August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE LOGAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-1023.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Reisner and Sapp-Peterson.
After the trial court denied defendant Andre Logan's motion to suppress evidence, he pled guilty to first-degree possession of in excess of five ounces of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(b)(1). He was sentenced to a ten- year custodial term with a five-year period of parole ineligibility. On appeal, defendant challenges the court's denial of his suppression motion and the sentence imposed. We affirm.
Two witnesses testified for the State during the suppression hearing, Officers Jenkins and Molina, members of the Irvington Police Department, Strategic Investigation Unit, also known as Operation Cease Fire. Their testimony revealed that on December 12, 2006, police received a call informing them that drugs were being sold in front of 254-256 22nd Street, a four-family duplex with a common porch area. Based upon this information, plainclothes police proceeded to the location in three unmarked cars, with Officers Jenkins and Gatling in the lead car. Upon their arrival at 22nd Street, which is a one-way street, they drove up the street in the opposite direction. Jenkins testified that he saw co-defendant James Coleman standing on the porch, and defendant, who he knew from a previous arrest, walking around. Jenkins further testified that "[o]nce [defendant] observed us, he tossed a bag to the ground and then began running." Jenkins proceeded after Logan telling him to stop. Molina testified that he observed Jenkins chase defendant and also heard Officer Gatling say "I got drugs, I got drugs" after retrieving the bag tossed by defendant.
Defendant entered the south-side entrance of 254 and slammed the outer door. Although Jenkins banged on the door telling defendant to open it, defendant did not do so. Jenkins heard defendant go downstairs to the basement and then come back up the stairs. The outer door was locked but Jenkins was able to push it in and, at that point, saw defendant flee into the door of a first-floor apartment. Jenkins proceeded to bang on the apartment door until he heard a knocking sound, at which point he pushed the locked door in. Once inside, Jenkins observed defendant "flushing the vials with a hammer." He drew his weapon, told defendant to stop, to which defendant complied, and placed defendant under arrest.
Jenkins observed "[c]ocaine, vials all over the floor, was a package of marijuana on the side of the toilet, and it was crushed vials and cocaine residue all over inside the toilet with water, the toilet overflowing, water all over the place." He also recovered a bag containing suspected narcotics and narcotics paraphernalia. Defendant executed a consent to search form, after which money was recovered from the back bedroom.
In addition to the testimony of Officers Jenkins and Molina, defendant presented the testimony of Nathaniel Williams, who was present at 256 22nd Street, the home of his uncle, at the time the events unfolded with police on December 12. His testimony focused primarily upon police conduct that he observed after he left his uncle's house to make a telephone call. He was outside on the porch when he observed Officer Jenkins in the hallway of building 254 and was told by him to "get down on the ground." He did not initially comply with the order because the officer did not identify himself as a police officer, but after Williams was ordered two more times to get down, he "saw the police thing on [Jenkins]" and "[t]hat's when [he] got down because I ain't [sic] know if he was police or not." Ten minutes later, Williams observed police bring "Mr. Logan out from the alleyway out from 254."
At the conclusion of the testimony, Judge Lester denied the suppression motion, rendering an oral opinion. She first found that obtaining defendant's consent to search was unnecessary and "it would have been totally ineffective after the fact," because "[t]he evidence had already been seized" and "the legality of it, the significance of it," played "no part in [her] decision."
Next, turning to police conduct upon receiving the call about drugs being sold in front of 254-256 22nd Street, Judge Lester found:
The police were well within their right and furthermore would be expected to investigate information provided by the public concerning the commission of crimes. They're not expected to sit idly by and do nothing. So the approach of 254 was appropriate. The behavior that they saw once they were there, one defendant approaching the other, the small bag in the hand of... Mr. Logan. The fact that Officer Jenkins knew Mr. Logan, he was known to him as someone he had previously arrested was sufficient probable cause for the officer to have detained Mr. Logan for the purpose of investigating further what - - to an officer who was involved in narcotics investigations, as this officer was, would clearly believe might be narcotics transactions, based upon everything he knew about the defendant, the citizen's complaint, the bag, the turning away. There was probable cause to stop Mr. Logan to investigate further.
