STATE OF NEW JERSEY v. RAHMIL O'NEAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1023-03T41023-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMIL O'NEAL,

Defendant-Appellant.

 

Submitted: September 21, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 03-01-0031.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Rahmil O'Neal appeals from his conviction on drug charges and from the sentence imposed. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Essex County Indictment Number 2003-02-31 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), 2C:35-5b(3) (count two); and third-degree possession of cocaine in a school zone with intent to distribute, N.J.S.A. 2C:35-7 (count three). Defendant moved to suppress statements made by him on the basis that he had not been given the Miranda warnings. Concluding that defendant did not have an objectively reasonable belief that he was under arrest at the time he made those statements, the trial court denied the motion. Defense counsel did not file a motion to suppress evidence seized during the Terry search of defendant.

Tried to a jury, defendant was convicted on all counts. On sentencing, the court merged the convictions on counts one and two into the school zone conviction on count three, and sentenced defendant to a term of four years' imprisonment, with a three-year period of parole ineligibility. Applicable fines, penalties and a two-year driver's license revocation were imposed.

The incident giving rise to the charges against defendant occurred on August 28, 2002, in the Lincoln Park area of Newark. Police Officers Patrick Cantalupo and Bobby Bullock were working undercover in that area in an unmarked police vehicle. As members of the Street Crimes Unit, their assigned responsibility was to address quality-of-life issues in the area, such as drug trafficking.

Officer Cantalupo testified that as they patrolled the area, he saw defendant engage in a hand-to-hand exchange of currency and an object with a Caucasian male in front of a Chinese restaurant at 77 Lincoln Park. More specifically, Officer Cantalupo stated the male handed defendant currency and, in return, defendant handed the man an object.

Believing they had witnessed a drug transaction, Officer Cantalupo turned the car around to go back and investigate. When he and Officer Bullock returned, defendant was still in front of the store, but the Caucasian male had left. The officers maintained surveillance of defendant.

Within a couple of minutes, Officer Cantalupo saw a Hispanic male approach defendant; they had a brief conversation and the male handed defendant currency. Officer Cantalupo stated that defendant then bent down on his left knee, reached under his pants, and removed from his right sock a clear plastic bag, which was the size of a sandwich bag. The bag contained black-capped vials of what Officer Cantalupo believed was cocaine. Defendant then handed one of the vials to the Hispanic male.

At that point, Officers Cantalupo and Bullock exited their police vehicle, crossed the street, and approached defendant and the Hispanic male. Officer Cantalupo testified he believed that defendant and the man recognized him and Bullock as police officers, since defendant picked up a pay phone and pretended to be talking to someone, and the Hispanic male went into a side door and slammed it shut.

As they approached defendant, Officers Cantalupo and Bullock had their badges hanging around their necks and identified themselves by saying "police." Officer Cantalupo asked defendant "what's going on," and in a "very defensive" way defendant answered that he had not done anything wrong.

Officer Bullock then directed Officer Cantalupo's attention to a bulge around defendant's ankle, the same place where Officer Cantalupo had observed defendant retrieve the plastic bag containing the suspected illicit drugs. Officer Cantalupo stated he immediately pat-down the area and felt a "bulge in his sock, underneath his pants." Officer Cantalupo then asked defendant what was around his ankle, and defendant responded "a bag of cocaine." Officer Cantalupo then seized the bag, which "was a clear plastic bag, almost like a sandwich bag size with 49 black capped vials of" suspected cocaine, handcuffed defendant, and placed him in custody. Once defendant was in custody, Officer Cantalupo searched him and seized thirteen dollars.

At trial, defendant testified, denying that he had drugs around his ankle, or any place else. According to defendant, he was walking from his father's house to a friend's house when he saw another friend standing in front of the store. He stopped to shake his friend's hand, and the police ran toward him and his friend. Defendant testified that his friend then went inside a next-door building. Defendant stated that when the police officers approached him, they told him that he "had 49 bottles." Defendant also denied ever picking up the pay phone, and contended that the drugs were not his.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE CONTRABAND SEIZED DURING THE TERRY FRISK WAS IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS.

POINT II

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO MAKE A MOTION TO SUPPRESS THE EVIDENCE SEIZED DURING THE TERRY FRISK IN VIOLATION OF FEDERAL AND STATE CONSTITUTIONS.

