September 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-05-1156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2009
Before Judges Payne and Waugh.
Defendant Christopher Jackson appeals his conviction, following a guilty plea, for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). He argues that the motion judge should have granted his motion to suppress evidence resulting from a warrantless search and seizure. We affirm.
The following facts, based upon the hearing on Jackson's motion to suppress, inform our decision on this appeal.
On February 18, 2006, Detective James Hunt of the Neptune Police Department was in plain clothes and working in an unmarked van parked on West Lake Avenue, across the street from the Alpha Liquor Store. Hunt described the area surrounding the Alpha Liquor Store as "a high-crime drug distribution area, a known drug distribution area."
At approximately 6:00 p.m., Hunt observed Myron Sanders, whom he had arrested in the past for purchasing and possessing narcotics, meet with Jackson, a black male whom Hunt did not know, in front of the liquor store. According to Hunt, the liquor store was open for business at the time and there were other people on the street, creating "an active environment" at the time of his observations regarding Sanders and Jackson.
From his position in the back of the surveillance van, Hunt observed Jackson and Sanders talking. They then crossed the street and walked down West Lake Avenue, past the van, to the corner directly behind the van. According to Hunt:
They stopped at the corner of... West Lake and Fisher. They talked briefly, and then I observed Myron Sanders hand something to Mr. Jackson, and then in turn, he handed something back. It was quick. I didn't see what it was, but it appeared to be a narcotic transaction.
After the "transaction," the two separated. According to Hunt, Sanders went down Fisher Avenue and Jackson turned around and went back down West Lake Avenue, past Hunt's van. Believing he had just "witnessed a hand-to-hand drug transaction," Hunt radioed his backup team and "pointed out that Mr. Jackson was walking back toward the Alpha Liquor Store." Hunt admitted that he took no steps to pursue Sanders, even though he knew he lived down the block, because he viewed Sanders as solely "a heroin user." Hunt testified that he had never arrested Sanders for selling drugs.
Officer Jose Arce testified that he was a member of the backup team and was instructed by Hunt to "conduct a narcotic interdiction with said subject Christopher Jackson." Although Arce testified that Hunt described Jackson as a "black male and whatever he was wearing," he admitted that his report did not contain any description of Jackson, and that he did not recall what Jackson was wearing at the time. Arce heard Hunt say over the police radio: "he's directly right in front of you." According to Arce, Jackson was "the only person in that area at that given time."
Arce, who was in plainclothes but wearing a shirt with the insignia "Police" marked on it in gold print and a badge hanging around his neck, approached Jackson and identified himself as a police officer. He described their interaction as follows:
First thing we did was identify him, asked him for his pedigree information. He didn't have ID on him. He gave us his name, his age and address, at which time I contacted headquarters [via radio], said I was out with the subject. I asked him to run his name, run a check on the computer, at which time they confirmed an outstanding warrant for him from Asbury Park for $270.
Acre then placed Jackson under arrest and conducted a search incident to the arrest. The search revealed a small glassine bag of heroin in Jackson's "right front coin pocket," which Arce estimated to be the size of a thumbnail, about one-half inch by one-half inch. Arce testified that the State Police lab report indicated that the bag contained.04 grams of heroin, which he estimated to be worth about $8.
Following the hearing, Judge Paul F. Chaiet denied Jackson's motion to suppress. After summarizing the officers' testimony, he explained his reasons as follows:
I'm satisfied that both officers were being truthful to this particular Court. I listened to their testimony. There's nothing to contradict their testimony.... I would have to believe that Officer Arce was making up this information about the warrant, and, quite frankly, in listening to him testify, I don't think he would do that.
There's been nothing to demonstrate that this was a phoney situation and that they didn't know about the warrant when he was searched at that particular time.
So, I'm satisfied that there was a reasonable and articulable suspicion based upon the high-crime area, based upon an experienced officer saying that he felt he observed a hand-to-hand, and based upon the fact that in this particular case, the person involved was a known narcotic user.
Counsel cites to State v. [Kuhn], 213 N.J. Super. 275 (App. Div. 1986). And in State v. [Kuhn], the court in reversing the defendant's conviction said,
The only unusual thing about the car was that it was parked diagonally across more than one parking space. Defendant was standing outside of the driver's side of the car, another person was standing outside the passenger's side, and there was a third person in the front passenger seat of the car. [Kuhn, supra, 213 N.J. Super. at 277].
And there was a high-crime area apparently, but in this particular case, we certainly had more than that. I don't think [Kuhn] is at all applicable to this particular case. So, therefore, I'm satisfied that the discovery of this heroin was lawful and that the motion to suppress should be denied at this particular point.
Jackson pled guilty to the single-count indictment on November 13, 2007. In accordance with the plea agreement, he was sentenced to three years probation, plus applicable fines and penalties, on February 8, 2008. This appeal followed.
On appeal, Jackson raises the following issue:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE SINCE A REASONABLE AND ARTICULABLE BASIS TO SUSPECT CRIMINAL WRONGDOING DID NOT EXIST. MOREOVER, THE CONTINUING SEIZURE OF DEFENDANT WHILE OFFICER ARCE RADIOED HEADQUARTERS TO CONDUCT "A CHECK ON THE COMPUTER," WAS NOT SUPPORTED BY THE REQUISITE PROBABLE CAUSE.
Having reviewed Jackson's arguments on appeal in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion on appeal. Rule 2:11-3(e)(2). We add only the following.
Under the facts of this case as found by the motion judge, Arce had a sufficient basis to make a Terry*fn1 stop. This exception to the warrant requirement permits a police officer to detain an individual for a brief period if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). The observations made by Hunt fully provided the necessary particularized suspicion to support the investigatory stop, as was correctly determined by Judge Chaiet.
Arce's brief detaining of Jackson for the purpose of verifying his identification and determining whether there were any outstanding warrants was not so long as to render the stop unconstitutional. See State v. Dickey, 152 N.J. 468, 477 (1998) (noting the federal constitutional obligation of police to act diligently during investigatory stops, and to not detain those stopped for an unreasonable length of time); see also United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed. 2d 605, 615 (1985) ("[O]ur cases impose no rigid time limitation on Terry stops.").
The search incident to Jackson's arrest on the outstanding warrant was also permissible. As a general matter, a search of the accused person, incident to a valid arrest, is constitutional. Chimel v. California, 395 U.S. 752, 763-64, 89 S.Ct. 2034, 2040-41, 23 L.Ed. 2d 685, 694-95 (1969); State v. O'Neal, 190 N.J. 601, 614-15 (2007).