On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-05-0861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 11, 2009
Before Judges Lihotz and Baxter.
Defendant, Pedro H. Garcia, appeals from his October 19, 2007 conviction for the second-degree crime of possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a (count one); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two). After defendant's motion to suppress was denied, he entered a non-negotiated plea of guilty,*fn1 which resulted in the imposition of an eight-year term of imprisonment with a four-year period of parole ineligibility on count one, concurrent to a four-year term of imprisonment on count two. We reject defendant's claim that the suppression motion was wrongly denied and that the sentence imposed was excessive. We affirm.
On October 21, 2005, Michael Heale, an investigator with the Ocean County Prosecutor's Office, prepared an affidavit in support of his request for a warrant to search a thirty-two foot boat docked at a marina in South Toms River.*fn2 Defendant and his wife, co-defendant Theresa Garcia,*fn3 lived aboard that boat. The affidavit described a confidential informant's purchase of cocaine from defendant on the Garcia's boat during the week of October 9, 2005, and again during the week of October 16, 2005.
Heale also certified that he conducted undercover surveillance of the boat on October 2, 2005 and observed seven vehicles arrive within a four-hour period, with the occupant of the vehicles entering the boat and a short time later exiting and leaving the area. During the week of October 9, 2005, the same pattern was repeated with nine vehicles within a five-hour period. Heale certified that based upon his experience and training, such conduct "is indicative of drug trafficking."
On October 21, 2005, Judge Grasso issued a warrant to search the boat "along with any and all persons present, as well as arriving at, departing from and located therein reasonably believed to be associated with this investigation." The warrant was issued as a no-knock warrant to protect the safety of officers executing the warrant. Heale's affidavit explained that defendant had served a twenty-year prison sentence for manslaughter and that defendant's willingness to engage in violent behavior, when combined with the extremely tight quarters in the cabin of the thirty-two foot boat,*fn4 would endanger the safety of the officers if they were required to knock and announce their presence. Heale certified that the "element of surprise" inherent in a no-knock warrant was necessary for officer safety. Based upon those facts, Judge Grasso issued the requested no-knock warrant.
Approximately four hours after the judge issued the search warrant, investigators from the Ocean County Prosecutor's Office established undercover surveillance at the marina. Slightly more than one hour later, they observed defendant and a female, later identified as Theresa Garcia, enter a 1997 Acura automobile and turn onto Crabby Road and then proceed north on Route 166. By radio, Heale requested police from the South Toms River police department to intercept the Acura; this was accomplished approximately two-tenths of a mile from where the boat was docked. Heale never lost sight of the Acura from the time defendant and Theresa Garcia entered the car until it was stopped two-tenths of a mile later. Police officers directed defendant to exit the vehicle, and showed him a copy of the search warrant for his boat.
Next, three officers approached the passenger side of the vehicle and directed co-defendant Theresa Garcia to exit. While Heale presented the search warrant and explained Theresa Garcia's Miranda rights to her,*fn5 the officers directed her to remove her hands from inside her sweatshirt several times. Each time, she would momentarily comply and then put her hands back into her pocket. Heale testified he was concerned that Theresa Garcia was concealing a weapon such as a knife. He therefore patted down the outside of her clothing and felt a golf ball-sized object in her pocket, which he believed was contraband related to the drug investigation because she repeatedly stated "[i]t's not mine."
After she made that statement, an officer reached into her pocket and seized a ball consisting of what was later determined to be 27.4 grams of cocaine. Defendant and Theresa Garcia were arrested and taken to police headquarters. Once the two were in custody, other investigators executed the search warrant on the boat and found CDS packaging materials and a scale underneath the kitchen sink.
Both defendants filed motions to suppress. Judge Daniels found Heale to be a credible witness and concluded that the search of Theresa Garcia fell within the parameters of the search warrant because 1) the search warrant was presumed valid and was based on probable cause; 2) it authorized a search of the boat as well as "'any and all persons from and located therein, reasonably believed to be associated with this investigation'"; 3) the language of the warrant did not preclude the search of any person reasonably believed to be involved with the activity on the boat after such person left the confines of the boat; 4) the stop of defendant and Theresa Garcia within two-tenths of a mile from the boat "was within the parameters of the search warrant"; and 5) the search of Theresa Garcia was proper even though Heale was not familiar with her, because he knew she and defendant both occupied the ...