                                 NOT FOR PUBLICATION WITHOUT THE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-1458-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JOSE GUZMAN,

     Defendant-Respondent.
____________________________

                   Argued March 18, 2019 – Decided April 12, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 17-04-0571.

                   Ian C. Kennedy, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for appellant (Dennis Calo, Acting Bergen County
                   Prosecutor, attorney; Ian C. Kennedy, of counsel and
                   on the briefs).

                   James K. Smith, Jr., Assistant Deputy Public Defender,
                   argued the cause for respondent (Joseph E. Krakora,
                   Public Defender, attorney; James K. Smith, Jr., of
                   counsel and on the briefs).
PER CURIAM

      The State's interlocutory appeal in this case concerns a field inquiry by

police officers that escalated to a "Terry" stop1 and ultimately to defendant's

arrest and the seizure of illegal drugs from his person. Specifically, the State

seeks reversal of the trial court's October 30, 2018 decision suppressing certain

evidence. The police obtained the evidence through a warrantless search and

interrogation of defendant at a diner, upon responding to a 9-1-1 call.

      For the reasons we shall explain, we remand this matter to allow the trial

court to clarify and amplify its factual findings concerning the exact sequence

of events at the diner. In particular, we request findings addressing the legally

critical issue of whether the moment the police first posed accusatory questions

to defendant – inquiring if he was under the influence of drugs or alcohol –

occurred before or after police interviewed defendant's girlfriend at the scene.

We also ask the trial court to reconsider its self-incrimination ruling in light of

those more specific factual findings and in light of additional legal authority.




1
   Terry v. Ohio, 392 U.S. 1 (1968) (recognizing an exception to the Fourth
Amendment allowing police officers to conduct a brief investigatory stop-and-
frisk of a person in order to confirm the officers' reasonable and articulable
suspicion of that person's involvement in criminal activity).
                                                                           A-1458-18T4
                                        2
                                           I.

         The State has charged defendant Jose Guzman with second-degree

possession of a controlled dangerous substance ("CDS"), namely cocaine, with

the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2)

(count one); third-degree possession of a CDS, namely cocaine, N.J.S.A. 2C:35-

10(a)(1) (count two); and fourth-degree making a false 9-1-1 call, N.J.S.A.

2C:33-3(e) (count three).

         The State's case is largely predicated upon narcotics, statements, and other

incriminating evidence that South Hackensack police officers obtained from

defendant without a warrant and without Miranda2 warnings. Defendant moved

to suppress the seized evidence and statements.

         The trial court conducted a suppression hearing over two days. At that

hearing, the two police officers who participated in the search testified for the

State.     Defendant presented testimony from a police dispatcher, and also

testimony from his girlfriend,3 with whom defendant has several children.


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
   The record is unclear as to the exact nature of defendant's relationship with
his significant other. When asked to describe her relationship with defendant at
the hearing she testified, "[t]hat's my legally – or not, I guess, 'Cause we were
married." For simplicity, we refer to defendant's significant other as his
girlfriend.
                                                                             A-1458-18T4
                                           3
                                       A.

      The following salient facts, which are discussed in more detail in the trial

court's written decision, emerged at the suppression hearing.

      At approximately 9:30 p.m. on October 1, 2016, Police Officer Matthew

Orefice and Detective Brian Kropp, who was a patrolman at the time of the

incident, responded to a 9-1-1 call, in which a male caller reported that he had

been threatened by another man.         Officer Orefice testified that he was

"dispatched by headquarters for a man being threatened with a gun" to a diner

on Route 46, and that he responded to the location in under a minute. Orefice

testified that Kropp responded at or around the same time in a different vehicle.

      A contested issue at the suppression hearing was what the responding

officers knew about the situation before arriving at the diner. In the transcript

of the 9-1-1 call, the Bergen County 9-1-1 operator told South Hackensack

Dispatcher Anthony Moreno that the caller had reported that "45 minutes ago a

male threatened to kill him," and that when the caller got to the diner he saw the

man. The caller identified the man who threatened him and spelled the man's

name. When asked by the 9-1-1 operator, the caller said he would like to make

a report.




