                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2822-18T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

BILLIE JOHNSON,

     Defendant-Respondent.
___________________________

                   Submitted August 5, 2019 – Decided August 9, 2019

                   Before Judges Sabatino and Rose.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Camden County,
                   Indictment No. 18-04-0852.

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for appellant (Linda Anne Shashoua, Assistant
                   Prosecutor, of counsel and on the brief).

                   Joseph E. Krakora, Public Defender, attorney for
                   respondent (Whitney Faith Flanagan, Assistant Deputy
                   Public Defender, of counsel and on the brief).

PER CURIAM
                                         I.

      This appeal by the State arises out of the warrantless seizure of bags of

heroin from defendant after a patrolman observed him being handed cash in

connection with an apparent drug transaction on the streets of Camden.

Although it found the unrebutted testimony of the patrolman describing the

events to be "very credible," the trial court concluded the State lacked probable

cause to arrest and search defendant, and consequently suppressed the seized

contraband.

      For the reasons that are detailed in this opinion, we reverse the suppression

ruling. We do so because the circumstances are legally sufficient to establish

probable cause that defendant had taken part in a drug transaction.

      The salient facts were described in the suppression hearing testimony of

Detective David Stinsman of the Camden County Police Department. As of that

time, he had been on the police force for over five years, initially as a patrolman

and thereafter as a detective in the Narcotics/Gang Unit. Officer Stinsman had

been specifically trained at the police academy to recognize hand-to-hand

narcotics transactions. Before the present incident, he had participated in about

twenty arrests for narcotics offenses.




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      As described by Officer Stinsman, he was working alone in plainclothes

on the day shift in the City of Camden on February 19, 2018. He noted the area

was generally known by the police to be one in which drug transactions were

common. He stopped his patrol car at the intersection of Sixth Street, Spruce

Street, and Newton Avenue.

      From his unobstructed view about ten feet away, Stinsman observed three

African-American males walking down the street together. One of them, Jerry

Pyles, separated from the other two when an unidentified while male

approached. Stinsman saw the white male give Pyles money in exchange for

small blue-colored bags. The officer also noticed two other males standing

about five feet away, one of them later identified as defendant Billie Johnson

and the other named Darnell Judge. As recounted by the officer, he saw Pyles,

without engaging conversation, "directly" and "immediately" hand to Johnson

the cash he had received from the white male.

      Having perceived this apparent hand-to-hand narcotics transaction,

Officer Stinsman radioed for backup officers then arrested and searched the

three African-American males. The officers found on Pyles a dozen Ziploc bags

containing blue wax folds that appeared to be heroin, plus $17 in currency.




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                                      3
Meanwhile, the search of Johnson's person revealed eight Ziploc bags also

containing blue wax folds of a powdery substance, as well as $362 in currency.

      The State charged Johnson with third-degree possession of heroin,

N.J.S.A. 2C:35-10(a)(1), and third-degree possession of heroin with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).         Pyles was

charged as a co-defendant with drug offenses as well. 1

      As Officer Stinsman explained to the court, his narcotics training and

experience indicated to him that Pyles and Johnson and the third male were

acting as a "drug set." Typically, in such a drug set, one individual supplies the

drugs to a customer, another person takes and holds the money paid for the

drugs, and a third person can act as a lookout. In the present situation, Johnson

functioned as a "money man," who received the drug proceeds from Pyles

immediately after the customer tendered the cash payment.

      Defendant did not present any competing testimony at the suppression

hearing. His counsel argued that the transfer of cash from Pyles to Johnson

could have been innocuous, and that the circumstances were insufficient to rise

to the level of probable cause that Johnson had committed or participated in a


1
   Pyles did not join in Johnson's suppression motion. The third companion
apparently was not charged with any criminal offense, although that is
inconsequential to this appeal.
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narcotics offense. The prosecutor countered that probable cause was indeed

present, based on Officer Stinsman's observations, and that the search of

Johnson's person incident to his arrest was constitutionally permissible without

a warrant.

      The trial court expressly found Officer Stinsman's testimony to be

"inherently believable," and that he was "a very credible witness." Nevertheless,

the court concluded as a matter of law that the police did not have sufficient

probable cause to arrest Johnson.

      The court likened the present situation to the circumstances in State v.

Pineiro, 181 N.J. 13 (2004), in which the Supreme Court invalidated the

warrantless search of a suspected drug dealer, whom the police had seen being

handed a cigarette pack by another adult in a high-crime area. The State argued

the cigarette pack could have contained illegal drugs. The Court held in Pineiro

that the simple transfer of the cigarette pack, in and of itself, was insufficient to

establish probable cause to justify the recipient's arrest and warrantless search.

Id. at 28-29.

      The State in this case moved for reconsideration, which the trial court

denied in an oral opinion that essentially repeated its earlier legal analysis. We




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                                         5
granted the State's motion for leave to appeal and have considered merits

briefing from both parties.

                                       II.

      Our analysis of the trial court's suppression ruling is guided by well -

settled principles of law and appellate review.

