On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 01-11-0780-I.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Parrillo and Holston, Jr.
Following denial of his motion to suppress, and after a jury trial, defendant, Ron Ray Harris, was found guilty of third-degree possession of a controlled dangerous substance, cocaine, with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count I); second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a(1) (Count II); second-degree unlawful possession of a weapon, a knife, while in the course of committing a violation of a CDS crime, specifically N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:39-4.1b (Count III); third-degree attempted hindering apprehension, N.J.S.A. 2C:29-3b (Count IV); and fourth-degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7 (Count V).*fn1
Following the merger of Counts I and II, defendant was sentenced on his conviction of second-degree possession of cocaine with intent to distribute within 500 feet of public property (Count II), to a ten-year term of imprisonment, with five years of parole ineligibility. On his conviction of second-degree possession of a knife while committing a CDS crime (Count III), defendant was sentenced to a mandatory consecutive term of ten years imprisonment. For his conviction of third-degree attempted hindering (Count IV), defendant received a concurrent five-year prison term, and on the fourth-degree possession of a weapon by a previously convicted person (Count V), a concurrent eighteen-month term of imprisonment. Defendant was also sentenced on a disorderly persons offense of marijuana possession to six months of county jail time to run concurrently to Count II. Defendant's aggregate sentence was twenty years' imprisonment, with five years' parole ineligibility. Appropriate fees and penalties were also imposed. Defendant appeals. For reasons that follow, we reverse the convictions on Counts I, II and III, and affirm in all other respects.
These are the salient facts. On September 28, 2001, at about 10:00 p.m., Detective Joseph McGrath of the Wildwood Crest Police Department arrived at the neighboring City of Wildwood police station, where he asked Detective John Clemens, a member of the Wildwood Police Department, for assistance in an unrelated investigation involving an individual believed to be at Henry's Bar in Wildwood. The two plain-clothed detectives left in an unmarked police vehicle, parked their car on the east block of Spicer Avenue, which faced Pacific Avenue. McGrath entered the bar alone, while Clemens remained outside in the police vehicle.
While Clemens remained in the police car, he noticed two males walking south on Pacific Avenue. One of them, the defendant, appeared to be counting a large sum of money. Defendant and the other man, David Jefferson, continued walking south on Pacific Avenue, but stopped when they saw McGrath leave Henry's Bar and reversed direction. After McGrath entered the police car, the detectives pulled away and crossed the intersection of Pacific Avenue onto the 200 block of Spicer Avenue. Clement looked over his shoulder, and he noticed that Jefferson and defendant had disappeared.
Clemens knew that there was a nearby alleyway because, in the course of conducting narcotics investigations in this high-crime, high-drug trafficking location, he himself utilized the location to observe various drug deals. The detectives made a U-turn, and they returned to the same place they had previously parked on Spicer. They exited the car, and McGrath went around to the back of the building while Clemens entered the opposite side of the alleyway to prevent the two men from running away.
When the detectives entered the alleyway, they saw defendant and Jefferson. A torn up piece of a cigar and tobacco, which Clemens suspected to be a "blunt" -- a hollowed out cigar used for smoking marijuana - laid at the feet of the two men. Clemens recognized defendant from previous arrests on drug charges*fn2 and attempted to speak with him, but defendant was having difficulty conversing, as if he were concealing something in his mouth. Clemens asked defendant to spit out whatever he had in his mouth. Defendant, who had been uncharacteristically friendly, complied. The object was a plastic bag that contained a brownish-greenish vegetation, later determined to be marijuana.
Defendant was placed under arrest and searched at the scene. A small, folding, pocket-sized knife was found folded in the front right pocket of defendant's pants. Also, $1324 cash was found in defendant's front left pants pocket in the following denominations: two $100 bills; one $50 bill; forty-five $20 bills; fourteen $10 bills; five $5 bills; and nine $1 bills. At this point, both defendant and Jefferson were brought to the police station.
At headquarters, Clemens suspected that defendant might have additional contraband concealed on his person and consequently obtained permission from the on-duty sergeant to conduct a strip search. After disrobing defendant, Clemens observed a sandwich-type baggie in the seam of defendant's buttocks. When defendant refused to remove the item from his buttocks, he was told to put his clothing back on while Clemens conferred with his supervisor, Lieutenant Regalbuto. After speaking with officials at the county jail who directed the Wildwood Police to conduct the search, the Lieutenant and Clemens, along with two patrolmen, returned to the room and asked defendant once again to remove his clothing. Defendant informed the officers that they would "have to take it" out.
