On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-09-2996 and 06-10-3073.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
Following denial of his motion to suppress evidence, defendant Wakil Edwards pled guilty pursuant to a negotiated agreement to four counts of Indictment No. 06-09-2996: conspiracy, N.J.S.A. 2C:5-2 (count one); second-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), b(1), b(2) (counts three and nine); third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count seven); and to one count of Indictment No. 06-10-3073, third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7.*fn1 In return, the prosecutor agreed to recommend concurrent aggregate terms of seven years with a two-year period of parole ineligibility and dismissal of all remaining charges. Defendant reserved the right to appeal the denial of his motion to suppress. Defendant was sentenced, consistent with the plea agreement, to an aggregate seven-year term with a two-year parole bar.
On appeal, defendant contends the court erred in denying his motion to suppress. That motion was originally brought by Timothy Guest, a co-defendant in Indictment No. 06-09-2996, in which defendant joined. The motion involved evidence seized on January 9 and 18, 2006, and also pursuant to a search warrant issued in February 2006. Defendant argued then, as he does now, that the police investigatory stop of co-defendant Guest's vehicle on January 9, 2006 and stop, pat-down and arrest of Guest on January 18, 2006 were unconstitutional, as they were not based on a reasonable suspicion of criminal activity. Accordingly, the authorizations for wiretaps and search warrants that flowed therefrom were unlawfully obtained and their fruits should be suppressed.
The motion judge conducted an evidentiary hearing, after which he made detailed findings of fact in his written opinion, which we adopt as supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 471 (1999); State v. Slockbower, 79 N.J. 1, 13 (1979), and reiterate here.
The events underlying this appeal have their genesis in the State's then-ongoing investigation of defendant, Guest and Curtis Crowley for suspected narcotics activity. In the summer of 2005, Daniel Francis, an undercover investigator with the Essex County Prosecutor's Office (ECPO), acting on information received, contacted Crowley in an effort to buy a kilogram of cocaine. Crowley then contacted defendant by telephone and asked defendant to obtain the kilogram of cocaine that Crowley had promised to sell to Francis. These telephone conversations were intercepted and recorded pursuant to a communications data warrant issued by a Superior Court judge.
On November 5, 2005, defendant received a telephone call from a then-unknown individual using a cell phone with the number 973-920-0912. Defendant advised the caller that he had a potential buyer for a kilogram of cocaine and asked whether the caller could provide the cocaine and the price thereof.
Subsequently, on December 8, 2005, a "concerned citizen" advised Investigator Francis that defendant associated with Timothy Guest. A record check of Guest revealed that he had nine prior indictable convictions and that he used the name "Wakil Edwards" as an alias. On December 17, 2005, Francis was advised by a representative of the United States Drug Enforcement Administration (DEA) that the wireless number 973-920-0912 was changed to 973-765-3689, but that all other information regarding the cell phone remained the same.
On January 9, 2006, acting on information provided by other officers, Investigator Francis began surveillance of a beauty supply store on Prospect Street in East Orange. Shortly after the surveillance was set up, Investigator Francis saw Guest pull up to the beauty shop in a white GMC Denali SUV, which the officers had previously observed defendant driving during suspected drug transactions. Investigator Francis instructed the officer with him, Officer Elizabeth Bazan, to call 973-765-3689 and then pretend to have dialed the wrong number. When she placed the call, Investigator Francis observed Guest lift his cell phone and speak into it at the same time, and then hang up. Guest drove off in the Denali.
Later that day, Guest was stopped by Captain Patrick DeFrancisci and Detective Consuelo Perez of the Essex County Narcotics Task Force, acting on instructions from Investigator Francis. The purpose of the stop was to determine if Guest had possession of the cell phone. While Guest was detained under the guise of a motor vehicle check, Officer Bazan and Investigator Francis were watching with binoculars from a distance of 200 yards. Officer Bazan called 973-765-3689 twice and Detective Perez observed Guest switch his cell phone to voice mail at the same time that Officer Bazan placed the calls. Guest was permitted to drive off after approximately fifteen minutes.
On January 18, 2006, at 4:30 p.m., Lieutenant Phyllis Bindi and Captain Paul Davis -- East Orange police officers unconnected with the ECPO investigation -- were on patrol in an unmarked vehicle when they observed Guest in the Denali, parked illegally in the fire zone of a parking lot in front of Discount Cleaners, a dry cleaner located at 450 Central Avenue in East Orange. Discount Cleaners is located in an area known to be a high narcotics trafficking area. They watched Guest get out of the vehicle and approach another male. The two spoke briefly while standing between two parked cars and, according to the officers, looked nervously around, repeatedly peering up and down the street "in a suspicious manner." The officers saw the man hand Guest an undetermined amount of currency.
Based on these observations, Lieutenant Bindi decided to investigate the situation and approached Guest and the man, asking Guest "What's going on here?" and "What are you doing here?" The men appeared "[v]ery nervous and evasive," and Guest placed his hands in his pockets as the officers approached. Since Lieutenant Bindi "didn't know what actually [Guest] was putting in the side of his jacket pocket," the officers conducted pat downs of both men for their own protection. Feeling a bulge in his pants pocket, Lieutenant Bindi reached into Guest's pocket and retrieved a bundle of cash. Lieutenant Bindi later testified that when she felt the bulge, she knew that it was ...