                         NOT FOR PUBLICATION WITHOUT THE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.




                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2858-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROGER A. ALBARRACIN,

     Defendant-Appellant.
__________________________________

              Submitted August 1, 2018 – Decided August 7, 2018

              Before Judges Hoffman and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-04-0496.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele E. Friedman, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Luisa M. Florez,
              Assistant Prosecutor, on the brief).

PER CURIAM

        After    the   Law   Division     denied    his   suppression      motion,

defendant Roger Albarracin pled guilty to conspiracy to distribute
a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2(a)(2) and

N.J.S.A. 2C:35-5(b)(3), and received a three-year probationary

term.   Defendant now appeals, arguing the motion court should have

suppressed his statements and physical evidence because the police

initiated an unconstitutional de facto arrest without probable

cause and failed to provide timely Miranda1 warnings.       We disagree

and affirm.

      We discern the following facts from the motion record.              On

September 25, 2015, Sergeant Delatorre2 and Detective Soto, in

plain clothes, stopped their unmarked police car at the corner of

Bergenline Avenue and an intersecting street, where they observed

two individuals — defendant and Hector Rivera — interacting;

Sergeant Delatorre described Rivera as "a known user."               While

standing twenty feet away, the officers witnessed an apparent drug

transaction   when   they   observed   Rivera   give   defendant     "U.S.

currency" in exchange for an "unknown item."

      The officers followed the two men, who began walking west on

the intersecting street.     Detective Soto stopped and stayed with

Rivera while Sergeant Delatorre followed defendant, who met with

a female accompanied by children.         Sergeant Delatorre tapped


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
   Sergeant Delatorre was the only witness at the suppression
hearing.

                                   2                               A-2858-16T4
defendant on the shoulder and identified himself as a Union City

Police Officer.     He then told defendant, "[C]ome with me, [S]ir,

I do not want to make a scene in front of your children." Defendant

complied, and they walked to a public parking lot about ten to

fifteen feet away.     There, Sergeant Delatorre told defendant he

believed defendant had just completed a drug transaction.         He then

asked defendant if he had any additional contraband, without

advising defendant of his Miranda rights.          Defendant responded,

"[Y]es, I do," and then showed Sergeant Delatorre "two more bags"

of heroin.     At that point, Sergeant Delatorre placed defendant

under arrest and discovered "128 wax folds of heroin" during a

search incident to that arrest.

     The   motion   court   denied   defendant's   motion   to   suppress

defendant's statements and the physical evidence seized from him,

concluding Sergeant Delatorre's initial interaction with defendant

constituted a proper investigatory stop.     The court reasoned, "The

stop was brief in nature and it did not curtail [d]efendant's

freedom to a degree associated with a formal arrest.             Miranda

warnings were therefore not necessary because [d]efendant was not

in custody."

     Defendant raises the following points on appeal:




                                     3                            A-2858-16T4
            POINT I

            BY ISOLATING ALBARRACIN, MOVING HIM TO A
            NEARBY PARKING LOT, AND ACCUSING HIM OF
            CRIMINAL ACTIVITY, THE OFFICER DID NOT MERELY
            CONDUCT AN INVESTIGATORY STOP, BUT RATHER,
            SUBJECTED ALBARRACIN TO A DE FACTO ARREST.
            GIVEN THAT THE OFFICER LACKED THE REQUISITE
            PROBABLE CAUSE TO SUBJECT HIM TO THIS TYPE OF
            ENCOUNTER, THE FRUITS OF THE SEIZURE MUST BE
            SUPPRESSED.

            POINT II

            THE OFFICER FAILED TO APPRISE ALBARRACIN OF
            HIS MIRANDA RIGHTS PRIOR TO SUBJECTING HIM TO
            A CUSTODIAL INTERROGATION, THUS REQUIRING
            SUPPRESSION   OF  ALBARRACIN’S   VERBAL   AND
            NONVERBAL RESPONSES TO THE OFFICER’S POINTED
            INQUIRY REGARDING HIS INVOLVEMENT IN DRUG
            ACTIVITY.

