On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-06-1795 and 09-06-1796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Before Judges Rodriguez and Miniman.
By leave granted,*fn1 the State of New Jersey appeals from a partial grant of defendants' motion to suppress evidence. We affirm.
Defendant Damon Cannon was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1)-(b)(3); third-degree possession of heroin with intent to distribute while within a school zone, N.J.S.A. 2C:35-7(a); third-degree distribution of heroin to his co-defendant, Robert Horn, N.J.S.A. 2C:35-5(a)(1)-(b)(3); third-degree distribution of heroin while within a school zone, N.J.S.A. 2C:35-7(a); third-degree receiving stolen property, a nine millimeter handgun, N.J.S.A. 2C:20-7(a); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm while committing "a violation of . . . N.J.S.A. 2C:35-5," N.J.S.A. 2C:39-4.1. Horn was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)-b(3); and third-degree possession with intent to distribute within a school zone, N.J.S.A. 2C:35-7(a).
Defendants moved to suppress all evidence seized from a motor vehicle. Judge Torkwase Y. Sekou conducted an evidentiary hearing on July 15, 2010. Newark Police Detective Sergeant Joseph Conzentino, a twenty-one-year veteran of the department and member of the gang enforcement division, testified that on February 20, 2010, about 8:00 p.m., he was "riding down" South Nineteenth Avenue as part of the gang division's "proactive enforcement operations." Detective Allen Knight, also a member of the Newark Police Department gang division, rode with Conzentino that night and also testified at the hearing.
In front of a building on South Nineteenth Avenue, Conzentino noticed two men seated in a gold Ford Taurus and two men standing on the sidewalk near the Taurus. The men in the Taurus were later identified as Cannon, in the driver's seat, and Horn, in the front passenger seat. As Conzentino stopped his unmarked police vehicle behind the Taurus, the two men on the sidewalk noticed the detectives and immediately left the area.
Conzentino and Knight approached the Taurus. Although it was dark, a light on a nearby utility pole provided "good" lighting. When Conzentino reached the front of the Taurus, he witnessed Cannon hand Horn a brick of heroin. Conzentino alerted Knight that "it's a brick, it's a brick," and began striking the window with his badge exposed.
Knight immediately opened the passenger door of the Taurus and removed Horn. Because the driver's side door was locked, Knight had to release the lock from the passenger side door. Once Knight unlocked the door, Conzentino removed and arrested Cannon.
After securing Cannon and Horn, Conzentino returned to inventory the Taurus, or check for any evidence "in plain view." Looking into the open glove compartment, he saw several more bricks of heroin and a loaded gun.
Knight's testimony painted a different picture. He explained that it was daylight at 8:00 p.m. on February 20, 2009, because it "stays lighter in the winter" due to daylight savings time. Around 8:00 p.m., they saw "several people walking down the block and stopped at a [Taurus]." Although admitting that the windows on the Taurus were closed, Knight testified that the occupants of the Taurus began a conversation with the men on the sidewalk through the closed window.
As Conzentino parked near the Taurus, the men on the sidewalk did not run, but "quickly vacated the area," or "fled," as indicated in Knight's police report. Because it is "easier to detain" a car than a person "who could get away or discard whatever [contraband] they have," the detectives did not attempt to stop the fleeing men.
Knight walked to the passenger side of the Taurus, and Conzentino approached the driver's side and identified himself to Cannon. Cannon immediately "tossed a brick" to Horn who attempted to throw the brick into the open glove compartment. Because it was daylight, Knight was able to see into the Taurus easily. Seeing the brick, Knight opened the door and removed Horn from the Taurus. As he did, the brick fell from Horn's lap onto the floor of the Taurus. When Horn was secured, Knight went back to the Taurus, retrieved the brick and unlocked the doors to allow Conzentino to remove Cannon. Cannon unsuccessfully attempted to shut the glove compartment as Conzentino removed him from the Taurus. The detectives placed Cannon and Horn inside the police vehicle.
Knight called headquarters to get a case complaint number. During the next five minutes, Conzentino went back to secure the Taurus and discovered six more bricks of heroin and a nine millimeter handgun in the Taurus's open glove compartment. Despite this discovery, the detectives never called back to ...