June 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANDRE REID a/k/a ANDRE CROWDER, DRE CROWER, ANDRE L. REED, ANDREA REED, ANDRE M. REID, ANDRE P. REID, ANDREA M. REID, and ANDRE RIED, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 10-04-00891 and 10-09-2278.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant.
(Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
Sarah Lichter, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Lichter, of counsel and on the brief).
Before Judges Simonelli, Koblitz and Accurso.
A grand jury indicted defendant Andre Reid for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with the intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and -5b(3) (count three). At the conclusion of the State's case, the trial judge dismissed count three. A jury found defendant guilty on count one, and not guilty on count two.
A different grand jury indicted defendant for third-degree unlawful possession of a weapon (BB gun), N.J.S.A. 2C:39-5b. Defendant subsequently pled guilty to an amended charge of fourth-degree violation of the regulatory provisions relating to firearms, N.J.S.A. 2C:39-10.
The trial judge sentenced defendant to a four-year term of imprisonment with a two-year period of parole ineligibility for the conviction for possession of CDS and a concurrent eighteen-month term of imprisonment for the conviction for the regulatory provisions violation. The judge also imposed the appropriate penalties, fees, and assessments.
On appeal, defendant raises the following contentions:
THE COURT REFUSED TO SUPPRESS, AT THE INITIAL MOTION, THE EVIDENCE SEIZED FROM [DEFENDANT] BASED PRINCIPALLY UPON THE DOCUMENTS ALLEGING THAT THE OFFICERS HAD PROBABLE CAUSE TO ARREST AND THE EVIDENCE WAS RECOVERED PURSUANT TO THE DOCTRINE OF SEARCH INCIDENT TO ARREST. THE FOLLOWING DAY, AT TRIAL, ALL THREE OFFICERS TESTIFIED TO OBSERVING A "HAND-TO-HAND" TRANSACTION WITHOUT ANY OF THE REQUISITE DETAILS NECESSARY TO PROVIDE PROBABLE CAUSE TO ARREST AND SEARCH [DEFENDANT]; AS SUCH, THE COURT ERRED IN FAILING TO GRANT [DEFENDANT'S] RENEWED MOTION TO SUPPRESS.
A. Pre-Trial Motion to Suppress.
B. Mid-Trial Renewed Motion to Suppress.
THE FACTUAL BASIS FOR THE VIOLATION OF N.J.S.A. 2C:39-10 IS INSUFFICIENT; IN THE ALTERNATIVE [DEFENDANT'S] CONDUCT IS PROTECTED BY THE STATUTORY EXEMPTION PROMULGATED IN [N.J.S.A. 2C:39-6e]. (NOT RAISED BELOW).
We affirm defendant's conviction for possession of CDS, but reverse and vacate his conviction for the regulatory provisions violation, and remand for further proceedings.
At approximately 9:45 p.m. on May 1, 2010, Sergeant William Connelly and Police Officers Jose Perez and Jeffrey Bouie of the Newark Police Department, Anti-Crime Unit, were on routine patrol in an unmarked patrol car in the area of Grand and Mountainview Avenues, a known high-crime and narcotics activity area. The area was well lit, and the weather was clear. The officers, who had a clear view of the area, saw defendant and Raymond Fletcher engage in a "hand-to-hand transaction." Based on the officers' training, experience, and the location, they believed that defendant and Fletcher had engaged in a narcotics transaction and drove to where they were standing. When defendant and Fletcher saw the patrol car approaching, they immediately split up and went in different directions.
Officer Perez exited the patrol car and saw defendant place an object into his left pants pocket. The officer detained defendant and saw a clear plastic bag protruding from that pocket. Officer Perez retrieved the bag and saw that it contained thirteen bags of cocaine. The officer also found $177 in defendant's right pants pocket. He then placed defendant under arrest.
In the meantime, Sergeant Connelly and Officer Bouie followed Fletcher. As the officers approached Fletcher, they saw him drop a bag to the ground. Sergeant Connelly retrieved the bag, discovered it contained cocaine, and arrested Fletcher. The markings on the bag Sergeant Connelly retrieved matched the markings on the thirteen bags of cocaine found on defendant.
