On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-03-0523.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Lihotz and Kennedy.
Defendant Alamin S. Abrams appeals from his February 23, 2011 judgment of conviction, following his entry of a guilty plea to possession of a controlled dangerous substance (CDS), cocaine, within 1000 feet of school property, N.J.S.A. 2C:35-7, for which he was sentenced to a four-year term of imprisonment with a two-year period of parole ineligibility. We reject defendant's argument that the judge wrongly denied his pretrial suppression motion and affirm defendant's conviction.
In a suppression hearing conducted by Judge Kevin G. Callahan, the State presented the following evidence. Lieutenant Mark Cowan, a twenty-five year veteran of the Jersey City Police Department, was on patrol driving a marked police car, at approximately 4 a.m. on December 1, 2009. Lt. Cowan effectuated a stop of a vehicle he observed traveling in the wrong direction on Summit Avenue, a one way street. After the stop, Lt. Cowan approached the driver's side of the vehicle using a flashlight. In addition to the driver, who was defendant, he noted a woman sitting in the front passenger's seat and a man in the rear. Defendant was cooperative and presented his credentials. However, he did not have a driver's license and offered a state-issued identification card. Lt. Cowan took the documents, walked to the rear of the vehicle and checked the license plate against the registration.
Three back-up officers arrived, Sergeant Vincent Glenn, and Officers Nunez and Burrows. Sgt. Glenn also testified at the motion hearing. He explained he was within two blocks of the area when Lt. Cowan's call was transmitted over the police radio. Sgt. Glenn described the neighborhood as "a dangerous area" compared to the rest of the city.
When Lt. Cowan returned to defendant's vehicle to advise defendant he would be issued motor vehicle summonses for the traffic violations, he saw a blue plastic baggie in a water glass located in the center console. Based on his experience, Lt. Cowan recognized the baggie as packaging typically used for marijuana. He testified the glass "was apparently being used as an ashtray because it was . . . full of ashes with this little bag in top." Seeing these two items together, Lt. Cowan concluded, "there's marijuana being smoked."
Lt. Cowan instructed defendant to exit his vehicle. Sgt. Glenn stood next to Lt. Cowan near the driver's door. As defendant stepped from the car, he turned his back to Lt. Cowan, and faced the car for approximately "three to five seconds[.]" Sgt. Glenn heard "a popping noise and . . . saw [defendant] taking an object out of his jacket, trying to manipulate it and stuff it under the driver's seat." He described the sound coming from inside the vehicle as "like a jar opening." Concerned for the officers' safety, Sgt. Glenn reached into the vehicle to remove the object defendant attempted to hide to see if it was "dangerous" or contained something "hazardous." The object was a clam-style, hard, eyeglass case with a zipper.
Sgt. Glenn unzipped the case to check its content for small weapons, such as "a box cutter, . . . a lipstick knife, a belt buckle knife, [or] a key knife." Sgt. Glenn acknowledged nothing about the case suggested its contents, and he did not determine whether the case was the source of the popping sound. Inside the eyeglasses case, Sgt. Glenn found fifteen bags of heroin and twelve vials of cocaine.
Lt. Cowan escorted defendant toward the rear of his vehicle and placed him under arrest. A search of defendant's person incident to arrest recovered $120. No glasses were found.
Defendant was issued two summonses for the driving infraction and being an unlicensed driver. An indictment was later issued, charging defendant with two counts each of the following third-degree offenses: possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10a(1) (counts one and four); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (counts two and five); possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (counts three and six).
Defendant testified on his own behalf. He stated he wears glasses, had done so for ten years, and had them on when stopped by Lt. Cowan. Defendant, however, did not wear glasses at trial, explaining he lost them.
Judge Callahan issued a thirteen-page written opinion addressing defendant's challenges to the stop and warrantless search. He found the vehicle stop was unexpected, resulting from an observed traffic violation; probable cause that narcotics activity had taken place was proven, based upon Lt. Cowan's observations; and the totality of the evidence revealed exigent circumstances existed, ...