On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0786.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Koblitz.
Defendant Duane Crawford appeals the denial of his pre-trial motion to suppress evidence. After a jury trial on Essex County Indictment No. 08-03-0786, he was convicted of third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10 (count one) and acquitted of second- degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5 (count two), and third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). On October 6, 2009, defendant was sentenced to a seven-year term of imprisonment with forty-two months of parole ineligibility and the mandatory penalties.*fn1
We find that the purported consent search of defendant's bedroom was improper, but did not affect the outcome of the trial. We find the search of a blue plastic bag in defendant's car was valid for reasons different than those expressed by the trial court and affirm.
Detective Brian Martzutsky of the Essex County Sheriff's Office was the only witness to testify at the suppression hearing. At the time, Martzutsky had worked for the sheriff's office for approximately eighteen years and in the narcotics bureau for a little more than nine years, having received special narcotics training. He testified to the following facts. On October 30, 2007, an informant, who he characterized as a "confidential reliable source" and who had provided him with information that sometimes led to arrests in the past, told him that "Duane," a five-foot-eight or five-foot-nine, "heavy set, [and] light-skinned" black man, would be driving a silver Chrysler Concord with Pennsylvania license plates in the numbered streets around Madison Avenue in Newark to deliver a large quantity of heroin at approximately 3:00 p.m. that day. The informant also told the police that Duane might have a handgun.
The police set up surveillance on Madison Avenue and Fourteenth Street, and at approximately 2:45 p.m., they stopped a silver Chrysler Concord at a red light as it was heading west on Madison Avenue. Defendant was driving the Concord, and his brother was the passenger. As the police approached the Concord, "it looked like [the driver, later identified as defendant,] was reaching for something or moving something in the center console area." Martzutsky testified that based on these movements, he thought that defendant was "trying to destroy something or possibly reach for a weapon." The police ordered defendant and his brother out of the car, and when looking through the open door, they noticed a blue plastic bag on the center console.
Martzutsky testified that the officers were looking for a gun in the car. The contents of the bag were not visible from outside of the car, but once the officers stuck their heads in the vehicle and looked inside the bag, they were able to see the "brick" wrappers. A "brick" contains fifty "decks," or envelopes, of heroin. The police found twenty-five "bricks" of heroin inside the blue plastic bag. Thus, 1250 envelopes of heroin were found in the blue bag. Defendant insisted that the narcotics belonged to him alone, and that his brother did not have any knowledge of what was in the blue bag. The police impounded the Concord and took defendant and his brother to their house, where they both lived with their mother.
Martzutsky testified that both defendant and his brother consented to searches of their bedrooms and that consent forms were signed by both individuals. On cross-examination, however, Martzutsky admitted that the one consent form marked for identification was signed only by defendant's brother. He testified that defendant's mother was present, but not that she consented to the search of the two bedrooms. The officers found $5415 in U.S. currency in defendant's room and more than $1000 in his brother's room. They did not recover any contraband in the bedrooms.
The trial court denied defendant's application to suppress the drugs found in his car and the money found in his bedroom. The court determined that defendant's brother and mother consented to the search of defendant's bedroom and that the heroin seized from defendant's vehicle was admissible under the plain view exception to the warrant requirement.
Defendant raises the following issues: