                                NOT FOR PUBLICATION WITHOUT THE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-2528-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TIWAN M. FLAGLER, a/k/a
TUQUAN ASHLEY,

     Defendant-Appellant.
_________________________

                    Submitted February 28, 2019 – Decided April 3, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 14-10-1779.

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

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Alanna M. Jereb, Assistant Prosecutor, on
                    the brief).
PER CURIAM

      Defendant Tiwan M. Flagler appeals from the November 16, 2017 Law

Division order, which denied his motion to suppress evidence seized from his

person following a motor vehicle stop.       On appeal, defendant raises the

following contention:

      POINT I

            THE TRIAL JUDGE ERRED IN DENYING
            DEFENDANT'S   MOTION     TO     SUPPRESS
            EVIDENCE    BECAUSE    THE     OFFICER'S
            TESTIMONY,   OFFERED    TO    ESTABLISH
            PROBABLE    CAUSE   AND      HEIGHTENED
            CAUTION, LACKED CREDIBILITY.

We reject this contention and affirm.

      We derive the following facts from the evidence presented at a new

suppression hearing following a remand by this court. 1

      Police Officer Gabriel Moreano of the Jersey City Police Department

testified that at approximately 8:30 p.m. on May 18, 2014, he and his partner,

Police Officer Christopher Viero, were in an unmarked patrol car traveling west



1
   In defendant's prior appeal, we remanded for a new suppression hearing
because the motion judge applied the wrong standard of review in assessing the
State's burden of proof to justify the warrantless search of defendant's person.
State v. Flagler, No. A-0825-15 (App. Div. April 6, 2017). The new hearing
was before a different judge.
                                                                        A-2528-17T2
                                        2
on Clinton Avenue. Moreano described the area as a high crime area known for

narcotics transactions, shootings, robberies, and assaults.

      The officers were approximately two car lengths directly behind a black

four-door Toyota. As the Toyota entered the intersection of Clinton Avenue and

Kennedy Boulevard, the light turned red, but the driver did not stop and

continued traveling west on Clinton Avenue.          The officers activated the

overhead lights and siren on their patrol car to conduct a motor vehicle stop.

      The Toyota stopped at the next street. Moreano and Viero exited their

patrol car and immediately smelled phencyclidine (PCP) emanating from the

vehicle. Moreano was certain it was PCP that he smelled based on his training

and experience, which included more than two hundred arrests involving PCP.

The officers saw a male in the driver's seat and a male in the front passenger's

seat and saw that the driver and passenger side windows were down. The smell

of PCP became stronger as the officers approached the Toyota. Both men were

ordered to show their hands for the officers' safety, and they complied. Moreano

spoke to the passenger, later identified as defendant, while Viero spoke to the

driver, later identified as Jazmo Boyd.

      Moreano testified that he asked defendant if he was "all right," and saw

that defendant "was just zombied out, frozen, his hands were out. He looked at


                                                                         A-2528-17T2
                                          3
me, his eyes were wide open. He was sweating, he was nervous. I asked him

again is he okay. He hesitated answering my question." Moreano explained that

these were all PCP-related behaviors that "put [his] danger awareness up . . . ."

Moreano also explained why he did not describe in detail defendant's demeanor

and behavior in prior hearings or in the police report.

      Moreano asked Boyd to exit the Toyota because of the smell of PCP and

asked if there was anything inside the vehicle. Boyd replied there was nothing

inside the Toyota. A pat down of Boyd revealed nothing negative. Boyd was

cooperative throughout the encounter. The officers issued him motor vehicle

summonses for failure to observe a signal at the red light and failure to exhibit

a driver's license.

      Moreano asked defendant to exit the Toyota for the officers' safety and

because the smell of PCP was emanating exactly from where defendant was

sitting in the vehicle. Moreano explained that PCP would impact his potential

safety because "[b]ehaviors, aggressiveness, it's . . . a bad drug. Like it's really

. . . very dangerous to [Boyd and defendant] and [the officers] and while

[defendant] was inside the vehicle I felt safer if he was able to come out [of] the

car and I could just pat him down for my safety."




                                                                            A-2528-17T2
                                         4
       Moreano asked defendant if he had any weapons or anything sharp on him,

and defendant replied he had a handgun in his right pants pocket. Moreano

immediately grabbed defendant's arms, placed him under arrest, handcuffed

him, and read him his Miranda2 rights.         Moreano touched the outside of

defendant's right pants pocket, felt a handgun, and retrieved it. As Moreano was

rendering the handgun safe, Viero came over to assist Moreano. Defendant told

Viero he had a bottle of PCP in his left cargo pants pocket. Viero went into the

pocket and retrieved the bottle.

       Boyd testified the light was green when he proceeded through the

intersection. He heard lights and sirens, looked into his rearview mirror and saw

two or three cars behind him and an unmarked police car behind those cars. All

of the cars stopped and the patrol car pulled behind his car. Boyd claimed to

have had prior interactions with the two officers, but could give no specifics.

He admitted he had received summonses, but could not recall the outcome of

those summonses.

