January 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASSAN D. HIGGINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-12-01116 and 08-12-01135.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges Grall and Skillman.
Defendant was charged in Indictment No. 08-12-01116 with possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4); possession of cocaine within 500 feet of a public housing facility with the intent to distribute, in violation of N.J.S.A. 2C:35-7.1; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); possession of a defaced firearm, in violation of N.J.S.A. 2C:39-3(d); and possession of a firearm while in the course of committing the offense of possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:39-4.1(a). Defendant was also charged in Indictment No. 08-12-01135 with distribution of cocaine and heroin in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and distribution of cocaine and/or heroin within 500 feet of a public housing facility, in violation of N.J.S.A. 2C:35-7.1.
Defendant filed a motion to suppress the evidence upon which Indictment No. 08-12-01116 was based. Following an evidentiary hearing, the trial court denied the motion.
Defendant then entered into a plea bargain under which he agreed to plead guilty to the charge of possession of cocaine with the intent to distribute under Indictment No. 08-12-01116 and the charge of distribution of cocaine and/or heroin under Indictment No. 08-12-01135, and the State agreed to recommend a sentence of nine years imprisonment, with four years of parole ineligibility, for the charge under Indictment No. 08-12-01116 and a concurrent sentence for the charge under Indictment No. 08-12-01135. The State also agreed to dismiss the other counts of both indictments. The trial court sentenced defendant in accordance with the plea bargain to a nine-year term of imprisonment, with four years of parole ineligibility, for the charge of possession of cocaine with the intent to distribute under Indictment No. 08-12-01116 and a concurrent seven-year term, with thirty months of parole ineligibility, for the charge of distribution of cocaine and/or heroin under Indictment No. 08-12-01135.
On appeal, defendant challenges both the denial of his motion to suppress and his sentence. We affirm.
Indictment No. 08-12-01116 was based upon evidence obtained following the stop of a car being driven by defendant. On the evening of August 1, 2008, around 10:40 p.m., the Plainfield Police Department received a report that a stolen Chevrolet was proceeding eastbound at Park Avenue and 2nd Street. When Officer Henderson and his partner, who were driving in that area, observed a dark colored Chevrolet Lumina, they notified the police dispatcher, who confirmed that the stolen car was a Lumina.*fn1 After receiving this information, Officer Henderson and his partner stopped defendant's car, which was the only Lumina in the area, and ordered him to get out. At that point, a number of other police officers arrived on the scene in other patrol cars, including Detective Black, who testified at the hearing on the motion to suppress and whose testimony the trial court found to be credible. Black recognized defendant as a member of a street gang who had been a subject of prior police investigations.
After getting out of the car, defendant was directed to place his hands on the back of the car and not to move. As defendant was standing at the rear of the car, the officers observed a large amount of cash in the interior handle area on the driver's side door, which had been left open. Detective Black was concerned that the cash, which turned out to be $1200, might be blown away by the wind, so he removed it from the door area and placed it between defendant's hand and the rear of the car.
When Detective Black removed the cash from the door handle, he noticed a one or two-inch gap between the handle and the door, which he concluded could be indicative of the presence of a secret compartment used to conceal contraband. Therefore, after giving the cash to defendant, Detective Black returned to the car to get a better view of the gap next to the door handle. Upon looking at this gap a second time with the illumination of a flashlight, Black observed what appeared to be the butt of a gun. The officers then arrested defendant and searched the gap in the door area, which revealed a hidden compartment that contained a gun, a magazine with ammunition, and cocaine.
Based upon this evidence, the trial court concluded that the report of a stolen Chevrolet Lumina traveling in the same area that defendant was observed operating a Chevrolet Lumina provided the reasonable suspicion of criminal activity required to justify the stop of defendant's car; that Patrolman Henderson properly ordered defendant to get out of the car after the stop; that Detective Black properly removed the cash observed in the door handle of the car to prevent it from blowing away; that Detective Black's observation of what appeared to be a gun butt in plain view in the gap next to the handle provided probable cause to believe that the car contained contraband; and that this observation on a street in a high-crime area established the exigent circumstances required to conduct an immediate search without obtaining a warrant.
In concluding that the police were confronted with emergent circumstances that justified an immediate search of the car in the area where the gun butt was observed in plain view, the court stated:
This was on a Friday night, 10:40 --maybe a little bit after 10:40 at night. It was a high crime, high narcotics area. It was also on a very busy street in a location where on a Friday night, when people are socializing -- there's a lot of socializing going on in this area. There's a number of bars that are frequented by members of the Bloods. The Detective testified that he understood Mr. Higgins to be a high . . . ranking member of the Bloods. There were people going by who could -- who could see this. This was done in front of everybody on a very busy street where socializing people going to and from these bars and other clubs were going back and forth.
The unfolding of events here was happening very quickly. It was a quick stop based on a radio transmission. There was also -- unexpectedly, the Detective saw this trap so it was a very quick moving, fast situation. It was on a very busy night in Plainfield in a high crime area. There was one unit assigned to each section and then Detective Black's unit, which was floating around. So I do not find that there was, you know, excess officers in the area on this night.
There's also gang activity in this are and also a brewing gang dispute going on at approximately this time. In light of the fact that there were also gang members in the area and a lot of passerbys in the area, I don't find that it was safe to either leave the car unguarded and once the Officer saw this trap, which they knew Mr. Higgins had previously been involved in narc -- or had information that he was involved in drugs and gang activity, and that the trap is associated -- based on training and experience of the Officer, the trap is used to contain drugs and guns, I find that under the [Pena-Flores] case that there was more than sufficient exigent circumstances and probable cause to make the stop. [sic].
We affirm the denial of defendant's motion to suppress substantially for the reasons set forth in Judge Peim's June 5, 2009 oral opinion. We also note that further support for Judge Peim's conclusion that the State showed exigent circumstances under the test set forth in State v. Pena-Flores, 198 N.J. 6, 28-29 (2009), is provided by State v. Lewis, 411 N.J. Super. 483, 489-90 (App. Div. 2010), which was decided after Judge Peim issued his opinion in this case.
Defendant's argument that his sentence was excessive is clearly without merit and only requires brief discussion. R. 2:11-3(e)(2). The sentence was the product of a negotiated plea agreement. Under that agreement, the State agreed to dismiss the weapons charges against defendant and to concurrent sentences for the drug offenses charged in the two indictments that defendant committed on separate dates. There is no support in the presentence report for defendant's assertion on appeal that he was providing support to his children, and therefore that hardship to those children should have been identified as a mitigating sentencing factor. Moreover, defendant's counsel did not advance this argument at sentencing. In light of defendant's substantial record, the sentence imposed did not constitute an abuse of discretion.