                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0677-14T3

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

LURDES ROSARIO, a/k/a LULU
ROSARIO,

     Defendant-Appellant.
__________________________________________

         Submitted January 19, 2016 – Decided March 10, 2016

         Before Judges Accurso and Suter.

         On appeal from Superior Court of New Jersey,
         Law Division, Monmouth County, Indictment
         No. 13-10-1732.

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

         Christopher J. Gramiccioni, Acting Monmouth
         County Prosecutor, attorney for respondent
         (Paul H. Heinzel, Special Deputy Attorney
         General/Acting   Assistant  Prosecutor,   of
         counsel; Mark W. Morris, Legal Assistant, on
         the brief).

PER CURIAM

     Defendant, Lurdes Rosario, appeals from the denial of her

motion to suppress statements and physical evidence.   We affirm.
                                      I.

    At 11:33 p.m., Patrolman Gabriel Campan was patrolling a

residential area of Colts Neck known as "The Grande" when his

focus was drawn to a car parked in front of a residence by the

movement    within   of   a   silhouetted    figure   that    "grabbed"      his

attention.     The maroon vehicle was parked "head-on into the

curb" as the officer pulled his cruiser seven to ten feet behind

the vehicle, "blocking it in," and then activated his "alley

light" for better visibility.           He observed a lone occupant in

the driver's seat who looked over her right shoulder at him

"then     turned   back   around      heading   towards      the    unoccupied

passenger seat kind of scuffling around in the vehicle."                     She

was "moving around fast," but he could not see what she was

doing.     He became "suspicious of what was happening."                 As he

approached the vehicle, he noticed the window on the driver's

side was half open.       He asked the occupant, the defendant, for

identification and a driver's license, which defendant supplied.

    Four days earlier at the duty roll call, a "patrol notice"

was circulated to the officers, based on a tip from an anonymous

caller,    which   reported    that   Lurdes    Rosario   was      distributing

heroin from her house in this residential area and that she

drove a burgundy Chevy Lumina.             The officer did not make the

connection between the patrol notice and the silhouetted figure

in the burgundy vehicle at first, but he did when she produced



                                       2                               A-0677-14T3
her identification.           He also then recognized her from a prior

arrest for "drug paraphernalia and possession."                          She did not

appear to be under the influence of drugs or alcohol.

      After defendant produced her driver's license, the officer

asked "what she was doing."                She replied she was "smoking a

cigarette."      He did not see one.                 When he asked why she had

"scuffled    around"     on   the   passenger's         side,    defendant      replied

"she was putting away makeup because she just put some on."

Defendant did not respond when he asked how she could do this in

the dark.     The officer told defendant her story "is not making

sense" and then asked "if there was anything I should know about

in the vehicle."         He acknowledged he was referring "to anything

illegal."     She replied "yes" and then stated "it's the same

thing you arrested me before in the past."                    "As soon as she said

that,"   defendant     pulled    out   a       fur   mitten     that   had     not   been

visible and from that, an eyeglass case, she then opened without

any   request     from    the    officer,        revealing       a     white    powdery

substance that he believed to be crack or heroin and other drug

paraphernalia.     She was asked to step out of the vehicle and was

put under arrest for possession of drug paraphernalia.

      Defendant    was    indicted     for      third-degree         possession      of    a

controlled      dangerous       substance,           cocaine,     N.J.S.A.        2C:35-

10(a)(1).     She filed a motion to suppress the evidence seized

and   her   statements,       contending        they    were     obtained      from       an



                                           3                                    A-0677-14T3
improper investigative stop and from a custodial interrogation

without       Miranda1    warnings.       The     State      opposed      the     motion,

contending      the    evidence    and    statements      were     obtained       through

constitutionally valid procedures.

       In a written decision denying the motion to suppress, the

judge found the officer's initial interaction with the defendant

was a "field inquiry," but when the officer asked defendant

whether there was anything he should know about, referring to

criminal      activity,    the    field    inquiry     became      an     investigative

stop.

