On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-11-2531.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Fuentes, Grall and Chambers.
Defendant Shane Lewis pled guilty to one count of third-degree possession of heroin and ecstasy within 1000 feet of school property, N.J.S.A. 2C:35-7; one count of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7; and to an unrelated accusation charging him with third-degree bail jumping, N.J.S.A. 2C:29-7. In pleading guilty, defendant reserved his right to appeal the trial court's denial of a motion to suppress evidence. As part of the negotiated plea agreement the court dismissed the remainder of the charges against defendant, which were outlined in an eighteen-count indictment.
The court sentenced defendant to a term of ten years with five years parole ineligibility on the drug charge;*fn1 to a concurrent term of five years with five years of parole ineligibility on the firearm possession; and to a concurrent three-year term for bail jumping. Defendant was also ordered to pay the mandatory fines and penalties associated with these offenses.
Defendant now appeals. We affirm defendant's conviction, but remand for re-sentencing. We will address the legal issues raised by defendant in the context of the record developed before the trial court.
In the early evening hours of June 7, 2002, Jersey City Police Officer Thomas McVicar, was stationed in the area of 20-22 Siedler Street, when he observed a male juvenile standing in front of 20-22 Siedler Street. A white Oldsmobile was parked directly across from this location, with three individuals inside. McVicar recognized defendant as the driver; he did not know the other two occupants. He knew defendant by sight, because over the course of several months, McVicar had been involved in an ongoing investigation concerning illicit narcotics trafficking in the area. Specifically, McVicar had information from numerous sources that an individual identified as Shane Lewis was engaging in drug activity in the area of 20-22 Siedler Street. These informants had also implicated the Oldsmobile as an instrument of distribution.
McVicar had received information that the communications of narcotics officers were possibly being monitored on "channel five;" and that individuals in the area of Siedler Street were using "small family radio service radios to communicate amongst themselves." As a result, McVicar had been supplied with a radio that allowed him to scan sixteen separate channels, with the hope of detecting illicit transmissions.
At one point, McVicar observed defendant pick up a small radio; put it to his mouth and, at the same time, heard a voice come through his police radio that stated "yo' dog, yo' dog, you up son." He then heard a second male voice state "I got it, I got it." McVicar then saw defendant put the radio up to his mouth and start speaking. He then heard the same voice from the first transmission say "you stay on it, the narcos*fn2 are coming out, they're getting in their cars." At the end of this transmission, McVicar observed defendant move the radio away from his mouth and saw the Oldsmobile pull out and proceed off of Siedler Street.
During the course of his surveillance, McVicar observed the Oldmosbile travel back and forth through the area of Siedler Street several times. He then observed an unidentified female enter the area, approach the juvenile male standing in front of 20-22 Siedler Street, and hand him paper currency. The juvenile ran into 20-22 Siedler Street and returned with a number of small items, which he handed to the female. Immediately thereafter, the police detained the female and recovered two bags of suspected heroin from her person.
McVicar received a secured radio transmission from another officer that defendant had driven past them in the white Oldsmobile and had observed them conducting their surveillance. McVicar then saw the white Oldsmobile turn onto Siedler Street and proceed toward 20-22 Siedler Street at a high rate of speed. At the same time, a male's voice came over the radio stating "shut it down, shut it down." The white Oldsmobile then pulled up in front of 20-22 Siedler Street. McVicar saw defendant lean out of the driver's side window and yell an inaudible message at the male juvenile; who in turn walked into 20-22 Siedler Street, quickly re-emerged, and began to walk away from the area. The juvenile was eventually detained and arrested.
The police were unable to locate the Oldsmobile. That same day, McVicar reported to the narcotics base and prepared an application for a warrant for defendant's arrest charging him with conspiracy, employing a juvenile for illicit narcotics distribution, and obstructing governmental function. No warrant was actually issued. McVicar thereafter learned from an informant that defendant was transporting narcotics from somewhere in the area of Maple and Pacific Avenues to 20-22 Siedler Street, using the white Oldsmobile.
The investigation of this case, consisting of surveillance operations, did not start again until July 21, 2002, forty-four days after McVicar first began his surveillance of defendant. Other than monitoring defendant's activities, the police did not take any action for the first few days. The only contact with defendant occurred when the police stopped him for a routine traffic violation. Defendant was stopped, issued several ...