STATE OF NEW JERSEY v. JASON EAGLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2455-04T12455-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON I. EAGLE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 18, 2006 - Decided February 14, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth

County, Indictment No. 04-01-0211.

Parinello & Noto, attorneys for

appellant (David A. Parinello, on

the brief).

Nancy Kaplan, Acting Attorney General,

attorney for respondent (Carol M.

Henderson, Assistant Attorney General,

of counsel and on the brief).

PER CURIAM

Pursuant to a plea agreement, defendant Jason Eagle conditionally pled guilty to second-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(10), and was sentenced to seven years imprisonment with fifty-one months of parole ineligibility together with all of the statutorily required penalties and assessments. Defendant conditioned the guilty plea on his right to appeal from the trial court's denial of a motion to suppress evidence. We now consider defendant's appeal from the motion denial and affirm.

Here are the facts pertaining to defendant's suppression motion. In the very early afternoon of July 2, a confidential informant provided information to Monmouth County Prosecutor's Detective Friedhoff, who was assigned to the Narcotics Strike Force. The informant had previously assisted the detective in two other investigations where the information provided had resulted in undercover drug purchases. On July 2, the informant advised Detective Friedhoff that defendant, whom Friedhoff knew from a prior investigation about seven years before, would be returning from northern New Jersey in a few hours with a large amount of marijuana, and he would be meeting with other unidentified individuals in a particular shopping plaza's parking lot.

Approximately one month earlier, in June, the confidential informant had also advised Detective Friedhoff that defendant was involved in large scale narcotic operations distributing marijuana in and around Monmouth County. The informant knew defendant's name was Jason and described him as approximately six foot five with dark hair. The informant also indicated that defendant drove several vehicles, including a 1995 or 1996 green Mazda, license plate LWB60D. The detective, in June, verified through the Division of Motor Vehicles that the Mazda was registered to defendant's wife.

After obtaining the information on July 2, Detective Friedhoff did not apply for a search warrant because the detective claimed not to know which vehicle defendant would be driving to the mall. This testimony conflicted with another officer's report, which indicated that the informant had advised that defendant would be driving the Mazda. In any event, no warrant was obtained and surveillance was planned for the shopping plaza where defendant was expected.

Friedhoff and another detective were in charge of the surveillance and Detective Powers and two others were assigned to the arrest team. The surveillance and arrest teams were in plain clothes, and driving, respectively, an unmarked grey pickup truck and an SUV.

The surveillance team, while in the truck, observed defendant's green Mazda enter the parking lot and stop near a Pizza Hut. Defendant exited the vehicle, walked towards the stores and then abruptly reversed direction and returned to his car. Defendant then drove to the north side of the lot and pulled in front of another pizza restaurant.

The surveillance team notified the arrest team of defendant's location and the arrest team pulled their unmarked vehicle behind defendant's car. As defendant was exiting his vehicle, he was confronted by the arrest team all of whom had badges hanging from chains around their necks. Detective Powers denied drawing his weapon, but defendant testified that just before being pulled from his car, one of the detectives knocked on the window with his revolver. In any event, it was uncontested that the arrest team grabbed defendant and handcuffed his hands in front of him. The officers told defendant he was not under arrest, but they were conducting a narcotics investigation. Defendant was not patted down and not administered any Miranda warnings before being placed in the front passenger seat of the arrest team's SUV with the door open.

As defendant sat in the SUV, Detective Powers was in the driver's seat and Detective Friedhoff spoke to defendant through the open door. Detective Friedhoff explained that an informant had disclosed that defendant was in possession of a large amount of marijuana. Upon hearing this, defendant lowered his head and admitted that he had marijuana in the car. Defendant admitted putting his head down, but claims not to have admitted to possessing marijuana.

Officers Freidhoff and Powers testified that defendant consented to a vehicle search but refused to sign any consent form. Defendant testified that he never provided any consent to search his car and he was never presented with any written consent form.

Defendant also testified that a drug dog arrived at the scene and alerted the officers to the trunk of his car. The State subsequently stipulated that there was, in fact, a canine unit present, but according to the State the defendant had already consented to the search when the dog arrived.

The officers opened the trunk and found 9.8 pounds of marijuana in a brown cardboard box. Defendant was then formally placed under arrest, put in the back of a marked patrol car, and transported to police headquarters.