                                                                          A-1458-18T4
                                        4
      Dispatcher Moreno testified that, after getting off the phone with the

9-1-1 operator, he advised Officers Kropp and Orefice of the call, and dispatched

them from headquarters. According to Moreno, he "advised them that a male

party stated that somebody else had threatened to kill him and he was at the

[diner]," but could not remember if he provided the officers with any other

information. Orefice recalled in his testimony that he was dispatched to the

diner for "a man being threatened with a gun."

      Upon arriving, Orefice and Kropp "saw that there was no immediate

frantic of the public." The officers walked inside the diner and "everything

seemed to be normal." They asked an employee at the cash register if anyone

had placed a 9-1-1 call. The employee was "shocked" to see the police and said

everything had been okay. The officers noticed a man at the bar area of the diner

looking at them.

      After speaking with the employee, the officers addressed the diner

occupants generally, asking if anyone had called 9-1-1 and if anyone needed

help. No one answered for a few minutes. The officers were about to walk out

when, according to Orefice's testimony, a male individual seated by the bar area

– later identified as defendant – "screamed out." He exclaimed, "Wait. I called

9-1-1."


                                                                         A-1458-18T4
                                       5
      The officers asked the man to step into the diner's foyer with them to talk

about why he had called 9-1-1. The foyer is located in the area where customers

enter the diner and a glass door separates it from the main restaurant. Orefice

testified that they felt it was not appropriate to discuss the 9-1-1 call inside a

diner with all the customers and employees there. At some point, the officers

and defendant moved from the foyer to outside the diner.

      Orefice testified that he and Kropp asked defendant what was going on, if

he was all right, and to explain what was happening. According to Orefice,

defendant told the officers that "a man with a gun" had threatened him forty-five

minutes earlier. However, defendant could not tell the officers anything about

that man – such as his name or what he looked like. Orefice testified that

defendant only told them that the gun-toting man "had a bulge coming from his

pants."

      Orefice's written report states that defendant said he was threatened by the

man forty-five minutes earlier, and that defendant explained he "overheard from

[his] girlfriend that he wanted to kill me." Orefice also testified that defendant

said that his girlfriend was "trying to set him up to be killed." Defendant denied

to Officer Orefice that any other events in the past could have led to this man




                                                                          A-1458-18T4
                                        6
threatening him. Because Orefice felt that defendant's account was not making

sense, he asked defendant to clarify his narrative about three times.

      According to Orefice, when he was speaking with defendant, he observed

that defendant "had a very dry mouth." As described by Orefice, "white stuff

was starting to form around [defendant's] lips.        He was very fidgety.      He

. . . couldn't really stare at us straight in the eye. He couldn't really tell us

exactly what was going on." Both officers testified that defendant was grinding

his teeth.

      Both Orefice and Kropp found defendant's behavior suspicious. Kropp

remembered that defendant "seemed really nervous." Kropp also recalled that

defendant was clenching his fists, glancing up and down when asked questions ,

and moving his jaw back and forth. Kropp demonstrated these movements for

the court at the hearing.

      Officer Kropp testified on direct examination that he had believed

defendant was under the influence of narcotics: specifically cocaine or crack

cocaine. However, on cross-examination, Kropp conceded that he was not sure

if it was alcohol or narcotics at this point in the encounter. Similarly, Orefice

testified that he was not initially sure if defendant was under the influence of

alcohol or narcotics.       Orefice's police report stated that the police officers


                                                                           A-1458-18T4
                                           7
"immediately realized" defendant was "under the influence of narcotics or

alcohol."4

      At some point, defendant's girlfriend arrived at the diner. She was driving

a car and accompanied by her five children.

      Kropp testified that he went over to the girlfriend's car and asked her about

defendant's claim that he had overheard a threat. According to Kropp, the

girlfriend initially dismissed defendant's report. She reportedly told Kropp,

"[Defendant] gets like this from time to time when he uses drugs, and he may

have been high at the time." Upon hearing this, Kropp went back to where

defendant was with Orefice.