POINT III

DEFENDANT'S ORAL STATEMENT MADE TO THE POLICE OFFICER DURING THE TERRY FRISK WAS IN VIOLATION OF HIS MIRANDA RIGHTS.

POINT IV

THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

I.

Defendant argues that the trial court erred in denying his motion to suppress his statement to the officers that he had cocaine around his ankle, contending that such evidence was obtained in violation of Miranda. We disagree.

The Miranda warnings derive from the right to counsel and the right against self-incrimination. State v. Stott, 171 N.J. 343, 364 (2002). They advise an arrestee that he has the right to remain silent; anything said can and will be used against him as evidence; he has the right to counsel; and counsel will be appointed to him if he cannot afford one. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07.

These warnings are deemed necessary to protect a suspect from the inherently coercive nature of custodial police interrogations. State v. Brown, 352 N.J. Super. 338, 351 (App. Div.), certif. denied, 174 N.J. 544 (2002). Thus, a police officer is required to give a suspect Miranda warnings before subjecting him to "custodial interrogation." Ibid. "'Custodial interrogation' means 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Ibid. (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). Once a suspect is arrested, he must be given Miranda warnings before being questioned. State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005).

Miranda warnings are not required, however, when the police question a suspect during a Terry stop. Ibid. A Terry stop occurs when an officer briefly detains a person in order to investigate a reasonable suspicion, as opposed to probable cause, that the person has committed, or is about to commit, a crime. Ibid. (citing Berkemer v. McCarty, 468 U.S. 420, 439-41, 104 S. Ct. 3138, 3150-51, 82 L. Ed. 2d 317, 333-34 (1984)). In such circumstances, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." Berkemer, supra, 468 U.S. at 439, 104 S. Ct. at 3150, 82 L. Ed. 2d at 334.

The critical factor in determining whether the suspect made statements in the absence of required Miranda warnings is whether the suspect was subject to custodial interrogation when he made the statement. Smith, supra, 374 N.J. Super. at 431. In answering that question, a court must examine the totality of the circumstances and determine whether an objectively reasonable person would have believed that he was in fact under arrest when the police questioned him. Id. at 430. Relevant factors include, "the time, place and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." Id. at 431. If a court determines that the defendant made the statements without being given the requisite Miranda warnings, then the evidence must be suppressed as being obtained in violation of constitutionally-protected rights. Brown, supra, 352 N.J. Super. at 351.

In reviewing a trial court's decision, an appellate court determines whether there is credible evidence in the record to support the trial court's findings and whether the court's legal conclusions were valid. Smith, supra, 374 N.J. Super. at 430. We give "deference to those findings 'influenced by the judge's opportunity to hear and see the witnesses and to have the 'feel' of the case.'" Ibid. (quoting State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990)).

Here, Officer Cantalupo was the sole witness at the hearing on defendant's suppression motion. He testified to his version of the incident. Defense counsel asked Officer Cantalupo if he intended to arrest defendant when he approached defendant. Officer Cantalupo responded: "My intention was to investigate whether or not he was, in fact, selling drugs." The questioning continued, as follows:

Q. Well, at that point you didn't feel you had sufficient probable cause to arrest my client?

A. I thought I had enough suspicion to approach your client. Absolutely. I didn't -- at the time, like I said, it -- to me, in my eyes, it was suspected cocaine. Once I approached and found that cocaine, that was my definite evidence that he was going to be placed under arrest.

Defense counsel asked Officer Cantalupo if, when he felt the object around defendant's ankle, he had any idea what it was. Officer Cantalupo answered:

Not at that time, or other than what I observed in his ankle, yes. I observed -- I would have assumed it could have been the -- a bag of black cap vials of cocaine, but then again, there could have been something else in his ankle. He could have had a gun. He could have had a knife. He could have had anything else in his ankle that I didn't see.

Upon feeling the object, Officer Cantalupo asked defendant "what is this," and defendant answered "a bag of cocaine," at which point Officer Cantalupo seized the bag and arrested defendant.

The trial judge concluded that asking defendant "what is this" did not constitute a custodial interrogation because defendant was not arrested at that time. In so concluding, the judge relied primarily on State v. Toro, 229 N.J. Super. 215 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989).

