On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-00531.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Skillman, Gilroy and Simonelli.
The State appeals, by leave of court, from an interlocutory order, which granted defendants' motions to suppress evidence that is the basis of pending charges against them for possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1); second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
The suppressed evidence was obtained as a result of a surveillance conducted by Plainfield police officers during the early evening of February 26, 2007 related to execution of search warrants for four residential premises in Plainfield, a 2007 Nissan Altima, and the persons of co-defendants Courtney and Porter, who are not parties to this appeal. The warrants authorized searches for drugs, drug paraphernalia, firearms, and a variety of other evidence of drug distribution activity. The warrants did not name defendants Jason and Jerome Lewis or their car as targets of the searches.
Approximately twenty police officers were assigned to execute the warrants. One of those officers was Detective Troy Alston, who was in an undercover role in an unmarked police car. Alston first spotted Courtney, one of the targets of the warrants, in a Toyota Camry in the drive-through lane of a fast food restaurant located in a high crime area, and followed him to a nearby street. After a few minutes, a blue van pulled behind the Camry. Using binoculars, Detective Alston observed Courtney get out of the Camry and walk to the driver's side of the van. Courtney had a brief conversation with the driver, following which he handed the driver what appeared to be currency and received a "small object" in return. Based on his experience investigating drug dealing, Detective Alston concluded that the exchange between Courtney and the driver was a narcotics transaction. Detective Alston then advised his "take-down unit," which consisted of Detectives Michael Black and Daniel Staten, to pull over the van.
Shortly thereafter, Detectives Black and Staten pulled over the van, which was occupied by Jason Lewis, who was the driver, and Jerome Lewis, who was sitting in the front passenger seat, and a back-seat passenger. Detective Black approached the passenger's side of the van, while Detective Staten approached the driver's side. Detective Black saw the passenger, Jerome Lewis, reach towards his left and appear to place something between the seats. Based upon this movement, Detective Black believed that Jerome Lewis had discarded something. Detective Staten ordered Jason Lewis to get out of the van and Detective Black ordered both Jerome Lewis and the back-seat passenger also to get out of the van.
At this point, Detective Black illuminated the inside of the van with his flashlight and saw a black leather case on the floor in the area where Jerome Lewis had extended his arm as the detectives approached the van. Detective Black opened the door to the van, retrieved the black leather case and looked inside, where he found a large quantity of cocaine.
After Detective Black discovered the cocaine, another police patrol vehicle arrived on the scene. In addition, a group of five or six people began "milling around" the van and police cars.
The motion judge credited the testimony of Detectives Alston and Black. The judge concluded that Detective Black had probable cause to believe that the driver of the van had engaged in a narcotics transaction with Courtney and that the van contained narcotics. The judge based this conclusion on Detective Alston's observation of the interaction between the driver and Courtney, the fact that Courtney was one of the targets of the search warrants the officers had been assigned to execute, and Detective Black's observation of Jerome Lewis apparently discarding something between the seats of the van.
However, the judge concluded that the State had failed to establish the "exigency" required to uphold the validity of the search of the van under New Jersey's version of the automobile exception to the warrant requirement as set forth in State v. Cooke, 163 N.J. 657 (2000) and State v. Dunlap, 185 N.J. 543 (2006). In reaching this conclusion, the judge stated:
With the stop of the Lewis vehicle it could be argued that the element of surprise may have been lost. At least two individuals were in custody. The neighborhood ...