On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-12-1204-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Collester and C.S. Fisher.
Pursuant to leave granted the State appeals the July 16, 2007 order granting in part defendant's motion to suppress evidence.
At the June 1, 2007 suppression hearing the State produced Elizabeth Police Officers Vincent Napoli and James Diorio, and defendant testified on his own behalf. In summary, the facts are as follows. Based on information from a confidential informant, Officer Napoli applied on September 6, 2006 to Judge Stuart Peim for a search warrant of defendant's person and his residence. The signed warrant limited the scope of the search as follows:
38 Dehart Place attic apartment in Elizabeth, New Jersey and all common areas of ingress, egress and access associated with that apartment and for the person of Patrick Julney, D.O.B. February 15, 1984.
Before the warrant was executed, Napoli received a call at about 8 p.m. from the same confidential informant who indicated that defendant was in possession of a large amount of cocaine. Napoli then called Officer Diorio to conduct surveillance of defendant's residence while Napoli searched other locations in Elizabeth frequented by defendant.
Officer Diorio saw defendant arrive and park his car in front of 38 DeHart Place. Defendant then walked down a side alley and entered the rear of the apartment building. About five minutes later defendant returned to his car and drove away. Diorio followed and called for a marked patrol car to stop defendant. As defendant came to a stop sign, a marked police car passed through the intersection, came to a sudden stop and made a u-turn. Diorio testified that he saw defendant open the driver's side door and throw a small white object to the pavement before continuing through the intersection. As the patrol car pursued defendant, Diorio stopped to retrieve the thrown object, which was a tied, clear plastic sandwich bag containing a white, rocky substance subsequently identified as cocaine.
Meanwhile, defendant's car was pulled over a few blocks away. He was placed in custody and brought to his residence at 38 DeHart Place. Officer Napoli explained to defendant that he had a search warrant for defendant's person and his attic apartment at 38 DeHart Place. Defendant did not say anything at first, but while Napoli was walking away, defendant indicated to another officer that he wanted to tell Napoli something. When Napoli went back to the patrol car, defendant told him that "whatever drugs we find were his, not to involve his family, that he had drugs stashed in the ceilings, and sheetrock in the basement, and drugs in his bedroom, that his family had no knowledge of it, to not involve his family." In defendant's bedroom the police recovered a knapsack containing several bags of cocaine as well as paraphernalia. Following defendant's statement to Napoli, the officers went into the basement and found more controlled dangerous substances hidden in the sheetrock of the basement. Napoli described the access to the common entryway and basement as follows:
A. . . . You walk through that alley to the rear of 38 DeHart Place. In the rear there's a door. That door leads - there's a staircase. If you enter through that exterior door, there's a small landing and a staircase that goes all the way upstairs, first, second, and third attic apartment. And there's also a few steps that go downstairs into the basement. As you walk down the steps, and you're now down into the basement, there's a door to the left. That door to the left is that other illegally converted apartment in a basement.
If you're facing - if - as you're walking down those steps, . . . the steps down to the basement, to the left is that door, straight ahead of you is just one whole open area, . . . there was boxes and other stuff in there, and a heating unit, the boiler system for the house.
Q: Now the boiling system and heating unit was for all four apartments, correct?
A: That's correct. None of that was secured, or, you know, with a door or anything. That was just ...