Judge Uhrmacher found "the two detectives were credible. And obviously the Court finds Mr. Eagle has a certain self-interest, but he did corroborate the officers." The judge found that defendant "certainly was in custody in this SUV." Although "he wasn't free to leave[,] he wasn't under arrest at the time" but was being held in "investigative detention." See State v. Dickey, 152 N.J. 468 (1998). Judge Uhrmacher further found that while defendant was being detained, he was not interrogated. Instead, the officers confronted defendant with the informant's information and according to the judge defendant's inculpatory response was believable. She explained that defendant's admission was caused by "that natural urge that people have when they've been caught to basically say, yeah, you got me." In addition, the judge believed the officers' testimony that "defendant consented to the search, even though he did not sign the consent form."

We are bound by the judge's credibility findings, State v. Locurto, 157 N.J. 463, 470-71 (1999), and, in this matter, also agree with her legal conclusions. Furthermore, we note that except in the few instances we have recorded above, defendant's testimony basically supported the officers' testimony regarding the circumstances of his apprehension and detention. Accordingly, we affirm substantially for the reasons expressed in the judge's October 8, 2004 oral decision, and add only the following brief explanation.

The informant, who had been reliable in the past, provided some information charging defendant with drug trafficking, but there was no indication as to how the informant acquired this information. Although the officers themselves observed no suspicious activity in the shopping plaza, looking at the totality of the circumstances including the information supplied by the informant, see State v. Nishina, 175 N.J. 502, 510-111 (2003), we agree with the trial court that the officers had reasonable suspicion to detain defendant for an investigation. See, e.g., Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968); State v. Birkenmeier, ___ N.J. ___, ___ (2006) (slip op. at 11-13); State v. Zutic, 155 N.J. 103, 110-11 (1998); State v. Davis, 104 N.J. 490, 499 (1986).

We also agree with the trial court that the officers did not convert the investigative detention into an arrest. Defendant was detained and not free to leave, however, he was handcuffed with his hands in the front; placed not in the rear of a police car, but in the passenger seat; and detained for only a brief time. See Dickey, supra, 152 N.J. at 477-78.

As the officers explained, had the tip not been confirmed, defendant would have been released. We cannot fault the officers for handcuffing defendant during the detention because such conduct minimizes the risk of harm to the officers, defendant himself, and others. See Muehler v. Mena, 544 U.S. 93, ___, 125 S. Ct. 1465, 1470-71, 161 L. Ed. 2d 299, 308 (2005); State v. Smith, 374 N.J. Super. 425, 432 (App. Div. 2005). Although defendant was undoubtedly embarrassed by being handcuffed in broad day light in the shopping plaza, the stop was not more intrusive than necessary to fulfill the legitimate demands of the officers. Dickey, supra, 152 N.J. at 478.

After defendant, in a dejected fashion, admitted to possessing drugs in his car, the officers had a sufficient basis to seek defendant's consent to search the vehicle. Birkenmeier, supra, ___ N.J. at ___ (slip op. at 13-15); State v. Carty, 170 N.J. 632, 647 (2002). Because defendant was provided with the usual consent form, according to the officers found credible by the judge, defendant was aware of his right to refuse, State v. Johnson, 68 N.J. 349, 354 (1975), and consequently, there is no basis to challenge the voluntarily given consent. State v. King, 44 N.J. 346, 352 (1965).

Furthermore, the alert by the drug detection dog would have provided probable cause to search the vehicle. See Illinois v. Caballes, 543 U.S. 405, ___, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). Because defendant was supposed to meet other unknown individuals at the plaza and the vehicle was owned by his wife, there were sufficient exigent circumstances justifying a search. See Birkenmeier, supra, ___ N.J. at ___ (slip op. at 13-15); State v. Colvin, 123 N.J. 428, 435-36 (1991). Accordingly, the vehicle could have been searched without a warrant under the automobile exception. Birkenmeier, supra, ___ N.J. at ___ (slip op. at 13-14); State v. Cooke, 163 N.J. 657, 667 (2000).

Affirmed, but remanded to correct the judgment of conviction to reduce the fifty-one month parole ineligibility period to forty-two months (see footnote 1 above).

 

The State agrees that the parole ineligibility term exceeds one-half of the base term imposed and is therefore illegal. N.J.S.A. 2C:43-6b. The maximum parole ineligibility term that may be imposed in this case is forty-two months. Although we affirm the denial of defendant's suppression motion, thereby affirming his conviction and the balance of his sentence, we must remand this matter in order to reduce defendant's ineligibility term to forty-two months and to issue a conforming amended judgment of conviction.

(continued)

(continued)

9

A-2455-04T1

February 14, 2006