On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-09-2257.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
Defendant David C. Sites pled guilty to one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). The guilty plea was entered after the trial court denied defendant's motion to suppress the oxycodone and Vicodin he possessed without a prescription. Consistent with defendant's plea agreement with the State, other charges pending against him were dismissed and he was sentenced to a one-year term of probation. The judge also imposed the requisite fines, penalties, assessments, fees and driver's license suspension. Defendant appeals and challenges the denial of his motion to suppress. R. 3:5-7(d). We affirm substantially for the reasons stated by Judge Perri in her October 27, 2009 oral opinion.
On the evening of May 10, 2008, Patrolman Paul Monahan of the Neptune Township Police Department and his partner, Officer Petrillo, were patrolling in an unmarked car and not in uniform. As members of the Department's "Quality of Life Unit," they conducted surveillance in parking lots of local commercial establishments where drug transactions were becoming common.
Officer Monahan had witnessed between fifty and one hundred transactions in the parking lot of a McDonald's located at the intersection of Routes 33 and 35, and he and his partner were parked there when defendant, driving a white pick-up truck, arrived. Defendant parked away from the building even though there were five to nine empty spaces closer and did not go inside. He and his passenger sat in the truck while he placed a phone call on his cell phone.
Monahan and Petrillo checked the truck's license plate and learned it was registered to Daniel Birdsall of Brick Township, who had some narcotics-related arrests. In addition, that truck had been spotted several times at a residence in Neptune that was under investigation as a site of narcotics trafficking. Officers Monahan and Petrillo alerted another pair of officers in their unit, Lieutenant Mangold and Officer Washington, who were also on patrol that evening.
After defendant completed his phone call, he left the McDonald's and drove west on Route 33. Officers Monahan and Petrillo followed. Defendant drove to a Quick Chek about three miles away located at the intersection of Route 33 and Jumping Brook Road, another establishment with a parking lot in which these officers had witnessed scores of drug transactions. Defendant parked away from the store and next to a black BMW. By that time, Lieutenant Mangold and Officer Washington had arrived. From their separate cars, the four officers watched while defendant and the driver of the BMW spoke to one another through the open windows of their vehicles.
The officers checked the BMW license plate and learned the car was registered to Josephine Whittaker at an address in Neptune. Officer Monahan knew Shawn Whittaker, who lived at the same address. In 2002 Officer Monahan had investigated a complaint made by a man who lived on the same street as Shawn Whittaker. He alleged that he had confronted Shawn Whittaker about selling drugs in front of his house and Whittaker responded by pulling out a gun and firing it. According to Officer Monahan, Shawn Whittaker's name had been brought up on multiple occasions, by confidential informants and other officers, in discussions about distribution of narcotics.
Neither defendant, his passenger nor the driver of the BMW went into the store. When the BMW left the Quick Chek's parking lot, Lieutenant Mangold and Officer Washington followed. Officers Monahan and Petrillo waited a few moments and followed the white pick-up truck.
The driver of the BMW drove east until he took a right turn onto Gully Road. He did not use his directional signal when he made that turn. He continued along Gully Road until he reached the entrance of the Shark River Hills Park. There, he slowed down and moved toward the parking lot, but he did not turn in and instead continued along Gully Road. Lieutenant Mangold and Officer Washington stopped the BMW on Belmar Boulevard near Route 18 in Wall Township. They confirmed that Shawn Whittaker was the driver.
Meanwhile, defendant, followed by Officers Monahan and Petrillo, had driven the white pick-up truck along the same route the BMW had taken. Unlike Whittaker, defendant turned into the Shark River Hills Park parking lot, which was screened from the roadway by trees. Officers Monahan and Petrillo waited across the street. Within seconds of turning into the parking lot, defendant drove out and continued along Gully Road. At that point, Officer Monahan knew that Whittaker had been stopped, and he stopped defendant.
Officer Monahan asked defendant for his credentials and had him step out of the pick-up truck and move to the rear. While his partner talked to the passenger, he talked to defendant, who gave an account of where he had been. Officer Monahan knew the account was false. By checking defendant's credentials, Officer Monahan learned that there were outstanding warrants for his arrest and took him into custody. When he returned to the car to speak to defendant's passenger, he saw a ...