STATE OF NEW JERSEY IN THE INTEREST OF D.D a juvenile

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3401-06T43401-06T4

STATE OF NEW JERSEY

IN THE INTEREST OF D.D.,

a juvenile.

__________________________

 

Submitted December 16, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-5537-06.

Yvonne Smith Segars, Public Defender, attorney for appellant D.D. (Kimmo Z. Hussain, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent State of New Jersey (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a "buy-bust" operation by members of the Newark Police Department and other law enforcement agencies, D.D., a juvenile, was arrested and charged with offenses which, if committed by an adult, would constitute third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10 (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5 (Count Two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); third-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Count Four); fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-2 (Count Five); and third-degree receiving stolen property (an automobile), N.J.S.A. 2C:20-7 (Count Six). On October 24, 2006, the trial court denied D.D.'s motion to suppress evidence.

Tried to the court, D.D. was adjudicated delinquent on Counts One and Five. On motion of the State, the court dismissed the remaining counts. On November 30, 2006, the court entered an order of disposition: On Count One, the court committed D.D. to two years at the Training School for Boys; on Count Five, the court committed D.D. to a concurrent term of one year at the Training School for Boys.

On appeal, D.D. argues:

POINT I.

THE TRIAL COURT ERRED BY DENYING THE JUVENILE'S MOTION TO SUPPRESS EVIDENCE.

A. THE POLICE DID NOT HAVE PROBABLE CAUSE TO STOP THE VEHICLE.

1. THE STATEMENT MADE BY D.D. DID NOT AMOUNT TO OBSTRUCTION OF THE ADMINISTRATION OF LAW.

a) JUVENILE DID NOT PHYSICALLY INTERFERE TO PREVENT AN OFFICIAL POLICE FUNCTION.

b) JUVENILE DID NOT PERFORM ANY INDEPENDENT UNLAWFUL ACT.

c) THE EVIDENCE RECOVERED FROM JUVENILE MUST BE SUPPRESSED.

We affirm.

I.

D.D. argues that the trial court erroneously denied his motion to suppress evidence because the five bags of cocaine found in his possession were the product of an illegal, warrantless search and seizure. Because D.D.'s argument challenges the trial court's denial of his pre-trial motion to suppress evidence, we briefly state the facts as adduced from the transcript of the hearing on the motion.

The motion to suppress was tried on stipulated facts contained in the police incident report. On June 29, 2006, members of the City of Newark Police Department, with the assistance of members of the United States Postal Service and the New Jersey State Police, "devised a plan to attempt a 'buy/bust' operation" at the Bradley Court Housing complex. All members of the operation dressed in civilian attire and operated unmarked police vehicles.

Detective John Macchia of the Newark Police Department attempted to purchase narcotics at 82 North Munn Avenue. Other officers remained nearby, positioning themselves around the building to keep Macchia safe and to assist him with any possible arrests. Macchia approached the building on foot. Upon reaching the door, he observed three individuals, later identified as D.W., Y.J., and S.S., milling in front of the building's main entrance. Macchia asked them for heroin by its common terminology, "Diesel." Y.J. replied: "None there yet, I still waiting"; D.W. replied: "I'm waiting, too"; and S.S. stated: "Me, too." Macchia then remained in the doorway with the three individuals waiting to purchase narcotics.

At that time, Sergeant Mary Louise Bailey of the Newark Police Department, along with several other officers, approached the building. In doing so, Bailey observed a burgundy Chevrolet sport utility vehicle pass their location with "[t]he driver, [K.B.], and the passenger, [D.D.], . . . both leaning out of the window[s], shouting . . . 'Yo, police is here, shut it down[.]'" Bailey notified the other members of the operation of the incident, instructing them to stop the vehicle if it returned to the vicinity. A short time thereafter, the vehicle circled the block again, and the police stopped it without incident. Both occupants were removed from the vehicle and placed under arrest for obstruction of the administration of law, N.J.S.A. 2C:29-1. On their arrest, Detective Sullivan searched D.D. and retrieved "a clear plastic bag containing five small Baggies containing cocaine from [D.D.'s] right-hand pocket."

