On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 09-01-0122 and 09-11-2212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges C.L. Miniman and LeWinn.
Monmouth County Indictment No. 09-11-2212 charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); Indictment No. 09-11-0122 charged her, along with co- defendant Abdias Narcisse, with fourth-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count two), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three). Defendant and Narcisse moved to suppress the weapons. Following the denial of that motion, defendant entered into a negotiated plea agreement whereby she pled guilty to an amended count three of Indictment No. 09-11-0122 charging fourth-degree conspiracy to possess a defaced firearm, N.J.S.A. 2C:5-2 and 2C:39-3(d); and an amended count under Indictment No. 09-11-2212 of third-degree conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and 2C:35-10(a)(1). She was sentenced to concurrent two-year terms of probation. Defendant now appeals the denial of her motion to suppress.
We summarize the pertinent evidence adduced at the hearing on the motion to suppress. On June 28, 2008, Asbury Park Police Officer Lorenzo Pettway, a member of the department's Street Crimes Unit, was patrolling the area around the intersection of Emory and Summerfield Streets along with three other officers. The police had received information from a reliable confidential informant that a black male and white female, who lived at 515 Summerfield Street and owned a white vehicle, kept weapons and narcotics in the residence and the vehicle. The informant also named a third individual, Wilbert Mesidor, as a suspect; Pettway was "familiar" with Mesidor from a "[p]ast street encounter" and also "ha[d] him documented as a Blood street gang member."
As the officers' vehicle approached 515 Summerfield Street, Pettway observed a white Cadillac "parked on the sidewalk, on the west side of the property facing south." The vehicle pulled off the sidewalk and turned east onto Summerfield Street. Pettway informed one of the other officers, Carrasquillo, that they "were going to effect a traffic stop" of the Cadillac for parking on the sidewalk; Pettway also observed that the vehicle's center brake light was out.
After stopping the vehicle, the officers approached; Pettway went to the driver's side and Carrasquillo to the passenger side. Narcisse was in the front passenger seat and "appeared to be moving around . . . fidgeting around in his seat." Another passenger, Rubin Siede, was seated in the rear.
Pettway asked the driver, Hummler Etienne, for "the paperwork for the car." Etienne reached across Narcisse and opened the glove compartment; at that point Pettway observed "what appeared to be suspected marijuana" in the compartment. Pettway thereupon advised the other officers to place all occupants of the vehicle under arrest. Carrasquillo asked Narcisse to step out of the vehicle and placed him under arrest; a pat-down search incident to the arrest revealed a handgun in Narcisse's front pants pocket.
At this point, defendant approached and asked what the police were "doing with her vehicle." She also asked why Narcisse, to whom she referred as her "boyfriend," had been arrested. She told Pettway that she lived at 515 Summerfield Street in an upstairs apartment.
While talking to defendant, Pettway observed Mesidor leaving the premises of 515 Summerfield Street. The officer suspected that Mesidor "may have been keeping weapons inside the upstairs apartment," but he did not detain him at that time. He testified that his "focus" was on defendant and he was "concerned with her about weapons being in the apartment."
Pettway advised defendant of the information he had received from the confidential informant and asked if she would consent to his searching her apartment. "Initially she said no." Pettway "continued to talk to her . . . and explained . . . why [he] wanted to search her residence . . . . [He] explained to her that [he] had information that there may be weapons . . . also . . . drugs inside her residence."
Defendant asked Pettway what would happen if there were drugs and weapons in her apartment. The officer "explained to her that . . . as long as she [was] 100 percent cooperative, . . . [he] would indicate that in [his] report. That she cooperated with [the police]." He denied promising her that she would not be charged with any offenses.
During this time Pettway was also communicating with his supervisor about whether the officers had sufficient evidence to obtain a search warrant. He advised defendant of this. Pettway testified that he never told ...