January 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN D. HIGHLAND, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-11-1627.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Parker and Yannotti.
Defendant John D. Highland appeals from a judgment of conviction entered on November 14, 2005 after he pled guilty to third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7 and -5a. After the appropriate mergers, defendant was sentenced on Count Three to a term of six years subject to three years parole ineligibility.
The charges here arose out of a routine surveillance operation in New Brunswick. New Brunswick Police Lieutenant Paul Schuster was observing an area of high drug activity on Remsen Avenue on September 22, 2004 at 6:15 p.m. when he saw defendant walking down the street. Schuster recognized defendant because he had known him for about twenty years. Schuster then saw a woman he knew as Brenda Sutton speak to defendant. After Sutton walked away, defendant shouted to her and walked in the other direction. Schuster later observed a man identified as Steven Slaughter speaking to Sutton, and the two of them walked toward defendant. After a short conversation with defendant, Sutton walked away, leaving defendant with Slaughter. Defendant had a plastic sandwich bag in his hand, which he showed to Slaughter. Schuster knew from his experience with narcotics arrests that drugs are often kept in such bags. He notified the backup unit and they immediately approached defendant and reported to Schuster that defendant had the plastic bag in his fist, but they could see the top of it. Schuster could not see defendant at that point because his view was blocked by the backup unit. When the officers retrieved the plastic bag, they found seventeen bags of cocaine inside it. When defendant was searched, the police found another 188 bags of cocaine and $24 in cash on his person.
Defendant moved to suppress the evidence on the ground that the police lacked probable cause to detain him and seize the bag in his hand. At the suppression hearing, Schuster testified that Sutton appeared to be under the influence at the time she had the conversation with defendant. He testified further that he did not actually see any money change hands or anything transferred from defendant to Sutton or Slaughter. Defendant argued at the hearing that the only thing Schuster actually observed was an intoxicated Sutton speaking to defendant for twenty to twenty-five seconds and defendant having a plastic bag in his hand when he was seized by the police.
The trial court found that "based upon the totality of the circumstances the State has met its burden to prove by a preponderance of the evidence that the search was permissible and not constitutionally invalid," and concluded that "Schuster... had probable cause to believe that a drug transaction was about to occur."
Defendant appeals and argues:
THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED INSOMUCH AS DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A SIX-YEAR TERM WITH THREE YEARS OF PAROLE INELIGIBILITY BECAUSE A [PROPER] ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
Defendant contends that the police lacked "probable cause to believe that an offense was committed or was about to be committed.... There was no exchange of money; indeed, there was no exchange of anything" to indicate a drug transaction was occurring.
At the suppression hearing, Schuster testified that he knew Sutton as "kind of a fixture on Remsen Avenue" and if he "saw her out there[,] she was either trying to find drug buyers, [or] trying to find drug dealers." Schuster was a thirty-two-year veteran police officer, who had been in charge of the narcotics squad since 1991. He had been trained at narcotics schools run by the State Police and the Drug Enforcement Administration (DEA) and had been involved in thousands of narcotics arrests over the years. Schuster testified that as defendant was talking to Slaughter, he "could see [defendant] had what appeared to be a plastic sandwich baggie in his hand because he was showing it to Mr. Slaughter." Although Schuster could not see what was in the baggie, he knew that "many times drugs are carried in various size sandwich bags." Based upon his observations, Schuster "suspected Mr. Slaughter was there looking to buy some cocaine."
In State v. O'Neal, 190 N.J. 601, 612 (2007), a recent case addressing the probable cause standard for a warrantless search, our Supreme Court reiterated the standard previously articulated in State v. Moore, 181 N.J. 40, 45-46 (2004):
The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. [(Citations and internal quotations omitted).]
In O'Neal, the Court found that "[t]he totality of the circumstances must be considered in determining whether there is probable cause." 190 N.J. at 612 (citing Moore, supra, 181 N.J. at 46). The Court in O'Neal restated Moore's directive that trial courts "make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." 190 N.J. at 612 (quoting Ill. v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983)).
We have carefully considered the record of the suppression hearing and we are satisfied that under the totality of the circumstances here -- Schuster's training, experience and familiarity with the individuals involved in the transaction -- there was probable cause for the seizure of the baggie protruding from defendant's hand. The State carried its burden to prove by a preponderance of the evidence that Schuster had a "well-grounded" suspicion. We see no basis for reversing the trial court's denial of the suppression motion.
With respect to defendant's sentencing arguments, we are satisfied that he was appropriately sentenced to an extended term based upon his prior record which dates back to 1974 when he was a juvenile. He has multiple convictions for indictable offenses and has served a number of prison terms resulting in parole violations. He also has a number of prior convictions for drug offenses. The sentence is neither manifestly excessive nor unduly punitive, and does not constitute an abuse of discretion by the trial court. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984). Moreover, defendant was sentenced pursuant to a negotiated plea agreement and we find no basis for disturbing that disposition. State v. Mastapeter, 290 N.J. Super. 56 (App. Div.), certif. denied, 146 N.J. 569 (1996).
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