January 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARLON R. DODD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-11-1126.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided Before Judges Espinosa and Skillman.
Defendant was indicted for possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b), and certain persons not to have weapons, in violation of N.J.S.A. 2C:39- 7(b)(1). Defendant filed a motion to suppress the evidence against him, which the trial court denied after an evidentiary hearing. Defendant entered into a plea agreement under which he agreed to plead guilty to the charge of certain persons not to have weapons and the State agreed to dismiss the charge of possession of a handgun without a permit. The trial court sentenced defendant to a five-year term of imprisonment, all of which must be served without eligibility for parole, as required by N.J.S.A. 2C:39-7(b)(1).
On appeal, defendant only challenges the denial of his motion to suppress. Defendant argues, first, that the police did not have the reasonable suspicion of criminal activity required to justify the investigative stop that resulted in discovery of the handgun upon which his conviction was based, and second, that even if the stop was justified, the discovery of the handgun was made as a result of an unlawful search without a warrant. We reject both arguments and affirm the denial of defendant's motion to suppress.
At the hearing on the motion to suppress, the State's witness was Detective Jason Astbury, one of two Trenton police officers who arrested defendant and discovered the handgun in his possession. Around 12:30 a.m. on May 9, 2006, Astbury and his partner were on patrol in an unmarked police car in an area of Trenton known for heavy narcotics distribution. The officers backed their car into an alley and began surveillance of an adjoining street. Approximately ten minutes later, a car came down the street and parked near the officers' surveillance location. The driver, later identified as defendant, got out of the car, went to the trunk, opened it up, and began to rifle through the contents.
Shortly thereafter, another man, later identified as Milton Hill, walked over to defendant and engaged him in a brief conversation. Hill reached into his pocket, pulled out an unknown object, and displayed it to defendant. Dodd took out some currency and handed it to Hill, who gave him the unknown object in return. The officers concluded based on their experience in narcotics investigations that they had witnessed a sale of drugs by Hill to defendant.
At this point, Astbury and his partner pulled their car out of the alley and parked in back of defendant's car. The officers got out of their car and told defendant and Hill to show their hands. Defendant then dropped two small baggies containing a substance that appeared to be marijuana and some currency on the ground. Consequently, the officers arrested both defendant and Hill and told them to place their hands on defendant's car. Hill placed his hands near the trunk, which was still open.
As Astbury began to place handcuffs on Hill, he noticed a handgun sticking out of a sneaker located in an open box in the trunk. Astbury seized the gun and subsequently brought defendant, Hill and the gun back to police headquarters.
Defendant and Hill, who joined in defendant's motion to suppress although he was charged in a separate indictment, presented two witnesses who disputed Astbury's account of their apprehension and the discovery of the gun. Brian Bowman, a friend of defendant, claimed that he was on his aunt's porch near the scene of the stop and arrest. Bowman testified that he saw defendant and Hill handcuffed against a wall, five or ten feet away from defendant's car. According to Bowman, one officer got into the passenger compartment of the car, following which he saw the trunk "lift up."
Defendant and Hill also presented the testimony of Jonathan Johnson, a defense investigator, who questioned whether Astbury and his partner could have observed the alleged apparent drug transaction from the alley in which their car was parked.
Judge Bielamowicz rendered an oral opinion denying the motion to suppress. She found Detective Astbury's account of the apparent drug transaction between Hill and defendant and the subsequent discovery of the handgun in the open trunk of defendant's car to be credible and she rejected Bowman's testimony as incredible. Although Judge Bielamowicz credited Johnson's testimony, she concluded that his testimony did not undermine the credibility of Astbury's testimony.
Based on these credibility findings, Judge Bielamowicz found that the police officers' observation of the apparent drug transaction between Hill and defendant gave them the reasonable and articulable suspicion of a violation of narcotics laws required to justify a stop of the two men and that defendant's disposal onto the ground of two baggies containing what appeared to be marijuana gave the officers the probable cause required to arrest them. She further concluded that the discovery and seizure of the handgun was justifiable either under the plain view doctrine or as a search incident to an arrest.
We affirm the denial of defendant's motion to suppress substantially for the reasons set forth in Judge Bielamowicz's oral opinion. Judge Bielamowicz's factual findings are supported by sufficient credible evidence in the record, see State v. Elders, 192 N.J. 224, 243-44 (2007), and accepting those findings, the motion to suppress was properly denied. See State v. Moore, 181 N.J. 40, 46-47 (2004). We only note that the gun was discovered in plain view while the police officers were placing handcuffs on Hill and defendant. Therefore, the seizure of that gun was made without any search incident to the arrests of Hill and defendant. See State v. Johnson, 274 N.J. Super. 137, 153-54 (App. Div.), certif. denied, 138 N.J. 265 (1994); State v. Foley, 218 N.J. Super. 210, 215-18 (App. Div. 1987).
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