On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-02-0226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and LeWinn.
Defendant Julio DelaCruz appeals from a judgment of conviction entered on March 7, 2007, wherein he was sentenced to a term of five years subject to a parole ineligibility period of eighteen months based upon his guilty plea to one count of third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and -7. Defendant entered his guilty plea after the trial judge denied his motion to suppress evidence. Defendant challenges that ruling on appeal; he also contends that his sentence was excessive. For the reasons that follow, we reverse the denial of defendant's motion to suppress. We need not address defendant's sentencing argument, however, as he was released from custody during the pendency of this appeal.
The pertinent factual background may summarized as follows. The only witness to testify on behalf of the State at the suppression hearing was Lieutenant Thomas DePascale of the Hudson County Prosecutor's Office's Municipal Task Force (Task Force). DePascale described the Task Force as "made up of two squads or two units each commanded by a sergeant, each holding between five and six detectives assigned from specific municipalities and [the prosecutor's] office." DePascale described events that ensued after a confidential informant gave certain information to Task Force member John Stahl, an officer with the North Bergen Police Department.
DePascale testified that sometime in late October 2005, Stahl received information from a first-time informant "pertaining to the illegal sale of narcotics within the Hudson County area." Specifically, the informant stated that "a person known to him . . . as Julio DelaCruz aka 'J[.]D[.]' was actively engaged in the illegal sale of narcotics, specifically marijuana, within the Hudson County area." The informant described J.D. "as a Hispanic male with a shaved head approximately 5'8" in height, weighing approximately 180 lbs." The informant gave J.D.'s address as 304 71st Street, apartment 7 in Guttenberg, and stated that J.D. "store[d] the bulk of his marijuana" in that apartment.
The informant further stated that J.D. drove a tan Mazda bearing license plate 8415LE. When Stahl ran a check on the license plate, it came back registered to defendant, but at the address of 235 73rd Street in North Bergen.
During the week of November 22, 2005, Stahl and another police officer met with the informant. At that time, the informant stated that "a person known to him . . . as 'Jose,' who operates a black Nissan Pathfinder, drives 'J[.]D[.]' around since 'J[.]D[.]' has a suspended [d]river's [l]icense."
On November 28, 2005, DePascale supervised a Task Force surveillance in the area of 304 71st Street in Guttenberg; Stahl also participated in this surveillance. At approximately 12:20 p.m., Stahl observed an individual identified as defendant leave the building at 304 71st Street and enter a tan Mazda bearing the license plate 8415LE. DePascale and other Task Force members conducted mobile surveillance of the Mazda; DePascale observed defendant "talking on his cellular phone" while driving.
The Mazda traveled to "the area of 121 41st St[reet], Union City," where a Hispanic male was observed exiting the building at that address and entering the Mazda. After approximately three minutes, this Hispanic male exited the Mazda and appeared to be "placing something in his jacket pocket." DePascale testified that, based on his training and experience, he "believed that . . . a narcotics transaction . . . occurred between [defendant] and the [Hispanic] individual . . . ."
Mobile surveillance then followed defendant's vehicle "to the area of 11th St[reet] and Summit Avenue" in Union City. After visiting two stores, defendant re-entered his vehicle and mobile surveillance followed him "to the area of 310 12th Street[,] where he pulled over." Defendant thereupon exited his vehicle and "began walking up and down the street while talking on his cellular telephone." A short time later "a black Nissan Pathfinder . . . arrived in the area of 310 12th Street and parked." Two individuals later identified as Jose Santos and Leslie Palacios exited the Nissan Pathfinder and entered the Mazda. The three men then drove onto Palisade Avenue and pulled over between 15th and 16th Streets. At this point, DePascale was several blocks behind defendant's vehicle. After "about thirty, forty seconds or so[,]" DePascale "rolled" his vehicle past the Mazda "just to get a look into the car to see what was going on." As he looked to the right, DePascale saw defendant with "what appeared to be a very large amount of money." He thereupon "picked up [his] radio and . . . told everybody [to] get ready, we're going to take this car right now."
DePascale pulled to the front of the Mazda and exited his vehicle with his badge showing. He went to the passenger side of the car where defendant was seated. DePascale opened the door and told defendant "to get out of the car right away . . . ." The rest of the surveillance team arrived at that point and detained the other two occupants of the car.
DePascale stated that as soon as he opened the door of the Mazda, he could "smell the marijuana coming out of the car." After defendant was removed from the car, DePascale "put [his] head in the car and . . . he smell[ed] it . ...