On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-11-1055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Chambers.
By leave granted, the State appeals from a June 18, 2009 order suppressing evidence. We reverse and remand this case to the trial court.
The following evidence was presented at the hearing on the suppression motion. Detective Harold Duffield of the Millville Police Department testified to his expertise in investigating cases involving narcotics and prostitution. He testified that in his experience as a police officer, he had observed certain behavior typical of customers or "johns" looking to pick up prostitutes. This included
The brake lights flashing as they drive by the prostitutes. The prostitutes waving.
The johns honking their horns as they drive by. Driving by and pulling over right away.
At about 11:30 p.m. on April 30, 2008, he and two other officers were in an undercover vehicle in the center of Millville. He later indicated that this was an area known for prostitution activity. They observed a woman whom they had previously arrested several times for prostitution. They watched her walk to the corner of Columbia Avenue and Vine Street. When she reached the corner "a black car went by south on Columbia Avenue and as he rode by, [Duffield saw] brake lights from the car go on." The car tapped its brake lights, which Duffield believed from his experience was an attempt to get the prostitute's attention. The car then "continued down Columbia and essentially went around the block . . . came back by the corner she was [at] and entered an entrance off of Vine Street into [a] parking lot and parked." When they observed the woman crossing the street and heading for the black car, the officers "essentially said hey, something's not right here. She's going to that car. Let's go investigate and see what's going on." Accordingly, they drove their car over to the parking lot and "pulled directly behind the [black] car."
Duffield approached the car and asked the driver why he had flashed his brake lights and whether he was trying to "pick up" the prostitute. The driver, who identified himself as Robert Lane, denied any interest in the woman and claimed that he had parked because he had dropped his cell phone and wanted to retrieve it. The passenger in the car identified himself as Christopher Slater. While Duffield was speaking to Lane, he "smelled an odor of raw marijuana." At that point, another officer had arrived on the scene, and they asked Lane and Slater to step out of the car. After the two men exited the car, the police retrieved two baggies of crack cocaine from the front console area, where they had been in plain view.
On cross-examination, Duffield initially stated that the prostitute was fifteen to twenty feet from the black car when the officers first concluded that she was heading for defendants' car. He later stated that she was "about 25 feet" away from defendants' car when they first put their police vehicle in motion and "10 or 15" feet away when they parked behind defendants' car. According to Duffield:
We let her leave [the street corner]. Once they drove by, circled around, drove by again and pulled in the lot, she started walking towards them so we waited a short ...