January 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DELMAR F. BETHEA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-08-0881-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Winkelstein and Chambers.
On August 11, 2005, a Mercer County Grand Jury indicted defendant, Delmar Bethea, on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (count two); third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(2) (count three); second-degree possession of a CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(2) (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).
After the trial judge denied his motion to suppress evidence, defendant pleaded guilty to count three of the indictment, third-degree possession of a CDS with the intent to distribute within 1000 feet of school property. The court dismissed the remaining counts, and sentenced defendant to a five-year prison term, with a thirty-month period of parole ineligibility, concurrent with a sentence defendant was then serving for a parole violation.
On appeal, defendant raises the following two points:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE.
THE COURT ERRED BY ACCEPTING DEFENDANT'S PLEA AND PLEA BARGAIN WHICH [RESULTED] IN A SENTENCE WHICH WAS EXCESSIVE; IT SHOULD BE REDUCED.
We reject these arguments and affirm defendant's judgment of conviction.
The following evidence was elicited at the suppression hearing. On May 13, 2005, Trenton police detectives Herbert Flowers and Nathaniel Johnson were in an unmarked police car patrolling the area of Sanford Street and Brunswick Avenue, which Flowers knew to be a high narcotics trafficking area. At approximately 7:45 p.m., he saw three individuals, none of whom he had ever seen before, "huddled together" on the side of the street. Flowers described them as "an older black male, gentleman, he looked mere riffraff, you know, he wasn't [a] clean-cut type of person. It was a middle-aged black female. . . She had a rough look to her. And there was a black male there." The latter male was later identified as defendant. Flowers saw the older man reach his hands, palms up, toward the woman, who examined the contents of his hands. Flowers believed he had witnessed a hand-to-hand drug transaction.
As the police vehicle approached the individuals, Flowers heard a voice scream "Five-O," which alerts people of police presence. The older man then clenched his palms and pulled his hands away from the woman. Flowers and Johnson got out of their vehicle. Flowers approached the older man and asked him what he had in his hands. The man responded that he had a "$10 piece of rock [crack cocaine]" in each hand, and he handed the "rocks" to Flowers.
As Flowers turned toward defendant, he saw him "inching away" from the group while stuffing a clear plastic bag into his pocket. When Flowers approached him, defendant ran, leading Flowers and Johnson on a foot chase. The detectives caught defendant and placed him under arrest for obstruction of the administration of the law and for resisting arrest. While conducting a pat-down search of defendant, the detectives found thirteen grams of crack cocaine and $970 in his pockets. When the detectives returned to the scene of the transaction, the older man and the woman were gone.
Defendant offered the testimony of Gerald McNeil, who testified that on the date of the incident, he saw a police vehicle parked about three doors away. After defendant left the area, McNeil saw two police officers suddenly chase after him. He did not see defendant engage in a drug transaction.
The court found that Flowers's testimony was credible. The court further found that the officers had "enough reason to investigate and to require [defendant] to remain [in order] to do so, because [the older man had] just admitted [to] having been in possession of crack cocaine in what appeared to be some sort of a transaction on the street." The court further explained:
What we have here is an investigatory stop that goes into a chase because one of the parties, the defendant here, decided to run.
And while before he actually ran . . . [police] admitted they didn't see [defendant] do anything except be there.
And then, of course, when they looked at him trying to slide off, they said they saw him sticking the bag in his pants. They didn't know what was in it, but it was consistent with what they thought would have been a plastic bag that is commonly known by their experience and training to hold CDS.
The court found that when defendant ran from the police, they had probable cause to arrest him. The court said: "[i]f there was just a running . . . there could be nothing that justifies [the arrest]. But there was other activity observed, there [were] other people that were in possession of what appeared to be, clearly, admittedly, crack cocaine in the immediate area, in close proximity to [defendant]." The court found that the police officers' observations coupled with defendant's flight, constituted probable cause to arrest him, and, consequently, the search incident to the arrest was valid.
Against this factual and procedural setting, we first address defendant's arguments that the court erred by denying his suppression motion, and that the record did not show that the offense took place within 1000 feet of school property or that he intended to distribute the CDS.
Defendant contends that the police stopped him and the two individuals with whom he was standing because of "profiling," which led them to suspect all "riffraff" and everyone with a "rough look" of engaging in criminal activity. He further argues that the police based the stop solely on the fact that he was in an area known for a high incidence of drug trafficking. Defendant asserts that because the stop was unlawful, his flight did not constitute probable cause for his arrest.
Upon review, this court will reverse only if there is insufficient evidence in the record to uphold the finding of the trial court. State v. Johnson, 42 N.J. 146, 162 (1964). A reviewing court must accept the trial court's findings when, giving due regard to the judge's ability to assess the credibility of the witnesses, the findings are supported by sufficient credible evidence. State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983).