      The girlfriend provided a different version of events. According to her

testimony, defendant had called her to come get him at the diner. She estimated

it took her around fifteen to twenty minutes to get there. When she arrived,

Kropp came over. She told Kropp she was there to pick defendant up. Kropp

went back to defendant. Kropp then returned, and asked her if defendant was

"high." She contends she answered no. According to the girlfriend, she would




4
  Alcohol was served at the diner, although there is no evidence, either way, as
to whether defendant consumed alcohol on the premises.
                                                                           A-1458-18T4
                                        8
not have said defendant was "high," because her children were with her and they

did not know defendant had an addiction.

      At some unclear point in time, Orefice asked defendant if the incident with

the gun-toting man had actually happened and if he was under the influence of

narcotics. Defendant allegedly responded, "No. I don't want a report anymore.

Please just don't lock me up." Orefice then asked defendant when was the last

time he used narcotics. According to the officer, defendant admitted at that

point to using "narcotics" a couple hours earlier.

      Once defendant admitted to using narcotics, the officers decided to place

him under arrest. Kropp testified that his decision was based on defendant's

behavior, which indicated to Kropp he was under the influence of a narcotic and

led the officers to believe the threat never occurred. In this regard, Orefice's

report states "[t]hrough our observations of [defendant], [the girlfriend's]

statements and [defendant's] statements we placed [defendant] under arrest for

being under the influence in violation of [N.J.S.A.] 2C:35-10B and raising a

false public alarm in violation of [N.J.S.A.] 2C:33-3E."

      According to Orefice, before searching defendant he "gave [defendant]

the opportunity to be honest," and asked if he had anything on him. Defendant

denied having anything on him. The officers then searched defendant's person


                                                                         A-1458-18T4
                                        9
before placing him in handcuffs. In the course of that search, the officers

discovered and seized approximately four bags of a white powdery substance

and a scale in defendant's jacket pocket, as well as $909 in cash.

      Orefice contended the search of defendant's person had "no bearing" on if

the officers were going to arrest him, and the search was only "to see if he had

anything on him before we placed him in our patrol vehicle." Kropp testified

that he believed defendant had already been advised that he was under arrest

prior to the search.

      The officers placed defendant in handcuffs and read him his Miranda

rights. Orefice estimated it was approximately between forty-five minutes and

an hour from the time the officers arrived at the diner to the time they placed

defendant in handcuffs. Orefice testified that the search was incident to arrest

for making a false public alarm and for being under the influence.

      Orefice testified that defendant was not free to leave before he was placed

in handcuffs. The officers elected to search defendant before placing him in

handcuffs because defendant was "non-combative" and not a "flight risk."

                                       B.

      Upon sifting through this evidence, the judge granted defendant's motion

to suppress. The judge issued a thirty-one-page written opinion detailing her


                                                                         A-1458-18T4
                                      10
reasoning. In particular, the judge found that the police officers had a legitimate

constitutional basis to perform a field inquiry when they came to the diner in

response to the 9-1-1 call. However, the judge determined the field inquiry

transitioned to an investigatory "Terry" stop – "at the very latest" – when Officer

Orefice posed accusatory questions to defendant about whether he was under the

influence of drugs or alcohol. The judge reasoned from the evidence that the

police – at that point – did not yet have reasonable suspicion of criminal

wrongdoing on the part of defendant to justify his investigatory detention.

      As part of her analysis, the judge found unpersuasive Orefice's testimony

about defendant appearing to be under the influence, noting the officer's

relatively limited experience in drug recognition. The judge also gave little

weight to Kropp's testimony on this subject, noting his inability to remember

many details of the events and that his testimony appeared to consist of "largely

after-the-fact justifications." Additionally, the judge expressed doubts about the

girlfriend's statements and voiced concerns about the reasonableness of the

officer's acceptance of and reliance upon her story. For these and other reasons,

the judge suppressed inculpatory items seized from defendant after his arrest,

due to the taint of the invalid Terry stop.




