Before Judges Stern, Eichen and Collester. On appeal from the Superior Court of New Jersey, Law Division, Morris County, 99-10- 1382-I.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following the denial of his motion to suppress evidence, defendant Michael A. Richards was tried to a jury in absentia and found guilty of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one), and second degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two). Pursuant to N.J.S.A. 2C:43- 6f, the judge sentenced defendant to a mandatory extended term as a subsequent drug offender and imposed a custodial term of sixteen years with seven years of parole ineligibility on count two and merged count one into count two. The judge found defendant guilty of possession of marijuana, N.J.S.A. 2C:35-10a(4) and sentenced him to a concurrent 180-day term of imprisonment. *fn1
On appeal, defendant makes the following arguments:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE CONDUCTED A STOP THAT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE EVIDENCE FOUND WAS FRUIT OF THE ILLEGAL STOP.
A. THE DEFENDANT WAS SUBJECT TO A STOP THAT IMPLICATED HIS CONSTITUTIONAL RIGHTS.
B. THE POLICE DID NOT HAVE THE REASONABLE SUSPICION REQUIRED TO JUSTIFY A STOP.
C. THE DISCOVERY OF DRUGS WAS A RESULT OF THE ILLEGAL STOP OF THE DEFENDANT.
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO GRANT THE DEFENDANT AN ADJOURNMENT AND CONDUCTED THE TRIAL WITHOUT THE DEFENDANT BEING PRESENT.
THE TRIAL COURT ABUSED IT DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO A SIXTEEN YEAR TERM, WITH AN EIGHT YEAR PAROLE DISQUALIFIER, FOR COUNT 2 BECAUSE THE COURT IMPROPERLY EVALUATED THE MITIGATING FACTORS.
In his pro se supplemental brief, defendant raises the following argument:
THE PROSECUTOR'S EGREGIOUS COMMENTS DURING HER SUMMATION DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL IN VIOLATION [OF] DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS, U.S. CONST. AMENDS. VI AND IVX [sic]; N.J. CONST. (1947) ART. 1 PAR. 10.
We conclude that under the totality of the circumstances, the officers did not have the requisite objective articulable and reasonable basis to believe defendant was in possession of a handgun to justify the investigative detention or "stop" of defendant in this case. Accordingly, the arrest and search incident thereto was illegal, and the contraband found as a result of that seizure must be suppressed. Therefore, it is unnecessary for us to render a decision on the remaining issues. Nonetheless, we have reviewed the arguments and conclude they are without merit. R. 2:11-3(e)(2).
The issue presented by this appeal concerns the validity of the police officer's investigatory stop of defendant under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Defendant's challenge to the constitutionality of his arrest and search incident to that arrest is made under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963).
The facts developed at the suppression hearing were presented through the State's sole witness, Morristown Police Officer Joseph Leeper. At about 1:30 a.m. on April 15, 1997, Morristown Lieutenant James Wilcox contacted Officer Leeper, stating that he had received an anonymous telephone call at police headquarters. *fn2 The caller said "that three black males" were involved in "narcotics transactions." The caller also stated that "two ... were standing in front of 15 [Martin Luther King Avenue]," and "a third male ... was on the pay phone at Number 60 Abbett Avenue," the site of Dean Tire Company (Dean Tire). The anonymous caller also said that one of the men was "supposedly car[ry]ing a .22 caliber handgun." No descriptions of the men other than their race were given, and no information concerning the identity or the past reliability of the informant, if he or she was known, was conveyed by Lieutenant Wilcox to Officer Leeper.
Dean Tire is a tire center with ancillary gas pump facilities on the premises. It is located in a residential, low income neighborhood, populated primarily by black and Hispanic residents. No evidence was presented that the area was a high-crime or high-drug area. A public pay phone is located in the rear of its parking lot.
Acting on the dispatch from Lieutenant Wilcox, Officer Leeper immediately met with the other patrol officers on duty in the area during the 5:30 p.m. to 4:15 a.m. shift, and after a brief meeting, he directed several of them to respond to 15 Martin Luther King Avenue. *fn3 Then, he and Officer Joseph Lodato proceeded to Dean Tire. According to Officer Leeper, "[they] didn't get handgun calls every single day," and he was concerned because "there was a mention of a handgun."
The officers arrived at Dean Tire about 1:45 a.m. The tire center was closed. The lot was "dark" except for a "dull, yellowish" street light illuminating the pay phone. Both the lot and the street were empty. As Officer Leeper pulled into the parking lot, he observed "a black male" using the pay phone and decided to make a "field inquiry." According to Officer Leeper, based on his ten years of experience as a ...