November 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON ROUDEL YOUNG, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-08-00801.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Parrillo and Lihotz.
Defendant Jason Roudel Young appeals from an order of the Law Division denying his motion to suppress evidence. We affirm.
The pertinent facts are as follows. At approximately 4:20 p.m. on June 11, 2006, Elizabeth police received a tip from an anonymous citizen informer that two young black males, both wearing do-rags and black t-shirts, were selling drugs from a stash point inside a green Ford parked on the corner of Catherine and Lafayette Streets, a "high-crime, high narcotic area." The informer also gave a New York license plate number for the vehicle. Officer DeMarco, a ten-year veteran of the police force involved in over one thousand cocaine-related arrests, and his partner Officer Deabreu, both wearing plain-clothes, arrived within ten minutes of the call in an unmarked patrol car, followed by two other plain-clothes officers, Kurinzi and Starr, in another unmarked patrol car. DeMarco and his partner immediately observed defendant and another male, Dabooz Sanon, matching the informer's description, as well as a green Ford parked on the corner.
DeMarco exited the vehicle and took up surveillance less than 100 hundred feet away, from where he observed a woman handing money to defendant, who then retrieved a small item from inside the green Ford and handed it to her. DeMarco returned to the patrol car and after telling his partner he had seen what he believed to be a hand-to-hand drug transaction, called Officers Kurinzi and Starr for assistance. Within five minutes, DeMarco and Deabreu drove around the block where they observed defendant and Sanon crossing Lafayette on Catherine Street and walking into a corner store. DeMarco detained the two men inside the store while Deabreu detained another individual on an unrelated matter that occurred at the store.
In the meantime, Officer Kurinzi walked by the green Ford and saw in open view "an unknown amount of narcotics on the front floor of the vehicle . . . ." Kurinzi then entered the store and informed DeMarco of his observation. DeMarco, who was in the process of arresting defendant, handed Kurinzi the car keys found in defendant's pocket. Kurinzi then retrieved the narcotics from the front passenger floor of defendant's vehicle. Thereafter, in response to DeMarco's earlier request, two or three additional officers arrived at the scene to transport defendant, Sanon and two other individuals whom Deabreu had arrested in the store on an unrelated matter. The green Ford was later towed.
Defendant was charged with various drug offenses stemming from this episode and he moved to suppress the evidence. At the close of testimony, Judge Wertheimer denied the motion, finding probable cause for defendant's arrest, and upholding the subsequent seizure of the drugs from defendant's car based on plain view, probable cause, and exigent circumstances. The judge reasoned:
The main factors for finding probable cause in [State v.] Moore, [181 N.J. 40 (2004)], was the level of experience of the narcotics officer, the high rate of narcotics in the area, and the observation of a transaction involving an unknown item and money. Moore, 181 N.J. at 47. Here, all three of these factors were present. Based on the officers' training and experience in law enforcement, the officers observed what they believed was a hand-to-hand drug transaction in an area known for high narcotics activity. Therefore, the officers had probable cause to approach, and ultimately arrest, defendant.
In the present case, the vials of cocaine were properly seized pursuant to the plain view doctrine. Officer Kurinzi observed the vials of cocaine from his viewpoint from the sidewalk next to the vehicle. Additionally, the officers' main focus was the detention of defendant after the alleged drug transaction; therefore the officer's observation of the drugs as he arrived onto the scene and walked past the vehicle was inadvertent. Lastly, cocaine is an illegal drug. This fact alone gave Officer Kurinzi probable cause to associate it with criminal activity.
Exigent circumstances exist under the facts of this case because the element of surprise had been lost and the police had a well founded belief that the vehicle may contain illegal drugs based on the officers' observations of the alleged drug transaction minutes before the observation of cocaine vials. . . . In addition, defendant was accompanied by another person, Sanon, and there could have been additional persons involved in the defendant's criminal activities. Therefore, if the police did not immediately seize the drugs, someone else may have removed either the car or the drugs.
Following denial of his motion to suppress, and pursuant to a negotiated plea agreement, defendant pled guilty to third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. Consistent with the plea bargain, defendant was sentenced to a three-year term of incarceration with a one-year parole bar. The remaining charges were dismissed and appropriate fees and penalties were imposed.
On appeal, defendant contends, as he did below, that his arrest was not based on probable cause, and the warrantless search of the car and seizure of drugs therein were unconstitutional. Our review of the record and applicable law persuades us that these issues are without merit and we therefore affirm substantially for the reasons stated by Judge Wertheimer in his written decision of March 9, 2007. We add only the following comments.
