On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 05-12-1153 and 06-11-1108.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Miniman and Waugh.
Defendant Germaine A. Handy appeals his conviction, following a guilty plea, for possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35- 10(a)(1). The appeal requires us to determine whether evidence found during the search incident to Handy's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable. We conclude suppression is required and, consequently, reverse the conviction.
The following facts are garnered primarily from the testimony of Millville Police Officer Carlo Drogo during the suppression hearing held on August 18, 2006.
On the evening of September 13, 2005, Drogo responded to a backup call from Special Officer Anthony Sills, who had stopped several individuals, including Handy, for city ordinance violations because they were riding their bicycles on the sidewalk. It appears that none of those individuals, including Handy, had drivers licenses or other forms of identification with them at the time. While Sills issued the appropriate summonses, Drogo collected the names and birth dates of the individuals and called the information into Millville Police dispatch to determine whether there were any outstanding warrants.
Handy told Drogo that his date of birth was "March 18, 1974" and that his name was "Germaine Handy," which he spelled for Drogo. He also informed Drogo of his address on Broad Street in Millville. Drogo provided Handy's name and date of birth, along with those of the other individuals, to the police dispatcher for the warrant check.*fn1
The dispatcher subsequently reported to Drogo that there was an outstanding warrant for Handy's arrest. Drogo informed Handy about the warrant, placed him under arrest, and conducted a search of his person. During the search incident to the arrest, Drogo discovered crack cocaine and marijuana.
Only after Handy had been arrested and placed in the back of the police car did the police dispatcher inform Drogo that there was a "discrepancy" with respect to the date of birth on the warrant. Drogo transported Handy to the police station and attempted to verify the warrant. In the process, Drogo also found that there was a difference in the spelling of Handy's first name and the first name on the warrant, a discrepancy that the police dispatcher had either not noticed or not reported to Drogo.
The arrest warrant, which had been issued on June 6, 1996, was for a "Jermaine O. Handy," whose date of birth was given as March 14, 1972, and whose address was listed as being in Los Angeles, California. The offense underlying the warrant was a violation of N.J.S.A. 39:3-38.1(b), now repealed, which makes it a disorderly persons offense to "[e]xhibit to a police officer or judge in accordance with R.S. 39:3-29 any falsely made, altered, forged or counterfeited motor vehicle certificate of registration or driver's license, knowing the same to be falsely made, altered, forged or counterfeited."
According to the pre-sentence report, Handy's middle initial is "A" for "Antonio." Although Drogo discovered that the date of birth provided to him by Handy differed from the one on Handy's driver's license and dates of birth listed under Handy's "arrest jacket" in the Millville computer system, we note that it is the same as the date of birth listed on the presentence report.
Drogo placed a call to the Chesterfield Township Municipal Court, which had issued the warrant. The call was answered by automated voicemail. Drogo left a message inquiring about the warrant, but he never received a return call. Unable to verify that the warrant was for the person he arrested, Drogo only processed Handy on the new charge. The State offered no evidence at the ...