May 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MELVIN A. REVELS, AKA MELVIN REVELS, II, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-12-4095.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012
Before Judges Parrillo and Alvarez.
Following denial of his motion to suppress, defendant Melvin Revels pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b, and was sentenced in accordance with the plea agreement to the mandatory term of five-years without parole eligibility. Ibid. Defendant appeals from the order denying his suppression motion, and we affirm.
The item sought to be suppressed was a handgun seized from defendant's person incident to his arrest for dealing drugs to an undercover officer. According to the State's proofs adduced at the suppression hearing, State Trooper Lance Moorehouse was on an undercover buy-bust assignment in South Camden's active drug area of 8th and Spruce Streets. At approximately 5:00 p.m. on July 23, 2009, he and another trooper, both in plainclothes and driving an unmarked vehicle, approached two black males standing together on the east sidewalk of 8th Street, in front of an abandoned house. One of these men was defendant.
Defendant "urked" Moorehouse, which means that he signaled the trooper to park on the side of the street, give his drug order, and wait for the other man to retrieve the illegal drugs. Moorehouse complied and parked his car on the west side of 8th Street. Defendant approached within twelve feet and asked what the trooper wanted and "how many." Moorehouse replied "two," and when defendant asked whether that meant "nicks or dimes[,]" referring to either $5 or $10 bags of crack cocaine, the trooper responded that he wanted two dimes.
At this point, the other male, Vince Lewis, wearing a tan camouflage hat, began to walk south on 8th Street, toward Spruce Street, while defendant remained on the east sidewalk, continuing to conduct business with another vehicle that had just pulled up. After about forty-five seconds, Lewis returned, approached Moorehouse's car on the driver's side, and leaned in with his right hand clenched. After assuring Lewis that neither he nor his partner were cops, Moorehouse pulled out the $20 bill that he had earlier made a copy of and handed it to Lewis, who then dropped two bags of crack cocaine from his clenched right hand into Moorehouse's hands. During the exchange, defendant remained on the sidewalk, talking to the driver of the other car.
As he pulled out of the area, Moorehouse radioed his backup team with a detailed description of the two men and their location. Within forty-five seconds, the arrest team, consisting of four troopers in an unmarked van, was at 8th and Spruce Streets. As their vehicle turned onto 8th Street, Trooper Joseph Walters observed the two men described by Moorehouse standing in the same location he indicated, with Lewis, in the camouflage hat, behind defendant, who was standing near a parked car.
Walters stopped the van in close proximity to defendant and all the troopers exited. As Walters came around the corner of the van, he saw another trooper with defendant and heard that trooper shout "gun." Walters immediately went toward defendant and saw the handle of a gun protruding outward from the pocket of defendant's cargo pants, just above the knee. Defendant was handcuffed, the gun was secured, and both men were taken into custody. The gun retrieved from defendant was a loaded 22 caliber Sentinel revolver.
Defendant denied any involvement in the drug transaction. Both he and his witness, Calvin Alexander, explained that they were on their way to a concert in Trenton that evening when troopers "pulled up" on Alexander's car. Defendant was in the front passenger seat and when he resisted a police command to exit, was pulled out of the car and patted down. According to defendant, the police removed only two cell phones and keys, and that "[l]ater" the "officers took money from the person." Alexander did not see a gun or any other items taken from defendant and did not recall observing defendant engage in any hand-to-hand transaction.
At the close of evidence, the judge, crediting the troopers' testimony and rejecting defendant's, denied the suppression motion, finding probable cause to arrest defendant based on his drug-dealing, and that the seizure of the handgun from his pants was the product of a lawful search incident to that arrest, or alternatively, justified as in plain view. The judge reasoned:
At its core the defendant's testimony is that the state police framed [him] and stole his money. I find that claim to lack any credibility. I also noted before what may matter most is what the defendant didn't say and that is regarding the gun.
Therefore, I find that the police had probable cause to arrest the defendant and the seizure of the gun was the product of a lawful search incident to that arrest. Moreover, the co-defendant in this case, Mr. Lewis, pled guilty to the drug charges arising from this undercover drug operation. So even if this were a case of mistaken identity as to the defendant and that someone else was the director in the drug sale . . . then the seizure of the gun from the defendant still would be lawful because the gun was observed in plain view during the lawful arrest of Mr. Lewis.
On appeal, defendant argues:
I. THE MOTION JUDGE ERRED IN CONCLUDING THE WARRANTLESS SEIZURE, SEARCH AND ARREST OF MR. REVELS WAS EITHER SUPPORTED BY PROBABLE CAUSE OR SATISFIED THE PLAIN-VIEW EXCEPTION TO THE WARRANT REQUIREMENT. U.S. CONST., AMENDS. IV & XIV; N.J. CONST., ART. I, PARA. 7. (Partially Raised Below).
A. THERE WAS NO PROBABLE CAUSE TO REMOVE DEFENDANT FROM THE CAR, THEREFORE THERE WAS NO RIGHT OF ACCESS TO SEIZE THE GUN IN PLAIN VIEW IN DEFENDANT'S PANTS POCKET; ANY PROBABLE CAUSE SUPPORTING THE ARREST OF CO[-]DEFENDANT COULD NOT SUPPORT THE SEIZURE OF THE GUN.
B. MR. REVELS HAD NO BURDEN OF PROOF OR OBLIGATION TO DENY THE CHARGES TO SUCCEED ON THE MOTION TO SUPPRESS. (Not Raised Below).
We find no merit to these contentions, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by the motion judge in his oral decision of May 28, 2010. Suffice it to say, our review of a trial judge's fact findings is "exceedingly narrow[,]" State v. Locurto, 157 N.J. 463, 470 (1999), and we defer especially to the judge's credibility determinations. Id. at 474; State v. Padilla, 321 N.J. Super. 96, 107 (App. Div.), certif. denied, 162 N.J. 198 (1999). Measured against this standard, we are satisfied that the factual findings of the trial court are "supported by sufficient credible evidence in the record," State v. Elders, 192 N.J. 224, 231 (2007), and his denial of the suppression motion is in accordance with well-settled principles of law. Having effected a valid arrest of defendant, the subsequent seizure of the handgun on his person was justified as a search incident to that lawful arrest, State v. Pena-Flores, 198 N.J. 6, 19 (2009) or, alternatively, in the trooper's plain view, State v. Mann, 203 N.J. 328, 340-41 (2010).
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