                                                                           A-1458-18T4
                                        11
      Lastly, the judge suppressed defendant's incriminating statements made to

the police without defendant first being administered Miranda warnings. The

judge concluded that defendant had not been free to leave the scene, and that the

police queries amounted to a custodial interrogation "at least by the point"

Orefice asked defendant about his CDS use a second time.

      The State timely moved for leave to appeal these rulings. We granted the

motion and now have the benefit of counsel's helpful briefing, oral arguments,

and post-argument submissions.

                                       C.

      On appeal, the State argues the trial court erred in concluding the police

violated defendant's Fourth Amendment rights during their interactions with him

at the diner. The State contends that the officers' inquiries of defendant did not

convert a permissible field inquiry into an investigative detention under Terry.

Alternatively, the State maintains the officers had reasonable suspicion of

criminal activity to justify a lawful investigative detention. As part of its

contentions, the State asserts that the inquiries of defendant about his possible

criminal use of drugs did not occur until after the officers had learned from his

girlfriend about his tendency to become impaired by drugs and act oddly.




                                                                          A-1458-18T4
                                       12
      The State further argues that once the police obtained information from

defendant and his girlfriend indicative of his criminal conduct, they had

probable cause to arrest him.      The drugs on his person were therefore

permissibly seized without a warrant as a search incident to an arrest. The State

also maintains the incriminating statements defendant made to the police were

admissible and did not have to be preceded by Miranda warnings.

                                       II.

      Our scope of applicable review of the trial judge's suppression rulings has

mixed aspects. We must defer to 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).      We particularly give deference to the judge's

assessment of the witnesses' credibility and her "observations of [those

witnesses'] character and demeanor . . . that are not transmitted by the record."

State v. Locurto, 157 N.J. 463, 474 (1999). On the other hand, we review de

novo the trial judge's conclusions of law. State v. Hinton, 216 N.J. 211, 228

(2013).

      Guided by these well-established principles, we have reviewed the record

of the two-day suppression hearing and the judge's extensive written decision

that explains in considerable depth the evidence and the judge's legal analysis.


                                                                         A-1458-18T4
                                      13
In undertaking that review, we have accorded deference to the judge's factual

findings and her detailed assessment of the credibility of the witnesses. We have

particularly noted the judge's expressed concerns about the weight of the

testimony of the police officers, which she elaborates upon in her written

decision.

      With respect to Officer Orefice, the judge found that he only had an

"inarticulate hunch" that defendant possessed or used a CDS. The judge found

unpersuasive Orefice's testimony that defendant appeared to have dry lips and

an unspecified "white matter" around his mouth, which the judge suggested

could have been dried spittle. The judge also was not persuaded by the officer's

perception that defendant had fidgeted and did not maintain eye contact, noting

that Orefice had also acknowledged that, as the judge put it, defendant "was

otherwise composed and acting safely while they spoke."

      The judge separately expressed doubts about the credibility of Detective

Kropp's testimony, which she found was "clearly designed to bolster and

elaborate upon Orefice's testimony and police report." The judge further was

unpersuaded by Kropp's in-court demonstration of defendant's movements. She

noted that the demonstration "was consistent with" defendant's appearance and




                                                                         A-1458-18T4
                                      14
demeanor, "but possibly exaggerated" and emphasized head-jerking and fist-

making movements that were not mentioned in Orefice's police report.

      In evaluating Officer Orefice's testimony, the judge found significant that

the officer, although he was generally credible in other respects, had "little

experience in this area [of CDS offenses] from which to draw any inferences."

The judge underscored that Orefice had at that time only been a police officer

for a short time, "had no official training with detecting drugs, and did not

confirm how much of his involvement with CDS offenses came before the

instant case." She was not particularly impressed by his experience with an

estimated "over 50 people under the influence during his tour of duty." The

judge further noted that Orefice "admitted he could not determine if alcohol or

narcotics [i.e., CDS] was more likely to be the substance of which [d]efendant

may have been under the influence[.]"

      On appeal, the State argues, among other things, that we should disregard

the judge's criticisms of Officer Orefice's credibility insofar as they relate to his

relative level of experience.     The State maintains that an analysis of the

constitutionality of a warrantless search should not be affected by a testifying

officer's past training and experience. We respectfully reject that proposition.

