On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-02007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2012 -
Before Judges Fuentes and J. N. Harris.
Defendant Racole T. Muldrow pled guilty to three crimes -- third-degree possession of a controlled dangerous substance with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1(a); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) -- after his motion to suppress was denied. At sentencing, the court imposed an aggregate nine-year prison sentence with five years of parole ineligibility. Muldrow appeals, arguing the following:
POINT I: SINCE THE INITIAL ENCOUNTERS BETWEEN THE POLICE AND THE DEFENDANT WAS A DE FACTO ARREST NOT SUPPORTED BY PROBABLE CAUSE AND SINCE THE DEFENDANT'S FLIGHT DID NOT SUFFICIENTLY ATTENUATE THE TAINT OF THE INITIAL ILLEGALITY, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.
Lakewood Police Officer Leroy Marshall was the sole witness at the suppression motion. At the conclusion of the hearing, the motion court rendered an oral decision denying Muldrow's motion. It found, among other things, that (1) Marshall's testimony was credible; (2) the police "did witness [Muldrow] committing a crime, that is, the unlawful possession of a weapon"; (3) Muldrow's flight constituted an intervening factor validating the police chase, apprehension, and his consequent arrest; and (4) the evidence seized from Muldrow's person was incident to a lawful arrest.
On August 18, 2007, Marshall was assigned to the Lakewood Street Crimes Unit along with Detective Sergeant Vandazilva. Marshall and Vandazilva knew Muldrow from previous encounters. At approximately 8:39 a.m., the police officers drove an unmarked police vehicle near the intersection of Martin Luther King Drive and Lois Lane in Lakewood, described as a "[h]igh crime, high drug area," "almost [an] open air drug distribution area." They were in the vicinity after "receiving information from reliable informants . . . that Mr. Muldrow was responsible or a suspect in a couple of shootings that had occurred." Marshall recounted that he learned from a detective that "Mr. Muldrow would be in the area with a weapon and an unknown amount of [controlled dangerous substances]."
From their vehicle, the officers observed Muldrow alight from a taxicab, which was only thirty feet away. Marshall testified that as Vandazilva turned the vehicle into Lois Lane, Vandazilva yelled, "[g]un." Later, Marshall learned that Vandazilva "saw a firearm protruding from under [Muldrow's] T-shirt."
The two officers then "exit[ed] the vehicle, [their] weapons holstered to [their] sides, badges clearly displayed around [their] necks, handcuffs on [their] belts, and radios attached to [their persons]." Vandazilva then yelled, "[p]olice." Muldrow looked stunned "for a second"; "[h]e appeared to be shocked. And then he started running towards Martin Luther King Drive."
Marshall and Vandazilva took off in hot pursuit. In less than a minute, while trying to scale a fence, Muldrow stumbled and fell. Marshall observed Muldrow toss something to the ground. Vandazilva reached Muldrow first, "[falling] on top of him, advis[ing] him he was under arrest." The object that Muldrow discarded was found to be a fully-armed "Intratec 9 automatic firearm," described by Marshall as a "[m]achine gun or assault rifle." After being handcuffed, Muldrow was searched, and approximately two grams of cocaine were recovered from his pocket.
The motion court found that when the police officers first came upon Muldrow, they "observed [him] committing a crime, that is, the unlawful possession of a weapon. Additionally, the defendant committed obstruction and resisting arrest when he fled from the officers upon their identification and instructions to stop." Consequently, the court held that "the evidence [was] admissible [because] it was ...