(I) Probable Cause to Arrest
In determining probable cause, we look to the totality of the circumstances. State v. O'Neal, 190 N.J. 601, 612 (2007). So viewed, even before Officer Kurinzi informed Officer DeMarco about the drugs in the green Ford, there was ample probable cause to support defendant's arrest. Detailed information from an anonymous citizen informer had been verified at the scene as the two males, their clothes, the vehicle and license tags matched the description provided. See State v. Smith, 155 N.J. 83, 93-95, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998). Moreover, DeMarco, a seasoned veteran police officer, with an unobstructed view only 100 feet away, observed what he believed, from his extensive narcotics experience, to be a hand-to-hand drug transaction. See Moore, supra, 181 N.J. at 43-44. This activity was occurring in a "high narcotic" area, in which DeMarco himself previously made drug arrests. See State v. Johnson, 171 N.J. 192, 217 (2002). Given the demonstrated reliability of the citizen informant whose detailed information was corroborated, DeMarco's direct, first-hand observations thereafter, his experience, and the location of the crime, we are satisfied that there was sufficient probable cause supporting defendant's arrest.
(II) Plain View
Contrary to defendant's contention, there was no search, much less an unconstitutional one, involved here. Officer Kurinzi's plain view observation of narcotics on the front floor of the green Ford simply did not constitute a "search." State v. Pineiro, 369 N.J. Super. 65, 72-73 (App. Div.), certif. denied, 181 N.J. 285 (2004); State v. Stanton, 265 N.J. Super. 383, 386-88 (App. Div. 1993) ("[N]o search or seizure occurs if a police officer simply observes . . . a person in an area in which the public is invited, whether or not he suspects criminal activity is afoot.")
For the plain view doctrine to apply, the officer must lawfully be in the viewing area and inadvertently discover the evidence, which must "immediately appear" to be contraband or evidence of a crime. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984). Here, Kurinzi merely walked over to the car and from his viewpoint from the sidewalk next to the vehicle, looked inside and saw cocaine lying on the car floor. Clearly, the officer was lawfully in a public area where he openly viewed the evidence. Equally clear is that it was immediately apparent to him that the items were vials of cocaine.
To the extent that "inadvertency" remains a feature of the plain view doctrine, see State v. Padilla, 321 N.J. Super. 96, 109 n.7 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000); State v. Damplias, 282 N.J. Super. 471, 477-78 (App. Div. 1995), we are also satisfied that Kurinzi's observation was inadvertent insofar as he did not know both in advance and for certain that he would find drugs in open view in the car. Quite the contrary, it is more reasonable to expect that in such a high narcotic area, defendant would not have left the cocaine he was selling exposed and in clear view on the floor of his car.
Having therefore lawfully observed the contraband, the officer's warrantless entry into the automobile and seizure of the evidence was constitutionally permissible as based on probable cause and exigent circumstances. We have already established the existence of probable cause to believe there were drugs in the car. To justify entry therein and seizure of the contraband, there must also be exigent circumstances to make it impracticable to obtain a warrant. State v. Dunlap, 185 N.J. 543, 551 (2006); State v. Cooke, 163 N.J. 657, 671 (2000).
Here, in addition to the vehicle's inherent mobility, State v. Alston, 88 N.J. 211, 230-31 (1981), the extant conditions only heightened the exigency. The criminal episode unfolded quickly, spontaneously, and suddenly once the officers arrived on the scene. Unforeseeably, the four officers found themselves having to deal not only with defendant and his co-hort, but also another pair of individuals arrested for an unrelated offense occurring at the same location where defendant was apprehended.
Initially then, there were no other officers present to guard the four arrestees, the green Ford, and the drugs in plain view therein. Under the circumstances, the vehicle could not be left unattended while a warrant was sought and secured. After all, the neighborhood was a "high-crime, high narcotic" area where defendant was dealing drugs at the very time the police arrived. Thus, there existed a very real possibility that others knew that drugs were stashed inside the car, and therefore, could have been readily removed if not immediately seized by the police. Although additional officers eventually arrived on the scene as back-up to help transport the four arrestees, at the time Officer Kurinzi took the keys and entered the car, the available resources were simply not enough to guard the vehicle and secure a warrant. Clearly, the urgency of the situation at hand demanded immediate action and Officer Kurinzi's response was entirely consistent with constitutional principles.
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