In Toro, two police officers saw the defendant's car, which had a cracked taillight, weaving as it traveled the highway. Id. at 217. The officers stopped the defendant and asked for his driver's license; he did not produce one. Ibid. The officers then saw a package wrapped in duct tape near the defendant's feet. Id. at 218. One officer asked the defendant to exit the vehicle, patted him down, and asked him what was in the package. Ibid. The defendant stated that it was "coca." Ibid. The officer placed him under arrest. Ibid.

In finding that Miranda warnings were not necessary prior to asking the defendant what was in the package, we stated that traffic stops are more like Terry stops than arrests, as they are generally brief and done in public. Id. at 219-20. "[Q]uestioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." Id. at 219 (quoting Berkemer, supra, 468 U.S. at 437-38, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333).

We explained that during a Terry stop an

officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.

[Id. at 220.]

The traffic stop turned into a Terry stop when the officer saw the package on the floor. Id. at 221. At that point the officer asked the defendant to get out of the car, frisked him, and asked him a few non-coercive questions. Ibid. We noted that the officer did not fully search the defendant, place him under arrest or handcuff him. Ibid. Thus, we concluded that the officer's actions did not rise to the level of a formal arrest. Ibid. Therefore, the Miranda warnings were not required at that point.

Here, Officer Cantalupo did not place defendant under arrest, handcuff him, or search him beyond a frisk. Additionally, Officer Cantalupo questioned defendant on a public street, and the questioning was limited to one inquiry about the object, namely, "what is this." The trial court concluded that based on all the circumstances, a reasonable person would not have believed that he was under arrest when Officer Cantalupo asked him what was around his ankle. We agree. Thus, there was no need for Miranda warnings at that point, and defendant's response was admissible as evidence.

II.

Defendant also argues that he was denied his right to effective assistance of counsel under the United States and New Jersey Constitutions because his trial attorney did not make a motion to suppress the evidence seized during the Terry search and failed to emphasize reasonable doubt during her summation.

The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution, Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), and by Article I, paragraph 10 of the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

To make a prima facie showing of ineffective assistance of counsel, a defendant must establish that the evidence, viewed in a light most favorable to the defendant, shows a reasonable likelihood of success under the Strickland two-prong test. State v. Fisher, 156 N.J. 494, 499 (1998). That test requires the defendant to show that: (1) trial counsel's conduct fell below an objective standard of reasonableness; and (2) that conduct prejudiced the defense. Ibid. The Strickland test is applied to challenges under both the State and Federal Constitutions. Fritz, supra, 105 N.J. at 58.

In assessing whether a defendant has established the first prong, a court must examine trial counsel's conduct in relation to prevailing professional norms. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. This analysis begins with "a strong presumption" that counsel's conduct fell within "the wide range of reasonable professional assistance" and makes "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Fisher, supra, 156 N.J. at 500 (quoting Strickland, supra, 466 U.S. at 687-89, 104 S. Ct. at 2064-66, 80 L. Ed. 2d at 694).

The second prong of the Strickland test can be established in one of two ways. State v. Allah, 170 N.J. 269, 283-84 (2002). First, the defendant can show that "counsel's deficient performance deprived the defendant of 'a fair trial,' that is, 'a trial whose result is reliable[.]" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant can demonstrate a reasonable probability that, "but for counsel's deficiency, the outcome would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Because ineffective-assistance-of-counsel claims usually require evidence outside the record, our Supreme Court has said that they "are particularly suited for post-conviction review[.]" State v. Preciose, 129 N.J. 451, 460 (1992). If an appellate court believes that evidence outside the record is necessary to decide the claim, it should decline to address the claim on direct appeal and preserve it for post-conviction relief. State v. Jackson, 278 N.J. Super. 69, 74 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). However, when "the trial record discloses the facts essential to" the claim, the "defendant should not be required to wait until post-conviction relief to raise the issue[.]" Allah, supra, 170 N.J. at 285; see also State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).

Here, defendant contends that his trial counsel denied him effective assistance of counsel by failing to file a motion to suppress the cocaine seized during the Terry search conducted by Officer Cantalupo. A Terry search is a pat-down of a suspect's clothing to discover weapons that the officer reasonably believes the suspect may have. Terry, supra, 392 U.S. at 30-31, 88 S. Ct. at 1884-85, 20 L. Ed. 2d at 911. Defendant argues that Officer Cantalupo had no basis to conduct a Terry search because he knew from his prior observations that defendant had vials of suspected cocaine, not a weapon, around his ankle. Defendant argues that had the motion been filed, and the evidence suppressed, he would not have been convicted.

