On appeal from the State of New Jersey, Law Division, Camden County, Indictment No. 01-12-3787.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez, C.S. Fisher and C.L. Miniman.
Based on a tip received from a confidential informant, surveillance was conducted on co-defendant Pedro Rivera. In the process of observing Rivera's movements a few days later, Detective Shane Sampson of the Camden Police Department was following Rivera's vehicle when it stopped at defendant's house. Rivera remained in his vehicle and beeped the horn. Defendant exited his home and approached the rear of a blue Pontiac Sunbird that was parked on the street behind Rivera's vehicle. Detective Sampson observed defendant as he "opened the trunk, bent down to his . . . feet, appear[ing] to be tying his shoes . . . for a couple of seconds, came up in one motion, [and] placed something in the back of the trunk that had a barrel and a handle on it." This suggested to the detective, based on his experience, to believe defendant had placed a handgun in the trunk of the Sunbird. Defendant then entered the driver's side of the Sunbird, and Rivera exited his vehicle and got in the front passenger seat of the Sunbird.
Detective Sampson continued his observations as Rivera "lean[ed] back," and "remove[d] something from his waist area," and handed a black plastic bag to defendant. Defendant then "took the bag" and "put it in his left [side] pocket." In his testimony, Detective Sampson indicated that the black bag was "crumpled up," and small enough that he would not have been able to see it without binoculars. A few minutes later, defendant and Rivera drove away in the Sunbird.
Concluding that he had witnessed an illegal drug transaction, Detective Sampson radioed for backup units to stop the Sunbird. Upon arriving at the place where the Sunbird was stopped by the backup officers, Detective Sampson observed that the Sunbird was "in the middle of the street, parked on an angle with the driver's side door . . . open," and that defendant was running from the vehicle. Detective Sampson got out of his unmarked vehicle, "yelling police, stop." Before defendant was apprehended, Detective Sampson saw him reach into his pocket, remove the black bag and throw it to the ground. The black bag contained a "[s]maller sandwich bag containing a white rock substance" later identified as cocaine.
Thereafter, Detective Sampson looked in the Sunbird's trunk and found a handgun loaded with hollow point bullets. Further investigation revealed that the vehicle was registered to defendant's wife, Keysha Johnson.
Detective Sampson then returned to defendant's house with other officers. Detective Sampson knocked at the door; Keysha "came to [a second floor] window, [and] asked who it was." The detective identified himself and asked whether she was defendant's wife. Keysha acknowledged she was defendant's wife.
Detective Sampson then told Keysha about defendant's arrest and asked whether she would "consent or let [them] look through the house." He advised Keysha that she did not have to consent, but "she said yeah you can go ahead and search the house." Keysha also signed a consent form.
In searching defendant's house, the police recovered a coffee grinder with a white powdery substance in the grinder area, a digital scale with a white powdery substance on it, numerous small clear and blue plastic bags of the type used to package and sell illegal drugs, a box of ammunition in a night stand, a revolver in a dining room hutch, and a bag of marijuana on the top of a dresser.
At the police station, defendant was advised of and waived his Miranda*fn1 rights. He gave a statement, which was recorded and later played for the jury, in which defendant acknowledged that the items found in his home belonged to him.
Defendant was charged with various drug and weapon offenses, as well as resisting arrest.
Defendant moved for the suppression of evidence, based on his contentions that: his arrest was not supported by probable cause; the warrantless search of the Sunbird's trunk was not incident to his arrest; and Keysha was not authorized and did not voluntarily consent to the search of defendant's home. The trial judge denied this motion in its entirety.
At the conclusion of a trial, defendant was convicted by a jury of: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(f); second-degree possession of a firearm during drug distribution, N.J.S.A. 2C:39-4.1(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), and second-degree being a person prohibited from possessing weapons, N.J.S.A. 2C:39-7(b).*fn2 Defendant was acquitted of fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(b)(12). And the jury was unable to render a verdict on the remaining charges of second-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(b)(2), and third-degree possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7.
The trial judge granted the State's motion for an extended term, pursuant to N.J.S.A. 2C:44-3(a), and imposed an extended term of seventeen years, with an eight-and-one-half-year period of parole ineligibility, on defendant's conviction for being a person not permitted to be in possession of weapons.*fn3 The judge also imposed: a five-year prison term on the conviction for second-degree possession of a firearm during drug distribution; a five-year prison term on the third-degree CDS possession conviction; a one-year prison term on the fourth-degree possession of prohibited weapons and devices conviction; and a one-year term on the fourth-degree resisting arrest conviction. The five-year and one-year prison terms were ordered to run concurrently with each other; they were also ordered to run consecutively to the seventeen-year term on defendant's conviction for being a person not permitted to be in possession of weapons.
Defendant appealed, raising the following arguments for our consideration:
I. ALL ITEMS OF EVIDENCE RECOVERED BY THE POLICE SHOULD HAVE BEEN SUPPRESSED AS A) THE ARRESTS OF THE DEFENDANTS WERE NOT SUPPORTED BY PROBABLE CAUSE; B) THE SEARCH OF THE DEFENDANT'S MOTOR VEHICLE WAS NOT INCIDENT TO A LAWFUL ARREST AS THE DEFENDANTS HAD BEEN SECURED PRIOR TO THE SEARCH; C) ...