      A warrantless search by a law enforcement officer is generally

unconstitutional unless it satisfies a recognized categorical exception to the

warrant requirement of the Federal and New Jersey Constitutions. Schneckloth

v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Witt, 223 N.J. 409, 422

(2014). In this case, the State relies on the longstanding exception for searches

incident to the lawful arrest of persons based upon probable cause that they

committed a criminal offense. Chimel v. California, 395 U.S. 752, 755 (1969);

State v. Doyle, 42 N.J. 334, 343-44 (1964). Probable cause must be manifest

before the arrest or search is performed. "A search undertaken merely for the

purpose of uncovering evidence with which to arrest and convict [a person] of

crime is not made lawful because the desired evidence is obtained." Doyle, 42

N.J. at 342.

      "Probable cause exists where 'the facts and circumstances within . . . [the

officers'] knowledge and of which they had reasonably trustworthy information ,


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                                        6
[are] sufficient in themselves to warrant [an officer] of reasonable certainty in

the belief that' an offense has been or is being committed." Brinegar v. United

States, 338 U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S.

132, 162 (1925)). See also State v. Moore, 181 N.J. 40, 46 (2004). The

assessment of probable cause depends upon "the totality of the circumstances."

Illinois v. Gates, 462 U.S. 213, 230-31, 238 (1983); see also State v.

Novembrino, 105 N.J. 95, 122-23 (1987). Probable cause is "a fluid concept-

turning upon the assessment of probabilities in particular factual contexts – not

readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S.

at 232 (emphasis added). This highly contextual standard "requires nothing

more than a practical common-sense decision whether, given all the

circumstances, . . . there is a fair probability" that a crime has been committed.

State v. Johnson, 171 N.J. 192, 214 (2002).

      When reviewing on appeal a trial court's decision concerning an exception

to the warrant requirement, we afford considerable deference to the factual

findings of the judge who heard the pertinent testimony at the suppression

hearing. We must accept the judge's factual findings "so long as those findings

are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J.

249, 262 (2015). However, we owe no such comparable deference to the judge's


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                                        7
legal conclusions. Id. at 263. Instead, we review such legal determinations de

novo. Ibid.

      Applying these standards to the present record, we accept the trial court's

factual findings about what Officer Stinsman observed at the Camden

intersection on the date in question. Those factual observations are based upon

the testimony of the officer, whom the trial court repeatedly found to be a

credible witness.   We part company, however, with the trial court's legal

assessment that the observed behavior did not rise to the level of probable cause

that defendant Johnson had participated in an apparent narcotics transaction.

      As the officer explained, he reasonably perceived that Johnson had acted

as the so-called "money man" in a drug transaction with his companions. The

officer personally witnessed at close range defendant and his companions

walking together on the street and then briefly separating a few feet away from

one another. Pyles then exchanged a wrapped packet of what appeared to be

narcotics to the pedestrian customer, receiving cash in exchange. Pyles then

immediately and directly handed that cash to Johnson, without any discussion.

      As Officer Stinsman explained, based upon his training and experience

with narcotics transactions, the behavior he witnessed is consistent with the

practices of drug sets in which no one member is exclusively involved in the


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                                       8
entire transaction.   Such schemes are deliberately arranged to impede the

detection and apprehension of the criminal participants. Our case law has

recognized the functional role that a "money man" such as Johnson can perform

in such narcotics transactions on the streets. See, e.g., State v. Nesbitt, 185 N.J.

504, 516-19 (2006) (upholding a conviction for drug distribution where the

defendant did not personally give the drugs to the buyer or personally accept the

payment from the buyer); see also State v. Berry, 140 N.J. 280, 303-04 (1995)

(similarly upholding a narcotics distribution conviction where a "money man"

was utilized).

      Although Officer Stinsman did not have especially lengthy experience as

a narcotics officer, his training and background was more than sufficient to

provide an evidential foundation for the reasonable inferences he drew at the

scene from his observations. Moreover, although the roles of the three men in

this case slightly varied from the typical scenario, defendant's apparent function

as a "money man" was reasonably supported by the evidence.

      The trial court's comparison of this case to the facts in Pineiro, 118 N.J.

at 13, was legally misplaced. The distinguishable circumstances in Pineiro were

far weaker and did not support a finding of probable cause. The defendant in

Pineiro was simply handed a cigarette pack on a public street in a high-crime


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                                         9
area. Id. at 18-19. Although Pineiro was generally suspected to be a drug dealer,

there is no indication in the Court's opinion that the police observed anyone at

the scene pay money for narcotics and receive them in exchange. Id. at 28. It

was speculation for the police to assume, without more, that the cigarette pack

contained narcotics. Ibid.

      Here, the coordinated actions of defendant and his companions in

exchanging a blue packet of apparent drugs or cash from an apparent customer,

and then immediately handing those proceeds to defendant, is far more

indicative of his participation in criminal activity. The integrated series of

events distinguishes this case from the simple and often innocuous act of

Civilian "A" handing money to Civilian "B." The fact that the putative buyer

apparently was not arrested is not dispositive of the suppression analysis.

      Several times in its oral opinions, the trial court acknowledged this is a

"close case." We agree with that assessment, but respectfully conclude that, on

balance, the factual proofs are legally adequate to support the constitutionality

of this search-and-seizure.

      Reversed and remanded. We do not retain jurisdiction.




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