When a defendant's ineffective assistance of counsel claim is based on a failure to file a Fourth Amendment suppression motion, the defendant must establish, in addition to the two-prong Strickland test, that his Fourth Amendment claim has merit. Fisher, supra, 156 N.J. at 501. In determining whether defendant's claim has merit, we need not decide whether the suppression motion would have been successful if trial counsel had filed it. Johnson, supra, 365 N.J. Super. at 37. Indeed, in most cases an appellate court will be unable to make that determination because the record will be insufficient. Ibid. As the suppression motion was never filed, a hearing on the issue was never held; thus, the State never had the opportunity to justify the search. Ibid. Only in the rare case where the State's opposition would be futile, will an appellate court be able to decide whether the motion would have been granted. Cf. Allah, supra, 170 N.J. at 290 (reversing a conviction on direct appeal because trial counsel was ineffective in failing to assert the defense of double jeopardy in a second criminal proceeding).

If an appellate court finds that a defendant has satisfied the Strickland two-prong test, and that the suppression motion has merit, but that the record is insufficient to determine whether the motion would have been granted, then the court must remand the matter to the trial court with instructions to reverse the conviction if the trial court grants the motion after a full hearing. Johnson, supra, 365 N.J. Super. at 37.

Here, the State contends that in advancing the ineffective-assistance-of-counsel challenge, defendant is attempting to litigate an issue that he did not preserve for appeal, namely, the lawfulness of the search and seizure. The State cites to R. 3:5-7(f), which provides that when a defendant fails to file a pretrial motion to suppress, "the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained."

However, defendant is not attempting to litigate a waived argument. Rather, in order to establish that the Fourth Amendment issue has merit, as he is required to do under Fisher, supra, 156 N.J. at 501, defendant is arguing that the motion would have been granted. Indeed, the "procedural bar [in R. 3:5-7] does not extend to Sixth Amendment claims of ineffective assistance of counsel where based on counsel's very failure to timely file a suppression motion." Johnson, supra, 365 N.J. Super. at 34.

Generally, the Fourth Amendment prohibits a police officer from searching a person in the absence of probable cause. State v. Smith, 155 N.J. 83, 91 (1998), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). An exception to that rule is the Terry search:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

[Terry, supra, 392 U.S. at 30, 88 S. Ct. at 1884-85, 20 L. Ed. 2d at 911; accord State v. Thomas, 110 N.J. 673, 678 (1988).]

Thus, to justify a Terry search the State must first establish that the officer stopped the suspect to investigate a reasonable suspicion that the suspect committed a crime or was about to commit a crime. Thomas, supra, 110 N.J. at 678. Here, defendant does not challenge the lawfulness of the stop by Officers Cantalupo and Bullock.

If the stop was justified, the State must then show that the search was supported by reasonable suspicion that the suspect was armed and dangerous. Ibid.

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . . . And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

[Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.]

In sum, the reasonableness of the search is based on an objective standard. Thomas, supra, 110 N.J. at 679. "The officer must be able 'to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.'" Ibid. (quoting Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935 (1968)).

When the suspected conduct is a crime of violence, such as assault or rape, the right to do a Terry search is "immediate and automatic." Thomas, supra, 110 N.J. at 680 (quoting Terry, supra, 392 U.S. at 33, 88 S. Ct. at 1886, 20 L. Ed. 2d at 913). Similarly, when the officer has a "specific and objectively credible reason to believe the suspect is armed[,]" courts are likely to approve an immediate search of a suspect. Thomas, supra, 110 N.J. at 680. However, when the officer does not have reason to believe that the suspect committed a violent crime or was armed, "more is required to justify a protective search." Ibid.

In the context of drug sales, "courts are influenced by the seriousness of the suspected drug offense in determining whether officers were reasonable in believing the suspect was armed and dangerous." Id. at 681. Courts are more likely to find the officer's belief reasonable when the suspect is believed to be a substantial dealer. Ibid.

Here, defendant contends that his challenge to the Terry search has merit because Officer Cantalupo testified that he saw vials of suspected cocaine around defendant's ankle prior to approaching him. Thus, argues defendant, Officer Cantalupo did not have an objectively reasonable belief that the bulge was a weapon. The State insists that the search was justified because Officer Cantalupo was concerned that defendant may have had a gun or a knife in his sock.

