On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 09-03-0548, 09-03-0544.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
Defendant Steven Alan Jackson appeals his conviction, pursuant to a guilty plea, for second-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1), following the denial of two motions to suppress. For the reasons that follow, we affirm.
Defendant moved to suppress evidence seized on separate dates that resulted in two separate indictments. According to the evidence presented by the State, in the first incident on September 9, 2008, police officers Jeffrey White and Eddy Raisin were on routine patrol in Asbury Park. Officer Raisin saw a man named Devron Dash, who had outstanding warrants, ride his bicycle into the driveway of a house on Fourth Avenue.
This property had belonged to defendant's father until his death in April 2008. The property passed to the father's estate, and defendant's sister was the executor. Defendant lived there until August 13, 2008, when the City condemned the property as uninhabitable due to multiple municipal code violations.*fn1 Since that date, the City prohibited anyone from residing there. No one was permitted on the property except city employees or the owner to do repairs. Defendant lived in a neighboring town and occasionally went there to pick up mail but not to do repairs. Defendant admitted that he knew he was not allowed on the property and that he had been arrested prior to September 9 for trespassing there. Officer White also knew the property was condemned because the police had made numerous trespassing arrests there.
Both officers witnessed Dash dismount from his bike and walk through the gate into the backyard before they lost sight of him. A six-foot stockade fence surrounded the residence, enclosing the backyard. The officers went down the driveway and, without knocking or announcing their presence, entered through the unlocked gate into the backyard. Once inside, they did not see Dash but saw steps leading up to a wooden porch and a man standing on the porch holding money. Then, they viewed defendant seated at the edge of the doorway to the house, holding what appeared to be a brick of heroin while removing several packets. When defendant saw the officers, he put the items in his pockets. The officers informed defendant that he was under arrest and attempted to get hold of him. Defendant struggled and began to scream, "First, First, First," at which point his "monstrous" pit bull appeared and charged at the officers. Officer Raisin took out his gun, preparing to shoot the dog for his own protection, when defendant jumped in front of the dog to shield him.
The police officers arrested defendant for aggravated assault on a police officer and resisting arrest, then conducted a protective sweep of the premises and found Dash. The police brought both Dash and defendant to the police station. While there, after learning that the police were preparing papers for a search warrant, defendant agreed to permit a search and signed a consent to search form. Defendant also accompanied the police back to the premises and showed them where he kept several bags of cocaine. The police charged defendant with multiple counts of possession of CDS and possession with intent to distribute CDS, possession with intent to distribute within five hundred feet of a public park, N.J.S.A. 2C:35-7.1, aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and resisting arrest, N.J.S.A. 2C:29-2(a)(3).
In the second incident on November 7, 2008, Officer Michael Barnes of Asbury Park saw defendant, whom he recognized from previous arrests, exit a building with a large pit bull and enter a car in which two women were waiting. Although parking spaces were available in front of the building defendant just exited, the women had parked down the street. Officer Barnes radioed police headquarters for a warrant search, which showed that defendant had eight active arrest warrants pending against him. While the officers were verifying the warrants, defendant exited the women's car and walked back to his building. After two or three minutes defendant began walking back towards the car.
When the warrants had been verified and other police officers had arrived, the officers pulled up to the women's car as defendant approached it and ordered defendant to halt. Instead, he dove into the car and yelled "go, go" to the driver. The officers pulled defendant out of the car but he resisted while trying to force a small bag between the seats. After defendant was secured, the officers returned to the vehicle and saw the bag between the seats and determined that it contained heroin. The officers conducted a search of defendant's person incident to arrest, found nine bags of crack cocaine and heroin, and arrested him. In the ensuing indictment, he was charged with possession of CDS and possession of CDS with intent to distribute, and possession of CDS with intent to distribute within five hundred feet of a public park.
During his testimony, defendant denied being on the condemned property, bringing his pit bull to the property, or using the dog to attack the police officers on September 9, 2008. The prosecutor asked on cross-examination whether defendant had drugs in his pockets on November 7 and if he recognized the heroin allegedly confiscated from him that day. Defendant initially denied ever having seen heroin before.
Counsel objected to these questions, arguing they were outside the scope of the direct.
At the suppression hearing, defendant argued that the officers illegally entered the property belonging to his father's estate on September 9 because they did not have a warrant, and there was no exigency or consent. He contended that any probable cause to arrest defendant was tainted by the officers' illegal presence on the property. The State countered that the arrest was lawful because the police had probable cause to believe a crime was committed ...