                                NOT FOR PUBLICATION WITHOUT THE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-0978-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPH WITTER, a/k/a
CHRISTOPHER WITTER,

     Defendant-Appellant.
___________________________

                    Submitted September 9, 2019 – Decided September 17, 2019

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 17-01-
                    0070.

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

                    Jennifer     Webb-McRae,       Cumberland       County
                    Prosecutor, attorney for respondent (Stephen
                    Christopher Sayer, Assistant Prosecutor, of counsel and
                    on the brief).
PER CURIAM

      After pleading guilty to third-degree possession of heroin with intent to

distribute, N.J.S.A. 2C:35-5(b)(3), defendant appeals, pursuant to Rule 3:5-7(d),

from the trial court's denial of his motion to suppress thirty-one folds of heroin

found on his person and fifty folds of heroin – thirty-two of which bore the same

stamp as those found on his person – found in a hotel room for which State

police found the key on his person after he was searched incident to his arrest.

He argues:

             THE FRUITS OF WITTER'S UNLAWFUL ARREST
             SHOULD HAVE BEEN SUPPRESSED BECAUSE
             THE APPARENT DRUG SALE BY WITTER'S
             COMPANION DID NOT GIVE THE POLICE
             PROBABLE CAUSE TO ARREST WITTER. U.S.
             CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, [¶]
             7.

We agree, reverse and remand.

      Except for legal conclusions of which we conduct a plenary review, State

v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), our review of a trial

judge's decision on a suppression motion is deferential, State v. Robinson, 200

N.J. 1, 15 (2009). We "uphold the factual findings underlying the trial court'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). Because the motion


                                                                          A-0978-18T1
                                        2
judge observes the character and demeanor of the witnesses at a suppression

evidentiary hearing, he or she is better positioned to determine credibility. State

v. Locurto, 157 N.J. 463, 474 (1999).

      From the motion judge's findings following an evidentiary hearing we

glean these facts. Members of a New Jersey State Police unit assigned to

investigate street-level gun and drug crimes in the City of Millville set up

surveillance at a motel known for drug-distribution activities. Four men in a

Honda parked and did not exit the vehicle until a pickup truck parked next to

the Honda.    One of the men, later identified as Detrell Hubert, exited the

passenger side of the Honda, entered the pickup truck and engaged in what one

of the troopers believed, based on his training and experience, to be a hand-to-

hand drug transaction. The trooper determined there was sufficient probable

cause to arrest Hubert who had reentered the Honda.

      As the trooper approached the Honda, Hubert exited the vehicle and ran.

Although the motion judge did not specify if defendant was inside or outside the

Honda when the trooper approached, at some point defendant began to walk

away from the vehicle in the direction opposite from that which Hubert took.1


1
 Although the trooper testified that defendant walked in the same direction as
Hubert ran and that his report—which indicated defendant walked in the


                                                                           A-0978-18T1
                                        3
The motion judge found the other two men "acted like nothing was wrong" and

remained in the Honda.

      The trooper thought he had probable cause to arrest defendant , and a

search incident to his ultimate arrest yielded heroin and a motel room key. Thus

our initial attention focuses on whether the trooper's probable-cause

determination was correct, a question that

            "turn[s] upon whether, at the moment the arrest was
            made, the officers had probable cause to make it –
            whether at that moment the facts and circumstances
            within their knowledge . . . were sufficient to warrant a
            prudent man in believing that the petitioner had
            committed or was committing an offense."

            [State v. Contursi, 44 N.J. 422, 429 (1965) (quoting
            Beck v. Ohio, 379 U.S. 89, 91 (1964)).]

That is, did the trooper have "a well[-]grounded suspicion or belief on the part

of the searching or arresting officer that a crime [was] committed" by defendant.

State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989).

      The motion judge, in concluding the trooper had probable cause to arrest

defendant, credited the trooper's testimony about his "significant on[-]the[-]job




opposite direction—was mistaken, the motion judge found defendant walked in
the opposite direction.
                                                                         A-0978-18T1
                                       4
experience and knowledge of how drug sets operate," and summarized the

trooper's explanation for defendant's arrest:

             In the distribution of narcotics, frequently each
             individual will have a certain role to fulfill. One will
             hold the drugs. One will hold the currency. The final
             will distribute the drugs. The reasoning is that if the
             distributor is caught, he cannot be charged with other
             crimes. Thus, the [t]rooper was faced with a car of four
             men that did not get out to go to a hotel room, the visual
             observation of a suspected narcotics transaction, his
             knowledge of how drug sets operate and the attempted
             flight by two of the four individuals in the car led him
             to believe that . . . defendant was likewise involved in
             the distribution. The [t]rooper indicated that it was the
             totality of the circumstances that led him to arrest . . .
             defendant.

