March 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARNEIL L. REEVES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictments Nos. 06-03-0438 and 05-12-1748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges R. B. Coleman and Sabatino.
The sole issue raised in this appeal is whether the police unconstitutionally detained and searched defendant Darneil*fn1 L. Reeves in a street encounter, thereby uncovering a bag of crack cocaine and other incriminating evidence. Because we agree with the trial court that the detention and search were lawful, we sustain the denial of defendant's motion to suppress the seized evidence. We therefore affirm defendant's ensuing conviction of drug offenses.
These are the pertinent facts that emerged at the suppression hearing. In September 2005, Officer Joseph Prebish, of the Lakewood Township Police Department, was working with State Troopers Algor and Tully*fn2 in an undercover narcotics operation. The operation involved, among other things, a "warrant roundup" targeting high-drug areas in Lakewood.
At the time of the "roundup," Officer Prebish had been a police officer for about five years. He had worked undercover for three years with the Ocean County Strike Force and thereafter, with the street crimes unit of the Lakewood Detective Bureau. His training included narcotics "hand-to-hand" activities, gangs and gang intelligence, and narcotics intelligence.
During their three-week operation, Prebish, Algor, and Tully made several undercover drug buys. Prebish's main role was to identify narcotics sellers and some of the so-called "players" on the streets.
At around six o'clock in the afternoon of September 29, 2005, Prebish and the two undercover troopers were in an unmarked car traveling east on East Fourth Street. The street was known to Prebish as a high-crime area of Lakewood. The three officers observed defendant and D.G., a minor at the time, walking eastbound on that street. Prebish was familiar with both defendant and D.G. from previous investigations, including a prior incident in which defendant had resisted arrest. D.G. was a specific target of the sweep because he had an outstanding arrest warrant for selling drugs to an undercover officer.
Looking out from the passenger side of the unmarked car, Prebish saw defendant hand something to D.G. It appeared that D.G. then put the object in the front of his pants. At the time Prebish witnessed these actions, defendant and D.G. were about twenty to thirty feet away. The car was traveling at an estimated twenty to twenty-five miles an hour.
Although he had not seen money exchanged, Prebish believed he had just witnessed a narcotics transaction. Based on his knowledge and experience, Prebish testified that because drug dealers typically know that the police are "looking for a money exchange," a drug deal can be structured as a "three-person or four-person operation" in which a third party will be responsible for the transfer of the payment.
Prebish told Algor and Tully what he had just seen. He advised the troopers to act quickly before defendant and D.G. could flee on foot.
The unmarked car stopped and the three officers got out. The troopers arrested D.G. while Prebish questioned defendant. Defendant denied handing anything to D.G. Prebish was concerned that defendant might be armed, having heard that another police officer had previously found razor blades on defendant's person. Prebish asked defendant if he had any weapons on him, and then asked him to put his hands on the car.
Meanwhile, the troopers searched D.G.'s front waistband and found a piece of crack cocaine. After he was informed of the troopers' discovery, Prebish patted defendant down. He felt an object in the rear of defendant's pants that, based on his training and experience, he immediately recognized as a controlled dangerous substance ("CDS"). Prebish "shook the object out" so that it dropped out of defendant's pant leg onto the street. Prebish identified the object as a bag containing crack cocaine. He then told defendant that he was under arrest.
Defendant then elbowed Officer Prebish in the face while stomping on the bag of contraband, dragging his foot to grind the bag on the pavement. By that point, a backup police unit consisting of Police Officer James Van de Zilver and several troopers had arrived. Prebish and Van de Zilver managed to subdue defendant onto the ground. Once defendant was down, he attempted to swallow the drugs from his bag that had fallen on the ground.
During the struggle with defendant, Van de Zilver, who had been holding the bag of CDS found on D.G., dropped that bag onto the ground. That other bag landed near defendant. Defendant attempted to destroy the drugs from this bag as well.