Our review of the record on appeal discloses that defendant's Fourth Amendment suppression challenge has merit. In State v. Valentine, 134 N.J. 536 (1994), a police officer, who was on patrol around midnight in a low-lit high-crime area, pulled up to a woman who was walking down the street, presumably to question her. Id. at 539. As the officer approached the woman, he saw the defendant, who looked at the officer and then ducked behind a tree. Ibid. Rather than question the woman, the officer approached the defendant, who then came out from behind the tree and walked away from the officer with his hands in his pocket. Id. at 540. The officer recognized the defendant from previous encounters, and knew that he had a lengthy arrest record for weapons offenses, robberies and drugs. Ibid.

The officer asked the defendant what he was doing, and he responded that he was about to urinate. Ibid. The officer asked defendant why he was going to urinate in public when he lived right around the corner. Ibid. The defendant responded that when nature calls you have to respond. Ibid.

The defendant's demeanor made the officer uncomfortable, as he did not make eye contact and evasively answered questions. Ibid. The officer told the defendant to take his hands out of his pocket and move toward the officer's car. Ibid. At that point, the officer called for back-up and frisked the defendant for weapons, and discovered that the defendant had a knife in his pocket. Ibid.

In finding the Terry search justified, the Court noted that the stop had occurred in a high-crime area, shortly after midnight, on a low-lit street. Id. at 551. Additionally, the officer knew the defendant and was aware of his criminal history, which had included violent crimes. Ibid. When the defendant saw the officer, he ducked behind a tree and when he came out from behind the tree, he had his hands in his pocket, refused to make eye contact with the officer and nervously looked around. Ibid. When the officer questioned him, he gave weak answers that led the officer to believe that he was lying. Ibid. These circumstances warranted the pat-down search of the defendant for weapons.

Here, Officer Cantalupo, along with his partner, stopped defendant during day-light hours. Officer Cantalupo had never encountered defendant before and had no knowledge as to whether he had a history of violent crimes. When Officers Cantalupo and Bullock approached defendant, defendant did not hide and then emerge with his hands hidden. Rather, he pretended to be on a pay phone, an act that would not place a reasonable person in fear of assault.

When Officer Cantalupo approached defendant, defendant did not evasively answer his questions or avoid eye contact. Notably, unlike the officer in Valentine, Officer Cantalupo did not question defendant other than to say "what's going on" when he approached defendant. Thus, based on this record, this was not a situation where Officer Cantalupo's fear that defendant may be armed increased as the encounter continued.

Moreover, unlike Valentine, where the officer did not know or see what was in the defendant's pocket, Officer Cantalupo testified he had observed what was around defendant's ankle when he saw defendant pull it out of his sock. Officer Cantaulpo described the object as a plastic baggie containing black-capped vials of suspected cocaine. Officer Cantalupo testified that he "absolutely" saw the baggie and its contents before he approached defendant. These circumstances tend to negate the State's claim that Officer Cantalupo believed defendant had a weapon around his ankle, or that such a belief was objectively reasonable. Further, unlike the object that was in the defendant's pocket in Valentine, defendant could not have immediately obtained an object that was around his ankle.

The facts in this case are distinguishable from those in Valentine and tend to show that Cantalupo did not have an objectively reasonable belief that defendant had a weapon in his sock.

In State v. Arthur, 149 N.J. 1 (1997), a police officer was conducting undercover surveillance work in a high-drug area. Id. at 4. He observed the defendant drive into the area and park his car; no one was in the car with defendant. Ibid. The defendant sat in the car for about two minutes, and then a woman, Walls, walked up and entered the car on the passenger side. Ibid. The officer had never encountered either the defendant or Walls prior to that day. Ibid.

The officer could see the chest and head area of defendant and Walls, but nothing else. Ibid. They sat in the car for about five minutes before Walls got out. Ibid. The officer said that when Walls got out of the car she "started looking around really suspiciously, looking back and forth up and down the street[,]" and had tucked under her arm a paper bag, which she did not have when she had entered the vehicle. Ibid. The bag "had been rolled down so that it was approximately five inches high." Ibid. Walls then walked away from the car. Ibid.