       The     judge     found    the     officer      had     a      reasonable        and

articulable      suspicion       defendant      was   engaged      in,    or    about    to

engage in, criminal activity.                  This was based on defendant's

"strange"      responses    to    the    officer,     that    she       was    smoking    a

cigarette when none was evident and was putting on makeup in the

dark, plus his knowledge of her criminal history as well as the

lateness of the hour and the lack of other traffic in the area.

The judge concluded defendant had voluntarily shown the drug

paraphernalia to the officer without prompting.

       The court found defendant was not in custody for Miranda

purposes.       She was parked outside her residence, was familiar

with    the     officer,    who    had    not    indicated       to      her    that    the

1 Miranda v. Arizona, 384 U.S. 436, 477, 86 S. Ct. 1602, 1629, 16
L. Ed. 2d 694, 725 (1966).



                                           4                                     A-0677-14T3
detention would be anything "beyond the brief period necessary

to determine what defendant was doing," he did not "unholster

his service weapon" or "make coercive statements to defendant."

       After     the    motion    was     denied,        defendant      entered     a

conditional guilty plea to third degree drug possession and was

sentenced to probationary supervision for two years consistent

with    the     sentence   recommendation          and    assessed      fines     and

penalties.

       Defendant raises the following issues on appeal:

               POINT I.   THE COURT BELOW ERRED IN FINDING
               THAT AN INVESTIGATIVE DETENTION DID NOT
               OCCUR   UNTIL   OFFICER   CAMPAN  QUESTIONED
               ROSARIO.   SINCE ROSARIO WAS THE SUBJECT OF
               AN INVESTIGATIVE DETENTION NOT JUSTIFIED BY
               THE TOTALITY OF THE CIRCUMSTANCES, THE COURT
               SHOULD HAVE GRANTED DEFENDANT'S MOTION TO
               SUPPRESS HER STATEMENT AND THE EVIDENCE
               SEIZED BECAUSE OF HER STATEMENT.

               POINT II.      MS. ROSARIO'S STATEMENT TO
               OFFICER CAMPAN WAS THE PRODUCT OF CUSTODIAL
               INTERROGATION WITHOUT MIRANDA WARNINGS.

                                 II.

       Defendant appeals the trial court's decision denying her

suppression      motion.    We    defer      to   the    trial   court's    factual

findings       unless    "clearly       mistaken"        such    that    appellate

intervention is necessary in the interests of justice.                     State v.

Elders, 192 N.J. 224, 244 (2007).                 Our review of purely legal

conclusions is plenary.          State v. Goodman, 415 N.J. Super. 210,

225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).



                                         5                                 A-0677-14T3
      The Fourth Amendment to the United States Constitution and

Article    I,     ¶    7    of     the    New   Jersey       Constitution       protect     the

State's      citizens        "against        unreasonable        police        searches     and

seizures     by       requiring          warrants      issued    upon     probable        cause

'unless [the search and seizure] falls within one of the few

well-delineated exceptions.'"                   State v. Maryland, 167 N.J. 471,

482 (2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973)).                                   Not

every interaction between a citizen and the police implicates

the   Fourth      Amendment's            warrant    requirement.          An    officer     may

conduct a field inquiry without any "grounds for suspicion." Id.

at 484; see Elders, supra, 192 N.J. at 246.                        "A field inquiry is

not considered a seizure 'in the constitutional sense so long as

the officer does not deny the individual the right to move.'"

State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting State v.

Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S.                              876, 94 S.

Ct. 83, 38 L. Ed. 2d 121 (1973)).                      "A permissible inquiry occurs

when an officer questions a citizen in a conversational manner

that is not harassing, overbearing, or accusatory in nature."

State   v.     Nishina,           175    N.J.   502,    510     (2003);    see     State     v.

Pineiro,      181      N.J.        13,     20      (2004).        Merely        asking      for

identification             does     not     elevate      a     field    inquiry      to      an

investigative detention.                  See State v. Sirianni, 347 N.J. Super.