The United States and New Jersey constitutions require that a warrant be issued prior to a police search and seizure of evidence. U.S. Const. amend. IV, N.J. Const. art. I, ¶ 7. Where a search is conducted without a warrant, the State must show that the search in question falls within "one of the few well-delineated" exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13, 19 (2004). Without a warrant or probable cause, police may stop and question citizens without their consent. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). This is an investigative stop, which is a detention in which a reasonable person in the citizen's position would feel that he or she does not have the freedom to leave. State v. Rodriquez, 172 N.J. 117, 126 (2002). For an investigative stop to be lawful, the State must show by a preponderance of the evidence that the police had a reasonable and articulable suspicion, based on objective observation of the totality of the circumstances, that the person stopped has engaged in or is about to engage in criminal activity. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed. 2d 621 (1981).
While flight alone does not give rise to reasonable suspicion, flight in conjunction with other factors may justify police action. State v. Doss, 254 N.J. Super. 122, 125-27 (App. Div.) (where group of people gathered in known drug trafficking area, a shouted warning alerting the crowd of an unmarked police vehicle and police recognition of the defendant along with the defendant's flight from the scene constituted reasonable suspicion), certif. denied, 130 N.J. 17 (1992); but cf. State v. Tucker, 136 N.J. 158 (1994) (seizure unlawful where defendant, who had been sitting on a curb with a man who was drinking from bottle wrapped in a brown paper bag, ran when he saw a police vehicle approaching).
Searches incident to lawful arrests are exceptions to the warrant requirement. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed. 2d 685, 694 (1969). If probable cause exists to make the arrest, the search incident to the arrest is lawful, even in the absence of a warrant. State v. Moore, 181 N.J. 40, 45 (2004).
Here, the totality of the circumstances justified the investigative stop. While patrolling a high drug trafficking area, Flowers observed two individuals huddled together with defendant engage in what he believed to be a hand-to-hand drug transaction. He saw a man reach his hands, palms up, toward a woman, who examined the contents of his hands. Flowers heard shouting, warning of police presence. He then saw the man clench his palms and pull his hands away from the woman. When Flowers and his partner approached the group, the man handed him two "rocks" of crack cocaine.
Contrary to defendant's arguments, the stop was not based on Flowers's description of the individuals as riffraff and rough looking. Nor was it based solely on the fact that the group was located in a known drug trafficking area. Rather, Flowers approached defendant and his companions because he observed them engage in a suspected drug transaction. The facts to which Flowers testified amounted to reasonable suspicion that defendant and his companions had engaged in illegal activity. The trial court found Flowers's testimony credible and adopted his version of the facts. This court owes deference to that determination. Thus, the investigative stop of the three individuals was constitutional.
Furthermore, when defendant stuffed a plastic bag into his pants and ran, given the officers' prior observations, the officers had probable cause to arrest him. Consequently, the subsequent search of defendant, in which the police found thirteen grams of crack cocaine and $970, was incident to a lawful arrest, and the fruits of that search would have been admissible at trial.
Next, we turn to defendant's argument that the trial court erroneously accepted his guilty plea because the facts adduced during the hearing on the suppression motion did not support a finding that he committed the act to which he pleaded guilty. He contends that there was no evidence that the crime took place within 1000 feet of school property or that he intended to distribute the CDS that police found on his person. We reject these arguments.
A negotiated sentence can be supported by evidence from the plea hearing as well as other evidence in the record. State v. Sainz, 107 N.J. 283, 290-92 (1987). Defendant testified at the plea hearing that on May 13, 2005, he knowingly possessed crack cocaine within 1000 feet of an elementary school and intended to sell or distribute it. That testimony was sufficient to support his conviction.
Defendant also argues that his sentence is excessive. We disagree. The plea agreement recommended, pursuant to the Brimage*fn1 guidelines, that the court sentence defendant to five years in state prison with a thirty-month period of parole ineligibility, consecutive to another sentence he was then serving. Although defendant's third-degree offense would ordinarily require a three- to five-year prison sentence, N.J.S.A. 2C:43-6a(3), the court was required to sentence him to an extended term because he had previously been convicted of possession of a CDS with intent to distribute. N.J.S.A. 2C:43-6f. Thus, a five-year term with thirty months parole ineligibility was the minimum sentence that the guidelines permitted the court to impose.
The sentence was within the bounds of the plea agreement. In fact, despite the plea agreement's provision that defendant's sentence be served consecutively to the sentence that he was then serving for another offense, the court ordered that the sentence be served concurrent with his other sentence. The trial court's findings were grounded in competent, credible evidence; the court correctly applied the legal principles in exercising its discretion; and the sentence does not shock the court's conscience. State v. Roth, 95 N.J. 334, 363-64 (1984). The trial court did not violate the sentencing guidelines, it properly weighed the aggravating and mitigating factors based on the evidence, and the sentence was not clearly unreasonable. Id. at 364-65.