November 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAJID T. JONES, A/K/A CAJID T. JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Nos. 05-01-0136-I and 05-08-0899-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Wefing and Parker.
On August 2, 2006, the trial court entered the following judgments of conviction, defendant having entered negotiated pleas of guilty: 05-06-0730-I, fourth-degree possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1); 05-08-0899-I, third-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b; 05-01-0136-I, fourth-degree possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1); and 06-05-0668-A, fourth-degree possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1). The trial court sentenced defendant to three years in prison for the weapons offense and eighteen months in prison for each of the narcotics offenses, directing that these sentences be served concurrently. Defendant's aggregate term was thus three years. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant's notice of appeal*fn1 encompasses two indictments: 05-01-0136-I, in which defendant was convicted of fourth-degree possession of a controlled dangerous substance, and 05-08-0899-I, in which he was convicted of unlawful possession of a handgun. He filed a motion to suppress in connection with each indictment and each motion was denied. On appeal, he contends that the trial courts that heard his motions erred in denying them. He raises the following arguments:
ON INDICTMENT 05-01-0136-I, AS THE SERGEANT WENT TO OBSERVE DEFENDANT ON THE BASIS OF A "TIP" WHICH INDICATED THAT THERE WOULD BE MARIJUANA IN THE CAR, THE SEIZURE OF THE MARIJUANA WAS NOT BASED ON EXIGENCY, AS THE OFFICER HAD AMPLE TIME TO SECURE AN ANTICIPATORY SEARCH WARRANT FOR THE CAR.
THIS SEARCH WAS IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT AND HIS RIGHT TO A FAIR TRIAL.
ON INDICTMENT 05-08-0889-I[sic], THE TRIAL COURT ERRED ON[sic] RELYING ON EXIGENCY AS A WARRANT EXCEPTION TO THE SEARCH OF DEFENDANT'S CAR, IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS AND HIS RIGHT TO A FAIR TRIAL.
SHOULD THIS COURT REVERSE THE DENIALS OF THE MOTIONS TO SUPPRESS EVIDENCE, THE PLEAS OF GUILTY ON INDICTMENT 05-06-0730-I AND ACCUSATION 06-05-0668-A MUST BE VACATED.
We turn first to Indictment 05-01-0136-I, which contained one count, possession of a controlled dangerous substance with intent to distribute. Defendant was charged with that offense following his arrest in the early evening hours of August 10, 2004, in Plainfield. Defendant moved to suppress the marijuana, the recovery of which led to his arrest.
Sergeant Rickey of the Union County Police Department testified at the suppression hearing. He said that earlier in the day he had received a tip from a previously reliable confidential informant that a young black male would be distributing marijuana at 334 Franklin Place for one to two hours, commencing at approximately 5:30 p.m. Sergeant Rickey testified that the informant had described the actor to him as being between twenty and twenty-five years old and approximately six feet tall. The informant told Sergeant Rickey that the actor would be distributing the marijuana from a gray, four-door Dodge automobile. Sergeant Rickey knew that the area had a high volume of criminal activity, including traffic in narcotics.
Sergeant Rickey and his partner, Patrolman Andrew Klein, drove in an unmarked car to a spot from which they could observe 334 Franklin Place. Both men were in plain clothes. Sergeant Rickey said that from their vantage point, he saw a gray, four-door Dodge parked in the driveway of 334 Franklin Place. Four to five black males were standing around the car, and a man later identified as defendant was sitting sideways in the driver's seat; the driver's side door was open, and the man's feet were outside of the car, resting on the ground.
At approximately 6:30 p.m. Sergeant Rickey saw another black male walk up Franklin Place and approach defendant, who remained seated in the car. Sergeant Rickey saw this individual hand defendant what appeared to be currency. Defendant took the currency and leaned back into the vehicle, toward the passenger's side of the car. He then sat up and handed an object to the man, who walked away in the direction from which he had just come. Based upon his training and experience, Sergeant Rickey believed that he had just witnessed a drug transaction.
Sergeant Rickey radioed for a back-up unit, but none was available. He and Patrolman Klein got out of their vehicle and approached defendant. Although in plain clothes, they wore their badges around their necks. Sergeant Rickey testified that the men who had been standing around the car immediately walked away to the other side of the street. Defendant stood up and closed the car door. Before the officers had a chance to ask defendant any questions, defendant said, "This is my girlfriend's car." Sergeant Rickey asked defendant if he had any identification with him, and defendant handed him a municipal court subpoena.
Sergeant Rickey had Officer Klein stand with defendant, and he went to the passenger's side of the car and saw several papers lying on the seat. He opened the door and looked at the papers to see if they revealed any information about the identity of the owner of the car. While looking at these papers, Sergeant Rickey detected a strong odor of marijuana coming from the glove compartment. He opened the door to the glove compartment and saw a large, clear plastic bag that contained a number of smaller bags containing vegetative material that he believed to be marijuana. He seized the bag and directed Officer Klein to place defendant under arrest. Sergeant Rickey then searched defendant, who had $247 in cash in various denominations.
