On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-05-1525 and 07-06-2039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Defendant Raheem A. Spruell appeals from his April 4, 2008 conviction, under Indictment No. 07-06-2039, of second-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5 (count one); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5 (count three). On the same date, defendant was convicted and sentenced on an unrelated indictment, no. 07-05-1525; however, because defendant confines his arguments on appeal to Indictment No. 07-06-2039, we limit our discussion accordingly. As to Indictment No. 07-06-2039, defendant argues:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH[ES] AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE WITHOUT PROBABLE CAUSE.
Defendant filed a pro se motion to suppress on a date not specified in the record. Because defendant presented no dispute of material fact, in accordance with Rule 3:5-7(c), the trial court considered the police report, the State's brief, and the parties' arguments without conducting an evidentiary hearing. The police report prepared by Newark police officers Ramos and Nieves on March 9, 2007 revealed that they were directed by their sergeant on that day to proceed to a specific address on South Orange Avenue in Newark due to numerous narcotics complaints in the area. The building contained three apartments and had a common hallway and a front porch. After parking their vehicle in a location where it could not be observed, Officer Ramos, under cover of darkness, hid fifteen to twenty feet away from the front of the building. In the past, Ramos and his fellow officers had made a number of arrests for drug distribution at that specific location.
On the night in question, Officer Ramos observed co-defendant, Albert Short (Albert),*fn1 receive money from two individuals at different times, after which Albert used a silver Nextel phone to make a call, and told the person on the other end of the phone to bring him more "baggies." In particular, Ramos observed Albert standing in front of the building, when an unknown black female approached Albert and handed him currency. As soon as she did so, Albert pulled the phone from his pocket, and Ramos was able to hear Albert say to the person on the other end of the phone "yo, I need three baggies." Approximately ten seconds later, the door to the designated address on South Orange Avenue opened and defendant stood at the top of the porch. Albert walked two steps up toward defendant who handed him unknown items. Albert then handed these unknown items to the black female, who, after briefly inspecting them in her right palm, quickly left the area.
Shortly after the black female left, Officer Ramos observed a green pickup truck pull up in front of 317 South Orange Avenue, at which time Albert approached the passenger side of the vehicle. He engaged in a brief conversation with the driver, after which the driver reached through the open passenger-side window and handed Albert paper currency. Ramos observed Albert again utilize the silver Nextel phone, and heard him say "bring five baggies down." A few seconds later, defendant again opened the front door and handed Albert what appeared to be several small blue baggies. Defendant reentered the hallway. Albert walked toward the green pickup truck, reached into the passenger-side window and handed the driver the small blue baggies. The green pickup truck immediately left the scene.
A short while later, a marked police vehicle on routine patrol drove past 317 South Orange Avenue heading east. After observing the police vehicle, Albert utilized the Nextel and stated, "yo, police, police." At that point, Officer Ramos decided to end his surveillance, satisfied that what he had observed were narcotics transactions. Ramos communicated with backup officers by radio and directed them to move in.
The officers detained Albert outside the building. Finding the door to the three-story apartment building to be unlocked, the officers opened it and observed an unknown black male, later identified as Robert Short (Robert), sitting midway on the hallway stairs between the first and second floor. On his lap was a clear bag containing small items.
After observing the officers entering the well-lit hallway, Robert stated "oh shit," dropped the clear bag and ran up the stairs. One of the officers retrieved the clear bag from the step and pursued Robert. The bag discarded by Robert held small ...