On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-01-0123.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Simonelli.
After his suppression motion was denied, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Defendant was sentenced to a mandatory extended term, see N.J.S.A. 2C:43-6f, of eight years imprisonment with a four-year parole disqualifier. Defendant argues on appeal:
POINT I SINCE THERE WAS NO EXIGENCY ONCE DEFENDANT WAS HANDCUFFED AND NO EVIDENCE OF CONFEDERATES OR OTHERS ASSOCIATED WITH DRUG TRAFFICKING IN THE AREA, THE HEROIN SEIZED AS A RESULT OF THE WARRANTLESS ENTRY INTO DEFENDANT'S LOCKED VEHICLE SHOULD HAVE BEEN SUPPRESSED.
POINT II AT THE VERY LEAST, DEFENDANT SHOULD BE RE-SENTENCED PURSUANT TO STATE V. THOMAS, 188 N.J. 137 (2006) WITHOUT ANY AGGRAVATING FACTORS NOT FOUND BY A JURY OR, ALTERNATIVELY, WITH MINIMAL WEIGHT TO THE AGGRAVATING FACTORS GIVEN THE MINIMAL NATURE OF THE OFFENSE. (Not Raised Below).
We reject Point I and affirm defendant's conviction. However, sentence was imposed before our Supreme Court's decision in State v. Thomas, 188 N.J. 137 (2006), and, because the sentence imposed was higher than the statutory "presumptive" term within the extended range, a remand for resentencing is necessary. Id. at 154.
On Sunday morning, October 17, 2004, at about 10:00 a.m., Jersey City officers Ludwig and Trobridge, members of the narcotics unit, were on routine patrol in a neighborhood known for high drug activity. They were in plain clothes and in an unmarked vehicle. About two weeks earlier, Ludwig received information from a confidential informer that defendant was using a green Chrysler Concord automobile to store and deliver heroin in that neighborhood. Ludwig was a veteran officer, with many years of experience working in that neighborhood, and he knew defendant from prior contacts. According to Ludwig, defendant knew him as well. Upon receiving the information from the confidential informer, Ludwig did not immediately conduct any investigation of defendant, and on the morning of this incident, he and Trobridge were not looking for defendant. They merely drove into a high drug area for the purpose of detecting any drug activity they might encounter.
They observed defendant getting out of a parked green Chrysler Concord. He was alone. He began walking up the street. The officers drove past him, keeping an eye on him, and as far as they could tell, defendant did not notice them. The officers then drove around the block, losing sight of defendant for about thirty seconds, until they encountered him again. This time, defendant saw the officers and apparently recognized them as such.
From a distance of about ten feet, with an unobstructed view, Ludwig saw defendant reach into his jacket pocket and remove what Ludwig immediately recognized from his training and experience as a bundle*fn1 of heroin. Ludwig described the bundle as containing glassine bags, which are typically used for heroin packaging. Defendant held the bundle between his fingers and quickly placed it in his mouth. As he did so, defendant turned and began walking briskly away from the officers.
The officers got out of their car and quickly caught up with defendant. Each held him by one arm, and they directed him to spit out the object in his mouth. Defendant did so. The object contained eight glassine bags of heroin. Ludwig immediately placed defendant under arrest, handcuffed him, and advised him of his Miranda*fn2 rights. A search of defendant's person revealed $88 in currency. The officers then placed defendant in their unmarked car. They told him they had received information that he had been using the Chrysler Concord to store and deliver drugs in the neighborhood. Stating that he wanted to "keep it real," defendant volunteered that he had another bundle of heroin in the car, hidden under the armrest. Defendant said the officers could take the car keys from his pocket and retrieve the additional drugs.
The officers drove back to where the Chrysler was parked. It was locked. Using the keys obtained from defendant, Trobridge unlocked the car and removed a bundle containing ten glassine bags of heroin from under the armrest. The officers "secured"*fn3 the car at that location and drove defendant back to the station house. A group of individuals on the street observed this activity as well.
The entire episode from when the police first saw defendant getting out of his car until they drove away with defendant for the station house lasted only about five minutes. Other than Ludwig, Trobridge and a supervisor, no members of the narcotics unit were on duty that morning. The officers searched the vehicle because (1) they had ample probable cause to believe it contained additional CDS, based upon a combination of the tip from the confidential informer, defendant's possession on his person of CDS, which corroborated the tip, and defendant's volunteered statement that he indeed had additional CDS in the car, and (2) they deemed the circumstances exigent, fearing that the additional drugs or the entire car would be removed if they did not immediately seize the drugs. A ...