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State v. Gallopo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LISA M. GALLOPO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2052.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 2, 2009

Before Judges Rodríguez and Chambers.

After defendant Lisa Gallopo's motion to suppress evidence was denied, she entered a guilty plea to third degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1), and to the disorderly persons offense of wandering, N.J.S.A. 2C:33-2.1. In exchange, the State agreed to recommend a probationary sentence and to dismiss several summonses. At the plea hearing, defendant admitted that on May 3, 2007, she had agreed with another person to hold pills in her purse, which she knew to be CDS. She also admitted that she did not have the required prescription for the CDS. Judge Edward M. Neafsey imposed a one-year term of probation.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE CONDUCTED BY DETECTIVE O'CONNOR SINCE A REASONABLE AND ARTICULABLE BASIS TO SUSPECT CRIMINAL WRONGDOING DID NOT EXIST.

We affirm.

These are the proofs presented at the hearing on the motion to suppress, at which Keansburg Police Detective John O'Connor was the sole witness. He testified that on May 3, 2007, he was on duty in an unmarked police car. However, he was wearing a shirt with the word "police" appearing on both sleeves and on the front chest and back of his shirt. O'Connor was involved in a motor vehicle stop, unrelated to this case. He had eighteen years of experience in police work and had participated in over 500 narcotics arrests. At that time, he saw a pickup truck traveling directly in front of police headquarters on Carr Avenue. O'Connor saw defendant, who was thirty-three years old at the time, leaning out of the front passenger window.

O'Connor was familiar with defendant because she had been the "target of an investigation for narcotics." O'Connor concluded that defendant could not have been wearing a seat belt. He followed the pickup truck in his vehicle. The pickup truck stopped in a parking lot adjacent to a convenience store. O'Connor stopped his car about one-hundred feet away. According to O'Connor, the convenience store is known to him as "a high drug trafficking area."

Using binoculars, O'Connor saw a man, later identified as Christopher Chadichimo, walk up to the passenger side of the pickup truck. Chadichimo handed currency to defendant.

O'Connor testified:

It was a hand-to-hand transaction. Using the binoculars I had a clear view. As he reached by the windows, the defendant grabbed with her right hand, the exchange was made. He pulled his hand away; she pulled her hand away.

On cross-examination, O'Connor admitted that the transaction he witnessed was a one-sided transfer. In short, Chadichimo gave money to defendant, but did not get anything in return. O'Connor radioed his backup unit that he would be making a motor vehicle stop. He pulled his vehicle in back of the pickup truck in the parking lot of the convenience store. O'Connor approached defendant and asked her for her credentials. O'Connor noticed that the front windshield of the pickup truck had a crack in it. Therefore, he also asked the driver, Terrence Darragh, for his credentials. Darragh handed over his credentials. According to O'Connor, Darragh "reached under a shirt that was on the front seat, and by covering up his hand I didn't know if he was reaching for a weapon of some sort or trying to secret evidence." O'Connor ordered Darragh out of the vehicle. Darragh told O'Connor that Chadichimo was paying him money that he owed for food. Darragh reported that he had known Chadichimo for approximately three weeks and had rented him a room. Chadichimo told O'Connor that he had stayed with Darragh for one day and that he was paying him $100 for that stay.

O'Connor spoke to defendant. She told him that she, Darragh and Chadichimo had known each other for several years. O'Connor asked defendant if he could search her purse. She consented. A search of the purse revealed a metal container with three and one-half small blue pills and two other pills.

O'Connor asked Darragh if he could search the pickup truck. Darragh consented. O'Connor found a pill in a cigarette pack underneath the shirt lying on the front seat of the pickup truck. Defendant and Darragh were arrested. Chadichimo, who also consented to a search of his person, was not arrested.

There was no contraband on him.

Judge Neafsey denied the motion. This was his analysis. He found O'Connor to be a credible witness, who was responsive to questions asked and did not try to be evasive in his answers.

The judge concluded:

[i]n applying the totality of the circumstances standard for determining whether reasonable suspicion existed to justify asking [defendant] for a consent to search her purse, I find the following. That he observed her leaning out of the Darragh vehicle in a way that made it clear she was not wearing a seat belt and that was when the vehicle passed him on Carr Avenue. I note in reviewing the evidence that [defendant] was issued a summons for failing to wear a seat belt in the vehicle.

Second, that he recognized her as a target of a prior narcotics investigation.

Third, that he surveilled the Darragh vehicle when it . . . parked next to a green dumpster at the [convenience store], an area, quote, "known for high drug trafficking."

Four, that he had a clear unobstructed view, unobstructed view from 100 feet away. And using binoculars, observed an exchange of U.S. currency from a man who outside of a car, a Mr. Chadichimo, who walked up to the passenger window where Ms. Gallopo was sitting. That he saw her arm reach out, and with her hand receive U.S. currency from Mr. Chadichimo whose arm was also extended. It was reasonable for him at that point to conclude he observed a narcotics transaction. State v. Pineiro [181 N.J. 13, 25-27 (2004).]. This was a reasonable conclusion even he didn't see an exchange of drugs, because as he said, the drugs are often stashed at a separate location.

Fifth, he asked Darragh, the driver, for credentials. He reached under a shirt on the front seat between Darragh and Ms. Gallopo. Darragh was asked to step out of the vehicle and was questioned on his relationship to the third person, Mr. Chadichimo.

The third person was observed to be, quote, "physically shaken and nervous," closed quote. The story about the money and their relationship as related by Darragh differed with the story related by Chadichimo. I find that the one, the story about a one-day stay as compared to the story by the other person as to a three-week stay is a significant deviation further adding to the officer's reasonable suspicion. The fact that the defendant didn't clear this up heightens rather than lessens the suspicion because she was involved with the exchange of U.S. currency.

Officer O'Connor had to sort out three versions of what was going on and had observed what he reasonably believed was a narcotics transaction. Under the totality of these circumstances, he was justified in asking Ms. Gallopo for consent to search her purse. There was ample, reasonable and articulable suspicion to do so. State v. Carty [170 N.J. 632, 647 (2002).].

He was also justified in asking Darragh for consent to search the car. I note that has not been challenged. But I accept the officer's testimony that he received consent to search from Darragh after advising him of his right to refuse to the consent to search, the request for consent to search. And, thereafter, Det. O'Connor received Ms. Gallopo's consent to search after he advised her of her right to refuse.

The consent was freely and voluntarily given by the defendant. The consent search was constitutional. [Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed. 2d 854, 858 (1973)]; State v. Johnson [68 N.J. 349, 353-54 (1975).] For all these reasons the motion is denied.

On appeal pursuant to Rule 3:5-7(d), defendant contends:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH AND SEIZURE CONDUCTED BY DETECTIVE O'CONNOR SINCE A REASONABLE AND ARTICULABLE BASIS TO SUSPECT CRIMINAL WRONGDOING DID NOT EXIST.

We disagree.

We agree with Judge Neafsey's analysis. Moreover, the findings he made are supported by the proofs. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 470-71 (1999). Thus, we affirm substantially for the reasons stated in Judge Neafsey's April 18, 2008 oral opinion.

Affirmed.

20100412

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