Once the bag was dropped - - so there was no unlawful detention. Once the bag was dropped, it was permissible for the police to seize it, to retrieve it, given the suspicion that they had. Once the officer was aware that the bag contained a controlled dangerous substance, he had not only the right but the obligation to pursue Mr. Logan for the purpose of arresting him for the commission of a crime. Aside from what was found in the house, that in and of itself would have permitted a lawful arrest of Mr. Logan; the officer had a right to pursue him until he could effectuate an arrest.
Once he was inside of 254, and there is no refute to this and I found the officer in this respect to be credible, he literally, according to him, caught Mr. Logan in the midst of attempting to destroy and flush down a toilet in the bathroom where most of this was found, controlled dangerous substances. He had a right to arrest him and to charge him, but the drugs at that point were in plain view.
I reached the same conclusion with regard to the evidence that was in the bathtub. I know there was - - I believe someone said something about there being a shower curtain there. I don't remember, nor is there anything in the transcript that a witness said that. I believe it may have been information supplied in the question. But be that as it may, given the quantity and the nature of what had already been found obviously in plain view in a very small area, the officers had a right to secure the area to see if anything else was there that needed to be secured, without the necessity of obtaining any further permission or search warrants or anything of that nature. That would be expected.
And I also have taken into account and in coming to that conclusion, they had already seen the bag. The officer testified that while he hadn't gone into it at that point, he believed that the top of the bag was open and it appeared to contain bulk packaged white substance. Given the rest of what he had already retrieved, and given his background and what he did for a living, being in narcotics investigations, clearly he suspected that it was more cocaine and, obviously, he was right.
But the seizure of the cocaine in the tub was lawful seizure under these circumstances. The motion to suppress evidence obtained at 254... 22nd Street in Irvington with regard to the defendant, Logan, is denied.
On appeal, defendant raises the following points for our consideration:
THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS IT BEING THE PRODUCT OF AN ILLEGAL SEARCH AND SEIZURE. (U.S. CONST. AMENDS. IV AND XIV; N.J. CONST. (1947) ART. I, ¶¶ 7).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We have considered each of these arguments in light of the record, the briefs filed, and the applicable law, and we reject all of defendant's arguments. We affirm substantially for the reasons expressed by Judge Lester in her cogent and well-reasoned oral opinion of November 27, 2007. We add the following brief comments.
We agree with defendant's argument that the information conveyed in the anonymous tip that drugs were being sold from 254-256 22nd Street was insufficient to justify an investigatory stop. This information, however, was sufficient to justify officers proceeding to that location to investigate the information. Police have an obligation to protect the public by investigating and preventing crime.
A police officer charged with the duty of crime prevention and detection and protection of the public safety must deal with a rich diversity of street encounters with citizens. In a given situation, even though a citizen's behavior does not reach the level of "highly suspicious activities," the officer's experience may indicate that some investigation is in order.
[State v. Sheffield, 62 N.J. 441, 446 (1973) (citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed. 2d 612, 616-17 (1972))].
When officers do not conduct such investigations regarding the possibility of a crime, they may be derelict in discharging their duties. State v. Davis, 104 N.J. 490, 505, 507 (1986). Their investigation was proper here. Officers responded to the 22nd Street location, and defendant's reaction to their arrival by tossing the bag and then running, coupled with Officer Jenkins' familiarity with defendant based upon a prior arrest, justified Jenkins' pursuit of defendant. Gatling's subsequent alert to Jenkins that the bag defendant tossed contained suspected narcotics was further justification for Jenkins' action thereafter, including pursuing him into 254, where he observed suspected narcotics and paraphernalia in plain view.
The court credited the testimony of Officer Jenkins. "When a court acts as fact-finder, its findings of a witness's credibility are entitled to deferential respect by the reviewing court." N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); see also State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S.Ct. 1074, 4 L.Ed. 2d 1019 (1960). We discern no basis on this record to interfere with Judge Lester's credibility determination here.
Defendant's remaining argument that the ten-year sentence with a five-year period of parole ineligibility was excessive is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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