On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-07-0570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011 -
Before Judges A. A. Rodriguez and Fasciale.
After defendant's motion to suppress evidence that a bag of cocaine discovered by the police during an investigatory stop was denied, defendant pleaded guilty to third-degree possession of a controlled dangerous substance (CDS)(cocaine), N.J.S.A. 2C:35-10a(1). In exchange, the State agreed to recommend less than the maximum potential sentence and dismissal of all related charges. The judge imposed a four-year prison term. We affirm.
The following proofs were presented by the state at a hearing on the motion to suppress. At approximately 8:00 p.m. on July 2, 2009, while slowing his police vehicle to cross railroad tracks, Detective Ken Martin observed an individual standing on the tracks approximately 300 feet away. At the suppression hearing, Martin was the sole witness. He testified that after crossing the railroad tracks
I slowly started to go, and at that point [the individual] walked into . . . this path area and kind of just stood there and . . . I was basically at a crawl [a]nd he was just standing there. I could see him like looking out at me.
Detective Martin observed the individual "step back and away from [his] vantage . . . closer toward the wooded area."
The detective drove closer and recognized the individual as defendant, whom a reliable confidential informant had identified as distributing cocaine in the area. The detective then contacted nearby police officers for backup. At about the same time, three other police officers arrived at the scene.
Upon reaching defendant, the detective observed a second man, whom the detective recognized as a suspect in prior drug-related investigations. The detective told defendant that he believed defendant was making a drug transaction with the other man. Defendant did not respond. After one of the officers asked him if he would consent to being patted down, defendant immediately took several items from his pockets, including a cell phone. As he was setting the phone on the hood of the police car, he opened his hand slightly, dropped a clear plastic bag of cocaine on the ground, and attempted to hide it by stepping on it. Detective Martin retrieved the bag, and defendant stated that the cocaine was "for personal use," that "he put that on his blunt to smoke it," and that "he doesn't sell drugs."
The judge reviewed the testimony and found Martin credible. The judge denied the motion and stated his reasons on the record.
On appeal, defendant raises the following point:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S SUPPRESSION MOTION WHERE DEFENDANT'S ARREST WAS UNLAWFUL BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY SUFFICIENT TO JUSTIFY THEIR ACTIONS.
We begin by addressing defendant's contention that the "stop and detention were illegal, making the subsequent arrest, search and seizure illegal." He argues that he "was surrounded by four police officers and was not free to leave"; that the informant's statement was too old (one and a half years) to sustain a suspicion of CDS distribution; and that there were "a million legitimate reasons for anyone to be at that place on a summer evening." He ...