At the suppression proceeding on October 24, 2006, D.D. argued that the police did not have probable cause to stop the motor vehicle for obstruction of the administration of law because neither he nor K.B. had physically interfered with the police investigation; and that yelling "Yo" or "police" was "akin to a general warning" to the public at large and did not constitute the independent, unlawful act of hindering the apprehension of another. In denying the motion, the court reasoned:

The arrest, based upon the contents of the police report and the subsequent criminal complaint was based on the charge of obstruction in the administration of justice. [N.J.S.A.] 2C:29-1. A person commits an offense if he purposely obstructs, impairs or prevents the administration of law or other governmental function or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence or physical interference or obstacle or by means of any independently unlawful act. . . .

The focus here is by the phrase, "by means of any independently unlawful act." The State argues and the defense concurs that that independently unlawful act can constitute hindering apprehension. In other words, hindering apprehension can be that independently unlawful act.

Hindering apprehension. [N.J.S.A.] 2C:29-3. A person commits an offense if with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense, he warns the other of impending discovery or apprehension, except this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with the law.

The [c]ourt concludes that the officers had probable cause to believe that [D.D.] and the other individual . . . in the car committed the offense of obstruction with the unlawful act being hindering through their activity of shouting as stated in the police report, "Yo, police is here, shut it down."

When viewed in connection with the facts of this case where the officers were already interacting with individuals in front of the location, . . . to make basically an undercover purchase of heroin, the [c]ourt does not . . . conclude[] that the exception to that provision, meaning the hindering apprehension provision, which provides a warning given in connection with an effort to bring another into compliance with the law [applies.] There is probable cause to believe that was not such a warning, but rather an effort to thwart the ongoing undercover operation.

The [c]ourt finds that through that conduct, there was probable cause to believe that [D.D.] knew that the others who were milling in front of the apartment had been or were likely to be charged with an offense, namely either wandering or CDS distribution. That [D.D.] warned these individuals of impending or imminent discovery or apprehension, and that was done through the uttering of the words out of the car and that [D.D.] acted with the purpose to hinder the detention, apprehension, investigation, prosecution and conviction of those persons.

On appeal, D.D. argues, as he did in the trial court, that the police did not have probable cause to stop the motor vehicle and arrest him for obstruction of the administration of law. D.D. contends that the warnings he and K.B. yelled from the motor vehicle window were to the general public, not to any particular person; and therefore, could not have hindered the apprehension of a particular person by the police. Accordingly, D.D. asserts that his arrest was illegal, and the evidence obtained during the warrantless search must be suppressed. We disagree.

An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "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." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). "[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search . . . ." State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. Dioreto, 180 N.J. 264, 275-77 (2004). "Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary." Frankel, supra, 179 N.J. at 598.

One exception is a search incident to an arrest. The principles governing this exception were recently restated by the Supreme Court:

Under the search incident to arrest exception, the legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp. The arrest must precede the search. So long as there is probable cause to arrest, the ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons. The justification for the search of an arrestee is to preclude him [or her] from accessing a weapon or destroying evidence.

[State v. Pena-Flores, 198 N.J. 6, 19 (2009) (internal citations omitted).]

We have considered D.D.'s argument in light of the record and applicable law, and conclude that it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Cronin in his thoughtful, oral opinion of October 24, 2006. Nevertheless, we add the following comments.

A person commits the offense of obstruction of administration of law "if he [or she] purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by . . . means of any independently unlawful act." N.J.S.A. 2C:29-1. As acknowledged by both parties at the suppression proceeding, an "independently unlawful act" under N.J.S.A. 2C:29-1 includes committing the offense of hindering apprehension or prosecution, N.J.S.A. 2C:29-3. Under that statute, a person commits the offense "if, with purpose to hinder the detention, apprehension, investigation . . . of another" for a criminal offense, the defendant "[w]arns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law . . . ." N.J.S.A. 2C:29-3a(4).

Here, the evidence adduced at the suppression hearing supports the trial judge's determination that the warnings voiced by D.D. were made to warn other individuals in the immediate vicinity of their impending discovery or apprehension. It is not necessary for the State to prove the identity of the people to whom D.D. provided the warning. D.D.'s argument, that the "statement was a general warning aimed at the public, advising them not to conduct illegal activities," was properly rejected by the trial court as meritless. Because the police had probable cause to arrest, the search incident to the arrest was proper.

 
Affirmed.

(continued)

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11

A-3401-06T4

RECORD IMPOUNDED

May 19, 2009