On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-00400-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
Defendant Kevin L. Williams was charged with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and possession of a CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count four). After his motion to suppress was denied, defendant pled guilty to counts three and four, reserving his right to appeal the denial of the motion.
Defendant was sentenced to a five-year term of incarceration, with a two-and-one-half-year period of parole ineligibility on count three, and a concurrent five-year term on count four. Defendant's driving privileges were suspended for twenty-four months, and appropriate fines and assessments were imposed. Defendant now appeals from the order entered on June 13, 2005, denying his motion to suppress.
We briefly summarize the evidence presented at the suppression hearing held on June 6, 2005, before Judge Robert Neustadter. Officer William Warner of the Atlantic City Police Department testified that in January 2004, he was assigned to the "Vice Tactical Patrol Unit," which deals primarily with narcotics offenses. Warner has been involved in hundreds of investigations of narcotics cases.
Warner stated that at about 10:00 p.m. on the evening of January 8, 2004, he and several other police officers were on undercover duty and conducted a "walk through" of a building in a housing complex called Stanley Holmes Villages. Warner was familiar with the complex because he had been there on a number of occasions to deal with narcotics, weapons violations, shootings, and fights. He said that "CDS calls" are very common at Stanley Holmes Villages, and heroin is the CDS most frequently recovered there.
Warner stated that the police conduct "walk throughs" in high crime areas of the city and focus mainly on Stanley Holmes Villages because that is where the police "get the most complaints." Warner said that on the evening in question, the officers came out of the complex and walked towards a parking lot where the trash dumpsters are located. Warner said that this area is well-lit at night. Warner saw a four-door, white taxicab pull into the parking lot. A male exited the rear passenger seat of the vehicle and closed the door. Warner observed the man reach back into the taxicab through the open window. Two males were in the rear seat.
Warner said that the man retrieved something from a passenger in the rear seat and began to walk away. Warner could not see the item that the man took from the rear passenger, nor could he see whether the man gave the rear passenger any money. Warner said that the man looked up at him, identified the undercover officers as police, and ran into the courtyard of the housing complex. Warner was asked what led him to believe that the man had identified the officers as police. He replied that the man looked nervous and "just took off at the sight of us." The officers followed the man but they were unable to apprehend him.
Warner testified that immediately thereafter, the taxicab "took off south, screeching its tires." Warner got into his vehicle, which was near the parking lot, and followed the taxi. Officer Russo, another officer working undercover with Warner, contacted other officers by radio transmission. Warner said that he never lost sight of the taxicab. Other officers stopped the taxicab as a result of Russo's transmission. Warner got out of his car and approached the passenger side of the vehicle. Warner had a flashlight. He walked up to the taxicab and illuminated the back seat with his flashlight. Warner saw two individuals in the rear seat.
Warner stated that a male passenger "quickly" reached into his breast pocket and threw something to the floor of the taxi. Warner illuminated the floor and observed what he believed to be a bundle of heroin by the man's left foot. Warner said that it was a "bunch of packets secured by a rubber band." Warner explained that this was how a bundle of heroin is commonly packaged.
Warner asked the occupants of the rear seat to step out of the taxicab and he immediately retrieved the bundle from the vehicle. Defendant was one of the passengers. Warner knew defendant from "past encounters" and there was a warrant outstanding for defendant's arrest. One of the officers placed defendant in custody. The officer searched defendant's pockets and found a packet of heroin.
Judge Neustadter filed a letter opinion dated June 7, 2005, in which he concluded that the officers made a valid investigatory stop of the taxicab. The judge found that the officers had reasonable suspicion that criminal activity had occurred. The judge further found that seizure of the heroin without a warrant was permitted under the automobile exception to the warrant requirement because the search of the vehicle was a valid search incident to an arrest, and because the ...