Based on his experience as a detective in over a thousand drug investigations, the officer believed that he had witnessed an illicit drug transaction. Id. at 5. The officer stopped Walls and searched the paper bag. Ibid. The bag contained narcotics paraphernalia. Ibid. The officer then radioed a description of the defendant's car, which had since left the area. Ibid. Upon being stopped by a police vehicle, the defendant said that he had drugs in his pocket. Ibid. He was searched, and drugs were found on his person. Ibid.

The Court found that while the initial stop of Walls was justified, as the officer had a reasonable belief that a drug transaction had occurred, the search of her bag was not warranted. Id. at 15. The Court held that while "an officer might be justified in believing that a 'substantial dealer in narcotics' in a 'high-crime area' could be armed and dangerous[,]" observation of a possible drug transaction "could not by itself justify a protective search." Id. at 14-15. The officer in Arthur, said the Court, did not believe that Walls had a weapon; rather, he was "simply attempting to discover drugs or drugs paraphernalia." Id. at 15.

Similarly here, the facts tend to show that Officer Cantalupo was looking for drugs when he searched defendant. Immediately upon approaching defendant, Officer Cantalupo patted-down defendant's ankle and asked him what was around it. Unlike Arthur, where the police officer never saw what was in the bag Walls was carrying, Officer Cantalupo had a good idea of what defendant had around his ankle. During trial, Officer Cantalupo testified that he frisked the bulge "primarily for a weapon and obviously for the bag of cocaine which we suspected he might have had." Thus, although Officer Cantalupo said that he was also looking for a weapon, his testimony suggests that his true motive in conducting the search was to retrieve the drugs.

It is also notable that the bag in Arthur was more accessible to Walls than the bag around defendant's ankle was to defendant. If the officer in Arthur did not have an objectively reasonable belief that Walls had a weapon, these facts suggest it is unlikely that Officer Cantalupo had an objectively reasonable belief that defendant had a weapon.

We conclude that defendant has established that his Fourth Amendment suppression challenge has arguable merit. As the State did not have the opportunity to present evidence in opposition to such a suppression motion, we cannot speculate as to whether it would have been granted. Accordingly, we are constrained to remand the matter for a suppression hearing. See Johnson, supra, 365 N.J. Super. at 37.

In the alternative, the State contends that even if the Terry search was unlawful, the search was justified as a search incident to a lawful arrest. We disagree.

The Fourth Amendment "protect[s] citizens against unreasonable searches and seizures, and require[s] a showing of probable cause prior to the issuance of a warrant." State v. Moore, 181 N.J. 40, 45 (2004). "A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). One of the exceptions to this requirement is a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); accord, State v. Moore, 181 N.J. 40, 45 (2004). Pursuant to that exception, after an officer has lawfully arrested a person the officer may conduct a warrantless search of the suspect and the area within the suspect's immediate control to seize any weapons or evidence. Chimel, supra, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694.

In order for a search incident to an arrest to be valid, the State must demonstrate that, (1) the officer had probable cause to arrest the suspect, (2) the officer had the subjective intent, based on probable cause, to arrest the suspect when he conducted the search, and (3) the search was supported by probable cause. Smith, supra, 155 N.J. at 91. Probable cause is the "well-grounded suspicion that a crime has been or is being committed." State v. Pineiro, 181 N.J. 13, 21 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). "The standards for determining probable cause to arrest and probable cause to search are identical." Moore, supra, 181 N.J. at 45.

Here, the evidence does not clearly establish a search incident to a lawful arrest. As Officer Cantalupo testified, he did not believe that he had probable cause to arrest defendant until he had searched defendant and discovered the cocaine. Prior to that, Officer Cantalupo stated he only had a reasonable suspicion that defendant was selling drugs. By his own admission, Officer Cantalupo could not have arrested defendant when he approached him, nor did he have the subjective intent to arrest him at that point.

Since we have concluded that defendant has a meritorious Fourth Amendment suppression challenge, the issue thus becomes whether defendant has established a prima facie case under the Strickland two-prong test. "[F]ailure to file a suppression motion does not constitute per se ineffective assistance of counsel[.]" Fisher, supra, 156 N.J. at 501 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2588, 91 L. Ed. 2d 305, 325 (1986)), and the Morrison court did not hold otherwise. However, we conclude that, in these circumstances, a reasonable attorney would have filed a suppression motion that was likely to succeed. See State v. Morrison, 215 N.J. Super. 540, 548 (App. Div.) (holding that failure to file a motion to suppress in a criminal case is "contrary to prevailing professional norms"), certif. denied, 107 N.J. 642 (1987).

