On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0126.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and LeWinn.
Defendant Terrance Johnson was indicted along with co- defendant Terry Washington for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35- 7.1 (count three). Defendant brought a pre-trial motion to suppress evidence of the heroin. Following a hearing, the trial judge denied this motion on June 20, 2006.
On September 18, 2006, defendant entered into a negotiated plea agreement whereby he pled guilty to count three of the indictment. On November 3, 2006, defendant was sentenced to a five-year term of imprisonment to run concurrently to a sentence he was then serving. Defendant now appeals from the denial of his motion to suppress. For the reasons that follow, we affirm.
The evidence presented at the suppression hearing may be summarized as follows. On December 3, 2005, three plainclothes officers from the Elizabeth Police Department were patrolling the area of Sixth and Fulton Streets in Elizabeth, known to be an area of "extremely high narcotics" activity. Officers David Conrad, Amilcar Colon and Athanasios Mikros observed two men, later identified as defendant and Washington, standing on a corner where they appeared to be "making eye contact with passing vehicles . . . ."
The officers parked their unmarked car approximately thirty yards from the corner and continued to watch the two men as an "older Hispanic male" approached Washington and handed him money. After a brief conversation with this individual, Washington signaled to defendant, who then walked to a Chevy Blazer parked nearby, retrieved a black plastic bag from inside the vehicle, "removed a small white item from" that bag and handed it to the Hispanic male.
The officers believed that a narcotics transaction had just occurred and, because they were unable to reach their backup unit, followed defendant and Washington as they walked away from the area. While Officer Conrad was standing next to the Chevy Blazer, he shone a flashlight into the car window and observed a plastic bag containing glassine envelopes. Conrad opened the car door and removed the items; the other officers thereupon arrested defendant and Washington.
In denying defendant's motion to suppress, the trial judge stated:
On the date December 3rd, '05, around 6:00 at night, Officer Conrad, a ten-year officer, was working a tour of duty with two other people, Colon and Mikros. They were in plain clothes, in an undercover car . . . . He has participated in numerous arrests regarding drugs before this. And I think he said over a thousand. The area in question is Sixth and Fulton, known to him to be a high-crime area. . . .
They are not there for a particular purpose. They are there for quality of life issues; if a person is drinking in public to stop them or drugs . . . . They are not there because a tip draws them to a particular person on that date and time. They are there and they see two people. They see these two people and identified both gentlemen in court today as the two people, they were nodding or making eye contact with cars.
Do they go there and rouse those guys right away? They do not. They watched from about 90 feet. Of course, they saw an event. An old Hispanic male wearing blue jeans and a black jacket walks up to the men, speaks to them. After speaking to the two men, Washington and [defendant], he gave money to . . . Washington who put [it in] his pocket and . . . Washington raised his hand toward [defendant] and [defendant] in response to that went to a green Chevy Blazer and opened the door, which was apparently unlocked, and looked into a plastic bag that was illuminated by overhead light. And the [o]fficer -- and I find him to be credible -- says he saw the man take from it a small object which he then took out of the car and closed the car, of course. He begins to look around, looking to see apparently if anybody is watching him. And when he is satisfied that he is safe, he goes across the street and he gives that to the Hispanic male.
Based upon, A, the area, B, the observation which the [o]fficer believes he has just seen a drug deal, so does he go there and put them against the wall? He does not. He asks for back-up to arrest or detain the Spanish man . . . to see if he, indeed, had drugs on him to verify the fact of distribution ...