August 13, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARK EDWARD HICKS, a/k/a MARK GRADY, a/k/a MARK E. QUANDO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-10-0923.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Kenneth A. Burden, Deputy Attorney General, of counsel and on the brief).
Before Judges Koblitz and Accurso.
Following the denial of his motion to suppress evidence seized incident to his arrest, defendant Mark Edward Hicks pled guilty to third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1, and second-degree eluding, N.J.S.A. 2C:29-2b. Pursuant to a negotiated agreement, the State agreed to dismiss the remaining charges in the indictment and to recommend an aggregate sentence of seven years imprisonment with a three-year parole disqualifier in exchange for defendant's plea and his agreement to be sentenced in the extended range on the third-degree drug possession charge. He now appeals the denial of his motion to suppress. We affirm, essentially for the reasons expressed by Judge Fasciale in his written opinion of November 17, 2008 and State v. Williams, 192 N.J. 1, 4 (2007).
In the course of a wiretap investigation of Hakeem Roberson, the suspected leader of the Clinton Avenue Posse, a purported Plainfield street gang, the State Police intercepted a call on April 13, 2007 from an unidentified male. The caller, who claimed he was acting on behalf of a third party, wanted to meet Roberson at McDonald's for a "whole box of cheeseburgers" to "wipe up a snotty nose." Roberson quoted the caller a price of 275. In a second call, the caller said he had 250 but wanted to double his order and again referred to someone else's involvement in the transaction. The two agreed on a price of 480. In a third call, Roberson alerted the caller to police at McDonald's where the two planned to meet. The caller suggested they meet instead at a nearby Kentucky Fried Chicken (KFC). In a fourth call, Roberson confirmed KFC as the meeting place.
At the suppression hearing, the State Police detective who intercepted the calls testified that individuals engaged in narcotics transactions often refer to various foods as euphemisms for drugs and expressed his belief that the caller's reference to "a box of cheeseburgers" was just such a euphemism. The detective also testified that he was aware that "snotty nose" was a "brand" of heroin. The detective testified that, based on his training and experience, he concluded Roberson and the unidentified caller were setting up a drug transaction.
Shortly after the last call, a detective from the Plainfield Police Department, which was cooperating with State Police in the wiretap investigation, watched Roberson drive into the KFC parking lot and meet two men. One of the men got into the front seat of Roberson's car. After several minutes, the man got out of the car and left the parking lot driving a red Ford Expedition with a passenger.
The Plainfield Police sergeant in charge of the surveillance, who was en route to the scene, determined to stop the Expedition in connection with the drug transaction his detectives believed they had just witnessed. Because of the sergeant's awareness of the "violent tendencies of Roberson's associates in Plainfield, " and unsure of whether the men in the Expedition were armed, he called for assistance in stopping the vehicle. Although the sergeant initially experienced difficulties in obtaining assistance from State Police or local departments to stop the Expedition as it left Plainfield and proceeded through Piscataway, by the time it crossed into New Brunswick, State Police had arranged for members of that department to stop the Expedition.
The sergeant passed the Expedition on Livingston Avenue and parked further up the block as New Brunswick officers in two unmarked cars executed the stop. One of the cars, with lights and siren activated, pulled up alongside the Expedition and the other pulled in front of it to block the street. Livingston Avenue in the vicinity of the stop is a busy thoroughfare with offices, houses, a library and a public school located along its length. Large numbers of pedestrians frequent this area. Three officers got out of the cars and ran toward the Expedition. One approached the driver's side and ordered the occupants out of the vehicle.
As that officer grabbed the handle of the driver's door, the Expedition lurched forward and made a sharp right turn onto the sidewalk. The officer quickly let go of the handle to avoid being struck or dragged by the Expedition as it sped off down the sidewalk. The Expedition travelled one-half block on the sidewalk before it re-entered Livingston and made a quick left turn down a side street. As the Expedition made that turn, the Plainfield sergeant, who was still parked on Livingston, watched as several small white objects were thrown from one of its windows. The other officers shortly managed to stop the Expedition a second time and arrested its occupants.
