August 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID KING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 09-03-0624 and 09-11-1930.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2011
Before Judges Sapp-Peterson and Simonelli.
In this appeal, defendant appeals from the January 26, 2010 trial court order denying his motion to suppress. After the denial of the motion, defendant pled guilty to one count of third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Seven other counts contained in Indictment 09-11-1930 filed against defendant were dismissed. The court sentenced defendant to a five-year prison term with a three-year period of parole ineligibility along with appropriate fines and penalties. We affirm.
The events that led to the seizure of heroin from defendant occurred on the evening of July 29, 2009, when Officer William Costigan, the sole witness to testify at the suppression hearing, observed defendant on the stairwell of Building 571 of the Montgomery Housing Gardens in Jersey City. Officer Costigan was patrolling the stairwells that evening in response to complaints from residents that numerous drug activities were taking place in the building.
Officer Costigan observed defendant at the top of the stairway approximately twenty to twenty-five feet away. He observed defendant holding a clear sandwich bag in his right hand that appeared to contain suspected narcotics. In his left hand, defendant was holding money and counting the contents of the bag. The officer identified himself as a police officer and advised defendant that he was conducting a narcotics investigation. As Officer Costigan approached, defendant shoved the clear plastic bag into his right front pocket. Concerned for his safety, the officer conducted a protective search and also retrieved the suspected narcotics.
In seeking suppression of the narcotics, defendant argued that once he placed the clear plastic bag into his right front pocket, there was an expectation of privacy, and the seizure of the drugs could not be justified as a protective search, nor could the seizure of the suspected narcotics be justified under the plain view doctrine or as part of a search incident to arrest.
The trial judge denied the motion, concluding that he found Officer Costigan's testimony "extremely credible." He noted that Officer Costigan was an experienced narcotics officer and had "probable cause to believe that that substance was heroin[.]" He determined that the seizure of the suspected narcotics was justified under the plain view doctrine.
On appeal, defendant raises the following point for our consideration:
DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
In our review of a motion to suppress, we must uphold the factual findings of the trial judge as long as those findings are supported by sufficient credible evidence. State v. Elders, 192 N.J. 224, 243 (2007). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
Under both the United States and New Jersey Constitutions, a warrant is generally required before police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Thus, a warrantless search is presumptively invalid unless it "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The burden is on the State to show that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. Where the warrantless search fails to fall within one of these exceptions, the evidence seized must be suppressed. See State v. Lee, 190 N.J. 270, 277-78 (2007) (stating that "[p]ursuant to the exclusionary rule, the State may not introduce evidence obtained from an unlawful search or seizure by the police."). Here, the State maintains that the seizure was justified under the plain view exception. We agree.
Under the plain view exception, a law enforcement officer may seize evidence that is in plain view, provided he is lawfully in the viewing area and he has "probable cause to associate the property with criminal activity." State v. Johnson, 171 N.J. 192, 207 (2002) (quoting State v. Bruzzese, 94 N.J. 210, 236-38 (1983) (internal quotation omitted), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Here, Officer Costigan was lawfully on the stairway when he observed defendant in possession of the clear plastic bag containing items that appeared "consistent with packaging CDS." He testified that he had been involved in hundreds of narcotics investigations over the four years that he had been a member of the Jersey City Police Department and received narcotics-related training in his basic training as well as through the "high intensity drug trafficking area by the New York and New Jersey [S]tate [P]olice." The motion judge credited this testimony regarding Officer Costigan's experience and concluded that such experience would lead the officer to conclude that he had observed defendant in possession of suspected narcotics.
The fact that defendant shoved the plastic bag into his pants pocket did not vitiate the validity of the earlier plain view observations of the officer that established the requisite probable cause to seize the suspected CDS. Ibid. ("We do not believe that a police officer lawfully in the viewing area must close his eyes to suspicious evidence in plain view.").
Therefore, we find no merit to defendant's contention that there was an expectation of privacy in connection with the plastic bag and its contents once the bag was placed in defendant's right front pants pocket.
There is substantial credible evidence in the record to support the factual findings of the trial judge. We therefore conclude the seizure of the suspected narcotics was justified under the plain view exception to the warrant requirement.
Defendant's remaining argument that Officer Costigan's motive for conducting the pat-down search was a pretext to recover the drugs is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e)(2).
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