                                NOT FOR PUBLICATION WITHOUT THE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-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
      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),1 and 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.


                                                                       A-1288-18T2
                                       2
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 Bachok 2 of the Passaic County Prosecutor's

Office Narcotics Unit (the Narcotics Unit) testified.

        During the summer of 2012, 3 the 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.


                                                                          A-1288-18T2
                                         3
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


                                                                          A-1288-18T2
                                        4
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


                                                                           A-1288-18T2
                                        5
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


                                                                           A-1288-18T2
                                        6
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


                                                                            A-1288-18T2
                                         7
themselves, informed Darren and defendant about the investigation, and read

them their Miranda5 rights. 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).


                                                                          A-1288-18T2
                                        8
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


                                                                             A-1288-18T2
                                         9
"[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

                                                                          A-1288-18T2
                                       10
unlawful because they were direct results of the unlawful entry. Additionally,

he argues that law enforcement unlawfully detained him because there w as 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.


                                                                           A-1288-18T2
                                       11
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


                                                                          A-1288-18T2
                                       12
(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


                                                                           A-1288-18T2
                                       13
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

                                                                             A-1288-18T2
                                        14
             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,


                                                                         A-1288-18T2
                                          15
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.").




                                                                         A-1288-18T2
                                      16
      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.
                                                                            A-1288-18T2
                                        17
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


                                                                          A-1288-18T2
                                       18
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.


                                                                           A-1288-18T2
                                       19
       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 Terry7 stop, 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).
                                                                             A-1288-18T2
                                        20
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


                                                                            A-1288-18T2
                                        21
'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).




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                                      22
      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




                                                                          A-1288-18T2
                                       23
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


                                                                        A-1288-18T2
                                      24
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.


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                                      25
      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.




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