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State v. Desir

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVIDSON DESIR A/K/A DESIRE DAVIDSON A/K/A DAVID DESIRE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-02386.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Kestin and Coburn.

After losing his motion to suppress evidence seized by the police, defendant pled guilty to count three of Indictment No. 08-10-02386, which charged first-degree possession of heroin, a controlled dangerous substance, with intent to distribute.

Pursuant to the plea agreement, the remaining counts of the indictment were dismissed, and defendant was sentenced to imprisonment for thirteen years with six and one-half years to be served without parole.

On appeal, defendant offers the following arguments:

POINT I: BECAUSE THE STOP AND SEARCH OF THE CAR IN WHICH THE DEFENDANT WAS A PASSENGER WAS ILLEGAL, ALL EVIDENCE DISCOVERED DURING AND SUBSEQUENT TO THE MOTOR VEHICLE STOP SHOULD HAVE BEEN SUPPRESSED.

POINT II: IOSAEMZE BAZEAEZ'S CONSENT TO SEARCH HER HOME WAS NOT KNOWINGLY AND VOLUNARILY GIVEN AND , THUS, ALL EVIDENCE SEIZED FROM MR. DESIR'S BEDROOM MUST BE SUPPRESSED.

After considering the record and briefs, we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Mellaci in his thorough and well-reasoned oral opinion delivered at the conclusion of the motion to suppress on May 12, 2009. Nevertheless, we add the following comments.

Respecting defendant's first point, the parties agree that the governing principle of law is that the police may stop a motor vehicle for investigation if they have specific and articulable facts that support a reasonable suspicion, as distinguished from probable cause, of criminal activity. State v. Nishina, 175 N.J. 502, 510-11 (2003); State v. Stovall, 170 N.J. 346, 356 (2002). Evaluation of the propriety of the police action is based on an objective evaluation of all the facts leading up to the stop and the reasonable inferences supported by those facts. Id. at 357.

Although the parties agree on the legal principles, they disagree on their application to the facts of this case. In short, defendant argues that the police did not have reasonable grounds to suspect that the occupants of the car were involved in criminal activity. We reject defendant's argument.

Defendant's arrest occurred at the conclusion of a three month investigation of others involved in the sale of marijuana and Ecstacy. An undercover police officer had purchased illegal drugs from the targets of the investigation on six occasions. The police, armed with arrest and search warrants, planned to arrest the targets at the conclusion of a scheduled sale of five pounds of marijuana and 200 Ecstacy pills to the undercover officer in a parking lot. During prior surveillance, the police knew that the targets usually went to a nearby address, 1404 Sixth Avenue, before meeting the undercover officer.

Around 12:30 p.m., police observed the targets arrive by car at the Sixth Avenue address. The targets got out and looked up and down the street as if trying to find someone. Moments later, the car in which defendant was a passenger arrived and parked behind the targets' vehicle. Defendant got out and spoke to the targets. He opened the trunk of his car and lifted up a yellow plastic bag. An officer saw defendant remove a pair of purple latex gloves from the plastic bag. The officer knew that such bags were often used by those involved in handling narcotics to avoid the drug being absorbed through their skin. One of the targets then walked over and stood next to defendant at the trunk of defendant's car and spoke to him. Defendant then got into the car and he and the driver drove away.

Based on those circumstances, the police believed that defendant had likely engaged in some kind of drug transaction with the targets of their investigation and the order was given to stop the car. The stop occurred within minutes, and when one of the police officers approached the car, he saw two bags of marijuana between defendant's feet on the front passenger-side floor.

Defendant argues that the police had an insufficient basis for stopping the car because they did not see "any type of hand-to-hand exchange" between defendant and the targets of the investigation and because the police conceded that latex gloves could be used for legal purposes. But that argument overlooks the other relevant circumstances. When defendants, who were unquestionably drug traffickers, arrived at the Sixth Avenue location, which is where they usually went just prior to meeting with the undercover officer, they were apparently looking for someone. Defendant then arrived and immediately engaged in conversation with one of the targets. During that conversation, he clearly engaged in behavior at the trunk of his car suggestive of a drug transaction, including handling of the latex gloves. Although the officers may have lacked probable cause - since they could not tell if a hand-to-hand transfer had occurred while one of the targets and defendant stood at the trunk of defendant's car - they certainly had reasonable grounds to believe that such a transaction may have occurred. Consequently, we perceive no basis for reversing Judge Mellaci's determination that the search was valid under the applicable legal principles governing investigative detention.

Defendant's second point concerns the search of a bedroom in defendant's parents' house. Based on defendant's arrest and other circumstances flowing from that arrest, the police went to this house believing that it might contain illegal drugs owned by defendant. Defendant's mother allowed the officers in. They explained their purpose and asked for permission to search a bedroom used by defendant from time to time but also used by defendant's mother, and advised her that she was not obliged to consent. During the search of the bedroom defendant used on occasion, the police found the substantial quantity of drugs making defendant's offense one of the first degree.

Defendant does not contend that his mother lacked authority to consent; rather, his sole claim is that her consent was involuntary. The trial judge found that defendant's mother understood that she could refuse to consent and that she had voluntarily agreed to the search. In reaching those conclusions, he rejected her contrary testimony, finding it to be incredible. Instead, he believed the testimony of the searching officers, which was buttressed by a video recording of defendant's mother made shortly after the search in which she plainly admitted that her consent was knowing and voluntary.

We perceive no basis for rejecting the judge's findings of fact since they are well supported by the evidence. State v. Johnson, 42 N.J. 146, 161-62 (1964). Consequently, we are obliged to affirm.

Affirmed.

20101101

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