On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 05-03-00348 and 00-01-1256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and King.
Defendant appeals the denial of his motion to suppress evidence he claims was seized from his person in violation of the State and Federal Constitutions. After the denial of his motion to suppress he pled guilty to possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a public housing facility. N.J.S.A. 2C:35-7.1. He received a five-year state prison term with two years of parole ineligibility.
The encounter between defendant and the police took place at about 2 p.m. on October 23, 2004 in the 700 block of East Second Street in Plainfield, a location known to law enforcement as "a high narcotic area." Officer Jerry Plum and several other officers were patrolling a corner where a group had gathered in the neighborhood. They were in the process of disbursing the group. As they were doing so, Officer Plum received a communication from Sergeant Brown, who was speaking to a confidential informant at that time. The record is barren about whether this informant was considered reliable by law enforcement. The sergeant relayed to Plum that the informant told him that he had just purchased CDS from two men who had walked by the gathering on the corner. The officers who were working the corner had not observed them earlier but looked down the street, saw two men walking away from them, got in their unmarked car, drove several hundred feet, and encountered defendant Goodwin and his companion.
At this point, Officer Plum recognized defendant and believed there were outstanding arrest warrants against him. The officer testified that he had checked the warrant status for defendant about two weeks before, and at that time, there were active warrants outstanding against him.
At this point the police had sufficient information for an investigative inquiry which then ripened into reasonable articulable suspicion and finally into observable evidence, the plastic bag with drugs sticking out of defendant's shoe, well justifying the productive body search of defendant for CDS. The judge made these findings which are well supported by the record.
The [c]court, standard for the [c]court, as the parties are aware, is the totality of the circumstances. We have here a confidential informant who gives information to the police that a -- two alleged drug dealers have just -- he's just purchased drugs from the drug dealers, and that the drug dealers have drugs on them located in their mouth and in their buttocks area. The Officers are then directed to a location where in fact these two gentlemen are, Mr. Goodwin being one of the gentlemen.
The Officer when he goes up to conduct a[n] investigation at that point recognizes that Mr. Goodwin is in fact one of the defendants. He knows Mr. Goodwin from prior narcotic transactions. So he has now the information that two people allegedly sold drugs, they have the drugs on them, and now he knows that one of those persons is a person who in fact he has in fact known in prior drug transactions.
When he goes up to talk to him, he's going -- he realizes also that the -- that the defendant has outstanding warrants against him, but he's not certain as to, at least I take it, the information he has is two weeks old. So he calls up to obtain information to ascertain if those warrants are still active, and he intends to detain him at that point to determine whether those warrants are active as to whether they can be acted upon.
While he begins his interview of Mr. Goodwin, which he has a duty and an obligation to do based upon what the informant has told them, because there is reasonable suspicion at that point, Mr. Goodwin begins to get nervous, he begins to become rambling, and in fact the Officer believes that there is a concern as to flight because he becomes visibly shaken. He's talking about that he's left the drug game, and when he is told that the Officer is going to question him because of information concerning a drug transaction, he then begins, his knees begin to shake, giving the Officer additional concern based upon the totality of the circumstances. He is detaining him at that point to obtain confirmation from the warrant, and while he is detaining him at that point he notices that the drugs are sticking up out of his shoe. He sees it in plain view. He had a -- these were visible to the Officer. And based upon that fact alone, that he was there, he had a right to be there to make the inquiry, and the fact that the drugs were sticking up out of his shoe, he has a right now to arrest based upon that observation of the cocaine sticking out of the shoe.
Concurrent with that information is also that it is confirmed that the warrants are outstanding and Mr. Goodwin is to be arrested. So therefore there is the reason that but for the fact that the Officer saw the drugs sticking out of his shoe before the warrant information came across, he could have arrested him for either of those reasons.
Clearly there is pursuant to TUCKER, and in TUCKER this is -- when you add all the facts here you have here an informant saying that this defendant is selling drugs, that he has the drugs on him in particular locations, that he's going to be at a specific location, and in the fact the person who is allegedly selling the drugs is known to be involved in criminal activity, when he's informed of that criminal activity he becomes visibly shaken, his knees shake, he becomes nervous and rambling, all this information and the totality of the circumstances, the Officer clearly had the right to detain the gentleman. ...