On appeal from Superior Court, Law Division, Camden County.
Before Judges Landau, Conley and Newman. The opinion of the court was delivered by Landau, J.A.D. Conley, J.A.D., Dissenting.
The opinion of the court was delivered by
On leave granted, the State has appealed from the grant of a motion by defendants Dwain Ford and Michael Pratt to suppress evidence seized by police, including $280 in currency, and a bag containing thirty-seven smaller bags of cocaine. Ford and Pratt ("defendants") are charged with possessing cocaine with intent to distribute, and with distribution of cocaine.
The facts are essentially undisputed. The motion Judge accepted as credible the testimony of the State's witnesses, Detective Joseph Galiazzi and Officer Dallas Carter. Detective Galiazzi, together with other members of the Camden Police Department,
was engaged in an undercover surveillance of narcotics dealing in the vicinity of 32nd Street and Pleasant Street, known as a drug trafficking area. From his place of observation in a van parked on the street, Galiazzi observed and heard defendant Pratt ask a male, who had just exited a green Chevy pick-up truck with New Jersey tags AL8783, "how much he needed." The male responded that he needed "four", and Pratt "yelled" to defendant Ford, who was standing in front of a house at 613 North 32nd Street, "He wants four." Galiazzi saw Ford walk into the yard and towards the side of the house. No testimony was presented as to whether or not the house was occupied or vacant and, if occupied, who owned it.
Patrolman Carter, who was part of the "take down unit"*fn1, was contacted by Galiazzi over the radio and asked to position himself so as to observe where the then unidentified individual (Ford) was going to secure the narcotics which were being sold in front of the house.
There was a hole. The side of the house bowed out. He came down the walkway on the side of the house. He kneeled down. There is a hole in the bottom portion, and there was like a clear plastic bag. He reached his hand up that, got the bag, took a small item out and placed the bag back up there.
Carter, who identified Ford in court as the person involved, contacted Galiazzi by radio and told him that he had "observed where he retrieved the item from." Galiazzi observed Ford hand several objects to Pratt, and also observed Pratt hand the objects to the pick-up truck driver, who reentered the truck and drove off. He also observed the driver hand money to Pratt, which was in turn handed to Ford. Based on information from an assist unit, word was received by radio that the truck was stopped, the driver detained, and drugs recovered. The defendants were then arrested. Another detective was guided by Carter to the place where Ford had been observed reaching up by the side of the house, and
the detective recovered the bag which contained thirty-seven clear plastic bags of suspected cocaine.
The motion Judge rejected the State's arguments that seizure of the bag was dictated by exigency, and that defendants had no "reasonable legitimate expectation of privacy in these stashed narcotics." Although finding probable cause for a search, he concluded that this had been a warrantless entry inside a home, and that the bag was not in plain view because it had been concealed and was not "readily accessible to the public." Thus, the evidence of the bag and its contents was ordered suppressed. As the State presented no testimony respecting the $280 in currency, that evidence was also suppressed.
We deem it appropriate to consider this appeal on the premise that defendants' standing under Alston is unquestioned.*fn2 Having done so, we nonetheless conclude that the order of suppression must be reversed as to the stash of cocaine.
The linchpin in our reasoning is not the existence of exigent circumstances, nor whether this was a search lawfully incident to arrest. We are satisfied ...