As the trier of fact at the suppression hearing, the judge was entitled to consider


                                                                             A-1458-18T4
                                        15
a host of factors in evaluating the credibility of each witness who appeared

before her. Indeed, we take judicial notice that prosecutors commonly present

the credentials of testifying law enforcement officers, whether they are called as

fact or expert witnesses, and commonly urge judges and juries to consider as a

positive credibility factor the officers' training and experience when it is

extensive. See, e.g., State v. Gonzales, 227 N.J. 77, 102-03 (2016); State v.

McLean, 205 N.J. 438, 459 (2011).           We likewise embrace the converse

proposition of treating an officer's relative lack of experience as a negative

credibility factor.

      We realize the ultimate constitutional analysis under the Fourth

Amendment concerns a question of law that involves an objective assessment of

what a reasonable police officer would do or perceive in a particular situation.

State v. Bruzzese, 94 N.J. 210, 219 (1983).        Even so, a judge hearing a

suppression motion is entitled to take into account an officer's experience or

inexperience in assessing the believability of his or her testimony about what he

or she observed out in the field.

      With this point aside, we generally adopt the trial court's findings and

legal analysis, except for important caveats we now discuss, infra.




                                                                          A-1458-18T4
                                       16
      As defendant concedes, the police had a lawful basis to perform a field

inquiry at the diner in response to the 9-1-1 call and dispatch report. See State

v. Pineiro, 181 N.J. 13, 20 (2004) (defining a field inquiry as "the least intrusive

encounter," which occurs when a police officer approaches a person and asks if

he or she is willing to answer some questions). Field inquiries are "a limited

form of police investigation that, except for impermissible reasons such as race,

may be conducted 'without grounds for suspicion.'" State v. Nishina, 175 N.J.

502, 510 (2003) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). "A

field inquiry is permissible so long as the questions '[are] not harassing,

overbearing or accusatory in nature.'" Pineiro, 181 N.J. at 20 (alteration in

original) (quoting Nishina, 175 N.J. at 510). During such a field inquiry, "[t]he

person approached . . . need not answer any question put to him; indeed, he may

decline to listen to the questions at all and may go on his way."          State v.

Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491,

497-98 (1983)); see also State v. Rosario, 229 N.J. 263, 271-72 (2017).

      We agree with the trial judge that, up until the point where Officer Orefice

began to pose accusatory questions to defendant about when he last used a CDS,

the police appropriately were conducting a field inquiry into defendant's report

of a man allegedly threatening him with a firearm. The police surely had the


                                                                            A-1458-18T4
                                        17
right and responsibility to investigate such a report as a matter of public safety.

The decision to ask defendant to step out of the dining area into the lobby away

from the patrons to discuss the report of a man with a dangerous weapon was

sensible and surely constitutional. We also have no problem with the police

asking defendant several times to clarify his explanation concerning the 9 -1-1

report, particularly since his responses appeared to be largely nonsensical.

      As the trial judge correctly recognized, at some point this police encounter

with defendant at the diner escalated into an investigative detention under Terry.

The Terry exception to the warrant requirement permits a police officer to detain

an individual for a brief period, and to pat him down for the officer's safety, if

that stop 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." Rodriguez, 172 N.J. at 126 (quoting Terry, 392 U.S. at 21).

Under this well-established standard, "[a]n investigatory stop is valid only if the

officer has a 'particularized suspicion' based upon an objective observation th at

the person stopped has been or is about to engage in criminal wrongdoing."

State v. Davis, 104 N.J. 490, 504 (1986). Reasonable suspicion "involves a

significantly lower degree of objective evidentiary justification than does the

probable cause test," id. at 501, and "innocent circumstances in the aggregate


                                                                           A-1458-18T4
                                       18
can support a finding of reasonable suspicion." State v. Stovall, 170 N.J. 346,

368 (2002); see also State v. Chisum, ___ N.J. ___ (2019) (slip op. at 17-19)

(reiterating Terry principles).

