July 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NASIR SHAKUR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-10-1836.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2009
Before Judges Lisa and Alvarez.
Defendant Nasir Shakur, also known as Ronnie Moten, appeals the denial of his motion to suppress evidence and the sentence subsequently imposed as a result of the entry of his negotiated guilty plea. We affirm.
The following facts were developed during the June 12, 2007 motion to suppress hearing. On July 22, 2006, Officer Corey J. Parson of the Jersey City Police Department was dispatched at about 7:47 a.m. to a location where, via closed-circuit television (CCTV), defendant was being observed selling drugs on a street corner. Parson was given a description of defendant and his vehicle, a black Honda. Upon receiving the dispatch, the officer turned on his lights and sirens and drove approximately nine blocks to the location. As he approached, he was told by the CCTV Unit that the drug dealer, the sole occupant of the vehicle, was changing his shirt. When he arrived, Parson saw that defendant was sitting in a black Honda, adjusting his shirt. He asked defendant to step outside and place his hands on the Honda's roof.
As he was patting defendant down, Parson glanced in the car and saw a brown paper bag open on the dashboard, containing approximately thirty vials of cocaine bundled together with a rubber band. Defendant does not point to anything in the record that casts doubt upon the officer's credibility or ability to make the observation. Once backup arrived, the officer handcuffed defendant and entered the car to retrieve the drugs. When he returned to the car to retrieve the registration and other documents, Parson found a police-issue baton between the driver and passenger seats.
The judge denied the motion to suppress on the basis that the officer had the right to pat defendant down for his own safety prior to proceeding with the investigation, and that once the officer glanced in the vehicle, he had the right to seize the brown paper bag. Although he denied the motion to suppress in its entirety, the judge made no specific findings as to the baton.
On November 27, 2007, defendant entered a guilty plea to possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, in exchange for the State's recommendation of five years of imprisonment subject to a three-year term of parole ineligibility. He was sentenced accordingly on January 25, 2008, and appropriate fines and penalties were imposed.
At the time of sentencing, defendant, then thirty-two years old, had four prior convictions. The offense most recent to the commission of this crime was originally a murder charge, but was ultimately amended to manslaughter, to which defendant entered a guilty plea. Defendant's criminal history also included a prior school-zone distribution offense.
On appeal, defendant raises the following points:
THE EVIDENCE PRESENTED BY THE STATE DURING THE SUPPRESSION HEARING WAS NOT SUFFICIENT TO SUPPORT THE LOWER COURT'S FINDING THAT OFFICER PARSON HAD PROBABLE CAUSE TO BELIEVE THAT THE BROWN PAPER BAG ON THE DASHBOARD CONTAINED CONTRABAND.
THE SEIZURE OF THE ALLEGED CDS AND BATON WAS INVALID BECAUSE THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE FAILURE OF THE POLICE TO OBTAIN A SEARCH WARRANT.
THE SEARCH OF THE DEFENDANT'S CAR WAS NOT INCIDENT TO A LAWFUL ARREST. (NOT RAISED BELOW).
THE ALLEGED CONSENT SEARCH IS NOT SUPPORTED BY THE RECORD AND EVEN IF CONSENT HAD BEEN GIVEN, IT IS NOT CLEAR WHEN, IF AT ALL, THE DEFENDANT WAS EVER ADMINISTERED MIRANDA WARNINGS AND, IN ANY EVENT, THE ALLEGED CONSENT ELICITED WAS OBTAINED UNDER COERCIVE CIRCUMSTANCES. (NOT RAISED BELOW).
THE LOWER COURT DID NOT RENDER AN OPINION OR MAKE FINDINGS OF FACT AND LAW REGARDING THE ISSUE OF THE BATON ALLEGEDLY FOUND IN THE DEFENDANT'S CAR.
THE SENTENCE IMPOSED WAS EXCESSIVE AND MUST BE VACATED BECAUSE THE SENTENCING COURT GAVE TOO MUCH WEIGHT TO THE AGGRAVATING FACTORS WHILE IMPROPERLY DE-EMPHASIZING THE MITIGATING FACTORS.
REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.
