March 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN CUEBAS A/K/A JONATHAN JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Reisner and Sapp-Peterson.
Following the denial of his motion to suppress evidence, defendant pled guilty to third-degree possession with intent to distribute heroin within 1000 feet of school property, N.J.S.A. 2C:35-7, pursuant to a negotiated plea agreement. Defendant was sentenced to a five-year custodial term with a two-and-one-half-year period of parole ineligibility, along with appropriate fines and penalties.
Defendant raises the following points on appeal:
POINT I THE WARRANTLESS SEARCH AND SEIZURE WAS NOT JUSTIFIABLE BY ANY EXCEPTION. AS A RESULT THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH AND SEIZURE SHOULD HAVE BEEN SUPPRESSED.
[POINT] A NO BASIS EXISTED FOR AN ARREST OF THE DEFENDANT.
[POINT] B THE INFORMANT'S TIP DID NOT CONTAIN PARTICULARIZED INFORMATION AND WAS NOT SUFFICIENTLY CORROBORATED.
POINT II THE SENTENCE IMPOSED WAS EXCESSIVE, REQU[I]RING REDUCTION.
After consideration of the record, the arguments presented in the briefs and the applicable law, we reject appellant's arguments and affirm.
The following facts were presented during the suppression hearing.
On May 7, 2005, Jersey City Police Officer Anthony Goodman received a tip from a confidential informant that a man known as "Q" would be making deliveries of heroin while driving a beige Dodge Intrepid with tinted windows. The informant described "Q" as wearing a black jacket and a black-and-white jersey. The informant added that "Q" would be leaving from the south side of Orient Avenue to make the heroin deliveries. The informant did not have an exact address of the house he would be exiting.
The confidential informant had provided Goodman with information on approximately fifteen to twenty prior occasions, and the informant had proven reliable in each instance. Likewise, Goodman had participated in over 1000 narcotics-related arrests and had received specialized training in the area of narcotics transactions, notably, how drugs like heroin are packaged and sold.
At 1:40 p.m., the police set up surveillance on Orient Avenue between Bergen Street and Martin Luther King Drive. Officers Doug Perretti and Gail Howard were assigned to a perimeter unit of the operation and communicated with the surveillance unit, particularly Goodman, via radio. Another perimeter unit was also established with Sergeant Gillan and Officer Michael Burgess.
Goodman observed a beige Intrepid with tinted windows arrive and park outside 79A Orient Avenue. At approximately 1:30 p.m., the officer saw two men exit 79A Orient Avenue. One of the men was later identified as Patrick Taliaferro. The second individual, later identified as defendant, fit the informant's description of "Q" and was wearing a black army-style jacket, a black-and-white jersey, and blue jeans. There were no other people in the area who appeared similar or that matched the description of defendant or "Q."
Talliaferro entered the driver's side of the Intrepid, while defendant entered the front passenger's seat. Police followed defendant and Talliaferro as they traveled to a car wash located at the corner of Forest Avenue and Ocean Avenue. The officers observed the Intrepid get in line behind other cars in the parking lot waiting to be washed.
At approximately 1:35 p.m., the police saw a man, later identified as James Watson, walk across the street, open up the rear passenger door of the Intrepid, and have a brief conversation with defendant and Talliaferro. The police observed Watson then close the door, walk to the north side of Forest Street, and stand on the sidewalk with another male later identified as Brandon James.
The police noticed that defendant then exited the Intrepid and walked back through the parking lot to the north side of Forest Street. The Intrepid entered the car wash, and defendant met Watson and James. Taliaferro remained inside the car.
The police saw defendant, Watson, and James have a brief conversation. Goodman then observed, from approximately forty feet away, that defendant reached into the back of his pants and pulled out a medium-sized object, which the officer identified as bricks of heroin. Goodman knew from his training and experience that bags of heroin were taped together and packaged as "bricks."
Goodman relayed his above observations to the perimeter units. Goodman then directed Perretti and Howard to "move in" and "stop Q." For the purposes of instructing a perimeter or surveillance team, Goodman explained that "move in" refers to the officers stopping a defendant, questioning him, and continuing their investigation. He added, however, depending on what the surveillance and perimeter units observe, "move in" could also involve a search. Contrary to Goodman's testimony, Perretti testified that "move in" meant to apprehend the suspect.
The perimeter units responded to this directive and approached defendant. Burgess announced, "Police, everybody down on the ground." Perretti then ran up behind defendant, grabbed him, "bear-hugged" him, and pulled him to the ground in the middle of Forest Street. An unidentified voice yelled, "Stop the car." The police feared that someone coming down Forest Street was about to run over Perretti and defendant. Perretti then picked up defendant and moved him across the street, where he was handcuffed and arrested. As defendant was handcuffed, five "bricks" and two "bundles" or 280 bags of packaged heroin labeled "Back in Town" fell out of his hand into a puddle of soapy water. A search of defendant revealed that he possessed $129.