382, 390 (App. Div.), certif. denied, 172 N.J. 178 (2002).



                                                6                                   A-0677-14T3
       An investigatory stop is considered more intrusive than a

field inquiry and does implicate constitutional requirements.

Elders, supra, 192 N.J. at 247.                Sometimes referred to as a

Terry2 stop, an investigatory stop does not require a warrant if

it is based         on "specific and articulable facts which, taken

together with rational inferences from those facts" provide a

"reasonable     suspicion     of    criminal       activity."     Ibid.   (quoting

Rodriquez, supra, 172 N.J. at 126 (quoting Terry, supra, 392

U.S.   at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906)).

       To evaluate whether the officer had a reasonable suspicion

that criminal activity had taken place or was about to take

place,   a     court   should      consider    "the     facts    objectively      and

reasonably viewed in light of the officer's expertise."                        State

v. Arthur, 149 N.J. 1, 10-11 (1997).                The officer's "articulable

reasons" or "particularized suspicion" is based on the officer's

assessment     of    the   totality    of    the    circumstances.        State    v.

Davis, 104 N.J. 490, 504 (1986).               "An anonymous tip, standing

alone,    is     rarely     sufficient        to     establish     a    reasonable

articulable suspicion of criminal activity."                    Rodriguez, supra,

172 N.J. at 127; see Alabama v. White, 496 U.S. 325, 329, 110 S.

Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990).                         Rather, the

police "must verify that the tip is reliable by some independent

2 Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed.
2d 889, 903 (1968).



                                         7                                 A-0677-14T3
corroborative effort."             Rodriquez, supra, 172 N.J. at 127.                     The

officer     must     use     the   "least          intrusive    means       necessary      to

effectuate the purpose" of the investigation, and the detention

must "last no longer than is necessary to effectuate the purpose

of    the   stop."         State   v.    Coles,       218    N.J.    322,    344    (2014),

(quoting State v. Shaw, 213 N.J. 398, 411 (2012)).

       A field inquiry can be transformed into an investigative

stop when "a reasonable person would have believed that he was

not free to leave."           United States v. Mendenhall, 446 U.S. 544,

554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); see

Rodriguez,     supra,       172    N.J.       at    126.       The   question       is    not

dependent upon the officer's "subjective intent."                              Rodriguez,

supra, 172 N.J. at 126.                 Rather, "[a]n encounter becomes more

than a mere field inquiry when an objectively reasonable person

feels that his or her right to move has been restricted."                                Ibid.

"The officer's demeanor is relevant to the analysis."                                    Ibid.

There would not be a seizure "if his questions were put in a

conversational        manner,      if    he    did    not    make    demands       or   issue

orders, and if his questions were not overbearing or harassing

in nature."      Ibid.      (quoting Davis, supra, 104 N.J. at 497 n.6).

       It is against this background that we evaluate the appeal.

We agree with the trial court that the initial encounter between

the    officer       and    defendant         was     a     field    inquiry,       not    an

investigatory detention.                The officer asked for identification



                                               8                                    A-0677-14T3
and a driver's license.                  The mere request for this is not an

investigative stop.               Sirianni, supra, 347 N.J. Super. at 391.

There    was     no    testimony      that    his   manner     was    overbearing        or

harassing.            He    did    not    draw    his     weapon.      He     did      park

perpendicular to defendant, approximately seven to ten feet away

which prevented her from backing out, but in this case she also

was parked in front of her residence allowing her access to

leave.     See State v. Stampone, 341 N.J. Super. 247, 252 (App.

Div. 2001) (finding no Terry stop while occupant of car was free

to refuse general request for information).

    We agree the field investigation became an investigative

stop when the officer asked whether there was anything in the

vehicle that he should be aware of.                     Looking at the totality of

the circumstances, by that point the alley light was on; the

patrol     car        was   parked       behind     the    vehicle;     the       officer

acknowledged          he    suspected       criminal      activity.         The     record

supports       the     trial      court's    conclusion      this     had    become      an

investigatory stop.

