May 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASHION MURRAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2743.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges A. A. Rodríguez and Collester.
Following the denial of his motion to suppress evidence, defendant Jashion Murray entered a negotiated plea of guilty to third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. In exchange, the State agreed to recommend that "any custodial sentence not exceed . . . three years flat" and to move for dismissal of the remaining charges. The judge imposed concurrent terms aggregating a three-year term to run concurrently with a violation of parole sentence that defendant was serving.
Prior to trial, defendant moved to suppress evidence seized as a result of a warrantless search and seizure conducted contemporaneously with his arrest. The motion judge conducted an evidentiary hearing.
The State presented the following proofs at the suppression hearing. On September 11, 2005, at approximately 8:10 p.m., Orange Police Detective-Sergeant Harry Santiago and his partner, Detective Dunn, were on patrol in the area of Hillyer and William Avenues. The officers were investigating a report of a "gunshot call" from the previous night. They returned to the area to determine whether there were any witnesses or persons with information about the shooting.
At the intersection, Santiago "observed an individual making a transaction" from approximately eight to ten yards away. Santiago saw defendant placing an object in the hands of an unidentified individual. Santiago recognized defendant as an individual who had been arrested several times by fellow detectives in the narcotics unit. Santiago concluded, "[b]ased on [his] experience and training, it looked to be a narcotics transaction." He believed this exchange was a drug transaction because this particular area of the city is known to be a prime location for narcotics trafficking. When asked about the exact nature of the object being transferred, Santiago testified that he could not "determine exactly what it was," but that it was "very small" and that defendant was holding it by pinching his thumb and first two fingers together. He had a clear view of the event because defendant was standing under a streetlight.
Santiago exited the unmarked vehicle and identified himself as a police officer. Santiago "called [defendant] by his first name" and told him, "stop, police."
According to Santiago, defendant appeared to be "overly nervous" and "rapidly started walking" away from the officers. Santiago and Dunn repeated their order for defendant to stop. Defendant asked them why should he stop. Santiago continued to approach defendant, who took off running. A foot chase ensued through a wooded lot. While running, defendant discarded several objects from his jacket pocket. After being wrestled to the ground, defendant discarded another object, which landed near the front tire of a parked vehicle.
Additional officers arrived at the scene. Santiago located the objects thrown by defendant while running: a deck of cards; a cell phone; and a watch. The other officers determined that the object near the front tire of the vehicle contained "80 folds of heroin." At this point, defendant was arrested. A search of his person revealed $588.
The motion judge denied defendant's motion. Thereafter, defendant entered his plea pursuant to the agreement with the State.
Defendant appeals pursuant to R. 3:9-3(f), contending:
BECAUSE THE DETECTIVE'S TESTIMONY WAS NOT CREDIBLE, THE COURT ERRED IN RELYING ON THAT TESTIMONY FOR DETERMINING THAT THE STOP AND SEIZURE OF THE DEFENDANT WAS JUSTIFIED.
We affirm, although we modify the judgment to reflect the correct DEDR penalty.
Defendant argues that the judge erred in finding Santiago's testimony credible and subsequently relying on this determination to deny his motion to suppress evidence. We note that the motion judge emphasized that he found Santiago "forthright and credible." Moreover, credibility is not an issue for us to decide anew. State v. Johnson, 42 N.J. 146, 162 (1964). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). Where the trial court has made credibility determinations, we are not free to make our own. Id. 472-75.
Defendant also challenges the motion judge's finding that Santiago had reasonable articulable suspicion to conduct a constitutionally permissible investigatory stop. We disagree.
Both the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution protect against warrantless searches and seizures. State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino, 83 N.J. 1, 7 (1980)); State v. Frankel, 179 N.J. 586, 597 (2004); State v. Wilson, 178 N.J. 7, 12 (2003). A "warrantless search is prima facie invalid unless the search falls within one of the exceptions that the United States Supreme Court has recognized." State v. Dangerfield, 171 N.J. 446, 455 (2002) (citing State v. Hill, 115 N.J. 169, 173-74 (1989)). It is settled that "the burden is on the State, as the party seeking to validate a warantless search, to bring it within one of those recognized exceptions." State v. Alston, 88 N.J. 211, 230 (1981).
One of those exceptions is the probable cause/exigent circumstances situation. Probable cause "is a well-grounded suspicion that a crime has been or is being committed." State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). "It requires nothing more than 'a practical, common-sense decision whether . . . there is a fair probability'" of guilt. Dangerfield, supra, 171 N.J. at 456 (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)). Moreover, police officers are permitted to draw from their observations, coupled with their professional training and experience, to justify a limited intrusion upon an individual's freedom. State v. Davis, 104 N.J. 490, 503-04 (1986); State v. Gray, 59 N.J. 563, 567-68 (1971).
Exigent circumstances, like probable cause, "is, by design, inexact." Nishina, supra, 175 N.J. at 516. As such, it "demands a fact-sensitive, objective analysis." Id. at 517 (quoting State v. DeLuca, 168 N.J. 626, 632 (2001)). One common example is when "the unanticipated circumstances that give rise to probable cause occur swiftly." Id. at 516 (quoting State v. Cooke, 163 N.J. 657, 672 (2000)).
Based on the testimonial evidence presented at the suppression hearing, we conclude that the motion judge was correct in holding that Santiago had reasonable articulable suspicion to stop defendant. Santiago's observation of a hand-to-hand transaction between defendant and an unidentified individual, together with defendant's reaction upon realizing that he was being watched by a police officer, in a neighborhood known for heavy narcotics trafficking, was sufficient to establish probable cause. In addition, Santiago was familiar with defendant and knew that he had previously been arrested many times for drug-related offenses.
Regarding exigency, Santiago had no practical opportunity to obtain a warrant given defendant's flight from police and his rapid discarding of items during the chase. In this type of situation, such "evidence very well could have been consumed, hidden or sold" before police could secure a warrant. State v. Guerrero, 232 N.J. Super. 507, 512 (App. Div. 1989). There being sufficient evidence to support the motion judge's decision, we affirm the denial of defendant's motion to suppress.
We note that the judgment imposed a $2,000 Drug Enforcement and Demand Reduction (DEDR) penalty based on "2 3rd degree at $1,000" each. However, the resisting arrest conviction does not carry a DEDR penalty. See N.J.S.A. 2C:35-15a. Therefore, the judgment of conviction must be amended to reflect a $1,000 DEDR penalty.
As corrected the judgment is affirmed. The Law Division shall enter a corrected judgment.
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