February 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADRIAN R. DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-09-3753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2007
Before Judges Lefelt and Sapp-Peterson.
A Camden County jury convicted defendant, Adrian Davis, of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)1; third- degree distribution of heroin, N.J.S.A. 2C:35-5a(1); third- degree distribution of heroin within a school zone, N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute within a public park zone, N.J.S.A. 2C:35-7.1. Judge Baxter sentenced defendant to an aggregate seven years in State Prison with three years of parole ineligibility. Defendant appealed, arguing the trial court erroneously denied his motion to suppress evidence and imposed a manifestly excessive or unconstitutional sentence.*fn1 We reject these arguments as totally without merit and affirm. R. 2:11-3(e)(2).
We add only these brief comments. Probable cause is a "well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). It exists "where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Moore, 181 N.J. 40, 46 (2004) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)). When determining whether there is probable cause, the totality of the circumstances test should be used. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983); State v. Novembrino, 105 N.J. 95, 122 (1987).
We have no doubt that Judge Baxter properly found that the police had probable cause to arrest defendant for selling drugs. The undercover officer was experienced and had specialized narcotics training. He reasonably believed a drug transaction had occurred when he observed defendant speaking with a female, go to a tree in a vacant lot, pick up an item from the ground next to the tree, and then exchange that object for money from the female. His observations, combined with the fact that the street was a high drug trafficking area, were sufficient to establish probable cause for an arrest, even if the police failed to discover any drugs on defendant's person and in a subsequent investigation of the lot. This case is unlike State v. Tucker, 136 N.J. 158 (1994), because defendant's flight upon being approached by the police was not the only factor establishing probable cause for an arrest. Consequently, Judge Baxter correctly refused to suppress the evidence seized incident to defendant's lawful arrest. See Moore, supra, 181 N.J. at 44.
Regarding defendant's challenge to his sentence, our review of the sentence leads us to conclude that no error has occurred. See State v. Roth, 95 N.J. 334, 365 (1984). The judge imposed a seven-year term, which was the then presumptive sentence for a second-degree crime. Thus, the sentence was neither excessive nor unconstitutional. See State v. Natale, 184 N.J. 458, 466 (2004).
Accordingly, defendant has given us no valid reason to reverse his sentence or conviction.