                                       I

      In reviewing a motion to suppress, we "must uphold the factual

findings    underlying    the   [judge's]     decision     so   long   as   those

findings are 'supported by sufficient credible evidence in the

record.'"     State v. Elders, 192 N.J. 224, 243 (2007) (quoting

State v. Locurto, 157 N.J. 463, 471 (1999)).

      The Fourth Amendment of the United States Constitution and

Article I, paragraph 7 of the New Jersey Constitution protect

citizens against unreasonable searches and seizures.                U.S. Const.

amend. IV; N.J. Const. art I, ¶ 7.              Generally, law enforcement

officers must obtain a warrant based on probable cause to initiate

a   constitutionally     permissible       search   or   seizure,   unless   the

                                       4                                A-2858-16T4
search or seizure was "justified by one of the well-delineated

exceptions to the warrant requirement."               State v. Shaw, 213 N.J.

398, 409 (2012) (internal quotation marks and citation omitted);

see   also   State    v.   Maryland,   167     N.J.      471,   482   (2001).     An

investigatory stop is an exception to the warrant requirement.

Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

      "An    investigatory       stop,        sometimes         referred   to     as

a Terry stop, is permissible '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.'"    Shaw, 213 N.J. at 410 (quoting State v. Pineiro, 181

N.J. 13, 20 (2004)).        The State bears the burden of showing "by a

preponderance    of    the    evidence       that   it    possessed     sufficient

information to give rise to the required level of suspicion."

State v. Amelio, 197 N.J. 207, 211 (2008) (citation omitted).

      "Reasonable suspicion necessary to justify an investigatory

stop is a lower standard than the probable cause necessary to

sustain an arrest."        State v. Stovall, 170 N.J. 346, 356 (2002)

(citing State v. Citarella, 154 N.J. 272, 279 (1998)).                     To meet

the reasonable suspicion standard, an officer must have "some

minimal level of objective justification for making the stop" that

is "more than an inchoate and unparticularized suspicion or hunch."

United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation

                                         5                                 A-2858-16T4
marks and citations omitted).          In determining whether reasonable

suspicion exists, a court should consider "the totality of the

circumstances . . . ."         State v. Gamble, 218 N.J. 412, 431-32

(2014) (quoting United States v. Cortez, 449 U.S. 411, 471 (1981)).

"An officer's experience and knowledge are factors courts should

consider in applying the totality of the circumstances test."

Pineiro, 181 N.J. at 22 (citing State v. Davis, 104 N.J. 490, 504

(1986)).

      Defendant argues Sergeant Delatorre made an unlawful de facto

arrest, without probable cause, and then failed to provide Miranda

warnings.    We disagree.

      The record supports the motion judge's determination that

Sergeant Delatorre's brief conversation with defendant constituted

a legal investigatory stop.         Sergeant Delatorre observed defendant

receive currency from a known drug user in exchange for an item.

The   exchange   constituted    specific       and   articulable   facts   that

provided Sergeant Delatorre with a reasonable suspicion that a

drug transaction had occurred.             The transaction, coupled with

Sergeant Delatorre’s fifteen years of training and experience,

supported his suspicion of defendant's specific criminal conduct.

Based on the totality of the circumstances, Sergeant Delatorre had

a   reasonable   suspicion     to    conduct    an   investigatory   stop     of

defendant.

                                       6                               A-2858-16T4
     Defendant     further      argues       that    Sergeant      Delatorre    was

"undoubtedly intimidating" and lacked the requisite suspicion to

isolate defendant from the children and female with whom he was

standing.   While an investigatory stop becomes a de facto arrest

when it is more than "minimally intrusive," State v. Dickey, 152

N.J. 468, 478 (1998), that did not occur here.               We discern nothing

improper regarding Sergeant Delatorre's decision to speak with

defendant away from the children, whom he thought were defendant's

children.   The exchange with defendant took place in a public

parking lot, several feet from defendant's original location, and

lasted less than a minute.         We do not find Sergeant Delatorre's

behavior intimidating or coercive, nor did defendant object to the

questioning.      We conclude the interaction constituted a lawful

investigatory     stop    and    the     motion      court    correctly     denied

defendant's motion to suppress.

