NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-2372.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Maven.
Following denial of his motion to suppress, defendant Robert Carpenter pled guilty, pursuant to a negotiated agreement with the State, to a one-count indictment charging him with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). In exchange for the guilty plea, the State agreed to dismiss the complaint-summons charging defendant with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2, and to recommend a sentence of non-custodial probation. In accordance with this agreement, defendant was sentenced to a one-year probationary term. Defendant appeals the order denying his suppression motion, and we affirm.
According to the State's proofs adduced at the testimonial hearing, on August 30, 2010, Asbury Park Police Sergeant Jeffrey White, a thirteen-year veteran assigned to the "Street Crimes Unit", was on routine patrol in an unmarked police vehicle with Patrolman Francis Sangi. At around 7:00 p.m., they heard a dispatch over the radio concerning an anonymous caller's report that "there were subjects possibly smoking CDS in a white Cadillac on the 1200 block of Washington Avenue." They responded immediately to the scene, where they observed two individuals in a white Cadillac parked on the left-hand side of the road. The officers exited their vehicle and approached the Cadillac on foot to speak to the occupants.
While standing next to the driver's side of the Cadillac, Sergeant White looked through the window and observed defendant, who was behind the wheel, and Sharyl Dixon, who was in the passenger seat. At the same time, he also noticed a "glass tube with copper screening" lying on the seat between defendant and Dixon, which he immediately recognized as a "crack pipe, " "used to ingest CDS." Based on his observation, Sergeant White decided to arrest both defendant and Dixon for possession of drug paraphernalia. At that point, Sergeant White asked defendant to exit the vehicle and instructed Officer Sangi to remove Dixon from the passenger side.
As defendant opened the door and began to exit the Cadillac, Sergeant White observed a small piece of crack cocaine sitting on what he described as a "little hump" or "little ledge" inside the vehicle between the driver's side seat and door. Sergeant White then placed defendant under arrest and walked him to the rear of the car where Patrolman Sangi had Dixon secured.
With defendant and Dixon under the watch of Patrolman Sangi, Sergeant White walked back to the Cadillac to recover the contraband he had openly seen. As he reached inside the vehicle to retrieve the crack pipe, Sergeant White observed a "small clear zip-lock bag with a white residue inside it" sitting on the front seat near the crack pipe. Based on his training and experience, Sergeant White knew that small plastic bags were commonly used in "[t]he packaging of crack cocaine" and, therefore, suspected the white residue inside the bag to be cocaine. After Sergeant White secured all three items, defendant and Dixon were transported to police headquarters.
Dixon offered a contrary account, denying there were any drugs or drug paraphernalia in the car. At the close of evidence, the judge, crediting the testimony of Sergeant White and Patrolman Sangi, denied defendant's suppression motion, concluding that the officers' seizure of the evidence from the vehicle was justified under the plain view exception to the warrant requirement. The court reasoned:
Here the police officers, in my mind, did exactly what they were supposed to do. They received an anonymous tip, not themselves, it was called into the police headquarters. They were in the area doing their rounds essentially as part of the street crimes unit. They saw a vehicle that matched exactly the vehicle that was called in. They saw ...