      A field inquiry evolves into an investigatory detention "when an

objectively reasonable person feels that his or her right to move has been

restricted." Nishina, 175 N.J. at 510 (quoting Rodriguez, 172 N.J. at 126). The

pivotal issue here is exactly when that occurred.

      In her written opinion, the trial judge stated that, "At the very least, by the

time [Officer Orefice] asked [d]efendant if he was under the influence of drugs

or alcohol for the first time, Orefice had detained [d]efendant as part of a Terry

stop." Unfortunately, the judge's opinion is unclear as to whether that particular

point in time occurred before or after the officers had interviewed defendant's

girlfriend and allegedly obtained information from her about defendant's past

drug use and behavior.

      The State contends, and we agree, that if the time of accusatory drug-

related questioning of defendant took place after the interview of the girlfriend

(despite her credibility issues noted by the judge), then the police had reasonable

suspicion to conduct an investigative detention of him. Defense counsel on

appeal does not gainsay this proposition, but asserts that the critical point in time


                                                                             A-1458-18T4
                                        19
actually occurred before the police interview of the girlfriend.       Defendant

maintains that the judge correctly found the police lacked reasonable suspicion

to escalate the encounter to a Terry stop at that juncture.

      Unfortunately, the judge's findings and the proofs in the record are unclear

about this pivotal factual question. Orefice's police report indicates he asked

defendant about drug use at least two times. The report describes these two

queries as occurring after the girlfriend arrived and was interviewed. In his

testimony at the hearing, Orefice stated he asked defendant if he had used drugs,

which defendant denied, and that "[l]ater on, after we got a little bit more

information, we asked him again . . . ." His testimony on cross-examination did

not eliminate the ambiguity. His testimony is imprecise as to the timing of his

inquiries.

      Detective Kropp's testimony does not conclusively resolve the timing

issue, either. Kropp acknowledges that the police did ask defendant several

times whether he had used drugs.         The first inquiry apparently occurred

following defendant's assertion that he did not want to file a report about an

armed threatening man and did not want to be "locked up." The transcript shows

that this first inquiry occurred "at some point" in time.




                                                                          A-1458-18T4
                                       20
      Given the murkiness of the record and the need for more clarity in the

judge's findings on this key point, we are constrained to remand for further

proceedings. The scope of the remand is a narrow one: to resolve whether the

police first asked defendant accusatory questions about drug use before they

interviewed his girlfriend. If the answer is yes, then we generally5 agree with

and adopt the judge's legal analysis under the Fourth Amendment and her

conclusion of unconstitutionality.

      In particular, we are persuaded that, before speaking with the girlfriend,

the police lacked reasonable suspicion to conduct an investigatory detention and

ask defendant accusatory questions about his drug use. On the other hand, if the

trial judge finds factually that the interview with the girlfriend preceded the

accusatory questioning about drug use, then we agree with the State that they

had reasonable suspicion to conduct an investigative detention on that basis.

      On remand, the trial judge is free in her discretion to allow additional

testimony or other proof relevant to the sequence issue. Depending on the

outcome of that finding, the judge should also reconsider her Miranda analysis


5
  As a minor point of difference we agree with State – as defendant concedes –
that if the police had probable cause to arrest defendant, then the search incident
to his arrest was proper regardless of what the police expected it would yield.
See Chimel v. California, 395 U.S. 752, 762-63 (1969); State v. Minitee, 210
N.J. 307, 318 (2012).
                                                                           A-1458-18T4
                                       21
and whether defendant's unwarned statements are the fruits of a poisonous tree

of an illegal stop, or, conversely, whether his unwarned statements taint the

underlying foundation for probable cause to arrest and search him.

      The remand shall be completed within sixty days, unless reasonably

extended by the trial court with consent of counsel. Counsel shall forthwith

supply to the trial court courtesy copies of their appellate submissions.

Following the determination on remand, an aggrieved party may pursue further

appellate relief in a new appeal or motion for leave to appeal, as the case may

be.

      Remanded. We do not retain jurisdiction.




                                                                       A-1458-18T4
                                     22
