On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0436.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 18, 2012 -
Before Judges Espinosa and Koblitz.
After denial of his motion to suppress a gun found on his person and drugs found in his motel room, defendant David Ortiz, Jr. pled guilty to count five of Middlesex County Indictment No. 10-03-0436, which charged him with possession of a handgun.
N.J.S.A. 2C:39-5(b). Pursuant to the negotiated plea, the State dismissed the other six counts of the indictment: third-degree possession of cocaine and possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts one and two); third-degree possession of heroin and possession of heroin with the intent to distribute, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts three and four); second-degree possession of a firearm while engaged in drug activity, N.J.S.A. 2C:39-4.1 (count six); and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count seven). On November 8, 2010, the sentencing judge sentenced defendant on the second-degree gun charge, in accordance with the plea agreement, to a three-year prison term with a mandatory three-year term of parole ineligibility pursuant to N.J.S.A. 2C:43-6(c).*fn1 Defendant received credit for 329 days in custody.
On appeal, defendant argues that the trial court erred by denying his motion to suppress. For the reasons that follow, we affirm.
Sergeant Daniel Muntone of the Middlesex County Prosecutor's Office and Perth Amboy Police Sergeant Ben Salerno testified that they were members of a narcotics task force. On December 14, 2009, they received information from a reliable informant that defendant was armed and selling drugs from Room 59 of the Circle Motor Lodge (Lodge) in Sayreville. Sergeant Salerno instructed the confidential informant to buy drugs from defendant with money supplied by the county. The informant bought the drugs and reported back that defendant had a black handgun. Sergeant Muntone instructed Sergeant Salerno to remain at the Lodge and detain defendant if he attempted to leave. Sergeant Muntone then drew up a search warrant for defendant's motel room and called a judge in anticipation of having the warrant signed.
Before Muntone obtained the judge's signature on the search warrant, Sergeant Salerno detained defendant after he left his room and entered a car. As Salerno was patting him down, defendant told Salerno he had a gun. Upon seizing a Glock 9mm handgun, Salerno discovered that it was loaded with hollow-nose bullets. Defendant was advised that he was under arrest and subsequently signed a consent form allowing the police to search his motel room. He did not check the box on the consent form indicating a waiver of his right to be physically present during the search of the room.*fn2
After Sergeant Muntone was informed that defendant had been arrested and consented to the room search, Muntone abandoned his plan to seek judicial approval of a search warrant. Instead, he proceeded immediately to the Lodge, where defendant was handcuffed in the parking lot in close proximity to Room 59 while it was searched and the drugs were seized.
In an oral decision on July 27, 2010, the motion judge denied defendant's suppression motion. The judge found that defendant's arrest was supported by probable cause and the pat-down of defendant pursuant to that arrest, during which the gun was located, was therefore constitutional. Because defendant was under arrest and the subsequent consent search was confined to a motel room rather than a larger residence, the judge found that defendant's right to be present during the search was not absolute.*fn3 The judge indicated:
I don't find that it is entirely clear whether the defendant waived his right to be present or not. He clearly did not, according to the testimony, ask to be present.
The judge also determined that the drugs would inevitably have been discovered without defendant's consent had the police proceeded with the search warrant. Based on those findings, ...