    We further agree the record is sufficient to demonstrate a

reasonable suspicion that criminal activity had occurred or was

about to occur by the time the encounter had evolved into an

investigatory stop.               The defendant had given strange responses

to the officer when he made inquiry about smoking and applying

makeup in the dark.                The officer recognized her from a prior



                                              9                                   A-0677-14T3
drug arrest.         She was observed "scurrying" around when he pulled

up behind her.            The hour was late.                 We agree with the trial

judge that all those factors combine to provide a particularized

and objective basis for suspecting criminal activity.

                                              III.

       Defendant contends she was in "custody" when she stated to

the officer she was in possession of "the same thing as you

arrested me before in the past" and because she did not receive

a    Miranda       warning,     the    court        erred    in   not      suppressing     her

statement.

       "Miranda       'warnings        must        be     given     before    a     suspect's

statement made during custodial interrogation [may] be admitted

in evidence.'"            State v. Carlucci, 217 N.J. 129, 143-44 (2014)

(quoting Dickerson v. United States, 530 U.S. 428, 431-32, 120

S.    Ct.    2326,    2329,      147     L.    Ed.      2d   405,    412     (2000)).       An

interrogation        in    custody      means       "questioning         initiated    by   law

enforcement officers after a person has been taken into custody

or    otherwise       deprived         of     his       freedom     of     action    in    any

significant way."              Id. at 144 (quoting Miranda, supra, 384 U.S.

at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).                             Custody "is an

objective determination."                   Ibid.; see State v. P.Z., 152 N.J.

86, 103 (1997).           "The critical determinant of custody is whether

there       has    been    a    significant         deprivation       of     the    suspect's

freedom       of     action      based        on    the      objective       circumstances,



                                               10                                    A-0677-14T3
including the time and place of the interrogation, the status of

the interrogator, the status of the suspect, and other such

factors."        Carlucci,      supra,     217    N.J.    at    144     (quoting      P.Z.,

supra, 152 N.J. at 103).                 Brief and non-coercive questioning

during an investigative stop does not require the police to

first give Miranda advice.               See Berkemer v. McCarthy, 468 U.S.

420, 439-40, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334-35

(1984); State v. Smith, 374 N.J. Super. 425, 431 (App. Div.

2005).

      Typically     Miranda        warnings        depend       upon     "circumstances

include[ing] the duration of the detention, the place and time

of   the   interrogation,         the    nature     of    the    questions       and     the

language    employed       by     the    interrogator,         the     conduct   of      the

police,    the    status     of    the     interrogator,        the     status    of     the

suspect, and other relevant circumstances."                      State v. Brown, 352

N.J. Super. 338, 353-56 (App. Div.) certif. denied, 174 N.J. 544

(2002).

      We find no error in the trial court's application of these

principles.       Although the field investigation evolved into an

investigatory      stop,     we    agree    that    the     defendant      was     not    in

custody for Miranda purposes at the time she made her statement.

The trial court found the interaction with the officer "lasted

. . . mere minutes" and the "exchange was less intrusive than a

routine traffic stop."             She was in her vehicle parked outside



                                            11                                   A-0677-14T3
her residence.     She was familiar with the officer.               He did not

unholster his service weapon or make coercive statements.                     An

officer is not required to give Miranda warnings before asking

questions     reasonably    related      to      dispelling    or   confirming

suspicions that justify the detention.               Smith, supra, 374 N.J.

Super. at 431.        The record supports that there was nothing to

substantiate    her    argument   that     the    statements   were   obtained

involuntarily.        Her statement was volunteered.            "Miranda does

not apply to volunteered statements."              See State v. Coburn, 221

N.J. Super. 586, 598 (App. Div. 1987), certif. denied, 110 N.J.

300 (1998).     We agree defendant was not in custody at the time

the statement was made.

    Affirmed.




                                      12                               A-0677-14T3