      Nothing observed by or known to the trooper, however, established

probable cause to arrest defendant. The trooper did not observe any interaction

between defendant and Hubert to link defendant to the latter's drug distribution.

There is no evidence of an exchange of money. There is no evidence of an

exchange of drugs. There is no evidence defendant ever spoke to Hubert before

or after the observed drug transaction. Indeed, the only difference between

defendant and the two men who remained in the Honda—and were not

arrested—was that defendant walked away. Thus, although we fully appreciate

that a "narcotics officer is especially qualified to detect traffic in narcotic drugs

[and] learns through experience how to spot an addict or pusher, how an addict

                                                                             A-0978-18T1
                                         5
or pusher acts and reacts," State v. Sheffield, 62 N.J. 441, 445 (1973), the

trooper's knowledge about drug sets had no application to the circumstances that

he perceived in this case.

      Although we have authorized the search of all persons connected to a

location where a search warrant was being executed, In re L.Q., 236 N.J. Super.

464, 473 (App. Div. 1989)—arguably analogous because the "standards for

determining probable cause to arrest and probable cause to search are identical,"

State v. Moore, 181 N.J. 40, 45 (2004)—the circumstances here are markedly

different. In L.Q., the warrant application indicated: a reliable confidential

source reported ongoing cocaine sales from a residence, 236 N.J. Super. at 466;

sporadic surveillance of the home was conducted and individuals were observed

coming and going from the house; and a controlled cocaine purchase was made

at the house. Id. at 467. We held a warrant

            may authorize the search of all persons already present
            or arriving [at the location] if the search is conducted at
            a time when sales ordinarily take place, if the premises
            are not of a sort likely . . . frequented by the public for
            lawful purposes, and if . . . a person who is [on] the
            premises when the police enter or who arrives there
            during the search is likely . . . a party to the unlawful
            activity.

            [Id. at 472.]



                                                                          A-0978-18T1
                                        6
      Here, the trooper did not observe any drug activity in the Honda prior to

the transaction in the pickup truck. No evidence established that the occupants

of the Honda were part of Hubert's illegal activity. As the Court noted in State

v. Sims, 75 N.J. 337, 349 (1978), "even presence in an automobile as a passenger

will not necessarily implicate one in the illegal acts of the driver"; the same

could be true if the illegal activity was conducted by another passenger,

particularly if the activity did not take place in the vehicle, see generally State

v. Shipp, 216 N.J. Super. 662, 665, 666 (App. Div. 1987) (recognizing the

"'general proposition[]' [that] criminal possession [of illegal substances] may

not be inferred from [a] defendant's mere presence at the location where the

contraband was found" and determining that "[m]ere knowledge, without more,

on the part of one automobile passenger that a co-passenger is carrying illicit

drugs does not constitute the former [as] a co-possessor").

      We are left to consider what the motion judge described as defendant's

"flight" from the Honda in determining whether there was probable cause to

arrest. We first observe that, unlike Hubert, defendant was not indicted for

resisting arrest, N.J.S.A. 2C:29-2(a)(2); nor was he indicted for any other charge

in connection with his "flight," e.g. obstruction, N.J.S.A. 2C:29-1(a). Moreover,

there is no evidence that any law enforcement officer issued to defendant a


                                                                           A-0978-18T1
                                        7
command to stop or that defendant ignored any such command so as to give rise

to probable cause to arrest defendant. See State v. Crawley, 187 N.J. 440, 451-

52 (2006). Further, defendant was not known to the trooper; nor did he act in a

manner to give rise to probable cause as he walked from the Honda. See

Sheffield, 62 N.J. at 445-46 (holding probable cause to arrest arose when the

defendant, who was known to the narcotics detective to be a drug dealer and was

seen in a narcotics area where the detective had seen him "on some 40 prior

occasions," placed heroin in his mouth as he was "walking rapidly away" from

the detective who had called the defendant over to speak to him).

