August 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL DURAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Court Complaint No. S-2007-005087; Appeal No. 0011-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2009
Before Judges R. B. Coleman and Graves.
Defendant Miguel Duran was charged in the Atlantic City Municipal Court with possession of less than fifty grams of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4). After the municipal court denied defendant's motion to suppress the evidence against him, defendant entered a conditional guilty plea, which reserved his right to appeal the denial of his motion to suppress. R. 3:9-3(f). On de novo review in the Law Division, the Superior Court also denied defendant's suppression motion.
On appeal to this court, defendant presents the following arguments:
THE SEARCH OF DEFENDANT, MIGUEL DURAN, WAS NOT A LAWFUL PROTECTIVE PAT-DOWN SEARCH PURSUANT TO TERRY V. OHIO, 392 U.S. 1 (1968).
THERE DID NOT EXIST SUFFICIENT PROBABLE CAUSE TO SEARCH AND ARREST THE DEFENDANT, MIGUEL DURAN, PRIOR TO THE OFFICER'S PAT-DOWN SEARCH.
After considering the record, the briefs, and the applicable law, we are satisfied that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
The Law Division judge's findings and conclusions included the following:
On June 8 of 2007, Atlantic City police Officer William Werner, along with Sergeant Ruark, were working a surveillance detail in plain clothes in the area of the unit block of South Bellevue Avenue in Atlantic City. Officer Werner testified, and I accept his testimony as true, observed this defendant meet with a person by the name of Biscotti (phonetic) and engage in a short conversation, after which Biscotti handed the defendant some currency or what appeared to be currency, and defendant quickly put it in his pocket and then handed Biscotti a small object. Now based on the experience of the officer, he believed that he had witnessed a CDS or a drug transaction. The police had gone into the area to do a surveillance and I will infer from that, that that was an area where they expected they might find or would find the possibility of drug activity.... The officers... exited their vehicle and stopped the defendant.... Officer Werner explained to the defendant what he had observed and the defendant denied it and seemed a little agitated. Officer Werner advised the defendant that he was not free to leave and at that point he patted him down for weapons and contraband and searched him further and found two bags of marijuana in the defendant's right pants pocket. Defendant was placed in custody and transported to the police station for processing and although the police officer said in his testimony that he had not formally arrested the defendant until after the marijuana was recovered, defendant was nonetheless basically in custodial arrest before the search because he was told and as a matter of fact, was not free to leave.
This was in my opinion a search incident to an arrest and it was based upon probable cause where exigent circumstances existed. Failure to seize drugs, if there were drugs on the person of the defendant, would have been either lost or destroyed in some way. I think the police had to act quickly and they were justified in making the search contemporaneously with the whole transaction as it developed. In short, there was probable cause. There were exigent circumstances, and this was an appropriate search incident to an arrest.
We are satisfied that these findings of fact are adequately supported by sufficient credible evidence, State v. Elders, 192 N.J. 224, 243 (2007), and that the matter was correctly decided.
Because Officer Werner observed what he believed was a hand-to- hand drug transaction, he had probable cause to arrest defendant. See State v. Moore, 181 N.J. 40, 47 (2004) (based on police officer's experience, a neighborhood known for drug trafficking, and observations of the exchange of money for small objects, it was reasonable for the officer to believe he witnessed a drug transaction); State v. Guerrero, 232 N.J. Super. 507, 514 (App. Div. 1989) ("[P]robable cause existed for the police to believe that defendant had engaged in a narcotics transaction and that there was insufficient time in which to procure a warrant because of the likelihood that evidence on the defendant's person would be consumed, hidden or sold."); see also State v. O'Neal, 190 N.J. 601, 614-15 (2007) ("As long as the right to arrest pre-existed the search, and the 'arrest is valid independently of, and is not made to depend on, the search or its result,' the search will not be invalidated 'simply because in precise point of time the arrest does not precede the search.'" (quoting State v. Doyle, 42 N.J. 334, 343 (1964))).
Accordingly, we affirm substantially for the reasons stated by Judge Neustadter in his oral decision on April 28, 2008.
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