       In denying defendant's motion to suppress, the motion judge first

addressed the stop.     The judge found Moreano's testimony credible and

determined he saw the driver of the Toyota commit the traffic violation of


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-2528-17T2
                                       5
driving through a red light. The judge noted Moreano was very confident in his

testimony; was professionally dressed; had no interest in the outcome of the

trial; had excellent recollection of the offense; candidly admitted the police

report was not fully completed as to the testimony he gave; and his testimony

was based solely on his personal observations. The judge concluded the light

was red when Boyd traveled through the intersection, and the stop was lawful

because the officers had a reasonable and articulable suspicion that the driver of

the Toyota committed a motor vehicle violation.

      The judge next addressed Moreano asking defendant to exit the Toyota.

The judge acknowledged defendant made no furtive movements, but found

Moreano had a reasonable suspicion based on the totality of the circumstances

that defendant was engaged in criminal activity and a heightened caution

justifying asking defendant to exit the Toyota. The judge also found that based

on the totality of the circumstances, Moreano had sufficient probable cause to

arrest and search defendant. Thus, the judge concluded the search incident to

defendant's arrest was lawful.

      On appeal, defendant contends the State failed to establish there was

probable cause for the stop because Moreano's testimony was not credible

because Moreano waivered about where the Toyota was located when the light


                                                                          A-2528-17T2
                                        6
turned red and failed to explain discrepancies between his testimony and the

police report. Defendant argues that because the stop was unlawful, his removal

from the Toyota and seizure of the handgun and PCP found on his person were

fruits-of-the-poisonous tree that should have been suppressed.

      Our Supreme Court has established the standard of review applicable to

consideration of a trial judge's ruling on a motion to suppress:

            We are bound to uphold a trial court's factual findings
            in a motion to suppress provided those "findings are
            'supported by sufficient credible evidence in the
            record.'" Deference to those findings is particularly
            appropriate when the trial court has the "opportunity to
            hear and see the witnesses and to have the feel of the
            case, which a reviewing court cannot enjoy."
            Nevertheless, we are not required to accept findings
            that are "clearly mistaken" based on our independent
            review of the record. Moreover, we need not defer "to
            a trial . . . court's interpretation of the law" because
            "[l]egal issues are reviewed de novo."

            [State v. Watts, 223 N.J. 503, 516 (2015) (alteration in
            original) (citations omitted) (quoting State v. Elders,
            192 N.J. 224, 243-44 (2007); State v. Vargas, 213 N.J.
            301, 327 (2013)).]

      The trial court's "credibility determinations are entitled to deference and

those factual findings must be sustained as long as they are supported by

sufficient, credible evidence in the record." State v. Yohnnson, 204 N.J. 43, 62

(2010). We owe deference to "trial courts' credibility findings that are often


                                                                         A-2528-17T2
                                        7
influenced by matters such as observations of the character and demeanor of

witnesses and common human experience that are not transmitted by the

record." State v. Locurto, 157 N.J. 463, 474 (1999). On appeal, we are not

"permitted to 'weigh the evidence, assess the credibility of witnesses, or make

conclusions about the evidence.'" Id. at 472 (quoting State v. Barone, 147 N.J.

599, 615 (1997)).

      Here, the motion judge found that any inconsistencies in Moreano's

testimony actually bolstered his credibility. The judge found Moreano was

credible based on his personal observations and the fact that he candidly

admitted the police report was not fully completed. The judge also found

Moreano was confident in his testimony, had a good recollection of the offense,

and had no interest in the outcome of the trial.

      Further, Moreano explained why he did not describe defendant's

demeanor and behavior in the prior hearing or the police report, stating it was

not customary to include each and every detail in a police report, and he was not

previously asked questions about defendant's demeanor and behavior. While

there were some discrepancies, Moreano's testimony in the current hearing was

substantially the same as in the prior proceedings.       Moreano consistently

testified that he saw the Toyota run the red light. Accordingly, the judge


                                                                         A-2528-17T2
                                        8
properly found Moreano was credible and the light was red when Boyd travelled

through the intersection.

      "It is firmly established that a police officer is justified in stopping a motor

vehicle when he has an articulable and reasonable suspicion that the driver has

committed a motor vehicle offense." Locurto, 157 N.J. at 470 (1999) (quoting

State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997)). Ultimately, "courts

will not inquire into the motivation of a police officer whose stop of an

automobile is based upon a traffic violation committed in his presence." State

v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991). "The fact that the

justification for the stop was pretextual . . . [is] irrelevant[,]" id. at 29, and the

State need not prove that the suspected motor vehicle violation has in fact

occurred. Locurto, 157 N.J. at 470. Rather, the inquiry is "whether the officer

could have an objectively reasonable belief, even if mistaken, that the

defendant's driving behavior 'affected traffic,' to justify the stop.        State v.

Sutherland, 231 N.J. 429, 439 (2018).

      The officers in this case had a reasonable and articulable suspicion that

Boyd committed a motor vehicle violation in their presence. Even if they were

mistaken, their reasonable belief that Boyd ran the red light was sufficient to




                                                                              A-2528-17T2
                                          9
conduct the stop. Accordingly, the stop of the Boyd's vehicle was lawful, and

the judge properly denied defendant's motion to suppress.

      Affirmed.




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