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State v. Sawh

October 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT SAWH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-03-0504.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 13, 2010

Before Judges R. B. Coleman and C. L. Miniman.

Following the denial of his motion to suppress evidence seized incident to a warrantless search of his home, defendant Robert Sawh, entered a plea of guilty to two charges: first-degree possession of cocaine in an aggregate amount of five ounces or more, with intent to disperse or distribute same, N.J.S.A. 2C:35-5a(1), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b. In exchange, the State agreed to recommend a sentence of ten years in prison with a forty-five month period of parole ineligibility concurrent with a five-year flat term on the weapons count, and to move to dismiss the remaining charges filed in Hudson County Indictment No. 08-03-0504. Defendant's right to appeal the denial of his motion to suppress was expressly reserved in the plea agreement. We have considered defendant's arguments in light of the facts and the applicable law, and we affirm. See State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990) (noting "[t]he aim of our review is to determine whether the judge's findings are supported by evidence in the hearing transcript").

The following evidence was developed in the hearing on defendant's motion to suppress evidence. During the months of August and September 2007, the Hudson County Prosecutor's Office Municipal Task Force (Task Force), operating through an undercover officer, purchased cocaine on several occasions from an informant, resulting in the informant's eventual arrest on September 18, 2007. The informant agreed to cooperate as a confidential informant with the Task Force in exchange for his release on bail. The informant consented to a voluntary interrogation conducted by Detective Juan Betancourth of the Bayonne Police Department and Detective Sergeant Dennis Miller of the Task Force, and he informed the officers that he purchased 500 grams of cocaine a week at a price of twenty-five dollars per gram from defendant Robert Sawh. He further advised the officers that the drug transactions occurred at Sawh's residence located in Jersey City, and that Sawh owned a 1999 dark-colored two-door Honda Civic. The informant also alerted the officers to the existence of a camera for counter-surveillance mounted outside Sawh's residence.

At about 6:00 p.m. on November 14, 2007, approximately two months after the informant's arrest, detectives with the Task Force initiated surveillance of defendant's residence, with the assistance of at least ten officers from the Bayonne and Jersey City Police Departments. Detective William Downy of the Task Force set up a mobile surveillance unit of the residence and surrounding area. During the surveillance, Downy observed a woman, later identified as Lillian Martinez, in the second floor window of the residence.

Downy observed Sawh arrive at his residence at approximately 8:00 p.m. Fifteen minutes later, a red cargo van bearing the logo "Behead Records" arrived. Crawford Hazelwood exited the passenger side of the van and entered the residence, staying inside for roughly fifteen minutes while the van remained running outside, with Gazie Neshiewat waiting in the driver's seat. After Hazelwood returned, the van left the area, and Downy notified the perimeter units of his observations. Detectives initiated a motor vehicle stop of the van, approximately six blocks from Sawh's residence.

While the van was pulled over, Detective Erin Burns asked for and received Neshiewat's consent to search the vehicle. Based on a tip received by a confidential informant, Detective Burns removed an air conditioning vent on the passenger side, which revealed a clear plastic sandwich bag containing 29.30 grams of cocaine. Both Hazelwood and Neshiewat were placed under arrest. Following his arrest, Neshiewat told Detective Burns that he had gone to Sawh's residence to pick up cocaine for Heston Hazelwood.

Continuing the surveillance, Detective Downy observed a grey Toyota Tundra driven by Christian Hernandez arrive at Sawh's residence at approximately 8:46 p.m. Sawh exited the residence and handed a package to Hernandez, who then drove away as Sawh reentered his house. Jersey City Officers Lugo, Burgess, and Goodman initiated a motor vehicle stop of Hernandez's vehicle at Garfield and Eastern Parkway. As Officer Lugo approached the driver's side of the vehicle, he observed in plain view in the cup holder of the center console two clear plastic bags containing ninety grams of cocaine. Hernandez was arrested.

At approximately 9:10 p.m., an unknown male and female arrived in a Mitsubishi Gallant and entered Sawh's residence, remaining inside for about thirty minutes. As the couple exited the house, Downy witnessed the male carrying a white plastic bag As they drove away, Downy notified the perimeter units that, based on his experience, he believed he had witnessed a drug transaction. The unknown persons were not pulled over, however, and Downy was not able to confirm whether the plastic bag carried by the male as he left Sawh's residence contained drugs, as he suspected.

At approximately 9:45 p.m., Sawh left the location in his Honda Civic. At 11:55 p.m., he returned, but he drove past his residence in his Honda Civic with Heston Hazelwood. Detective Downy alerted the perimeter units of the presence of Sawh and Heston Hazelwood, and the vehicle was stopped five or ten minutes later in the area of Linden and Garfield Avenues. Both men were arrested.

After the arrests of Crawford Hazelwood, Gazie Neshiewat and Christian Hernandez, who were observed either inside or outside of Sawh's residence engaged in suspected narcotics transactions, the police believed that they had probable cause to secure a search warrant.

Thus, 12:30 a.m., on November 15, the Task Force and Jersey City Police Department announced their presence and attempted to gain entry into Sawh's residence to secure the premises. The door of the premises was bolted from the inside, so the officers broke down the door, gained entry and conducted what they described as a protective sweep to ascertain whether there were other people in the premises. Lillian Martinez was present. Detective Miller testified that he went into the bathroom from which Martinez was coming as they entered. In plain view on the bathroom floor, Miller observed a .40 caliber handgun. As the sweep continued, a ...


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