On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3757.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2009
Before Judges Cuff and C.L. Miniman.
We granted Plaintiff State of New Jersey leave to appeal from an interlocutory order granting the motion of defendants Yolanda Anderson and Derrick Yarrell to suppress evidence seized during a warrantless search of the automobile driven by Anderson. The State contends that the trial judge erred in granting the motion. We reverse and remand for trial.
Sometime after his shift began at 7 p.m. on August 17, 2007, Officer Jason West, a member of the Newark Narcotics Enforcement Team, received information from a confidential informer whom he had used previously, although infrequently. The informer advised him that there would be a drop off of heroin that night between 9:30 and 10:30 p.m. at the intersection of Hawthorne and Leslie Streets in Newark. The vehicle involved would be a black Cadillac Escalade with out-of-state license plates bearing the letters "KBC." The informer had previously supplied information leading to the arrest of other people for narcotics violations.
Officers set up undercover surveillance at that location and had a clear view of the intersection. As predicted, a black Escalade driven by Anderson with plates matching the tip pulled up and parked on Leslie Street. West, who was traveling westbound on Hawthorne Avenue, had seen Anderson approaching him from the east while she was talking on her cell phone, and then saw her turn onto Leslie Street and park. Shortly thereafter, a white Mitsubishi Eclipse with three passengers pulled up and parked directly behind the Escalade. The driver of the Eclipse was later identified as Corey Bigelow. Yarrell exited the Eclipse from the rear passenger seat, ran up to the Escalade on the driver's side, and spoke with Anderson. Yarrell then ran back to the Eclipse and spoke with Bigelow. West observed Bigelow hand Yarrell an object, which Yarrell put in his right pants pocket. Yarrell returned to the Escalade and entered the front passenger seat.
At that point, West and two other officers decided to conduct a Terry*fn1 stop. The officer in the vehicle occupied by West pulled their vehicle in front of the Escalade, blocking its path. Another officer pulled his vehicle in behind the Eclipse, preventing it from backing up. All three officers exited their vehicles and West identified himself as a police officer and displayed his badge. At this point, Yarrell, still in the front seat of the Escalade, ducked down out of sight and seconds later reappeared holding his hands up in the air. West, thinking that Yarrell may have secreted a weapon and concerned for his safety, immediately opened the car door and shined his flashlight inside. He observed five bricks of heroin sticking out from under the front seat. West, with the assistance of another officer, removed Yarrell from the front seat of the Escalade.
In the meantime, Anderson got out of the Escalade and walked toward its rear. When Anderson saw the officers from the second unmarked vehicle approaching her, she turned back to her open driver's window and tossed her purse into the rear seat of the Escalade. One of the officers then detained Anderson.
After Yarrell was removed from the Escalade and arrested, West and another officer opened the rear doors of the Escalade. They saw that the contents of Anderson's purse had spilled out on the backseat, revealing eighty-nine envelopes of heroin and $1000 in currency, all bound together with rubber bands. Anderson was then arrested and $90 was recovered from her person.
Bigelow and the two other occupants in the Eclipse stated that they were from Massachusetts and were there to buy heroin. All three were arrested and charged with wandering for the purpose of buying drugs, contrary to N.J.S.A. 2C:33-2.1.
At police headquarters, it was determined that the drugs found in Yarrell's possession totaled 250 envelopes of heroin stamped "Sin City." A field test was positive for heroin. The drugs in Anderson's possession were also stamped "Sin City" and tested positive for heroin.
A six-count indictment was returned charging defendants with three counts each of the following offenses: third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), -5b(3); and third-degree possession of heroin with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. Defendant Yarrell filed a motion to suppress the evidence seized from the front of the Escalade and defendant Anderson joined in his motion, seeking to suppress the evidence seized from the back seat of the Escalade.
At the hearing on their motion to suppress, defendants, who did not testify, contended that the police did not have probable cause to search the Escalade; the informant's information was insufficient and not corroborated; the police had no legal basis for pulling their vehicle in front of the Escalade; defendant Yarrell's hands were in the air when the officers approached him, so there were no safety concerns; and West had no right to shine his flashlight into the Escalade. They argued that the evidence seized from defendant Yarrell should be ...