STATE OF NEW JERSEY v. BLANE E. FLOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6116-02T46116-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BLANE E. FLOYD,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 29, 2006 - Decided July 26, 2006

Before Judges Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 01-06-0743.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Carolyn V.

Bostic, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General of

New Jersey, attorney for respondent

(Johanna Barba Jones, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Blane E. Floyd appeals from a judgment of conviction entered after he pled guilty to third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and second degree possession with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. After the appropriate mergers, defendant was sentenced to an aggregate term of seven years subject to three years parole ineligibility.

Prior to pleading guilty, defendant moved to suppress evidence obtained from a warrantless search. When the motion was denied, defendant pled guilty and appealed. The facts relevant to this appeal are as follows.

On March 4, 2001, at about 4:13 a.m., Elizabeth Police Officers Kevin Meagher and James Burns were patrolling in the area of 430 Jefferson Avenue in an unmarked vehicle. They saw two men standing on the front porch of 430 Jefferson, a three-story rooming house in which the tenants share bathrooms and hallways. The front door was the only entrance to the building. The front door locks automatically when it closes and only residents have a key. Defendant resided at the rooming house.

The property was fenced along the side street and back. Meagher testified at the suppression hearing that the two men on the porch ran up the stairs into the residence when they saw the unmarked police car. The officers then parked their car on another street and went to the south side of the property where they could eavesdrop on conversations and see the men. They accessed the property by climbing through a hole in the fence that was just big enough "to squeeze through." After squeezing through the fence, the officers hid in the driveway where they could watch the building. They observed two women arrive in a taxi, enter the building and then return to the taxi. Meagher testified that he believed this conduct was consistent with a narcotics transaction, although he could not see behind the door and into the hallway of the building to determine what the women were doing.

The officers then saw a man park a Jeep across the street from the building and heard a man with a Haitian accent call from inside the building, "What do you want?" The man in the Jeep answered, "I need two," to which the Haitian responded, "I got you." The officers believed that the men were discussing a drug transaction.

After the men made an exchange on the front porch, Meagher ran up to the building and grabbed the front door before it could close and lock. He shined his flashlight on himself and Officer Burns and identified them as police to co-defendant Jean Francois. Meagher testified that Francois stepped back and dropped a bag containing several vials of CDS on the ground. Francois was arrested and handcuffed, the bag was retrieved and Francois was transported to police headquarters where $867 was found on his person.

In the meantime, defendant was in the rear hallway. Meagher testified that defendant started up the stairs and while Officer Burns took control of Francois, Meagher ran after defendant and arrested him. Before patting him down, Meagher asked defendant whether he had anything on him, meaning did defendant have any weapons? Defendant told Meagher that he had "jugs." Jugs are small jug-like containers in which narcotics are packaged. Meagher felt the outside of defendant's pocket, reached in and retrieved a clear plastic bag containing 95 vials of cocaine. Defendant was then arrested and charged with the offenses to which he ultimately pled guilty. Meagher acknowledged that he never read defendant his Miranda rights before asking him questions and arresting him.

After hearing the suppression motion, the motion judge rendered a written opinion in which he addressed defendant's argument that the warrantless search of the "curtilage" violated the Fourth Amendment. The judge stated that "'the curtilage concept has limited applicability with respect to multi-occupancy premises because none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants,'" quoting State v. Ball, 219 N.J. Super. 501, 506-07 (App. Div. 1987). He found that the driveway was not enclosed and could have been accessed from the front sidewalk, and that defendants had no expectation of privacy in the hallway of the house or in the discarded drugs that Francois had dropped in the hallway. The motion judge found that the officers had probable cause to arrest defendant and concluded that the evidence seized incident to his arrest was admissible at trial. Defendant's statement that he had "jugs" was excluded, however, because it was made in response to an "open-ended" question asked before the Miranda warnings were given.

