On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-01-0020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 16, 2010 - Decided Before Judges Graves and Waugh.
In a four-count indictment, defendant Anthony Ciccia was charged with two counts of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts one and two); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count four).
After the trial court denied defendant's motion to suppress evidence seized from his automobile, defendant pled guilty to count one of the indictment, second-degree possession of a handgun without a permit. In exchange for the plea, the State agreed to dismiss the remaining charges and further agreed to recommend a five-year sentence with three years of parole ineligibility. On January 22, 2010, the court sentenced defendant in accordance with the plea agreement. However, the sentence was stayed pending this appeal from the September 21, 2009 order denying defendant's motion to suppress evidence. For the reasons that follow, we affirm.
At the suppression hearing on September 8, 2009, the State presented testimony from Detective John Torrey and Sergeant Keith Stopko of the Division of Criminal Justice (the Division). Torrey, an eleven-year veteran of the Division, received periodic training throughout his career, and had been involved in "over 500" drug investigations and conducted "well over a thousand" surveillance operations. Stopko was a sheriff's officer for approximately thirteen years prior to joining the Division in February 2008, and had conducted "[h]undreds of surveillances." Defendant did not testify or call any witnesses.
Detective Torrey testified that on October 23, 2008, he received information "from a concerned citizen" that defendant "was storing drugs at his sister's house, Deanna Ciccia, who resided . . . in Chesterfield, New Jersey." Torrey testified that he knew the citizen's identity, but the individual wished to remain anonymous. According to Torrey, the information provided was based on "indirect" rather than "direct" knowledge, the citizen was not "involved in criminal activity" or "working off charges," and was not "a paid informant." Torrey also testified that the citizen gave him Deanna's cellular telephone number.
The following day, Torrey met with other officers in his unit to discuss the information he received. Torrey then checked the Motor Vehicle Commission records to confirm Deanna's address, and the officers were able to view the Motor Vehicle Commission's photographs of both defendant and his sister. To further investigate the matter, Torrey planned to drive to Deanna's residence to "relay the information to her and then ask her for her consent to search the premises." Other officers were to accompany Torrey to conduct surveillance and assist in the search if Deanna consented.
At approximately 3:30 p.m. on October 24, 2008, Torrey arrived at Deanna's apartment complex and witnessed Deanna enter her vehicle and depart. Members of the unit attempted to follow Deanna, but they lost sight of her and returned to the apartment complex to conduct surveillance.
After waiting for "about 45 minutes or so," without anyone entering or exiting Deanna's apartment, Torrey "made a decision to call her on the cell phone number" he had been given. Torrey placed the call at approximately 4:15 p.m., and informed Deanna "that her brother was possibly storing drugs in her residence." Torrey asked her if she would consent to a search of the residence, and she responded that she would when she returned home at 6:00 p.m. Torrey agreed to meet her at that time, but did not advise her of his location.
Following the telephone conversation, Torrey and the other officers waited "to see if anybody would come . . . [to remove] drugs or contraband" from Deanna's apartment. About twenty minutes later, defendant arrived at Deanna's residence driving a black Mercury Mariner. Defendant parked across the street from the apartment complex, and Torrey watched him open the door to his sister's apartment with a key. Although defendant entered the apartment empty-handed, Torrey observed him exit about three minutes later with a pink "five-gallon type bag." Defendant walked to his vehicle and began to drive away. At that point, Torrey instructed Sergeant Stopko to stop defendant's vehicle because Torrey believed that defendant had just removed
contraband or drugs from his sister's residence.
After defendant's vehicle was stopped, Torrey approached the vehicle and saw "the pink bag" on the front passenger side of defendant's car in plain view. Torrey said he was conducting a narcotics investigation and he asked defendant for permission to search the vehicle. When defendant refused to consent, he was handcuffed and placed in the back seat of Sergeant Stopko's vehicle at "about five o'clock." Defendant was told "he was being detained for investigative purposes."
Torrey then contacted the Mercer County Prosecutor's Office to request a drug-sniffing dog before returning to his office to prepare an affidavit for search warrants for defendant's vehicle and person. About fifteen minutes later, Detective Angarone, the dog handler, arrived on the scene. After the dog performed a five minute "sniff test," Angarone called ...