In denying defendant's suppression motion, the trial court found:
I base my decision on the testimony of the two officers who testified yesterday. Officer Anthony Goodman was the surveillance officer who[,] based on information received from a confidential informant who had proved to be reliable in the past[,] stationed himself at a location.
The confidential informant told him that - - who he knew as Q wearing certain clothing would deliver CDS [controlled dangerous substance] in a particular vehicle, I believe it was a Dodge of a certain color.
The officer stationed himself on that street, surveilled, saw a vehicle matching the description arrive in the area of 79A Orient Avenue. He waited, and after a period of time, an individual matching the description of Q entered that vehicle.
All during the course of the surveillance, he was in communication with his perimeter units. He radios his information to the perimeter units, follows the vehicle, the vehicle ultimately comes to a stop at a carwash in the vicinity of Martin Luther King and that other street (sic) at which time he observed several things, but ultimately, what he observed is Q get out of the vehicle, cross the street to where two individuals are standing, and take from his waistband or inside of his pants what the officer then identified[,] based on his training and experience as a narcotics officer[,] as being at least or more than two bricks of CDS.
Upon seeing that, he immediately notified his perimeter units to move in on the individual known as Q (phonetic). The perimeter officer said -- all he said was move in. Apparently, the officer that apprehended Q who later testified[,] Officer Perretti (phonetic)[,] as far as he was concerned the information given to him and the observations made by the perimeter -- or rather, the surveillance officer were enough to lead to the arrest of Q.
Be that as it may, the officer detained Q and took him to the ground and placed handcuffs on him, and then -- or let me go back. He didn't put the handcuffs on him immediately. He took him to the ground, then picked him up, moved him to the sidewalk and put handcuffs on him. When he put handcuffs on him, Q dropped what ultimately turned out to be I think more than five bricks of CDS.
Based on that testimony, it's clear to me that based on the information given to Officer Perretti by Officer Goodman that there was probable cause to arrest the --arrest Q.
Whether it's considered an arrest or not initially, the CDS was dropped by Q into plain sight in any event, but be that as it may, I find there was sufficient information based on the confidential informant[,] who had been reliable in the past[,] whose information was then corroborated by the observations of Officer Goodman and finally, Officer Goodman in fact, seeing [what] based on his knowledge and experience was, in fact, CDS, contraband, probable cause existed to arrest Q, the defendant here, Mr. Cuebas.
In State v. Elders, the Court stated that "an appellate court in reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). We are satisfied that the record clearly and convincingly supports the motion judge's findings and legal conclusions. Probable cause that an offense was being committed was established based upon the observations of the officers, whose surveillance sufficiently corroborated the confidential informant's tip as to defendant's physical description, his location, and defendant's purported activities. The surveillance officer, based upon his experience and training as a narcotics officer, believed that he was witnessing a narcotics transaction and therefore had probable cause to arrest defendant.
Likewise, we find no merit in defendant's claim that the tip conveyed by the confidential informant lacked particularized information. The confidential informant, who had previously on more than one dozen occasions provided reliable information to the surveillance officer, described the clothing defendant would be wearing, the make, color, and windows of the vehicle defendant would be occupying, and the location from where defendant would be departing. In addition, the confidential informant provided the approximate time defendant would be leaving the location. The surveillance officer set up the surveillance near the location provided by the informant and he proceeded to first observe the described vehicle arrive in the area and defendant eventually enter the vehicle that drove away to the location where defendant was ultimately apprehended.
The United States Supreme Court in Illinois v. Gates held that the reliability of a confidential informant's tip is to be analyzed under "the totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L. Ed 2d 527, 548 (1983). New Jersey also adopted the "totality of the circumstances test." State v. Zutic, 155 N.J. 103, 110-11 (1998); See State v. Smith, 155 N.J. 83, 92-93, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998). In evaluating the reliability of a confidential informant's tip, the Zutic Court stated that "[a]n informant's "veracity" and "basis of knowledge" are two highly relevant factors under the totality of the circumstances." Zutic, supra, 155 N.J. at 110-11 (quoting Smith, supra, 155 N.J. at 93). "The veracity factor may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." State v. Keyes, 184 N.J. 541, 555 (2005) (citing State v. Sullivan, 169 N.J. 204, 213 (2001)). The knowledge factor may be satisfied if the informant provides sufficient details in the tip. Id. at 556 (citing Smith, supra, 155 N.J. at 94). Here, Officer Goodman testified that the confidential informant had provided reliable information numerous times in the past and the information provided about defendant was sufficiently detailed.
Defendant's remaining argument that the sentence imposed was excessive is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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