July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID C. SITES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 23, 2011
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 plastic bag of pills that he suspected were Percoset and Vicodin in the open compartment between the passenger and driver's seats.
On appeal defendant argues:
I. THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED.
IA. Police lacked a reasonable suspicion that criminal activity was afoot to justify the stop of the defendant's truck.
IB. The defendant's rights were further violated when the officer ordered the defendant to get out of the vehicle and move to the rear of the vehicle for questioning, after he presented him with his driving credentials.
II. THE STOP OF THE DEFENDANT'S VEHICLE WAS ILLEGAL BECAUSE OF THE LIMITATINS ON THE POLICE TO EFFECTUATE A MOTOR VEHICLE STOP OUTSIDE IT'S JURISDICTION.
III. THE EVIDENCE MUST BE SUPPRESSED DESPITE THE POSSIBLE ARGUMENT THAT THE EVIDENCE WAS SEEN IN "PLAIN VIEW" OR WAS SEIZED "INCIDENT TO ARREST" UNDER WONG SUN V. UNITED STATES.
After considering these arguments in light of the record, we find them without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). As noted at the outset, we affirm substantially for the reasons stated by Judge Perri. Accordingly, we do no more than summarize our reasons for relying on her factual findings and legal conclusions.
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). Here, the legal questions were whether the investigatory stop and detention of defendant was supported by "specific and articulable facts which, taken together with rational inferences from those facts, g[a]ve rise to a reasonable suspicion of criminal activity" that justified the intrusions. Id. at 247 (internal quotations omitted). Even where the judge's "findings concerning the timing of [an] investigatory detention and . . . the necessary suspicion" are "close calls," an appellate court cannot substitute its judgment unless the judge was "clearly mistaken." Id. at 250-51.
Applying those standards in light of well-settled legal principles, we find no clear mistake here. Judge Perri considered the totality of the circumstances known to the officers, including the information about the white pick-up truck defendant was driving, their information about Shawn Whittaker's priors and their familiarity with patterns of drug trafficking in the area. She concluded that this information and the parking-lot conduct of defendant and Shawn Whittaker that was followed by their travel to the Shark River Hills Park would lead officers with the same information to reasonably suspect that a drug transaction was underway.
Relying on Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S. Ct. 330, 332-33, 54 L. Ed. 2d 331, 336-37 (1977) and State v. Smith, 134 N.J. 599, 609-11 (1994), Judge Perri determined that the detention did not become unreasonable because defendant was asked to step out and to the back of the pick-up truck to answer questions and await a check for outstanding warrants.
The judge also rejected the claim that suppression of the evidence was required because the officers made the investigatory stops outside their jurisdiction and without contacting Wall Township police for assistance. That determination is fully consistent with decisions of this court. State v. Gadsden, 303 N.J. Super. 491, 503 (App. Div.), certif. denied, 152 N.J. 187 (1997) (holding that a violation of the statutes addressing jurisdiction of municipal police is "a procedural or technical" defect, not an infringement of a constitutional right warranting suppression of evidence); see also State v. White, 305 N.J. Super. 322, 332-33 & n.4 (App. Div. 1997) (following Gadsden and noting that time constraints and manpower considerations may preclude feasible arrangements for cooperation of the local police department).
In short, the judge's rulings are all based on a proper application of the law factually supported by adequate evidence in the record.
The argument defendant raises in Point III of his brief does not require extended discussion. There was no illegal conduct on the part of the officers to taint the plain-view observation of the pills made by Officer Monahan while he spoke to defendant's passenger from a lawful vantage point.
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