On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-00988.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Winkelstein and Chambers.
In these two back-to-back cases, defendants appeal from the orders of November 8, 2006, denying their motions to suppress. After the denial of their motions, defendant Joseph Irizarry, the driver of the automobile, pled guilty to possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and received a sentence of fifteen years imprisonment, including a five year period of parole ineligibility; defendant Nestor A. Tremino, the passenger in the vehicle, pled guilty to the same offense, and also received a sentence of fifteen years imprisonment, but with a seven year period of parole ineligibility. We affirm.
The events that led to the seizure of 2.4 kilos of heroin from defendants' vehicle began with a wiretap investigation by the Union County Prosecutor's Office. In the course of intercepting calls between the United States and Colombia on February 17 and 19, 2005, investigators learned that individuals from Camden would be picking up controlled dangerous substances (CDS) on the evening of February 19, 2005. The detectives concluded that the transaction would occur at either 1009 Jackson Avenue in Elizabeth or 1816 Manor Drive in Union.
One of the detectives who participated in the surveillance testified at the suppression hearing that a vehicle left the Manor Drive address and arrived at the Jackson Avenue address at approximately 12:25 p.m. The detective observed one of the targets of the investigation, Wilson Valdez, also known as "Tabby," exiting the vehicle carrying a bag and entering the building at the Jackson Avenue address. About five minutes later, a Nissan arrived at the Jackson Avenue address, and two men left that vehicle and entered the building. After another five minutes, the two men returned to the Nissan, carrying a shopping bag that they placed in the trunk of the vehicle. Through a motor vehicle check, the detective learned that the Nissan was registered to a person with a Camden address.
In order to maintain the integrity of the wiretap investigation, the law enforcement personnel did not stop the Nissan at that point, but using a number of unmarked cars, maintained mobile surveillance of it as it headed down the New Jersey Turnpike toward Camden. The Camden Police Department was alerted to the situation, and at about 2 a.m. on February 20, 2005, two Camden police officers in a patrol car picked up the mobile surveillance of the Nissan on Route 30, as it headed toward Camden. After observing the Nissan traveling recklessly at a high rate of speed, almost colliding with two other vehicles, the officers stopped the vehicle, and it pulled into an empty parking lot.
The officers exited their vehicle and were approaching the Nissan, when the trunk of the Nissan unexpectedly popped halfway open. Louis Sanchez, one of the Camden police officers, testified that, based on his experience in narcotics investigations, he recognized a package sticking out of a shopping bag in the trunk as one possibly containing a large quantity of CDS. Sanchez stated that when he told Irizarry that the trunk was open, Irizarry became nervous and exchanged glances with his passenger. According to Sanchez, Irizarry verbally consented to a search of the vehicle. Without a warrant, the officers then searched the vehicle, finding 2.4 kilos of heroin in the package in the trunk. In addition, they confiscated four cell phones from the front seats of the car. No weapons were found.
Defendants were each indicted for racketeering conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:41-2(d); possession of heroin, N.J.S.A. 2C:35-10(a)(1); and possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1).
In addition, Irizarry was issued summonses for reckless driving and wearing no seat belt.
After holding a hearing on defendants' motions to suppress, the trial judge issued a written Statement of Reasons on November 9, 2006, denying the applications. He specifically found the State's witnesses to be credible. He rejected the State's argument that the search was consensual, holding that the evidence did not establish a knowing and voluntary consent; that decision has not been appealed. The trial judge did, however, uphold the search, finding that it ...