      Under the totality of the circumstances, the trooper would have been

justified in stopping defendant, considering: defendant's presence in a high

crime area, State v. Piniero, 181 N.J. 13, 24 (2004); the trooper's training and

experience, id. at 22; defendant's departure from the scene as police moved in,

State v. Citarella, 154 N.J. 272, 276, 290 (1998); State v. Tucker, 136 N.J. 158,

168-69 (1994); and the trooper's observations of Hubert, all of which were

"'"specific and articulable facts which, taken together with rational inferences

from those facts," give rise to a reasonable suspicion of criminal activity.'" State

v. Nishina, 175 N.J. 502, 510-11 (2003) (quoting State v. Rodriguez, 172 N.J.

117, 126 (2002)). But more is needed to establish probable cause: the "well-


                                                                            A-0978-18T1
                                         8
grounded suspicion that a crime has been or is being committed." Moore, 181

N.J. at 45 (quoting Nishina, 175 N.J. at 515).

      In Piniero, the Court ruled that probable cause was not established by

evidence that a police officer observed defendant give his codefendant a pack of

cigarettes; based on the officer's experience, he knew that drugs were sometimes

carried in cigarette packs; the officer "was familiar with defendant from having

'cleared him off the corners' in the same area" where he was observed and had

received reports that identified defendant as a drug dealer; the officer had

previously arrested the codefendant and knew of his drug involvement; and both

defendant and codefendant "immediately departed the area upon seeing" the

officer, although neither ran or refused a police order to stop. 181 N.J. at 25-

26, 28. The Court concluded:

            Here . . . there was no observation of currency or
            anything else exchanged, rather, there was merely a
            transfer of a cigarette pack under circumstances that
            had both innocent and suspected criminal connotations.
            Moreover, there was no proof of "regularized police
            experience that objects such as [hard cigarette packs]
            are the probable containers of drugs." State v. Demeter,
            124 N.J. 374, 385-86 (1991). The sum of the evidence
            was merely the officer's prior general narcotics training
            and experience, and his conclusory testimony that he
            knew that cigarette packs are used to transport drugs
            because he had seen that type of activity before.

            [Id. at 28.]

                                                                        A-0978-18T1
                                       9
      Here, the trooper observed even less questionable activity by defendant.

As such, we cannot conclude there was probable cause for defendant's arrest and

the seizure of the heroin and the motel key must be suppressed. State v. Barry,

86 N.J. 80, 87 (1981); State v. Dolly, 255 N.J. Super. 278, 286 (App. Div. 1991).

      As to the drugs found in the motel room, defendant briefly argues, citing

Wong Sun v. United States, 371 U.S. 471, 487-88 (1963):            "Because the

discovery of the [motel room] key directly caused the officer to go to [that

motel] room, the items found there, including the additional heroin, were "fruit

of the poisonous tree" and should have been suppressed. The State did not

address the seizure from the motel room in its merits brief.

      "Three factors determine whether subsequently obtained evidence is

tainted by a prior illegality: (1) the presence of intervening circumstances

between the original illegality and the challenged evidence; (2) the temporal

proximity between the original illegality and the challenged evidence; and (3)

the flagrancy and purpose of the police misconduct." State v. Smith, 155 N.J.

83, 100-01 (1998). The trooper proceeded to the room ten minutes after seizing

the key from defendant. As the motion judge found, "the trooper candidly

admitted that they initially went to the window of the room because there may

be additional contraband located" in the room. We discern no intervening


                                                                         A-0978-18T1
                                      10
circumstance between the seizure of the key and the trooper's travel to the room

ten minutes after the key was seized following defendant's arrest. We also see

no evidence that anything besides the key led police to the room. As such, under

the tri-partite taint test, we determine the evidence seized from the room was

fruit of the seizure that followed defendant's unlawful arrest. 2

      Reversed and remanded.




2
   We are unpersuaded by the motion judge's analysis that the search of the room
was justified by the emergency aid exception and the plain view doctrine after
the trooper peered through the room window and saw an unresponsive woman
lying on the bed next to a box of heroin folds. Notwithstanding a potential
medical emergency, there is no evidence the trooper would have found the room
if the key had not been seized from defendant and without the key, the trooper
would not have been in a position to see the woman through the window.


                                                                        A-0978-18T1
                                       11
