On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-07-00669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Payne and Koblitz.
We granted the State's motion for leave to appeal the trial court's order of April 5, 2010, which granted defendants' motion to suppress the evidence found as a result of an unlawful search. On July 29, 2009, a Union County Grand Jury returned Indictment No. 09-07-00669, charging defendant Andre Stanley with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); and charging defendant Tarik Madison with third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); third-degree distribution of heroin and/or cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A 2C:35-5(b)(3) (count five); second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count six); second-degree distribution of heroin and/or cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight). Co-defendant Geraude Stewart was charged with third-degree possession of heroin and/or cocaine, N.J.S.A. 2C:35-10(a)(1) (count two), and co-defendant Michael Walsh was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three).*fn1 After reviewing the record in light of the contentions advanced on appeal, we reverse the trial court's order suppressing the evidence.
Plainfield Police Officer Adam Green, the only witness at the pre-trial hearing, testified to the following facts. At approximately 2:00 p.m. an April 2, 2009, Green and Sergeant Kevin O'Brien began performing surveillance of the Elmwood Gardens Public Housing Complex, which Green testified was "a high crime, high narcotics area." At approximately 3:40 p.m., Green and O'Brien saw co-defendant Stewart enter the complex and stop in front of 528 West Second Street. O'Brien "immediately recognized him and related to [Green] that he recognized that male from an earlier narcotic[s] investigation" at the same location.
Defendant Madison approached Stewart. O'Brien "immediately recognized" Madison as well. O'Brien told Green "that he had received numerous complaints about Mr. Madison conducting narcotic activity, distribution of narcotics, from . . . 544 West Second Street." O'Brien said he had dealt with Madison "several times in the past regarding distribution of narcotics and other related offenses." After Madison approached Stewart, they engaged in a brief conversation before walking towards the building located at 544 West Second Street and entering it. Green was unable to see the men once they entered the building.
A minute after the two men entered the building, Stewart exited and walked over to a white Ford Explorer. A short time later, Madison exited the building and entered the building located at 536 West Second Street. Green testified that based on his experience people frequently engage in drug transactions in common hallways. Based on his observations and the information related to him by O'Brien, Green believed Madison had sold drugs to Stewart.
When Green noticed that Stewart was about to enter the Ford Explorer, he called for backup. Lieutenant Newman,*fn2 accompanied by additional police officers, stopped the Explorer after it exited the housing complex. While approaching the Explorer, Newman saw the driver, Walsh, put something in his mouth. Green explained that it was not uncommon for people to ingest drugs to avoid arrest.
Newman grabbed Walsh's mouth and recovered "one clear plastic knot which contained . . . crack cocaine." Walsh was arrested, and Stewart was then searched. Police found crack cocaine and heroin in Stewart's pocket. The heroin was stamped "Bentley" on the packaging. Neither Stewart nor Walsh disclosed the source of the drugs.
At 6:10 p.m. that same day, the officers saw Madison exit the 544 West Second Street building. He walked east while talking on his cell phone until he met defendant Andre Stanley. None of the police officers had any previous information about Stanley. Stanley and Madison engaged in a brief conversation and walked to 544 West Second Street where they entered the front of the building and came out a minute later. Green could not see what the men did inside the building. Stanley then walked west quickly, and Madison headed east slowly, while looking back at Stanley. Green believed that he "had just observed a second narcotics transaction."
Green directed that Stanley be stopped and searched. The police kept Stanley in sight until they stopped him and found heroin on his person with the marking "Bentley" on the packaging.
Madison was arrested approximately three months later pursuant to an arrest warrant. In a written decision, the trial court found that the evidence should be suppressed because "the totality of the circumstances fail[ed] to support a finding of probable cause." The decision was based primarily on State v. Pineiro, 181 N.J. 13 (2004).
The State raised the following arguments on appeal,
THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO ...