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State v. Pemberton

August 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEON PEMBERTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-01-0205.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2008

Before Judges Lintner and Sabatino.

Defendant, Deon Pemberton, appeals the Law Division's denial of his motion to suppress evidence that the police seized from his automobile following an investigative stop. After that motion was denied, defendant was convicted of a school-zone narcotics offense based upon the fruits of the search. We reverse and remand for any further appropriate proceedings.

Two witnesses testified at the suppression hearing: Lieutenant Thomas Kelly of the Essex County Prosecutor's Office, who stopped defendant's automobile and who conducted the ensuing search; and Lucius Bradley, who was a passenger in the vehicle. The following circumstances and facts emerged at the hearing.

On the morning of December 7, 2005, Lieutenant Kelly and Detective Burt Moita of the Essex County Narcotics Task Force were in an unmarked patrol car, conducting a narcotics surveillance in the vicinity of Standard Place and 20th Avenue in Irvington. The location was known to Lieutenant Kelly, a thirteen-year veteran of the Task Force, as a "high narcotics area."

At about 8:50 a.m., the two officers observed a red Chrysler Concord pull up at the intersection of 20th Avenue and 21st Street. An unidentified male then approached the Chrysler and the driver handed him what appeared to be a "little knot of currency." In exchange, the pedestrian handed the driver an object. As the police car approached the vehicle, the pedestrian waved at the Chrysler driver, apparently signaling him to leave the scene. The Chrysler then drove off into traffic.

Believing that they had just witnessed a hand-to-hand narcotics transaction, the officers pursued the Chrysler. The Chrysler made a u-turn, and quickly turned right onto 22nd Street. The Chrysler then went through a stop sign. Lieutenant Kelly, who was driving the police car, testified that he did not stop the Chrysler immediately because it had resumed normal operation and he wanted to "see if any other transactions were made." The Chrysler continued into East Orange, without making any other stops.

Approximately five or ten minutes later, Lieutenant Kelly activated his lights and siren, directing the Chrysler to stop. The Chrysler pulled over to the side of the street. It was occupied by defendant, who was in the driver's seat, and Bradley, who was in the front passenger seat. Lieutenant Kelly approached the driver's window and requested that defendant present his credentials. Defendant stated, in response, that his driver's license was suspended.

The lieutenant then asked defendant to step out of the Chrysler. Defendant complied. At the same time, Detective Moita asked Bradley to also get out of the car. He likewise complied. The officers then secured both men behind the Chrysler.

According to Lieutenant Kelly, at that point, defendant blurted out, "that stuff's mine, it's not my father's; he didn't know they [sic] were in the car."*fn1 Defendant was referring to a green drawstring bag that was situated on the console between the front seats of the Chrysler. Lieutenant Kelly testified that he had seen the bag from the outside of the car. The lieutenant stated that he had not paid "a lot of attention" to the bag initially, because he was "more worried about taking a guy out of a car [and] whether he's got a weapon." The lieutenant described the bag as having an open top, and that "[y]ou could see glass vials clearly inside of that bag."

Defendant's spontaneous utterance about the bag prompted Lieutenant Kelly to place him under arrest and read him Miranda*fn2 warnings. The lieutenant then asked defendant if there was anything else in the car that the police needed to know about. He allegedly replied, "you got it; there's nothing else, you go[t] it; you got what's there."

The lieutenant then asked defendant "if he minded if [the police] looked" inside the vehicle. Defendant allegedly said no. The Lieutenant then searched the trunk and interior of the car, but found nothing of interest other than the green bag. He seized the bag, which contained forty-three vials and $930 in currency. The vials were subsequently tested at a State Police laboratory, and were determined to contain, in total, about three grams of cocaine. With defendant's consent, Lieutenant ...


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