On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1260.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Rodríguez and Reisner.
A jury convicted defendant of: third degree possession of a controlled dangerous substance (CDS) in a school zone with intent to distribute, N.J.S.A. 2C:35-7; third degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1); possession of CDS, N.J.S.A. 2C:35-10a(1); and both disorderly persons and fourth degree resisting arrest offenses, N.J.S.A. 2C:29-2a(1) and -2a(2). He was acquitted of third degree resisting arrest. Defendant was sentenced to an extended term of nine years with a four-year parole bar on the merged CDS offenses, and a consecutive four year sentence on the merged resisting arrest offenses. He appeals from the conviction and the sentence. We affirm the conviction but remand for resentencing.
These are the most pertinent facts drawn from the suppression motion. According to Officer Seybert of the Camden Police Department, he was patrolling an area known for "high crime, high violence, [and] open-air drug trafficking," when he saw defendant loitering aimlessly on his bicycle. Defendant was "[j]ust pedaling all around in the area loitering . . . No sense of direction." He observed a vehicle approach defendant and saw him talking to the occupants from the passenger side. Seybert then saw defendant reach into his pocket and, based on his extensive narcotics enforcement experience, believed defendant was "getting ready to make a hand-to-hand transaction" with the occupants of the vehicle.
However, before the transaction was completed, "an area resident . . . yelled, five-oh, which is street terminology for police are in the area. And [defendant] began to pedal off at a high rate of speed" away from Seybert. The police chased him in vehicles and on foot, identifying themselves and shouting at him to stop. As he pursued defendant on foot, Seybert saw him discard a brown paper bag in an alley. After defendant's bicycle struck a police car and defendant fell off and was apprehended, Seybert retrieved the paper bag, which contained fourteen bags of heroin.
In denying the suppression motion, the judge found Seybert to be "credible and believable," and aware of the "high-crime" and "high drug volume" nature of the area based on his knowledge and experience. The judge made the following additional factual findings: Seybert observed a "Hispanic male on a mountain bike with no sense of direction." The male approached a white car, had a conversation, and "appeared to reach into his pocket." The judge found Seybert's intuition, based on defendant initiating a hand-to-hand transaction by reaching into his pocket, to be "mere conjecture. . . . [I]f everything stopped at that point in time, it may be different, either under [State v. Hickman, 335 N.J. Super. 623 (App. Div. 2000)], or under a Terry stop, but it didn't." (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968)).
However, the judge considered the following additional circumstances relevant:
I find as a fact somebody did yell, five-oh, and that changes things. It changes things by raising the fact of what happened thereafter. What happened thereafter is certainly the fact that Mr. Vasquez left the area, there was a pursuit, there was I find as a fact an abandonment of a brown bag and he was ultimately arrested.
And I also find from the credible testimony that [because] of the distance and the short duration after the apprehension that he returned and the bag contained - the brown bag contained 14 bags of heroin, and upon . . . Mr. Vasquez's arrest, there was $60 in cash on him.
The judge found that under the totality of those circumstances, the police were justified in pursuing and arresting defendant. He also concluded that the seizure of the bag of drugs was justified, citing State v. Stott, 171 N.J. 343, 359 (2002), and State v. Farinich, 179 N.J. Super. 1, 5-7 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). The judge concluded that defendant abandoned the drugs, and that "there certainly was unequivocally probable cause to arrest him." At the trial, Seybert gave essentially the same testimony as he did at the suppression hearing. On cross-examination, defense counsel asked Seybert to confirm that "a lot of drug dealing [was] going on in this area" and that it would not be unusual for a drug dealer to store drugs in a trash-strewn ...