Defendant testified at the suppression hearing, as did his girlfriend Dominique Ellis, and two men who were present when defendant was arrested, Brian McDonald and Jarrid Quarles. Defendant denied that any hand-to-hand transaction had taken place at all. He said that as soon as Sergeant Rickey arrived, he began pushing and shoving defendant, went through his pockets and placed defendant in handcuffs before searching the car. He said that Sergeant Rickey searched the car from the rear forward, that is, first searching the trunk, then the rear passenger compartment, then the driver's side of the vehicle and last, the front passenger side. Although Mr. McDonald and Mr. Quarles testified that Sergeant Rickey searched the car in that order, they both maintained that defendant was not arrested until the search was completed. Ms. Ellis testified that the car belonged to her. She, however, was inside her apartment at the time; by the time she came outside, the car had been searched and defendant placed under arrest.
After hearing the witnesses and the argument of counsel, the trial court denied defendant's motion to suppress. In the course of its oral opinion, the trial court specifically noted that it found the testimony of Sergeant Rickey to be more credible than that of the defendant and his companions. The trial court noted a number of discrepancies in their testimony, undermining their credibility. The trial court concluded that the observations of Sergeant Rickey and his companion, which corroborated the detailed tip supplied by the confidential informant, provided probable cause to believe that defendant was engaged in the distribution of narcotics from the automobile and to believe that the automobile contained narcotics in the vicinity of the front passenger area. The trial court further concluded that exigent circumstances existed which obviated the need to obtain a warrant before proceeding to search the vehicle.
On appeal, defendant contends that there were no exigent circumstances and that Sergeant Rickey's failure to seek a search warrant requires suppression of the marijuana that was recovered from the glove compartment. We disagree.
At the outset, we note that we have no basis to reject the factual findings of the trial court. They are supported by sufficient credible evidence in the record and are thus conclusive for purposes of this appeal. State v. Elders, 192 N.J. 224, 243 (2007); State v. Locurto, 157 N.J. 463, 474 (1999).
We perceive two prongs to defendant's argument: that Sergeant Rickey should have obtained a search warrant prior to going to Franklin Place in response to the tip provided by the confidential informant and that Sergeant Rickey, having observed what he believed to be a drug transaction, should have obtained a warrant before proceeding to search the car. We reject both assertions.
Initially, we do not agree that this search was invalid because the officers did not obtain a warrant before proceeding to Franklin Place. There is authority that refers to the possibility of obtaining an anticipatory warrant. State v. Bell, 195 N.J. Super. 49 (App. Div. 1984). He does not, however, provide any authority for the proposition that a search conducted in the absence of an anticipatory warrant is invalid. And indeed, in light of the significant concerns that surround the issuance and execution of anticipatory warrants, we decline to hold that the officers should have obtained one in this situation. State v. Ulrich, 265 N.J. Super. 569, 574-76 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).
Further, we do not agree that the officers were required to obtain a warrant before conducting a search of the vehicle. We know from this record that Sergeant Rickey had already requested the assistance of a back-up unit but that none was available. It was thus not feasible to arrange to have the car guarded while a warrant was obtained. The "core question" in determining whether there were exigent circumstances is whether there is anything indicating that it would have been impracticable for the police to obtain a warrant before searching the vehicle. State v. Colvin, 123 N.J. 428, 434 (1991). If the car were left unguarded, it could be driven away or the narcotics recovered by someone else. According to Sergeant Rickey's testimony, the drug transaction was witnessed by a number of people, who would have known that drugs could be found in the car. The Supreme Court has noted that "[t]here is an urgent, immediate need to search a vehicle when there is a realistic possibility that someone may remove the vehicle or its contents." State v. Cooke, 163 N.J. 657, 673 (2000).
We are satisfied that the trial court was entirely correct when it denied defendant's motion to suppress the marijuana seized from the vehicle.
We turn now to Indictment 05-08-0899-I. On the afternoon of May 24, 2005, Detective Ronald Fusco of the Plainfield Police Department was preparing to execute a search warrant for premises located at 435/437 East Seventh Street. Detective Romeo Simeon, who was conducting surveillance of the premises, informed Detective Fusco that he had observed defendant walk out of the house and place a silver handgun beneath the driver's seat of a 2004 Ford Taurus parked in front. Defendant, who was not the target of the search, then returned inside.
The officers waited until the target left the building. When he did so, he was placed under arrest, and the warrant was executed. After the place had been secured, Detective Fusco proceeded immediately to the Taurus and saw in plain view the back strap of a handgun underneath the driver's seat. The car was unlocked. Detective Fusco opened the door and took the gun.
Defendant moved to suppress the handgun, contending that Detective Fusco was required to obtain a warrant before searching the car. The trial court disagreed, as do we.
Detective Fusco testified that the area in question was a high-crime area. He also testified that the warrant was executed by thirteen police officers, and four individuals were placed under arrest. In addition, eleven individuals inside the house were detained. Detective Fusco explained that in his experience, the execution of such a warrant tended to generate a large crowd of bystanders. He said that the handgun was plainly visible from the street and sidewalk and that he seized the gun both for reasons of safety and to prevent its disappearance. Based upon the record developed at the motion, the trial court's determination that it was impractical and unsafe for the police to wait for the issuance of a warrant before seizing this handgun was correct.
Because we are satisfied that the trial court orders denying defendant's motions to suppress should be affirmed, it is unnecessary to address his third contention, which is premised upon our finding those searches unlawful.