After placing defendant into custody, Prebish learned that defendant had an active warrant for nonpayment of child support. By the time defendant was placed in handcuffs, he had managed to destroy a substantial amount of the CDS found in his pants. The officers took photographs of defendant's shoes, which showed white remains on the bottom, and the area where the cocaine had been dragged and smeared into the ground.
Laboratory results of the remaining CDS seized from defendant tested positive for cocaine. The sample weighed 1.3 grams. Prebish estimated that when the bag first fell out of defendant's pants, it contained about five to six grams of crack cocaine. The bag found in D.G.'s waistband likewise tested positive for cocaine. In addition, 6.7 grams of cocaine were found in D.G.'s pants. The location where the CDS had been smeared also tested positive for cocaine.
Prebish opined that the amount of CDS found on defendant and D.G. was consistent with the intent to distribute. The area where defendant and D.G. were arrested is within 1,000 feet of the Ella G. Clarke Elementary School.
Defendant was subsequently charged with various offenses in three separate indictments. In Indictment 05-12-1748, he was charged with third-degree resisting arrest, N.J.S.A. 2C:29-2(a). Indictment 06-02-0196 charged him with third-degree burglary, N.J.S.A. 2C:18-2. Finally, he was charged in Indictment 06-03-0438 with eight counts specifically arising out of the instant encounter with Officer Prebish: third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree distribution of CDS, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); third-degree possession with intent to distribute CDS in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count four); third-degree distribution of CDS in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count five); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count seven); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight). On that same indictment, D.G. was also charged as a co-defendant on counts one, two, and four.
Defendant moved to suppress the seized evidence. A suppression hearing was held in the Law Division before Judge Wendel E. Daniels in October 2006. Officer Prebish testified at that hearing, and provided the details of his encounter with defendant, which we have already described.
Defendant testified on his own behalf at the suppression hearing. He denied ever carrying razor blades on his person. He specifically denied handing anything to D.G. the day they were arrested. He contended that the object that Officer Prebish found on his person was not cocaine but a bag of Percocet tablets, containing approximately five pills.
In an effort to explain the white powder found on his shoes, defendant stated that when the bag of Percocet pills fell out of his pants, he stepped on it. According to defendant, as soon as he stepped on the bag, he was "immediately slammed to the ground." He contended that he then swallowed the bag of Percocets, which was the reason the officers never recovered it. He alleged that as a result of swallowing the Percocets, he felt "high."
Defendant maintained that the cocaine the officers found at the scene belonged solely to D.G. He stated that the only cocaine he had attempted to destroy was the piece that was found in D.G.'s waistband, which Officer Van de Zilver had dropped during the struggle. He acknowledged smearing the contents of that bag with his hands while he was down on the ground.
Having considered these proofs, Judge Daniels found Officer Prebish's testimony to be more credible than defendant's. Given the totality of the circumstances, the judge found that Prebish had a reasonable, articulable suspicion that defendant was engaged in illegal activity. Hence, the stop of the two males and the officers' ensuing investigation were lawful.
Moving on to the search of defendant, Judge Daniels found that Prebish had a well-grounded suspicion that a crime had been or was being committed and that there was a fair probability that contraband or evidence of a crime would be found on defendant's person. Thus, the officer had probable cause to not only pat him down but also to search him. Consequently, Judge Daniels denied the motion to suppress.
Thereafter, on May 7, 2007, defendant entered a guilty plea before Judge Barbara Villano to count five of Indictment 06-03-0438, i.e., third-degree distribution of CDS in a school zone, and to Indictment 05-12-1748, which had charged third-degree resisting arrest. As part of a plea agreement, the State agreed to dismiss all the remaining counts of Indictment 06-03-0438 and Indictment 06-02-196. Defendant preserved his right to appeal the court's earlier denial of his motion to suppress.
