On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FJ-09-1953-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Lyons and J. N. Harris.
After a hearing that resulted in the denial of his motion to suppress evidence, A.R, a juvenile, entered a guilty plea to an offense which, if committed by an adult, would constitute conspiracy to distribute a controlled dangerous substance.
N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5. A.R. appeals the denial of his motion to suppress together with the adjudication of delinquency.
Our consideration involves whether A.R. was entitled to an order suppressing a clear-colored bag containing a controlled dangerous substance that he jettisoned in flight from police officers. In light of the totality of the circumstances that justified the police officers' pursuit and apprehension of A.R. on the street, suppression of his discarded property is unwarranted following the attempted protective search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). We affirm the motion judge who likewise rejected A.R.'s claim of being subjected to an unlawful search.
At 6:25 p.m. on December 22, 2007 - just hours after the winter solstice and with sunset at 4:29 p.m. - A.R. was observed by undercover police officers peering into shop windows "in the area of Linden [Avenue]" and clutching something within his waistband. A.R. was attired in dark clothing: a hooded sweatshirt, black gloves, dark jeans, and a ski mask.
The police officers were in the vicinity of John F. Kennedy Boulevard and Danforth Avenue in the Jersey City neighborhood where several robberies had been reported in the previous weeks. Without obvious cause, A.R. began running away from the location of the police officers. He eventually slowed to a walk. The officers' curiosity was piqued and they were concerned about the oddity of the events they witnessed. Immediately, the police officers drove their vehicle to a spot in front of A.R. and activated its lights and sirens. Upon exiting the vehicle the police officers displayed their badges and instructed A.R. not to move; they were planning to frisk A.R. and investigate the circumstances of his presence on the street. Upon realization that he was being apprehended by police, A.R. exclaimed, "Oh shit, 5-0;" he "took off running."
A.R.'s second sprint caused the police officers to give chase and they managed to apprehend him several blocks away. During the course of the pursuit, A.R. was observed to discard a clear-colored bag, with several objects inside. After retrieving the bag, it was examined by the police and found to contain a controlled dangerous substance.
Two days later, A.R. was charged in a Juvenile Complaint as being delinquent in that he was alleged to have 1) possessed a controlled dangerous substance, namely fifty vials of cocaine, 2) possessed a controlled dangerous substance, namely fifty vials of cocaine with the intent to distribute, 3) possessed a controlled dangerous substance, namely fifty vials of cocaine with the intent to distribute within 1,000 feet of a school, 4) possessed a controlled dangerous substance, namely fifty vials of cocaine with the intent to distribute within 500 feet of a park, 5) resisted arrest, and 6) obstructed government function.
On March 13, 2008, Judge Camille M. Kenny heard testimony in connection with A.R.'s motion to suppress evidence. The State's witness, Police Officer Cory J. Carson was the only witness to ...