On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-1412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Carchman and Lihotz.
By leave of court, the State appeals from an interlocutory order of the Law Division granting defendants Shelton James, Ralph James and Gregory O'Neal's motion to suppress evidence seized from a vehicle driven by O'Neal as a result of an allegedly unlawful search. The evidence supported an indictment against defendants charging them with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and possession of heroin with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7. We reverse.
These are the facts adduced at the motion to suppress. On January 2, 2008, New Jersey State Trooper Paul Kochis interviewed a confidential informant (CI), who, in the Trooper's presence, allegedly contacted an individual identified as "Rock" and set up the purchase of two bricks of heroin.*fn1 The transaction was scheduled for a location on Schley Street in Newark, and Kochis, together with three other officers, proceeded to the location where they observed the CI's vehicle parked in front of 290 Schley Street. The officers parked their vehicle approximately three or four car-lengths away.
Five to ten minutes later, at approximately 1:30 p.m., a black Buick pulled up and parked behind the CI's vehicle in front of 290 Schley Street. O'Neal was driving while Ralph James and Shelton James were passengers. Kochis testified that he was in an elevated SUV-type vehicle, used binoculars to enhance his vision and had an unobstructed view of both the CI's car and the black Buick.
Kochis saw the defendant O'Neal reach into the ceiling upholstery of his car and pull out two packages that appeared to the trooper to be glassine envelopes of heroin packaged as bricks. O'Neal then looked in the direction of the police surveillance vehicle and appeared "startled, just surprised." O'Neal immediately drove away.
Without losing sight of O'Neal's car, the officers followed O'Neal through several streets in Newark until they stopped his car in a parking lot at a McDonald's restaurant located at the intersection of Route 22 and Long Avenue in Hillside. Kochis waited for O'Neal's car to clear the heavily congested residential area around Schley Street before activating his car's lights and sirens. All three followed the officers' orders to exit the car and then were placed in handcuffs.
Kochis looked into the car and saw some suspected heroin on the front passenger side floor. Kochis then entered the car and seized what turned out to be 49 decks of heroin. He then reached into the ceiling upholstery of the car and seized another four bricks of heroin.
Prior to this investigation, Kochis had arrested the CI for drug offenses and registered the CI with the New Jersey State Police. Before this incident, Kochis used the CI several times with the information leading to arrests.*fn2 Kochis testified that the CI provided information with the understanding that he would receive leniency on his pending criminal matter.
In her opinion suppressing the evidence, the judge found Kochis to be credible but concluded that there was no probable cause to search and detain defendants. She determined that there were no facts that the CI was credible or reliable and stated that "[t]he tip itself does not provide any intimate details of the criminal operation that would be hard to know." She also noted the absence of details as to Rock and the storage facility in the car as well as the fact that Kochis did not hear the CI's conversation with Rock. As the judge said:
The trooper did not overhear anything that Rock allegedly said when dialed by the confidential informant. The confidential informant did not give.... them Rock's cell phone numbers so that they could conduct any further investigation to corroborate the tip.
How did the troopers know who the confidential informant called? How do they know that he did not dial information or dial for a weather forecast? Based on the testimony the ...