On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-11-2001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Carchman and Ashrafi.
By our leave, the State appeals from an order of the Law Division dated March 13, 2009, suppressing drug evidence seized from defendant Kariem Carter after a street encounter. We reverse.
On a suppression motion, "a trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). On this appeal, however, the trial court did not hold an evidentiary hearing and make findings of fact based on disputed evidence. Instead, the parties stipulated to the relevant facts as contained in a written report from the Hudson County Prosecutor's Office, and the court reached legal conclusions from those facts. Therefore, our standard of review is plenary. See State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005); State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990).
According to the written report, the Gang Task Force of the Prosecutor's Office had previously obtained information from a reliable confidential informant that a group of men were regularly selling "dip," the street term for cigarettes dipped in PCP (phencyclidine), in front of 62 Stevens Avenue in Jersey City. On June 4, 2008, a concerned citizen called the Jersey City Police Department to report that street gang members were at that time selling dip in front of that address. The concerned citizen gave names and descriptions of two men - Alonzo Harris, who was described as a black man wearing a red hat, and "Lance," described as a black man with dreadlocks. The concerned citizen also told the police that Harris stashed PCP in a freezer in his apartment at 62 Stevens Avenue and that he kept a gun there in a dresser.
The citizen's tip was conveyed to the Gang Task Force, which contacted and instructed its confidential informant to confirm the information. The informant went to the area of 62 Stevens Avenue and reported back that a group of men at that location were selling drugs. He also confirmed the descriptions of the two men given by the citizen.
At about 4:30 p.m. on that date, Gang Task Force detectives drove by the area and saw four persons in front of 62 Stevens Avenue, including two men that fit the descriptions of Harris and Lance. One of the other men in the group was defendant Carter, who was known to the detectives "as a member of the Fruit Town Brim set of the Bloods street gang."
The detectives stepped out of their vehicle and identified themselves as police, showing their badges. Harris immediately reached into his pocket and put a small bottle into his mouth. A detective forced him to spit out the bottle, which turned out to contain PCP. Harris was arrested, and a search of his person produced $140 in cash and revealed an ankle bracelet that Harris was required to wear to monitor his location because he was on parole.
Shortly after Harris spit out the bottle of PCP, Detective Leslie Murphy approached defendant and asked if he had any narcotics on his person. Defendant said he had a bottle of PCP in his pocket. Detective Murphy seized the bottle and placed defendant under arrest. The bottle taken from defendant was subsequently confirmed to contain PCP. Defendant also had $113 in his possession.
All four individuals at that location were arrested and advised of their rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant elected not to answer any further questions or to make a statement. A search that night of Harris's apartment at 62 Stevens Avenue produced a handgun stored in a bedroom dresser. Harris later pleaded guilty to charges brought against him.*fn1
Defendant Carter was indicted on three charges, possession of less than ten grams of PCP with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(7); possession of PCP with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; and conspiracy to possess PCP with intent to distribute, N.J.S.A. 2C:5-2.
In ruling on defendant's motion to suppress, the trial court first concluded that the police detectives did not violate defendant's constitutional rights by approaching the group of men and detaining them temporarily for purposes of investigation. However, the court also concluded that Detective Murphy's question to defendant - whether he had any narcotics on his person - violated his constitutional rights because the detective ...