The handcuffed defendant resisted removal by using his upper body and leg strength, which required the police to take defendant to the ground. The police laid defendant face down on the ground and tried to force his legs open. Defendant had clasped his fingers around his belt, preventing the officers from removing his pants. Clemens then employed a compliance hold, got defendant to remove his hands from his belt, and eventually succeeded in removing defendant's pants.
The police still struggled to remove the baggie from defendant's buttocks as he clenched his buttocks together tightly. However, after physically forcing defendant's buttocks apart, the police managed to extract the sandwich baggie. Inside the bag were eighteen individually packaged, "heat-sealed straws" that contained an off-white, rock-like substance, which later tested positive for cocaine.
In denying defendant's motion to suppress, the judge reasoned:
Clearly this officer [Clemens] testified in a credible manner. Nothing was presented to suggest to the contrary that on the date of the stop . . . he was patrolling in a high-crime, high-drug area, [and] observed the defendant walking down a street with another individual. He believed that he saw the defendant counting money. He believed it to be a large amount, although I question whether or not that recollection wasn't bolstered by his actual seizure of the cash. But certainly there's no basis to disbelieve his testimony that he saw the defendant counting money. They basically then disappeared, . . . after having observed him in his vehicle, . . . because they recognized him as law enforcement.
He looked, continued to try to attempt to see their whereabouts. They disappeared. He believed that they had gone into an alleyway . . . . He was familiar with that alleyway, called for backup. Walked into the alleyway, recognized the defendant, saw a torn-up cigar on the ground, obviously the makings of a blunt. At that point he noticed that the defendant could not speak that well. He had trouble opening his mouth, and he appeared to be very friendly and cooperative with the officer, unlike prior arrests in the past when he had been extremely difficult to deal with. It was the officer's conclusion at that point that there was something suspicious, that the defendant was being apprehended and had decided to be so friendly and cooperative. When the item was removed from the defendants mouth he saw that it was a controlled dangerous substance, in fact marijuana.
The defendant was searched while he was standing in the alleyway, at which time the officer discovered a folding knife in the defendant's pocket, as well as $1,324 in his left front pocket. He took the defendant back to the police station, asked for authorization to do a strip search because he believed that the defendant had contraband, other drugs, hidden somewhere, either in his clothing or about his person.
The officer -- I don't have it in my notes, that he attempted to get the county jail or some hospital to examine his body cavities, but for some reason I believe that to be the case. Certainly there came a point in time when the officer's only choice was to either conduct the strip search himself or merely take the defendant to the county jail as he was being charged with indictable matters.
I find at that point that the officers had the right to remove the defendant's clothing and examine his body cavities. Not surprisingly, during the course of being searched he became extremely difficult because he knew he was about to have his drugs seized. The search and the fruits of that search are admissible either because it was a search incident to arrest for both contraband as well as weapons, or because the officers had abundant probable cause to believe that the defendant was hiding drugs on his person. And, in any event, inevitably those drugs would have been discovered when the defendant would have been taken to the county jail. I'm not clear even as I speak as to why it was they didn't just charge him with the indictable, take him to the county jail and sort of drop him off there. For whatever reason they decided not to do that, or the county jail was too busy to take the inmate and, accordingly, they ended up doing it.
At the ensuing trial, the same evidence was adduced as at the suppression hearing. In addition, the State's expert, Sergeant Michael Hickman of the Cape May Prosecutor's Office, testified that heat sealed straw cuts is a style of drug packaging indigenous to Wildwood, and that frequently $10 and $20 bills are used in drug transactions. In his opinion, drug dealers frequently hide drugs inside their bodies and that drugs possessed under similar circumstances are intended for distribution.
As noted, defendant was convicted of the various drug and weapon offenses charged. On appeal, he raises the following issues:
I. THE JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STOP OF DEFENDANT AND BOTH SUBSEQUENT SEARCHES WERE UNLAWFUL AND UNCONSTITUTIONAL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.
A) The Investigatory Stop and Initial Search of Defendant Was Unlawful
B) The Strip Search at the Police Station Was Unreasonable and Unsupported by Probable Cause
II. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR POSSESSION OF A WEAPON WITH THE PURPOSE TO USE IT UNLAWFULLY DURING THE COMMISSION OF A VIOLATION OF N.J.S.A. 2C:35-5 AND THE JURY VERDICT SHEET WAS MISLEADING. ...