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State v. Mitchell

August 2, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NOLAN K. MITCHELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-2062.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 23, 2007

Before Judges Collester and Sabatino.

As the result of a guilty plea, defendant Nolan Mitchell was convicted of third-degree possession of a controlled dangerous substance (CDS), specifically cocaine, contrary to N.J.S.A. 2C:35-10a(1). His guilty plea followed the trial court's denial of a motion to suppress the cocaine, which police had seized from a vehicle in which defendant had been riding. Consistent with the terms of the plea agreement, the trial court sentenced defendant to three years of probation. The sentence was conditioned upon 180 days confinement in the county jail and the payment of appropriate fines and penalties.

Defendant appeals on three grounds: (1) the trial court erred in denying his suppression motion; (2) the court wrongfully refused to allow him to withdraw his guilty plea on the day of sentencing; and (3) the court erred in declining to admit defendant to the so-called "HEDS" program.*fn1 We affirm.

I.

The following facts are pertinent to our review of the suppression issues.

On August 4, 2004 at about 2:30 a.m., defendant was seen by Atlantic City police, on surveillance in an area known for drug sales and other criminal activity, apparently making hand-to-hand transactions with four other persons. The observing patrolman, Officer Eric Cruse, saw no money given to defendant, but did notice him taking his customers aside in an alleyway and hand them something from his pants pocket. Defendant then bicycled over to a pickup truck, and had a short conversation with the truck's two occupants.

Officer Cruse then saw defendant put his bicycle on the back of the truck. Defendant got into the truck, joining the driver and a female passenger. In light of the apparent hand-to-hand transactions, Officer Cruse decided to have the vehicle stopped. He and his partner radioed to another patrolman, Officer Christopher McMahon, who was on uniform patrol at that time. Officer Cruse alerted Officer McMahon that a green pickup truck was headed his way with a male passenger who was potentially selling CDS. Officer Cruse watched the truck until Officer McMahon stopped it.

After stopping the truck, Officer McMahon and two other patrolmen, Officers Billy Logan and Howard Johnson, approached it at about the same time. Officer McMahon observed that defendant was in the far passenger seat, and there was a male driver and another female passenger. Officer McMahon approached the passenger side of the vehicle while Officer Logan, accompanied by an Officer Johnson, approached the driver's side.

At that point, Officer McMahon observed defendant with his hand inside a white plastic grocery bag. Defendant then removed his hand from the bag, rolled it up, and placed it between his legs on the seat of the vehicle. Officer McMahon notified Officer Logan of what he had seen concerning the plastic bag. Officer Logan asked defendant to exit the vehicle, and he complied.

As he got out of the truck, defendant left the plastic bag on the seat of the vehicle. Officer Logan took defendant to the back of the truck, approximately eight feet away from the passenger-side door. Officer Johnson then got the driver out of the vehicle on the driver side; the female passenger remained inside. While all of this was transpiring, the female passenger did not seem to move towards the bag.

Officer Logan patted defendant down, while Officer McMahon retrieved the plastic bag from the truck. The bag was not opaque enough to be seen through, and the top of it was tightly rolled so that Officer McMahon could not see its contents while it was resting on the seat. Officer McMahon suspected that the bag contained ...


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