January 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TRAMAINE HARDIMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-08-2351 and 05-12-2867.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Cuff and Lihotz.
Defendant Tramaine Hardiman was charged in Essex County Indictment Numbers 05-12-2867 and 06-08-2351. Indictment Number 05-12-2867, returned by an Essex County Grand Jury on December 1, 2005, charged defendant with third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); and third-degree possession of CDS (cocaine) within 1,000 feet of school property, N.J.S.A. 2C:53-7 (count three).
In an unrelated incident, Essex County Indictment Number 06-08-2351 charged defendant with two counts each of third-degree possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10(a)(1) (counts one and four); third-degree possession of CDS (cocaine and heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts two and five) and third-degree possession of CDS (cocaine and heroin) within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three and six).
Regarding Indictment Number 05-12-2867, defendant filed a motion to suppress the evidence obtained without a warrant. R. 3:5-7. The motion was denied. Thereafter, on August 7, 2006, defendant entered a conditional guilty plea to all charges, reserving his right to appeal the denial of his suppression motion. R. 3:9-3(f). On August 18, 2006, defendant entered into a plea agreement with respect to the charges in Indictment Number 06-08-2351. Defendant agreed to enter a guilty plea to counts five and six in exchange for a sentencing recommendation of an extended seven-year period of incarceration with a forty-two month period of parole ineligibility, to run concurrent to his sentence on Indictment Number 05-12-2867 and the dismissal of the remaining charges. Sentencing on both indictments was held on September 29, 2006. On Indictment Number 05-12-2867, the sentencing judge sentenced defendant to five years imprisonment with a three-year period of parole ineligibility. On Indictment Number 06-08-2351, defendant was sentenced as set forth in the plea agreement to be served concurrently with the prior sentence. The remaining charges were dismissed. Applicable fines and assessments were also imposed.
On appeal, defendant presents a single issue for our consideration relating to his motion to suppress evidence, as follows:
SINCE THE SEARCH OF THE CUP CONTAINING COCAINE WAS NOT BASED ON PROBABLE CAUSE AS ESTABLISHED BY CREDIBLE EVIDENCE, DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW WERE VIOLATED, AND HIS MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A WARRANT SHOULD HAVE BEEN GRANTED. U.S. CONST. AMENDS. IV AND XIV; N.J. CONST., (1947), ART. I, PAR. 7.
The facts supporting the charges in Indictment Number 05-12-2867 were presented by the testimony of the sole witness, State Investigator Max Henry of the Division of Criminal Justice at the June 19, 2006 suppression hearing. The facts are not in dispute.
On August 17, 2005, Investigator Henry and Irvington Township Police Officer Tony Farmer were on routine patrol, wearing plain clothes, and driving an unmarked police vehicle in an area of Irvington known for narcotics and other criminal activity. At 21st Street and 17th Avenue, the officers viewed what they believed was a hand-to-hand drug sale. A woman, holding money in her hand, spoke to defendant. Defendant took the money and then reached into a white cup, which he was holding in his hand, and handed something to the woman. The officers exited their vehicle and walked toward defendant. The woman saw the officers and "took off." When defendant saw the police, who displayed their badges, he "had a look on his face" and then calmly placed the white cup on the ground. Investigator Henry testified that he peered into the cup where defendant had placed it and saw a black bag containing "vials," which were later confirmed to contain crack cocaine. He signaled to Officer Farmer to arrest defendant and then more closely examined the contents of the cup. Defendant possessed $432.
On cross-examination, the defense highlighted the inconsistencies between Investigator Henry's testimony and his written police report filed after defendant's arrest. First, the report stated that when Investigator Henry looked into the white cup, he saw a black plastic bag; the vials of cocaine were not discovered until the black plastic bag was removed. Second, the report states that defendant was arrested after Investigator Henry removed the cocaine vials from the black plastic bag located in the cup, while his trial testimony stated that he did not pickup the cup to examine its contents until after he had signaled for defendant's arrest.
The trial court denied defendant's motion to suppress. The judge determined the State satisfied its burden under the plain view exception to justify seizure of a cup containing illicit narcotics.
The constitutionally imposed protection of citizens against unreasonable police searches and seizures, U.S. Const. amend. IV; N.J. Const. art. 1, ¶ 7, invalidates a warrantless search "unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). The "plain view" doctrine, as pronounced by the United States Supreme Court in Texas v. Brown, 460 U.S. 730, 736-37, 103 S.Ct. 1535, 1540, 75 L.Ed. 2d 502, 510 (1983), permits the warrantless searches and seizures by police of private possessions where three requirements are satisfied: the officer must lawfully be in a viewing area; "the officer must discover incriminating evidence 'inadvertently,' which is to say, he may not 'know in advance the location of [certain] evidence and intend to seize it,' relying on the plain-view doctrine only as a pretext, ibid. (internal quotations and citations omitted); and, the police must have "probable cause to associate the property with criminal activity." Id. at 738, 103 S.Ct. at 1542, 75 L.Ed. 2d at 513. The New Jersey Supreme Court has adopted these three plain view requirements in State v. Bruzzese, 94 N.J. 210, 238 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed 2d 695 (1984); see also State v. Johnson, 171 N.J. 192, 199 (2002).
Defendant's appeal concedes the first two requirements of the plain view exception have been met. He centers his challenge on whether sufficient probable cause was present to search the cup defendant placed on the ground. Defendant maintains that he retained a reasonable expectation of privacy to the cup's contents, despite the fact that he placed it on a public sidewalk. Defendant argues that to apply "plain view," the pivotal determination is whether the cup was searched before or after the vials were observed. Based on the facts presented in this matter, we cannot agree.
Probable cause exists if at the time of the police action there is a 'well grounded' suspicion that a crime has been or is being committed. It requires nothing more than a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. The flexible, practical totality of the circumstances standard has been adopted because probable cause is a fluid concept- turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules. Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband . . . or useful as evidence of a crime, it does not demand any showing that such belief be correct or more likely true than false. [Johnson, supra, 171 N.J. at 214-215 (internal quotations and citations omitted).]
Applying these principles to the facts at bar, we concur with the judge's determination that the police satisfied the probable cause prong of the plain view doctrine. Also, we reject defendant's argument that the difference in the recitation of the facts presented by Inspector Henry in his contemporaneous police report and his hearing testimony alters the ultimate result.
While on routine patrol and in broad daylight, the police observed a verbal exchange between defendant and a woman. The woman handed defendant money, in exchange defendant handed the woman a package taken from a cup he held in his hand. Based on their training and experience, the police recognized the events as a hand-to-hand drug sale. After exposing their badges, the police approached the participants. The woman "took off" and defendant placed the cup on the sidewalk by his feet. The police picked up the cup from the city sidewalk and noticed it contained vials of cocaine. Under these facts, the seizure of the evidence from the public walkway was not subject to any expectation of privacy. "[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public." State v. Hempele, 120 N.J. 182, 209 (1990). We determine that the seizure of the cup containing cocaine required no intrusion as the "concealment" of the vials from direct view by the black plastic bag is "irrelevant, given the known and accessible location of the 'stash.'" State v. Ford, 278 N.J. Super. 351, 357 (App. Div. 1995); State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.), certif. denied, 180 N.J. 456 (2004). Accordingly, we do not view the police intervention, in the pursuit of securing evidence of criminality, as improperly disturbing defendant's constitutionally protected privacy rights warranting suppression.
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