The Expedition and its driver, defendant Hicks, and passenger, co-defendant Kevin Lambert, were well-known to the arresting officers. The small white objects collected from the street were ninety-eight glassine envelopes of heroin, each stamped "Snotty Nose, " bundled with rubber bands into five small packages. The arresting officers also seized a cellphone in plain view inside the Expedition, which was subsequently determined to be the same cellphone used in the calls intercepted earlier in the day.
After taking testimony, Judge Fasciale issued a fifteen-page opinion denying defendant's motion to suppress the heroin recovered from the street and the cellphone seized from the Expedition. The judge found that the officers had a reasonable suspicion, based on the intercepted calls and their surveillance, that the occupants of the Expedition had just engaged in a narcotics transaction and were in possession of heroin and thus that the initial stop of the Expedition was lawful. The judge further found that defendant abandoned the heroin by voluntarily discarding it from the window of the Expedition as he fled the police and it was thus not subject to the protection of the Fourth Amendment. Finally, Judge Fasciale found that exigent circumstances justified the seizure of the cellphone from the Expedition.
On appeal, defendant contends that the judge erred in denying his motion to suppress because the seizure of the heroin and the cellphone were the product of an illegal arrest. He argues that the actions of the police in initially converging on the Expedition "amounted to an unlawful seizure rather than a justified investigatory detention."
In reviewing a motion to suppress, a reviewing court is to uphold the factual findings undergirding the trial court's decision unless they are so clearly mistaken that justice demands intervention and correction. State v. Mann, 203 N.J. 328, 336-37 (2010). A trial court has the opportunity "'to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Accordingly, deference to findings substantially influenced by that opportunity is appropriate. Id . at 337. When, however, a question of law is at issue, the appellate court is at no such disadvantage and thus is to apply the law as it understands it. State v. Gandhi, 201 N.J. 161, 176 (2010).
Based on the factual findings of the trial court, the officers had a reasonable, articulable suspicion justifying their initial stop of the Expedition. Given the knowledge the officers had regarding the criminal activities of the subject of their wiretap investigation, Hakeem Roberson, the information they obtained from the intercepted calls, which they reasonably concluded related to a drug buy, and defendant's conduct in the parking lot of the KFC, the officers had a reasonable suspicion that they had witnessed a narcotics transaction and that defendant was in possession of heroin. See State v. Pineiro, 181 N.J. 13, 20 (2004) (holding an investigatory stop is valid if based on specific and articulable facts, which together with the rational inferences, give rise to a reasonable suspicion of criminal activity).
Further, it is well-settled that a person can have no expectation of privacy protected by the Fourth Amendment in property that he has voluntarily discarded. State v. Farinich, 179 N.J.Super. 1, 5-6 (App. Div. 1981), aff'd, 89 N.J. 378 (1982). After having driven on the sidewalk for half a block in the course of fleeing the police, defendant re-entered
Livingston Avenue and threw the heroin out of the window of the car. Accordingly, defendant unquestionably abandoned the heroin for the reasons stated by Judge Fasciale in his written opinion.
Finally, and in any event, defendant eluding the police "broke the link in the chain" between the initial stop and the later seizure of the heroin and cellphone for which suppression is not warranted by the exclusionary rule. See Williams, supra, 192 N.J. at 4. A person has no constitutional right to flee from an investigatory stop, even though the stop may later be deemed to have been unconstitutional. State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L.Ed.2d 563 (2006). Our Court has held that "[f]or practical and public-policy-based reasons, 'constitutional decision-making cannot be left to a suspect in the street, '" Williams, supra, 192 N.J. at 13 (quoting Crawley, supra, 187 N.J. at 459), and thus evidence seized incident to an arrest following an illegal flight from police engaged in an unlawful stop will not be suppressed. Id . at 17-18.
Thus, even accepting arguendo defendant's premise that the initial motor vehicle stop constituted an illegal arrest without probable cause, defendant's criminal act of eluding the officers by driving the Expedition onto the sidewalk, thereby endangering the officers and the public, was an intervening act sufficient to purge the taint of that allegedly illegal arrest. See State v. Seymour, 289 N.J.Super. 80, 86-87 (App. Div. 1996). Accordingly, the officers' subsequent seizure of the heroin and defendant's cellphone were incident to a lawful arrest for eluding and Judge Fasciale properly denied defendant's motion to suppress.