We also conclude that defendant has established the second prong of the Strickland test because if the motion had been granted it is unlikely that defendant would have been convicted, as the cocaine would have been suppressed. Thus, there is a reasonable probability that, but for trial counsel's deficient representation, the outcome of the trial would have been different. Allah, supra, 170 N.J. at 283-84.

We remand the case to the Law Division for a hearing on the Fourth Amendment suppression motion. If the court grants that motion, the conviction should be reversed. If it denies the motion, the conviction shall stand.

Defendant's contention that his trial counsel denied him effective assistance of counsel by failing to "emphasize the reasonable doubts, which arise from the State's evidence[,]" is without merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Defendant fails to explain in what context his counsel failed to emphasize reasonable doubt, although we presume he is referring to counsel's closing argument. Defendant also fails to explain how the alleged conduct fell below the reasonableness standard prong one of the Strickland test or how that conduct prejudiced him prong two. Moreover, our review of the record on appeal discloses that in her summation trial counsel did emphasize the presence of reasonable doubt in the State's case, and asserted that her client was not guilty. Counsel also highlighted discrepancies in, and challenged the credibility and accuracy of, the officers' testimony.

III.

Defendant also contends that his sentence is manifestly excessive and should be reduced. We disagree.

A sentence should be disturbed only when the trial court failed to follow the sentencing guidelines, when the aggravating and mitigating factors are not supported by the evidence, or when application of the sentencing guidelines renders a sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). A sentence will not be disturbed unless the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.

Here, the trial court merged counts one (possession of cocaine) and two (possession with intent to distribute) into count three (possession with intent to distribute within one thousand feet of school property) and found that the aggravating and mitigating factors were in equipoise. The court sentenced defendant to the presumptive term of four years' imprisonment with a three-year term of parole ineligibility. See N.J.S.A. 2C:35-7 and N.J.S.A. 2C:44-1(f)(1)(d)). The court also urged the Department of Corrections to allow defendant to serve his sentence at the Youth Correction Institution Complex.

Defendant argues that the trial court erred because it failed to consider the following mitigating factors: defendant's conduct did not cause serious harm, N.J.S.A. 2C:44-1b(1); defendant did not contemplate that his conduct would cause serious harm, N.J.S.A. 2C:44-1b(2); defendant had no history of delinquency or criminal activity, N.J.S.A. 2C:44-1b(7); defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); and defendant was willing to cooperate with law enforcement, N.J.S.A. 2C:44-1b(12). We disagree.

We find no misapplication by the trial judge in finding that none of these mitigating factors applied. Contrary to defendant's contention that his actions did not harm anyone, selling drugs debilitates communities, as the court noted. Further, defendant had juvenile and adult complaints pending against him; thus he did not have a clean record. As the State notes, defendant did not cooperate with law enforcement as he denied doing anything wrong when the police approached him, and he denied that the drugs were his during trial. Additionally, defendant did not appear for his initial sentencing, which resulted in a bench warrant being issued for his arrest. That tends to negate his claim that his conduct would not likely recur. Notably, the court could have considered his failure to appear as an aggravating factor. State v. Subin, 222 N.J. Super. 227, 240 (App. Div.), certif. denied, 111 N.J. 580 (1988).

Defendant also argues that the trial judge failed to give his reasoning for imposing aggravating factors, failed to name the aggravating factors that he found, and used the elements of the offense as aggravating factors. This claim is also without merit. After considering all relevant testimony and arguments, the judge found aggravating factors three, N.J.S.A. 2C:44-1a(3) (a risk that defendant would re-offend) and nine, N.J.S.A. 2C:44-1a(9) (a need to deter). Those findings are supported by substantial, credible evidence contained in the record, and were not based on the offense.

The matter is remanded for a suppression hearing. If the court grants defendant's suppression application, the judgment of conviction shall be vacated. If the court denies defendant's suppression application, defendant's conviction and the sentence imposed are affirmed. We do not retain jurisdiction.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

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3

A-1023-03T4

October 6, 2005