On appeal from Superior Court of New Jersey, Atlantic County, Law Division, Ind. No. 98-08- 1916-B.
Before Judges Keefe and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 13, 2000
The sole issue raised by defendant on this appeal is his contention that the motion judge erred in denying his motion to suppress evidence. We disagree and affirm.
Atlantic County Indictment No. 98-08-1916-B charged defendant Raul Rodriguez and his co-defendant Joseph Forte with third-degree unlawful possession of a controlled dangerous substance, heroin, (N.J.S.A. 2C:35-10(a)(1)) (Count 1); third-degree unlawful possession of a controlled dangerous substance, heroin, with the intent to distribute, (N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(3)) (Count 2), and third-degree unlawful possession with the intent to distribute a controlled dangerous substance, heroin, within one thousand feet of school property (N.J.S.A. 2C:35-7) (Count 3).
After the denial of his motion to suppress, defendant entered a plea of guilty to Count Three. Pursuant to N.J.S.A. 2C:43-6(f), the judge sentenced defendant to a mandatory extended term as a subsequent drug offender. He imposed a sentence of six years of incarceration with three years of parole ineligibility, and also suspended defendant's driver's license for two years. The judge imposed the appropriate monetary penalties and assessments. The sentence was made to run concurrently with a sentence defendant was then serving.
The facts critical to our resolution of the issue raised by defendant on appeal are the following. On July 14, 1998, New Jersey Police Officer Eugene Oberfrank received an anonymous telephone call at the desk phone in the "Patrol Office." The caller indicated that two men had left Ocean City to go to Philadelphia to buy narcotics. The first man was described as a thin Hispanic male, approximately five feet, ten inches, wearing white shorts, a white T-shirt and gold-rimmed glasses. The second person was described as a heavy-set Caucasian male, six feet tall, wearing a black tank top and dark shorts, with a receding hair line and mustache. The caller did not provide a time when the individuals were expected to return. However, Oberfrank said that "judging by the time . . . they left Ocean City", he expected them to return between 3:30 and 5:00. The caller further stated that the men would be returning through Atlantic City. The caller refused to provide Oberfrank his name. Oberfrank reported the conversation to his duty supervisor, Sergeant Kevin Amberg.
Oberfrank testified that at approximately 4:55 p.m., he observed two individuals get off a Philadelphia bus. He felt they matched the description provided by the anonymous caller, and pointed them out to Amberg. He said they got off the bus together, and left in the same direction towards a set of pay phones. One of the men started to make a telephone call. Amberg and Oberfrank approached them and asked them "would they mind talking to [them] ." The men said they would be willing to talk to the officers. The officers asked defendants if they would mind coming back to the Patrol Office. After looking at his report to refresh his recollection, Oberfrank testified that he told defendants that "they didn't have to go with us or talk to us."
The officers separated Rodriguez and Forte when inside the office. Rodriguez was placed in the main processing room and Forte was placed in the adjoining auxiliary room. Rodriguez was carrying a blue Gap shopping bag. The officers asked defendants "if they had anything on them . . . they shouldn't have." Oberfrank then heard Amberg ask Rodriguez if he would consent to a search of his person and property. In addition, Oberfrank heard Amberg advise Rodriguez that he did not have to consent to a search. According to Oberfrank, Rodriguez consented. Furthermore, Oberfrank observed Amberg provide Rodriguez with a consent to search form, and read it to Rodriguez. The form specifically noted that Rodriguez had been advised by Amberg that he had a right to refuse to consent to a search. Rodriguez signed the form. The officers found one packet of heroin in one of Rodriguez's socks, and another packet of heroin in a front pocket of his shorts. They also found a hypodermic needle and "numerous other bags of heroin" in the Gap bag. In addition, they found $637 of currency on Rodriguez.
Amberg's testimony essentially corroborated the testimony of Oberfrank. Although Amberg did not recall whether Rodriguez and Forte were advised that they did not have to accompany them to the office, he said they were told several times that they did not have to speak with the officers if they did not want to. In addition, he said defendants were not told they had to go to the office. They were asked if they would go to the office. He said he did not so advise them, but Oberfrank "was doing all of the talking." Amberg also said that two of the packets found in the Gap bag were empty.
The motion judge denied the motion, concluding that the officers had a reasonable, articulable suspicion, based on the anonymous tip, to make an investigatory stop. He further determined that defendants were advised that they did not have to talk with the officers or accompany them to their office. He also found that they were specifically advised that they did not have to consent to a search. Finally, he concluded that defendants' consent to a search was voluntary, and, therefore, he denied the motion.
We recently made the following observations considering our role in reviewing the factual determinations of a trial or motion judge:
[W]e must give a deference to those findings which were substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case which we do not enjoy upon review. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161 (1964). We must determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record as a whole. State v. Locurto, supra, 157 N.J. at 471; State v. Johnson, supra, 42 N.J. at 162. If we are satisfied that the findings and result meet this criterion, our task is complete and we may not disturb the result, even though we feel we may have reached a different conclusion. Ibid. We may ...