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State v. Flowers

February 10, 2000

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
V.
NOYLIN FLOWERS, DEFENDANT-RESPONDENT.



Before Judges Skillman, Newman and Fall.

The opinion of the court was delivered by: Newman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 4, 2000

On appeal from the Superior Court of New Jersey, Law Division, Essex County.

On leave granted, the State appeals from an order granting defendant Noylin Flowers's motion to suppress the cocaine and currency seized as a result of his evading a roadblock established to detect and deter car thefts. We now reverse.

On February 8, 1998, the Newark Police Department set up a roadblock in the area of Clinton Avenue and 18th Street in Newark. The checkpoint began operation some time after 7:00 p.m. and was staffed by ten to twelve uniformed officers in marked cars. The checkpoint was preceded by signs, cones, and flares. Lighting for the roadblock was provided by portable lights, lights from the police cars at the roadblock, as well as existing lighting in the area. In addition, there was a large, white neighborhood stabilization unit (NSU) van on the scene that served as a command post. Uniformed officers in marked vehicles were also stationed at Hopkins and 18th Street, one block north of Clinton Avenue, and at Clinton Avenue and 17th Street "to prevent anybody from trying to evade the road[block]." At approximately 9:00 p.m., the two officers stationed at Hopkins and 18th Street, Officers Frank A. Cefalu (Officer Cefalu) and Thomas Ciccone (Officer Ciccone), observed a person in a two-door, burgundy Cavalier, later identified as defendant, proceed down South 18th Street, a one-way street, toward Clinton Avenue. The officers then observed defendant stop his vehicle before the roadblock, put the vehicle into reverse, and back up approximately fifty to 100 yards past the officers. Defendant made a K-turn and proceeded the wrong way down the one-way street for 100 to 200 yards. The officers jumped into their police vehicle, activated their lights and sirens, and chased defendant.

Defendant parked his vehicle on the side of the street, exited the vehicle, and began to walk away from the officers. As he was walking, defendant reached into his waistband and dropped a clear, plastic bag to the ground. Defendant then began to run. Officer Ciccone retrieved the plastic bag and alerted Officer Cefalu that the bag contained numerous vials of what the officer suspected was cocaine. Officer Cefalu ordered defendant to stop and chased defendant through back lots and over a barbed wire fence. Defendant was apprehended and handcuffed. Seven hundred and eight dollars was recovered from defendant's person.

Defendant was charged with third-degree possession of a controlled dangerous substance (CDS), namely cocaine, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of CDS with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 (Count Three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Four). Defendant filed a motion to suppress the currency and drugs seized on February 8, 1998. At the suppression hearing, the State presented two witnesses, Officer Cefalu and Lieutenant Joseph Pollaro (Lt. Pollaro). The defense presented no evidence. Officer Cefalu testified concerning the events of February 8, 1998, specifically those leading up to the pursuit, apprehension, and arrest of defendant.

Lt. Pollaro, testified that the purpose of the roadblock was to detect stolen cars. At the time of the incident, Lt. Pollaro was the Quality of Life Supervisor for the City of Newark. As such, he assigned the officers below him to quality of life complaints within the city.

Lt. Pollaro testified that the method employed in stopping cars at the roadblock was that the officers would stop every third or fourth vehicle, not recalling the exact number used at that particular roadblock. According to Lt. Pollaro, the drivers stopped at the roadblock were asked to produce their driving credentials. If everything checked out, "they [were] sent on their way." If motor vehicle violations were uncovered, the drivers were pulled to the side of the road where summonses were issued and/or the vehicles were towed if necessary.

Lt. Pollaro stated that one or two roadblocks were conducted per week in different parts of the city. Specifically, because of the "stolen car problem in that area[,]" checkpoints had been conducted within a one or two block radius of the location of the roadblock at issue in this case.

The State asserted that the roadblock was proper, arguing that the purpose of the stop was to find stolen vehicles because there had been citizen complaints in that area. According to the State, the roadblock was established by a supervisory police official, Lt. Pollaro; the time, location, and operation of the roadblock was reasonable; and there was adequate warning to motorists - flashing lights, signs, flares, and cones.

Defendant contended that the real issue was "whether or not the police officers had the right to establish this motor vehicle roadblock." Defendant asserted that the State failed to show that the roadblock was established by the "proper people" and for the "right reason." According to defendant, because Lt. Pollaro was not in charge of the police department, he did not have the requisite authority to establish the roadblock. Defendant also asserted that a roadblock cannot be established for the purpose of checking for car ownership and insurance. Defendant stressed that, although the State asserted that there had been numerous citizen complaints regarding stolen vehicles in the area, the State did not provide any documentation of complaints.

In a written decision, the motion judge rejected defendant's contention that "a roadblock designed to detect the presence of stolen cars on the highways is unconstitutional per se, because the constitutionality of roadblocks used for that purpose has not been specifically recognized by the United States Supreme Court or the courts of New Jersey[.]" The judge also rejected the idea that the State was required to show some special governmental need beyond the ...


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