                                       II

     Defendant further argues that because he did not receive

Miranda warnings, the court should suppress his statements and

physical evidence.       We disagree.

     Miranda     warnings    attach      only       when   there    is   custodial

interrogation, which is when law enforcement initiates questioning

after taking a person into custody or otherwise depriving that

person of freedom of action in a significant way.                    See Miranda,

                                         7                                 A-2858-16T4
384 U.S. at 444; State v. Smith, 307 N.J. Super. 1, 8-9 (App. Div.

1997).    The rights provided in Miranda are "not implicated when

the detention and questioning is part of an investigatory procedure

rather than a custodial interrogation."                       State v. Pierson, 223

N.J. Super. 62, 66 (App. Div. 1988).                    "[W]hether a suspect is in

custody     depends      on     the       objective       circumstances          of       the

interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned."                         State v.

O’Neal,    190    N.J.   601,       615   (2007).         Factors    to    consider         in

evaluating       whether      the     suspect       was    subject        to   custodial

interrogation include: "the time, place[,] and duration of the

detention; the physical surroundings; the nature and degree of the

pressure applied to detain the individual; language used by the

officer; and objective indications that the person questioned is

a suspect."      State v. Smith, 374 N.J. Super. 425, 431 (App. Div.

2005).    In addition, "[t]he determinative consideration is whether

a reasonable innocent person in such circumstances would conclude

that after brief questioning[,] he or she would or would not be

free to leave." Pierson, 223 N.J. Super. at 67 (citation omitted).

     Here, the record supports the court's finding that defendant

was not in custody when Sergeant Delatorre approached defendant,

requested    defendant        step    away       from   the    children,       and     asked

defendant if he had any additional contraband.                       The interaction

                                             8                                       A-2858-16T4
between Sergeant Delatorre and defendant lasted less than one

minute and involved one question.                 Although Sergeant Delatorre

testified defendant was not free to leave during the questioning,

Sergeant    Delatorre         did   not   disclose   that    to    defendant.         An

officer’s subjective intent is only relevant if disclosed to the

suspect, in which case it would likely affect a reasonable person's

belief they were free to leave.                State v. Brown, 352 N.J. Super.

338, 352-53 (App. Div. 2002).             The record shows Sergeant Delatorre

conducted    a    brief       investigatory      stop    that     did    not   curtail

defendant's freedom to the degree associated with a formal arrest.

Therefore, it was permissible for Sergeant Delatorre to question

defendant     about       the       suspected     drug      transaction        without

administering Miranda warnings.

      Furthermore,        a    voluntary       statement    by     a    defendant     is

admissible at trial.            State v. Miller, 76 N.J. 392, 402 (1978).

In determining the issue of voluntariness, "a court should assess

the   totality     of   all     the    surrounding      circumstances."            Ibid.

"[R]elevant      factors      [to   consider]     include    the       suspect’s    age,

education and intelligence, advice as to constitutional rights,

length of detention, whether the questioning was repeated and

prolonged in nature and whether physical punishment or mental

exhaustion was involved."             Ibid.



                                           9                                   A-2858-16T4
     Here, defendant voluntarily accompanied Sergeant Delatorre

without objection.   Sergeant Delatorre asked defendant only one

question, which did not involve any physical or psychological

coercion.   Although defendant gave an incriminating response and

produced two additional bags of drugs from his person, Sergeant

Delattore neither coerced defendant into making that statement nor

was defendant in custody.   Accordingly, the motion court correctly

determined the challenged statements and physical evidence were

admissible and established probable cause to arrest defendant.

     Affirmed.




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