In this appeal, defendant argues:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS EVIDENCE

A. THE POLICE VIOLATED DEFENDANT'S FOURTH AMENDMENT RIGHTS BY SURREPTITIOUSLY ACCESSING THE DEFENDANT'S HOME, VIA A HOLE IN A SURROUNDING FENCE, WITHOUT A WARRANT, AND SECRETLY POSITIONING THEMSELVES IN THE DRIVEWAY TO OBSERVE AND EAVESDROP ON DEFENDANT

B. THE OFFICERS LACKED PROBABLE CAUSE TO SEARCH AND ARREST DEFENDANT AND, THEREFORE, THE EVIDENCE RECOVERED AS A RESULT ARE BARRED [SIC] BY THE EXCLUSIONARY RULE

C. THE TRIAL COURT ERRED IN HOLDING THAT THE DRUGS WERE ADMISSIBLE BECAUSE THE MIRANDA VIOLATION WAS NOT CURED BY THE INEVITABLE DISCOVERY EXCEPTION OF THE FRUIT OF THE POISONOUS TREE DOCTRINE

POINT TWO

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE

I

Defendant first argues that "[i]ncluded in the protections of the Fourth Amendment are certain lands abutting a dwelling, known as the 'curtilage.'" "[P]rotection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 1812, 90 L. Ed. 2d 210, 216 (1986).

Whether curtilage in any given situation is afforded Fourth Amendment protection depends upon "the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987). "'[T]he curtilage concept has limited applicability with respect to multi-occupancy premises because none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants.'" State v. Johnson, 171 N.J. 192, 209 (2002) (quoting State v. Ball, 219 N.J. Super. 501, 506-07 (App. Div. 1987)).

Here, defendant was but one tenant in a multi-occupancy building. As such, he had no reasonable expectation of privacy in the backyard, front porch or hallways shared by all of the tenants. Ball, supra, 219 N.J. Super. at 507.

Defendant maintains that the officers' entrance to the property through a hole in the fence is "the heart of the issue." He argues that because the backyard of the property is shielded from public access by a fence, it indicates the owner's intent to keep the area private from trespass by the public and authorities.

When the police are present "for a legitimate investigative purpose," and restrict their movements to common areas of a multi-family dwelling, there is no Fourth Amendment violation. Johnson, supra, 171 N.J. at 209-10. Moreover, the law of trespass is not dispositive of Fourth Amendment issues. State v. Burns, 172 N.J. 40, 49 (2002) (stating that "'arcane' concepts of property law should not control the analysis of Fourth Amendment" issues) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387, 400-01 (1978)). In short, we agree with the motion judge that defendant had no expectation of privacy in the common areas, including the front porch, hallways or backyard of 430 Jefferson.

II

Defendant next argues that the police lacked probable cause to search and arrest him. He maintains that Meagher's belief that a drug transaction was occurring arose from his overhearing a discussion between the man in the Jeep and the man with a heavy Haitian accent. There was no dispute that Francois was the man with the Haitian accent. Defendant contends that since Meagher did not observe defendant engage in any suspicious or illegal activity, he lacked probable cause to believe that defendant had any involvement with the alleged drug transaction.

As the State notes, however, Meagher observed defendant with Francois on the porch of 430 Jefferson and defendant fled with Francois from the passing patrol car into the common hallway of the residence. These facts, along with Meagher's observation of the women arriving in a cab after 4:00 a.m., and his knowledge that 430 Jefferson was in a high drug traffic area, led the motion judge to conclude that Meagher had probable cause to believe that defendant was involved in the drug transactions. The judge noted that "[p]robable cause certainly isn't the same standard, the same quantum that's necessary in order to convict [defendant], and [defendant] may certainly have a defense based on mere presence."

The standards for determining probable cause to arrest and probable cause to search are identical. State v. Smith, 155 N.J. 83, 92, 713 A.2d 1033, 1038 (1998). We have often stated that the probable cause standard is not susceptible of precise definition. State v. Wilson, 178 N.J. 7, 13, 833 A.2d 1087, 1090 (2003). Nevertheless, our jurisprudence has held consistently that a principal component of the probable cause standard "'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Nishina, 175 N.J. 502, 515, 816 A.2d 153, 161 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211, 777 A.2d 60, 64 (2001)).

. . . .

