On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-04-0816.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 13, 2006
Motion for reconsideration is granted.
Submitted: January 4, 2007
Before Judges A. A. Rodríguez and Baxter.
Defendant Chevesse Covin was tried to a jury following the denial of his motions to suppress evidence and to exclude his written inculpatory statement to the police. He was convicted of second degree possession of a controlled dangerous substance (cocaine) with intent to distribute while within 500-feet of a public housing facility (Hobart Manor), N.J.S.A. 2C:35-7.1 and related offenses, which were merged. He was also convicted of fourth degree resisting arrest, N.J.S.A. 2C:29-2a. The judge imposed concurrent sentences aggregating fifteen years with a seven and one-half year minimum term. We reverse the convictions, concluding that the judge should have granted defendant's motion to suppress.
The following evidence was presented at a hearing on the motions to suppress and to exclude defendant's statements. At approximately 2:00 p.m. on October 17, 2003, Long Branch Police Detective Raymond Chaparro was patrolling in an unmarked patrol car. As he drove on Sampson Place, he saw a taxicab discharging a passenger in the middle of the street. Chaparro stopped his vehicle and recognized the passenger as defendant, with whom he had had a cordial relationship for a significant period of time. Defendant approached Chaparro and said "hi." They talked for a few seconds. Chaparro remembered that someone from the Street Crimes Unit was looking for defendant and relayed this information to defendant. Chaparro told defendant that he was going to contact the Street Crimes Unit. Defendant replied that "he didn't want something," and that he had three football games to go to on Sunday. Defendant asked Chaparro if he could go to his uncle's house for a minute. He promised to return. Chaparro replied, "it would only take a second." Defendant placed his football jersey draped over the passenger window of Chaparro's vehicle and began to walk away. Chaparro got out of his vehicle and told defendant that he did not need to leave his football jersey. Defendant took the jersey back and said he was going to walk over to his uncle's house, which he described as the blue house down the street. Chaparro said, "[J]ust wait one second." Defendant kept walking away.
Chaparro contacted headquarters and began walking about five feet behind defendant. Then Chaparro saw defendant reach into his left front pants pocket, remove a clear plastic bag containing a number of smaller blue bags, and secreted the bags in his jacket. Chaparro recognized the small blue bags as those used to package and sell cocaine. He told defendant, "[D]on't run[,] I see the bags." At this point, defendant "[t]ook off running." Chaparro ordered defendant to stop, gave chase and radioed for backup. During the chase, Chaparro lost sight of defendant. Eventually, Chaparro apprehended defendant and searched him. There was no contraband on defendant's person. Chaparro directed the backup unit to secure the area of Joline and Long Branch Avenues, where he had lost sight of defendant during the chase. Chaparro went to that location and found in some bushes three bags containing a substance that he suspected to be cocaine.
Defendant was arrested and taken to police headquarters. After being given the Miranda warnings,*fn1 defendant agreed to waive his right to remain silent and to speak to Chaparro and Detective Jeffrey Pilone. In a written statement, defendant stated that he was walking away from Chaparro towards his uncle's house "[t]o put the shit up." Defendant admitted throwing "three bags" in the bushes as he was being chased by Chaparro; one containing "solid rock" cocaine, one with "a little substance" and one with "blue bags." Defendant also admitted that he was planning to sell each small blue bag of cocaine for $10.
At the hearing, defendant testified and conceded that he approached Chaparro on Sampson Place and engaged him in conversation. Chaparro told him that someone from the Street Crimes Unit wished to speak with him. According to defendant, he asked Chaparro if he had any warrants. When Chaparro said no, defendant walked away. Defendant alleged that Chaparro got out of his car and came "running" or "skipping" towards him. Defendant ran. Defendant denied that he transferred drugs from one pocket to another.
With respect to his inculpatory statement, defendant alleged that Chaparro offered to get him a low bail, and not to charge him with possession of CDS with intent to distribute in a school zone if defendant would "work with" him. Defendant denied giving any formal statement to the police. He testified that he signed, at Chaparro's direction, a blank piece of paper.
The judge denied defendant's motion to suppress both the cocaine found in the bushes and defendant's inculpatory statement. The judge found Chaparro's testimony to be credible and defendant's incredible. The judge concluded that Chaparro's actions constituted "less than an investigative stop" and were proper. The judge also found that defendant abandoned the cocaine when he threw it into the bushes, and therefore the police acted lawfully in seizing it. With respect to defendant's inculpatory ...