Defendant contends in Point I that the judge erred in denying his pre-trial motion to suppress and his motion to suppress brought after the close of the State's case. He argues the police lacked probable cause to arrest and search him because they did not see any objects pass between him and Fletcher. We disagree.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We must uphold the trial judge's factual findings when supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). We must afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (internal quotation marks omitted). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction, ' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, we owe "no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand it." Ibid. (citations omitted). Applying the above standards, we discern no reason to disturb the judge's denial of defendant's motions to suppress.
Warrantless searches are presumptively unreasonable and "prohibited unless they fall within a recognized exception to the warrant requirement." State v. Pena-Flores, 198 N.J. 6, 18 (2009). The State must prove the overall reasonableness and validity of a warrantless search by proving that the search comported with one of the exceptions to the warrant requirement. State v. Bruzzese, 94 N.J. 210, 218 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984).
A search incident to a lawful arrest is an exception to the warrant requirement. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427, 434 (1973). When a person is arrested lawfully, with or without a warrant, a search of his person or of items within his immediate possession or control, or of the place of arrest to the extent it is within his immediate possession or control, is considered incidental to the arrest. State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed.2d 436 (1993).
This exception applies when there is probable cause to arrest. State v. Dangerfield, 171 N.J. 446, 455-56 (2002). "Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Probable cause requires nothing more than "'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2322, 76 L.Ed.2d 527, 548 (1983)). Probable cause to arrest may be established based on a police officer's observations, "common and specialized experience and evidence concerning the high-crime reputation of an area." State v. Moore, 181 N.J. 40, 46-47 (2004) (citations omitted).
For the pre-trial motion, the parties stipulated to relying on Officer Perez's grand jury testimony and police reports.Officer Perez testified before the grand jury that his attention was drawn to defendant and Fletcher because he "observed [defendant] and Fletcher making a hand to hand transaction, currency - - Fletcher gave [defendant] currency and in return, [defendant] gave Fletcher an unknown object." The officer further testified that based on his training and experience, he believed he witnessed a narcotics transaction.
At trial, Officers Perez and Bouie and Sergeant Connelly testified they saw defendant and Fletcher engage in a "hand-to-hand transaction" and that based on their training, experience, and the location, they believed that defendant and Fletcher had engaged in a narcotics transaction. Sergeant Connelly explained to the jury that the term "hand-to-hand transaction" meant that "the drug dealer would exchange his [narcotics] for the U.S. currency."
We are satisfied that based on the officers' observations, training and experience, and the location, it was reasonable for them to conclude that the totality of circumstances supported a well-grounded suspicion they had witnessed a drug transaction. Therefore, the judge correctly determined there was probable cause for defendant's arrest and properly denied defendant's motions.
Defendant pled guilty to an amended charge of fourth-degree violation of the regulatory provisions relating to firearms, N.J.S.A. 2C:39-10. The record does not indicate the subsection to which defendant pled guilty. The guilty plea form only indicates that the indictment was "Amended to Reg. provisions" with no statutory citation. In providing a factual basis, defendant testified he was outside of his home mowing the lawn when he took the BB gun from his nephew, put it in his pocket, and continued mowing the lawn. Defendant admitted he had no "purchaser license or identification necessary to have possession of [the] BB gun." He contends in Point II that because he did not admit to violating any subsection of N.J.S.A. 2C:39-10, the plea lacks a sufficient factual basis and must be vacated.
The State argues that defendant gave a factual basis for a conviction of N.J.S.A. 2C:39-10 by violating the regulatory provisions of N.J.S.A. 2C:58-4, which governs the application process to obtain a permit to carry a handgun. Defendant, however, did not testify that he applied for a permit to carry a handgun or had no carry permit Thus he did not establish a factual basis for a violation of NJSA 2C:58-4 We do not consider what other regulatory violation not advanced by the State might arguably be sustained by defendant's admission that while standing on his own property he took a BB gun from his nephew See Office of Emp Relations v Commc'ns Workers of Am 154 N.J. 98 108 (1998) ("Ordinarily courts do not raise issues that the parties have not raised")
Accordingly defendant's conviction is reversed and vacated and the matter is remanded for further proceedings See State v Campfield 213 N.J. 218 236 (2013) (noting that "it is essential to elicit from the defendant a comprehensive factual basis addressing each element of a given offense in substantial detail").
Affirmed in part reversed in part and remanded for further proceedings. We do not retain jurisdiction