On appeal from the Superior County of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Defendant, Damion Beeput, appeals from his conviction on first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b)(1). The judge sentenced defendant to a twelve-year term of imprisonment, subject to a four-year parole ineligibility term, to be served concurrently with the sentences defendant was serving on five other indictments. Appropriate fines and penalties were imposed. The conviction resulted from the entry of a negotiated plea of guilty, in which, pursuant to Rule 3:5-7(d), defendant reserved the right to challenge on appeal the denial of his motion to suppress.
On appeal, defendant maintains the judge erred by concluding he abandoned the CDS that police recovered on a public street. He further maintains that the judge erroneously determined that two different consents to search, one given by his former girlfriend and the other given by his mother, were valid. In a cross-appeal, the State contends the judge erred by suppressing CDS-related items found in defendant's bedroom in his mother's home, which police searched pursuant to a different consent to search obtained from defendant's mother. We affirm on both defendant's appeal and the State's cross-appeal.
On the evening of March 20, 2007, Detective Scott Samis of the Monmouth County Prosecutor's Office set up surveillance at two locations in Asbury Park in furtherance of a narcotics investigation he was conducting in conjunction with members of the Asbury Park police department. In particular, Samis received information from a known and reliable confidential informant (CI) who alleged that defendant had recently purchased a large quantity of cocaine, and buyers had been calling defendant all day to place their purchase orders. Samis was also aware, from a flyer issued by the Pemberton Township police department, that defendant was in possession of an automatic weapon, which the confidential informant had also stated. Before setting up the undercover surveillance, Samis checked to determine whether defendant had any outstanding warrants, and learned that there was an active warrant from the Keyport Municipal Court for failure to appear on a charge of driving while suspended.
Relying on the information provided by the CI, Samis setup undercover surveillance at the two locations from which the CI alleged defendant was selling the CDS: his mother's house at 25-B Ridge Avenue and the apartment of his former girlfriend, Shanelle Booze, located at 268 Asbury Park Village.
During the surveillance, Sergeant Amir Bercovicz was in an unmarked vehicle observing activity at 25-B Ridge Avenue, the home of defendant's mother, when he observed defendant come out of the rear portion of the house on various occasions and speak to people who had approached. At one point, a silver Volkswagen pulled into the driveway. Shortly thereafter, Bercovicz observed defendant exit the house and engage in a hand-to-hand transaction with the woman in the vehicle. After checking the vehicle's registration, Bercovicz learned that the car belonged to a woman known to Bercovicz as a narcotics buyer.
At approximately 9:20 p.m., defendant and his co-defendant, Kyle Johnson,*fn1 entered a car and left defendant's mother's house. When defendant's vehicle entered the U-shaped parking lot of Asbury Park Village, where Booze lived, Officer Newman activated the lights of the unmarked police vehicle to initiate a stop. Rather than stopping his vehicle immediately, defendant pulled into the center of the parking lot, stopped his car, jumped out and fled.
Newman, after identifying himself as a police officer, ordered defendant to stop. Defendant kept running, and Newman followed in pursuit. While defendant was running, Newman observed him throw two plastic bags, one white and one yellow, over a fence into the yard of a house. Although the white bag cleared the fence, the yellow bag did not. When defendant realized what had happened, he stopped, ran back and threw the yellow bag over the fence a second time. Newman was able to tackle defendant and take him into custody. Newman retrieved the bags and discovered they contained crack cocaine. At the scene, Samis informed defendant of his Miranda rights,*fn2 after which defendant gave a statement admitting any cocaine that might be found at his mother's house belonged to him, not her. When Samis asked defendant to consent to a search of his mother's home, defendant refused.
Despite defendant's refusal to consent to a search of his mother's home, police sought, and obtained, a written consent to search from defendant's mother, Valora Beeput. A search of defendant's unlocked bedroom yielded materials commonly used to weigh, process and package cocaine, but no CDS was found. With the search unsuccessful, Samis again contacted the CI and advised the CI that the search had produced no cocaine. The informant insisted that defendant had purchased a large package of cocaine earlier that day and asserted that police must have missed it during the search of the Beeput residence. Consequently, police returned to 25-B Ridge Avenue to ask defendant's mother to consent to a second search of her home. She signed the second written consent form at approximately 2:00 a.m.
This time, police decided to concentrate their search on the back of the house, near the area where defendant was earlier observed entering and exiting. In a mud room at the back of the house, which provided access to the outside, Bercovicz found a plastic bag containing what appeared to be a large quantity of crack cocaine, a scale, and one round of ammunition for a starter pistol.
Earlier that night, police had also obtained a consent to search from Booze, who informed police that at one time defendant had resided with her, but she had kicked him out when she realized he was dealing narcotics. She also told police there was some property of his remaining in the master bedroom. In a dresser drawer, police found cocaine and narcotics packaging equipment.
Defendant filed a motion to suppress. At the conclusion of the testimony, Judge Chaiet issued detailed findings of fact and conclusions of law. Turning first to the two bags of cocaine that defendant discarded while running from Officer Newman, he concluded that police observations of defendant engaging in a hand-to-hand sale of narcotics established probable cause to stop defendant's vehicle and arrest him. The judge held that once defendant discarded the CDS while fleeing from Newman, defendant surrendered any expectation of privacy in ...