In determining whether there is probable cause, the court should utilize the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). Novembrino, supra, 105 N.J. at 122, 519 A.2d at 836. That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 544. The factors to be considered in applying that test include a police officer's "common and specialized experience," Schneider, supra, 163 N.J. at 362, 749 A.2d at 350 (citation and quotation marks omitted), and evidence concerning the high-crime reputation of an area, State v. Johnson, 171 N.J. 192, 217, 793 A.2d 619, 634 (2002). Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause." State v. Zutic, 155 N.J. 103, 113, 713 A.2d 1043, 1048 (1998).

[State v. Moore, 181 N.J. 40, 45-46 (2004).]

We are satisfied that the evidence presented at the suppression hearing more than adequately demonstrates that under the totality of the circumstances Meagher had probable cause to search and arrest defendant.

III

Defendant next argues that the motion judge erred in holding that the drugs were admissible because Meagher did not read defendant the Miranda warnings prior to asking him whether he had anything on his person. Defendant maintains that because his statements were inadmissible in the absence of Miranda warnings, the drugs he acknowledged possessing should have been suppressed as well. The motion judge found the drugs admissible "because they would have been inevitably discovered anyway." The judge noted that Meagher testified that "it was his practice after arrest to conduct a patdown. He did conduct such a patdown. He said the drugs were readily apparent and[,] based on a search incident to arrest[,] they would have been discovered."

Defendant contends that the motion judge misapplied the inevitable discovery rule because the State "failed to produce 'clear and convincing proof' that Officer Meagher would have inevitably found the CDS because he was required to do so by the police department's procedures and/or regulations." Defendant noted that "the State did not adduce any evidence demonstrating that the Elizabeth Police Department's procedures or regulations vis- -vis patdowns."

The inevitable discovery rule "'allows the admission of evidence that has been discovered by means wholly independent of any constitutional violation,' thereby putting the police in the same position they would have been in had no police misconduct occurred." State v. Sugar, 100 N.J. 214, 237 (1985) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377, 387 (1984)). To satisfy the inevitable discovery rule, the State must show:

(1) [P]roper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through use of such procedures would have occurred wholly independent of the discovery of such evidence by unlawful means.

[Sugar, supra, 100 N.J. at 103.]

Nothing in Sugar requires the State to produce evidence of the police department's regulations for pat-down searches incident to arrest. Such searches are commonly known and we are persuaded that Meagher's testimony respecting his practice of patting-down an arrestee was sufficient and that "under all of the surrounding relevant circumstances" the motion judge correctly concluded that the contraband would have inevitably been discovered.

IV

Finally, defendant argues that his sentence was excessive and that the matter should be remanded for resentencing "because the trial court failed to adequately state on the record the reasons for its sentence."

Defendant pled guilty pursuant to an open plea agreement, that is, defendant signed a supplemental plea form acknowledging that he had not entered into any agreement with the prosecutor "to provide for a lesser sentence or period of parole ineligibility than would otherwise be required." At the time he entered his plea, defendant was advised that if he had a prior conviction for a drug distribution offense, he "face[d] a mandatory extended term under the Drug Act" and that in this case defendant was charged with intent to distribute in count two. The maximum penalty for each of the charges was explained to defendant, after which he acknowledged that he could be subject to the imposition of those terms, but stated he wished to plead guilty.

At sentencing, the parties specifically stated that there was no dispute that defendant had a prior conviction for third degree intent to distribute a controlled dangerous substance and for second degree intent to distribute within 500 feet of a park. Neither did the parties dispute that the prior convictions subjected defendant to a mandatory extended term. Nevertheless, defendant argues that "[t]he trial court did not explicitly state why it was granting the State's motion for an extended term."

We have carefully considered the record of defendant's sentencing and we are satisfied that the motion judge clearly and adequately stated the reasons for the imposition of the sentence. The three-year parole disqualifier was mandatory. N.J.S.A. 2C:43-6c. The judge followed the sentencing guidelines, exercised his discretion based on competent, reasonably credible evidence and applied the correct legal principles in exercising his discretion. State v. Roth, 95 N.J. 334, 363-64 (1984). We modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Ibid.

 
Affirmed.

Francois was later identified as the man with the Haitian accent.

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

(continued)

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A-6116-02T4

July 26, 2006