On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Decided January 15, 2008.
Remanded by Supreme Court -- April 8, 2008.
Resubmitted June 25, 2008
Before Judges Yannotti and LeWinn.
This matter is before us on remand from the Supreme Court for reconsideration of our judgment in light of State v. O'Neill, 193 N.J. 148 (2007).
On May 25, 2004, a Morris County grand jury issued an indictment charging defendant Rashawn White with possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); possession of cocaine with intent to distribute within 500 feet of public housing; N.J.S.A. 2C:35-7.1 (count four); hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(4) (count five); and conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1) (count six). Thereafter, the trial court granted the State's motion and dismissed count six.
Prior to trial, defendant moved to suppress two statements that defendant gave to the police. At the suppression hearing, Officer Brett Smith of the Morristown Police Department testified that on the evening of January 15, 2004, he was engaged in surveillance and observed Michael Cheetum and a woman speaking on Flagler Street. From his surveillance spot, which was about five or six feet from where Cheetum and the woman were standing, Smith overheard them say that "nobody's out tonight" and "[h]ave you seen Rob?" Shortly thereafter, Smith heard Cheetum and the woman say, "there he is now." Smith looked across the street and he observed defendant walking along Speedwell Avenue.
Smith said that Cheetum and the woman crossed the street and met with defendant. They began walking down Speedwell Avenue and made a right turn on Early Street. Smith left his surveillance location and, as they turned the corner, he walked across the street and went down an alley that cuts through near Early Street. Smith said that he saw Cheetum, defendant and the woman enter a parking lot behind Pan Pizza, which is at the corner of Speedwell Avenue and Early Street. Smith positioned himself behind a tree.
Smith testified that Cheetum removed United States currency from his pocket. He heard defendant ask whether there were any "cops around[.]" Cheetum replied, "no, just give me the shit." Smith saw defendant remove several objects from his coat pocket. Cheetum handed defendant the currency, and defendant gave Cheetum the "small objects." Smith said that, based on his experience in law enforcement, he believed that the objects were a controlled dangerous substance (CDS) and "it was definitely a [CDS] transaction."
Smith stated that Cheetum quickly started to walk toward Speedwell Avenue and defendant went down Early Street. Smith radioed the dispatcher and the other officers on patrol and told them that he was going to stop Cheetum. Smith informed them of the direction in which defendant was headed.
When Smith got to Speedwell Avenue, Officer Lamperti met him in another vehicle. Smith stopped Cheetum and placed him under arrest. Cheetum was found in possession of three, small, "quarter" bags of cocaine. The patrol officers were unable to locate defendant.
Smith further testified that on January 22, 2004, at around 9:30 p.m., he was on patrol in a police vehicle. He observed defendant walking down Speedwell Avenue toward Headquarters Plaza. Smith turned his vehicle around to see where defendant was going. He observed defendant enter Headquarters Plaza. Inside, Smith saw defendant walking down the hallway. Smith believed that defendant was headed toward Bennigan's, which was located inside the building. Smith went to Bennigan's and observed defendant sitting at the bar.
Smith testified that he wanted to speak to defendant and tell him what he had seen on January 15th. Smith wanted to get some information from defendant such as his name and where he lived. Smith approached defendant, with Officers Jackson and Kraus. He asked defendant his name and defendant replied, "Shondell Davis." Smith continued to speak with defendant while Jackson radioed the name of "Shondell Davis" to the dispatcher. Smith learned that "there was no such person" with that name in the computer system.
According to Smith, Bennigan's was crowded. Smith told defendant that he was not under arrest and asked him if he would step outside to speak to the officers. Smith testified that defendant "complied and [they went] outside." Smith stated that he wanted to ascertain defendant's name. He said that he intended to tell him what he had observed on January 15th and "see what [defendant] had to say." Smith said that he "wanted to get some information to [establish] probable cause to get an arrest warrant."
Smith, defendant and the two officers went out into the hallway. Smith told defendant what he had seen on the night of January 15th. He advised defendant that "it would be in his best interest to tell [him] the truth." According to Smith, defendant put his head down and "kind of just shook his head." Defendant asked whether Smith would help him out if he told him the truth.
Smith told defendant that if he told the truth, "things would go better, a lot better[.]" Defendant said "all right[.]" He admitted that he was the person Smith had seen behind Pan Pizza but said that he was "no big time dealer." Defendant told Smith, "I dabble in it a little bit but ...