Judge Villano sentenced defendant to a concurrent five-year term of drug court probation and imposed appropriate fees and penalties. This appeal ensued. In his letter-brief, defendant argues that: (1) his detention on the street was unlawful because the police lacked reasonable suspicion of criminal activity; (2) the ensuing search was unlawful because the police had no reason to believe he was armed and presently dangerous; (3) there was no probable cause to search him for CDS and Officer Prebish acted on a mere hunch; and (4) the search was not incident to a lawful arrest.
The applicable law is well established. Under the Fourth Amendment of the Federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). We agree with Judge Daniels that such exceptions justify the police action that was taken here.
We first consider the investigatory stop of defendant and D.G. It is well settled that a police officer has a constitutional right to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). Under this standard, an investigatory stop is valid, even in the absence of a warrant, "if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986); see also State v. Amelio, 197 N.J. 207, 211-12 (2008).
We agree with defendant that he was clearly restricted in his freedom of movement when he was halted on the street by Officer Prebish and the two troopers, and thus he was detained without a warrant. See State v. Pineiro, 181 N.J. 13, 20 (2004). Even so, we are equally satisfied that the elements of a constitutionally permissible investigatory "Terry stop" are present here.
Officer Prebish observed defendant hand an object to D.G. on the street in a high-crime area, and then D.G. stuffed the item into his waistband. Based on his experience and training as an undercover narcotics officer, Prebish believed the two pedestrians were conducting a drug transaction. Prebish was familiar with both of them from previous drug-related investigations. In fact, D.G. had an outstanding warrant for his arrest for selling narcotics to an undercover policeman.
The totality of the circumstances here supports a reasonable suspicion of criminal activity that justified an investigatory stop. See Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906. We are mindful that not every observation of an item handed between two pedestrians will authorize a Terry stop. However, the fact that "purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Pineiro, supra, 181 N.J. at 25 (quoting State v. Citarella, 154 N.J. 272, 279 (1998)). See also State v. Arthur, 149 N.J. 1 (1997) (finding reasonable suspicion for a Terry stop where the police had observed a woman in a high drug area get into the defendant's car, remain with the defendant for about five minutes, leave with a brown paper bag under her arm, and look around in a suspicious manner). The particularized context here, reasonably viewed by Officer Prebish as an experienced narcotics officer, authorized the stop following the observed hand-to-hand exchange, and D.G.'s concealment of the item in his waistband.
Once he had lawfully stopped defendant, Officer Prebish and his fellow officers were entitled to pat down defendant for their safety. Terry, supra, 392 U.S. at 31, 88 S.Ct. at 1885, 20 L.Ed. 2d at 911; see also State v. Roach, 172 N.J. 19, 27 (2002). The officers were permitted to ensure that defendant, who had been known to carry a razor in the past, was not carrying a razor or something else that could be used as a weapon against them.
During the course of such a protective frisk, the police were authorized to seize any contraband they discovered, such as the bag of CDS that was readily found in defendant's pants. State v. Toth, 321 N.J. Super. 609, 614 (App. Div. 1999); see also Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed. 2d 334, 346 (1993). Defendant's effort to dispose of the contraband while he was on the ground only buttresses the objective reasonableness of the police's seizure of the fragments of crack cocaine that had fallen and which had also accumulated on defendant's shoes. We recognize that defendant testified to a different sequence of events at the suppression hearing, including his claim that he was only trying to dispose of some Percocet pills, but we defer to Judge Daniels's finding that the police officer's factual account was more credible. State v. Locurto, 157 N.J. 463, 474 (1999).
Finally, we have no hesitation in sustaining the trial court's conclusion that, given defendant's behavior at the scene and the bags of CDS that were discovered, the police had probable cause to arrest him. Consequently, it makes no difference that the police were unaware of the outstanding child support bench warrant before they handcuffed him. In addition, the arrest was part of "a single uninterrupted transaction," and did not have to precede the seizure of the drugs. State v. Bell, 195 N.J. Super. 49, 58 (App. Div. 1984).