June 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN JULIUS TALLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1274.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Lisa and Coburn.
After losing his motion to suppress evidence seized by the police, defendant entered a plea agreement with the State. He pled guilty to violating N.J.S.A. 2C:39-7(b), a second degree crime that prohibits certain persons from having a weapon, which in this case was a loaded handgun. He received a sentence of imprisonment for six years with five years of parole ineligibility. On appeal, defendant's only contention is that the trial judge erred in denying his motion to suppress. We disagree and therefore affirm.
At 8:30 p.m., on January 2, 2008, Winslow Township police officers executed a search warrant at *** Stevens Avenue, a private residence in which the target, Gary Bey, lived. Before applying for the warrant, the police officers made three undercover purchases of narcotics from Gary Bey. The exchanges of money for narcotics occurred outside *** Stevens Avenue, usually in the yard along the side of the house. On each occasion, Bey would walk outside and meet the undercover officer who was seated in a car and the purchase would be made through the car window. The last purchase was made ten minutes before the officers arrived to execute the warrant. Before the last purchase, a concerned citizen told the police that defendant, John Julius Talley, and Bey were "probably working together" at *** Stevens Avenue distributing narcotics.
The application for the search warrant, dated December 28, 2007, only described the first two purchases, which occurred on December 21 and 26, 2007. It asked for authority to search the premises known as *** Stevens Avenue, a single-story building, and "all persons present, reasonably believed to be connected with said property and investigation, for evidence including: controlled dangerous substances . . . ." The warrant, signed by a judge of the Superior Court and dated December 28, 2007, authorized the search of the premises and included permission to search "all persons present therein reasonably believed to be connected with said property and investigation . . . ."
Although lookouts were not observed during the three narcotics purchases, the testimony regarding execution of the warrant indicated that lookouts are "almost always present."
When the police arrived, it was very dark outside. A truck was parked in the front yard of Bey's house about fifteen feet from the front left window. Two men were inside, both "slouching down into the center" of the vehicle. They appeared to be trying to hide from the police. Believing that the two men were working with Bey, the police approached the truck. One of the officers opened the passenger door and pulled the defendant, whom he recognized from prior dealing, out of the truck and handcuffed him. The officer noticed a bulge in defendant's pants which felt to the officer like the grip of a handgun. In fact, it was a loaded .38 caliber revolver. After retrieving the gun, the officer placed defendant under arrest.
Still at the scene, the officer checked with headquarters and found that there were two outstanding warrants for defendant's arrest. The officer testified that even if he had not found the gun initially, he would have detained the defendant at the scene while checking for arrest warrants and would then have recovered the gun during a search incident to the arrests on the outstanding warrants.
The defendant admitted that he was in possession of the gun, but denied that he or his companion had slouched down in response to the appearance of the police. Indeed, he said they both remained sitting upright. He also denied that he was present as a lookout for Bey.
The judge found the testimony of the police officers to be more credible than that offered by the defendant. Since there is sufficient evidence to support the judge's findings, we must accept his determination with respect to what occurred. State v. Locurto, 157 N.J. 463, 472, 474 (1999). On the other hand, no special deference is required on questions of law. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
The judge determined that the evidence should not be suppressed for two reasons: first, because the search was authorized by the warrant; and second, because it was a valid part of a protective "sweep" by the police to insure that the search of the premises could be carried out safely.
After carefully considering the record and briefs, we affirm substantially for the reasons expressed by Judge Shuck in his thorough and well-reasoned oral opinion of July 22, 2008.
The defendant argues that Judge Shuck erred because all that the State established was that he was near the area of suspected criminal activity, citing State v. Dolly, 255 N.J. Super. 278, 287 (App. Div. 1991), for the obvious proposition that "propinquity" without more is insufficient support for a search.
But here, as the judge found, there was far more than mere presence. Among other things, the police had just received a warning from a concerned citizen that the defendant was working with Bey in the distribution of narcotics; the truck in which defendant was seated was parked at night only feet from the area where the three drug transactions had occurred; the last transaction had occurred about ten minutes before the raid; and the defendant and his companion slouched down in the truck, apparently trying to avoid being seen by the police.
In light of those facts, defendant's presence was not "innocently explainable on its face." State in the Interest of L.Q., 236 N.J. Super. 464, 470-71 (App. Div. 1989), certif. denied, 122 N.J. 121 (1990). All the State had to show was probable cause that defendant was present either to purchase drugs or to act as a lookout. State v. De Simone, 60 N.J. 319, 327 (1972). The judge so found, and we agree.
We also agree with the judge's determination that the search of defendant was justified to secure safe execution of the warrant. Protective "sweeps" have been sustained by the United States Supreme Court. See, e.g., Maryland v. Buie, 494 U.S. 325, 335-36, 110 S.Ct. 1093, 1099, 109 L.Ed. 2d 276, 287 (1990), cert. denied, 498 U.S. 1106, 111 S.Ct. 1011, 112 L.Ed. 2d 1094 (1991). And New Jersey courts have applied the same principle to uphold such searches. State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed. 2d 436 (1993); State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff'd o.b. 75 N.J. 81 (1977); State v. Lane, 393 N.J. Super. 132, 154 (App. Div), certif. denied, 192 N.J. 600 (2007). Those authorities provide ample support for the trial judge's decision. Consequently, we are obliged to affirm.
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