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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...