We consider these points to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
No warrant is necessary for an officer to conduct an investigative detention, also known as an investigatory or Terry stop, where the 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. Nishina, 175 N.J. 502, 510-11 (2003) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). Based on the CCTV observations, Parson had, at a minimum, a basis for an investigative detention of defendant. See State v. Stovall, 170 N.J. 346, 356-57 (2002); State v. Harris, 384 N.J. Super. 29, 46-48 (App. Div.), certif. denied, 188 N.J. 357 (2006). Defendant was, after all, captured on film engaging in drug transactions.
The facts in Nishina are enlightening. In that case, a lone officer on patrol at 10:00 p.m. on a Sunday night noticed four men walking approximately 300 feet from an elementary school building located in "a relatively isolated area."
Nishina, supra, 175 N.J. at 506. Their car appeared to be parked across the street from the school, although the building had an adjoining empty parking lot. Id. at 507. When the officer inquired, the defendant, one of the four men, told him that they had been driving around, decided to go to the school's playground, and had just been "hanging out" there. Ibid. When asked for his driving credentials, the defendant went to his vehicle and retrieved the documents from the car. Id. at 507-08. Upon his return, the officer noticed a strong odor of marijuana emanating from the defendant's clothes. Id. at 508. He then patted the defendant down, found rolling papers on his person, and walked to the defendant's car. Ibid. He shone a flashlight through the vehicle's window and saw a clear plastic bag jutting out from the console located to the left of the driver's seat. Ibid. Believing that the bag contained marijuana, the officer removed it and saw that it contained "green vegetation" that later proved to be marijuana. Id. at 508-09.
The Court determined that the investigative detention was warranted given the isolated location, hour of the evening, and suspicious explanation for the presence of four men at an elementary school playground at night time. Id. at 512. In light of the "whole picture," the State established the requisite reasonable suspicion for an investigative detention. Ibid.
The pat-down search of the defendant in Nishina was also justified because the officer's conclusion that a crime had just been committed had a reasonable basis, namely, the odor of marijuana. Id. at 514-15. In this case, the pat-down was similarly warranted, given the CCTV unit's observations of apparent drug transactions.
Exigent circumstances were present here, as they were in Nishina. "Exigent circumstances" is a flexible term, one that demands a fact-sensitive analysis. Id. at 516-17. Once faced with the well-grounded suspicion that the defendant possessed marijuana, the officer in Nishina "had no practical opportunity to secure a warrant." Id. at 517.
Parson had no practical opportunity to secure a warrant either. He received the dispatch while patrolling the area, only nine blocks from defendant's location. This street encounter was unanticipated, and the drugs were clearly visible on the vehicle's dashboard. The evidence was readily disposable. The seizure in this case was therefore valid under the automobile exception to the warrant requirement, as was the search in Nishina. Id. at 518. See also State v. Pena-Flores, 198 N.J. 6, 28 (2009) (holding that the warrantless search of an automobile is permissible where "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant").
Moving on to defendant's next point, admittedly, the motion judge did not make any findings regarding the seizure of the baton, which Parson discovered when he purportedly entered the car with defendant's consent to obtain motor vehicle documents. Because defendant did not ultimately plead to that charge, however, in our view, this issue is moot. The State does not contend that the seizure of the drugs or baton resulted from a search of the vehicle incident to arrest.
Defendant was sentenced, pursuant to the negotiated plea, to a mandatory term of three years of parole ineligibility for a third-degree school-zone drug distribution charge, N.J.S.A. 2C:35-7. As a second-time drug distributor, had he been convicted at trial, he would have been sentenced to between five and ten years subject to parole ineligibility, which would have been fixed at the greater of either one-third to one-half of the sentence imposed or three years. N.J.S.A. 2C:35-7. That sentence is far more onerous than the favorable plea defendant accepted, which did not include imprisonment in the second-degree range.
Given defendant's prior criminal history and relative youth, it comes as no surprise that the sentencing judge found aggravating factors three, six, and nine. Defendant proffers no fact or law that establishes the sentence as improper. Although at sentencing, defense counsel argued that there was a basis for the court to find mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), the facts asserted fell short of justifying that mitigating factor. Therefore, we do not consider that the judge did other than sentence defendant in a lawful manner that does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984).
Because we do not concur that the points made by defendant establish error, we do not think that accumulated errors warrant reversal.
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