 A-2816-15T2

Officer Collin Congleton handcuffed D.H.,1 who he believed to be 

the homicide suspect, and patted him down. He immediately 

identified through the thin material of D.H.'s athletic pants what 

turned out to be ninety bags of heroin. The officer testified 

packaged heroin has a "distinct size, shape and texture", which 

was immediately recognizable to him because of the years he had 

spent in narcotics and on the street and the many hundreds of 

times he had encountered heroin in this way. 

Officer Congleton testified that D.H. was cooperative in 

identifying himself and that he stated his name was D.H. Despite 

the name being different from that of the homicide suspect, the 

arresting officers testified that they were unable to ascertain 

D.H. was not the suspect. D.H.'s appearance, an African American

male, five-foot-six-inches tall, weighing 130-140 pounds, wearing 

clothing matching the description given by the caller, and strong 

physical resemblance to the wanted notice picture, caused them to 

doubt his identity until they returned to headquarters. There the 

 

1 Although the juvenile refers to his encounter as a "stop" or 

investigative detention, we deem the facts indicate he was 

arrested. A stop must be "'justified at its inception' by a 

reasonable and articulable suspicion of criminal activity." State 

v. Rosario, ___ N.J. ___, ___ (2017) (slip op. at 16) (citing 

State v. Dickey, 152 N.J. 468, 476 (1998)). "An arrest . . . 

requires probable cause and generally is supported by an arrest 

warrant or by demonstration of grounds that would have justified 

one." Id. (slip op. at 11) (citations omitted).
4 A-2816-15T2

officers determined from the computer aided dispatch system (CAD) 

that D.H. had a chest tattoo, and the suspect did not. D.H. now 

appeals raising the following contention:

POINT I

THE BASIS FOR STOPPING D.H. WAS AN 

UNCORROBORATED ANONYMOUS TIP WITH UNKNOWN 

RELIABILITY, THE STOP WAS UNCONSTITUTIONAL AND 

THE FRUITS THEREFROM MUST BE SUPPRESSED.

The Fourth Amendment of the United States Constitution and 

Article 1, paragraph 7 of the New Jersey Constitution guarantee 

the 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. 

"Warrantless searches presumptively violate those protections, but 

'not all police-citizen encounters constitute searches or seizures 

for purposes of the warrant requirement.'" State v. Rosario, ___ 

N.J. ___, ___ (2017) (slip op. at 9) (quoting State v. Rodriquez, 

172 N.J. 117, 125 (2002)).

In Rosario, our Supreme Court noted "[i]n escalating order 

of intrusiveness upon a citizen's rights, three categories of 

encounters with police have been "identified by the courts: (1) 

field inquiry; (2) investigative detention; and (3) arrest." Ibid. 

The circumstances of D.H.'s detention make it clear that his 

encounter with the police began as an arrest. Officer Congleton 
5 A-2816-15T2

testified he handcuffed D.H. before patting him down. Prior to 

his arrest, D.H. was standing outside a house with other people 

when he was surrounded by several police officers who intended to 

arrest him as a homicide suspect. It is indisputable that D.H. 

was not free to leave. Having determined that D.H.'s encounter 

with the police was an arrest, "we then must consider the second 

question of whether, based on a totality of the circumstances,"

there was probable cause for the arrest, and in the absence of an 

arrest warrant, grounds which would have justified one. Id.

The circumstances leading to the arrest commenced with 

information from a citizen caller. Anonymous telephone calls 

standing alone, have long been recognized as "inherently lack[ing] 

the reliability necessary to support reasonable suspicion because 

the informant's 'veracity . . . is by hypothesis largely unknown,

and unknowable.'" Ibid. (citing Rodriguez, supra, 172 N.J. at 

127-28). As noted by the motion court in its decision on the 

record, the caller was not anonymous, and the information was 

confirmed by both Detectives Toro and Weber. Moreover, the caller 

was not reporting "knowledge of concealed criminal activity[,]" 

but his personal observations. Id. (slip op. at 16-17).

The court found the testifying police officers to be credible. 

Based on their testimony and experience, Judge Alvaro L. Iglesias

concluded, "So, given the circumstances, given the fact that the 
6 A-2816-15T2

suspect that was being sought was a suspect in a shooting homicide, 

and in light of all the circumstances, the search was justified 

under the warrant exception." 

We find the motion judge properly found, based upon the 

testimony of the police and the totality of the circumstances, 

there was both probable cause and grounds, which would have 

supported an arrest warrant on the facts then known to the police.

We next consider whether the pat-down of D.H. was conducted 

within the confines of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 

20 L. Ed. 2d 889 (1968). We find the court correctly determined 

Officer Congleton acted as "a reasonably prudent [officer] in the 

circumstances would [and was] warranted in the belief that his 

safety or that of others was in danger." State v. Thomas, 110 

N.J. 673, 685 (1988) (quoting id. at 27, 88 S. Ct. at 1883, 20 L. 

Ed. 2d at 909). Acting under the reasonable premise that D.H. was 

the homicide suspect, the pat-down of D.H.'s outer clothing was a 

minimal intrusion. D.H.'s cooperation with the police, by giving 

them his correct name, does not negate the reasonable and 

articulable suspicion for the arrest or the subsequent pat-down.

Here, as in State v. Toth, 321 N.J. Super. 609, 614-16 (App. 

Div. 1999), certif. denied, 165 N.J. 531 (2000), the motion court 

found Officer Congleton immediately knew, without manipulation, 
7 A-2816-15T2

what he felt in D.H.'s pocket was heroin and not a weapon. As the 

judge noted,

[Congelton] performed the pat-down -- a patdown of the outer clothing. And he testified, 

and I find he did it in a methodical way, 

looking for a weapon because the police 

officers knew that the suspect could be armed 

and dangerous . . . [for] his protection and 

the protection of others. While he was doing 

the pat-down, he felt over the clothing what 

he recognized as a bundle of heroin from many 

prior experiences which he -- I believe he 

stated hundreds of cases. This was 90 bags 

or nine bundles. And he felt it, because of 

his experience, he knew that that was heroin. 

That happened as he was doing the pat-down for 

weapons for the protection of everyone. 

The judge found the seizure, conducted during the pat-down, 

did not exceed Terry's boundaries. The "plain feel" doctrine has 

been analogized to the "plain view" doctrine. "[O]ur Supreme 

Court has recognized the applicability of the totality-of-thecircumstances approach to plain-view searches. There is no reason 

in law, logic, or policy that would justify a different analysis 

when analyzing a plain-feel matter." Toth, supra, 321 N.J. Super.

at 615 (citing State v. Demeter, 124 N.J. 374, 381 (1991)).

We find the motion court correctly found there was no invasion 

of D.H.'s privacy, beyond that already authorized by the officer's 

search for weapons, in the warrantless seizure of the heroin from 

his person, in a plain-feel context.

Affirmed.