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State v. Myers

January 17, 2003

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
GREGORY MYERS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, I-01- 08-0809.

Before Judges Skillman, Cuff and Winkelstein.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2002

Defendant Gregory Myers was charged with third-degree possession of a controlled dangerous substance (heroin), pursuant to N.J.S.A. 2C:35-10a(1) (count nine); third-degree possession of a controlled dangerous substance with intent to distribute, pursuant to N.J.S.A. 2C:35-5a(1) and b(2) (count ten); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school property, pursuant to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count eleven); and second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public park, pursuant to N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a (count twelve).

Defendant filed a motion to suppress the evidence seized from 162 16th Avenue in Paterson. The Law Division granted the motion. On leave to appeal, we reverse.

The facts leading to the search need to be recounted in some detail because the investigation which resulted in the seizure from 162 16th Avenue included both a search warrant for that address, as well as a search warrant for an apartment at 217 16th Avenue, about one block away. Below are the facts as presented at the suppression hearing and in the affidavits supporting the search warrants.

On March 9, 2001, Municipal Court Judge Graves issued a search warrant for 217 16th Avenue. The warrant, which was not challenged, was supported by an affidavit executed by Detective Charles M. Cobb and included the following information: The police had received an anonymous report during the week of February 18, 2001, from a concerned citizen who had observed what he or she believed to be drug transactions in the area of 217 16th Avenue. Surveillance during that week and during the week of March 4 revealed an unidentified black male engaging in what appeared to be numerous hand-to-hand drug transactions.

The male had entered and exited the premises at 217 16th Avenue to obtain the drugs being sold. Detectives obtained information from a "reliable confidential informant" regarding drug transactions in the area, and were advised that drug dealers sometimes kept narcotics in that premises.

On the day of the search, Detective Cobb saw defendant leave the garage of his residence at 162 16th Avenue and walk towards the "16th Avenue Park" where he met with one of the "aforementioned dealers." Cobb observed defendant reach into his waistband and take out a "suspected [b]rick of [h]eroin" and give it to one of the "suspected drug dealers." That dealer was lost from the detective's sight, but later emerged from the premises at 217 16th Avenue.

Upon execution of the warrant at 217 16th Avenue, law enforcement officials recovered 213 glassine envelopes stamped "METHADONE," each containing "a white powder substance, . . . [of] suspected heroin." Four "[bricks]" of heroin were "wrapped together with magazine paper." Also recovered was one semi- automatic handgun, several rounds of shotgun and handgun ammunition, and $261 in currency. The police arrested four people inside the premises; defendant was not one of them.

After the police executed the warrant for 217 16th Avenue, Detective Virginio Formentin was dispatched to defendant's residence at 162 16th Avenue. Formentin testified that he and other detectives "secured" the premises as Detective Cobb and another officer prepared a search warrant request for that address. 162 16th Avenue is a residential duplex with a garage. According to Formentin, the garage door was in the "up position" and he entered to "better secure the location and for [the officers'] safety" and to ensure that no one destroyed evidence. Formentin indicated that his concern for the officers' safety and destruction of contraband was based on the "handguns" *fn1 found at 217 16th Avenue and his belief that there could be more drugs at 162 16th Avenue. Formentin saw that "[t]here was an additional doorway to a room within the garage" and that the door was open "just about all the way." While he was in the garage, Formentin looked through the doorway and saw what appeared to be two bricks of heroin in the other room.

Detective Cobb and another officer supported their request for the search warrant for 162 16th Avenue with the following information: 1) the March 10, 2001, surveillance of two unidentified males, whom the officers believed to be drug dealers, making "numerous hand-to-hand drug transactions"; 2) Detective Cobb saw defendant, who was known to the police from another investigation, leave 162 16th Avenue and give what appeared to be a brick of heroin to one of the "dealers"; 3) the "dealer" was later seen leaving the premises at 217 16th Avenue; 4) after the heroin exchange, defendant was picked up in a car and the officers lost sight of him; 5) the officers found heroin, a gun, bullets and cash when searching 217 16th Avenue; 6) "[w]hile securing the apartment [at 162 16th Avenue], Detective Formentin . . . observe[d] what appeared to be (2) [b]ricks of suspected [h]eroin"; and 7) "[t]he two bricks of suspected [h]eroin inside 162 16th Avenue appeared to be identical to the ones recovered from 217 16th Avenue" and Cobbs had "conducted a field test on a small portion of the suspected [h]eroin from [217] 16th Avenue that was positive for the presence of [a controlled dangerous substance]."

After waiting at 162 16th Avenue for approximately one to one and one-half hours, the officers obtained the search warrant and searched the premises. They found "approximately 847 glassines [of] suspected heroin" plus fifteen bricks ...


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