On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-08-00838.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Fisher and King.
Defendant Tysen R. Privott was charged in Union County Indictment No. 03-08-00838, filed August 14, 2003, with possession of a controlled dangerous substance, N.J.S.A. 2C:35- 10a(1) (third-degree) (Count One); possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35- 7.1 (third-degree) (Count Two); and possession of a controlled dangerous substance with intent to distribute in or within 500 feet of a public park, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (third-degree) (Count Three). There were no co-defendants charged in this indictment.
Defendant filed an unsuccessful pretrial motion to suppress. R. 3:5-7. After a hearing the judge entered an order on May 7, 2004 denying the motion. After trial on January 11 and 12, 2006, defendant was found guilty on Count One, but not guilty on Counts Two and Three.
On March 31, 2006 the judge sentenced defendant to five years with a two-year period of parole ineligibility. On appeal defendant challenges the ruling on the suppression motion. We find the search constitutionally invalid and reverse.
At about 6 p.m. on May 13, 2003 Officer Jeffrey Plum was on routine patrol in Plainfield while assigned to the street crimes unit. He was in the area of Plainfield and Third Streets. This was an "extremely high narcotic area where officers make numerous arrests daily." This was also a "high area for gang violence" and "firearms."
The officer responded to an anonymous caller's tip "of a man in possession of a handgun" at the corner of Plainfield and Third Streets relayed by the police dispatcher. The description of the man with a gun was: "Tall, dark complexed [sic] Black male wearing a black and red ball cap and a black jacket." The officer was in uniform in a marked patrol car.
When Officer Plum arrived at Plainfield and Third Streets, he saw three black males standing on the southwest corner. His attention was drawn to them:
Q [by Prosecutor]: Why was your attention drawn there?
A [by Officer Plum]: Well, one, because person known to me as Tysen Privott matched the physical description of the person that the phone call came in on, however, the clothing description was slightly off.
Q: What was slightly off about it?
A: Instead of having a black jacket on, he had a red jacket on.
Q: Did he match in other respects the description?
A: In height, in height, complexion and build, yes.
Q: You said there were three men on the corner that you saw?
Q: Did any -- did the other two match the description that was given?
Q: When you say not at all, were they --you're talking about the ...