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State v. Desir

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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