STATE OF NEW JERSEY v. BOBBY LUGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3115-08t43115-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BOBBY LUGO,

Defendant-Appellant.

___________________________

 

Submitted May 25, 2010 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0511.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted on three counts of third-degree possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10(a)(1); and two counts of third-degree possession of controlled dangerous substances with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(3) and 2C:35-5(b)(13). Defendant moved to suppress the evidence and, following a hearing on June 18, 2008, the trial judge denied his motion.

On November 6, 2008, pursuant to a negotiated plea agreement, defendant pled guilty to third-degree possession of heroin with intent to distribute. On that same date, the trial judge sentenced defendant, in accordance with the plea agreement, to a six-year term of imprisonment with a three-year parole ineligibility period concurrent to the sentence defendant was then serving, and suspension of defendant's driving privileges for twenty-four months.

Defendant now appeals, raising the following issues:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURE [SIC] AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED

A. THE STATE FAILED TO PROVE THAT THE STRIP SEARCH OF THE DEFENDANT WAS LAWFUL

B. THE ADMISSION OF ILLEGALLY SEIZED EVIDENCE CANNOT BE JUSTIFIED BY THE INEVITABLE DISCOVERY EXCEPTION TO THE EXCLUSIONARY RULE

POINT II

THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Having reviewed these contentions in light of the record and the controlling legal principles, we affirm.

The evidence presented at the hearing on the motion to suppress may be summarized as follows.

On December 30, 2007, Atlantic City Police Sergeant Rodney Ruark went to defendant's residence in Ventnor City to execute a search warrant to search for heroin, drug paraphernalia and documents related to the "trafficking of controlled dangerous substances . . . ." Ruark was familiar with defendant, a tall Hispanic male, and knew him by his nickname, Bolo; Ruark was also aware that defendant's vehicle was a Toyota RAV4.

Ruark knew defendant because of the roles the police had played in an investigation involving controlled purchases of heroin by a confidential informant. In each instance, police officers positioned themselves outside a single family residence in Ventnor. Their informant called defendant, Bolo, and asked to purchase heroin; defendant left the house and got into a RAV4 that was parked in the driveway and drove to a place in Atlantic City designated as the site for the drug transaction by way of a route that included Albany Avenue. In each instance, the informant was searched before defendant arrived at the meeting place. When defendant arrived, the informant got into the RAV4 and then returned to the police with heroin purchased from defendant.

On one occasion, Ruark, who supervised this investigation, followed defendant to the Ventnor residence after the transaction. During the course of the investigation, the officers never saw anyone other than defendant leave the house, but they saw children's toys in the front yard and believed that there were children living in the home. They also had information from another confidential informant that defendant had recently acquired a gun and kept the drugs he sold in a pill bottle that he carried in the area of his crotch.

With that information, the officers obtained a warrant authorizing the search of the Ventnor residence and its occupants including Bolo. When Ruark went to execute the search warrant on December 30, 2007, "the vehicle was not at the house and [he] suspected that . . . Bolo was not in the house." Ruark set up surveillance of the area from a position on Albany Avenue, "assuming that [defendant] was going to travel the same route that we'd seen him travel numerous times." At approximately 8:30 a.m., Ruark saw defendant's car come across the Albany Avenue bridge; Ruark radioed for a "marked patrol car to stop [defendant] . . . because [he] was in an unmarked police vehicle and Officer Robert Nawrocki responded and stopped [defendant's] car for [him] . . . "[i]n the drive-through of the McDonald's on Albany Avenue."

Ruark ordered defendant out of the car. Defendant was placed in custody and searched. Ruark stated that he "was looking for . . . weapons, contraband, drugs."

Ruark testified that his "initial check" of defendant was of "all of his pockets and the waistband area of his pants, the ankle area and the chest area." That search did not reveal anything. Ruark then advised defendant that he had information through a confidential informant that defendant concealed heroin in a pill bottle in his crotch. Defendant "volunteered that he didn't have a pill bottle, but he did have a syringe." Ruark stated that "a hypodermic syringe in this day and age is . . . a dangerous tool. It can contain hepatitis, AIDS or HIV . . . . [He] didn't want that needle on [defendant]."

At that point, "Detective Armstrong [a member of the SWAT team who arrived in response to Ruark's radio message] placed [sic] on some rubber gloves and attempted to locate the needle. And actually, [defendant] was kind of trying to direct him to find it . . . ." Armstrong "recovered the needle first, but then recovered the pill bottle and . . . placed it on the ground." The bottle held "nine wax folds that contained a white substance . . . [that] later field-tested positive for heroin, and 12 tablets or pills that [were] identified as Percocet."

Ruark stated that the retrieval of the needle and the pill bottle did not require removing any of defendant's clothing. Defendant was "wearing very baggy pants, so it . . . wasn't necessary to even unbuckle his pants. The waist was large . . . ." Ruark reiterated that defendant had been placed in custody prior to this search. He further explained that when the articles were retrieved from defendant, he was positioned near a trash can and facing toward a screen of trees.

Under questioning by the judge, Ruark clarified that at the time defendant's vehicle was stopped on Albany Avenue and defendant was placed in custody and searched, Ruark intended to charge him with the three drug sales to the confidential informant.

Upon completing the search, the officers took defendant to his residence to execute the search warrant.

Ruark explained why he waited to execute the search warrant with defendant present. Because the police had received information that defendant possessed a handgun and noticed "toys out front," he was concerned for "safety issue[s] . . . ." Ruark felt that if the police "could secure [defendant] prior to him getting to the house, . . . the SWAT team [would not] have to do a dramatic entry. [He] felt it would be better for the children so that . . . they'd be safe and . . . they wouldn't have to be traumatized with the police running through the door with machine guns and SWAT gear."

At the conclusion of the hearing, the judge rendered his decision from the bench, denying the motion. The judge summarized defendant's position as follows:

[T]he gist of the motion, as I understand it, appears to be, . . . regardless of the probable cause to stop this guy and arrest him, they should not have, under the Fourth Amendment restrictions, subjected him to having a gloved hand go into the crotch area of his pants to retrieve a . . . hypodermic needle, and eventually find a pill bottle, which in itself contained the C.D.S. in question.

The judge then found as follows:

I think that's a defective and faulty argument on a number of levels . . . . First of all, the conduct by the police here was minimally invasive and intrusive. And based upon the conduct on part of the defendant himself and the defendant's own admission when asked if he had anything on him, he had the equivalent really of a dangerous weapon nowadays. . . . [M]aybe 50 years ago, hypodermic needles were not the dangerous weapon they are today. . . . [T]he defendant ha[d] pretty much shown the police where the needle is.

So . . . even . . . excluding the probable cause from the [reliable confidential informant] that tells Sergeant Ruark that [defendant] is a guy who likes to keep his drugs in his crotch . . . it doesn't appear to me that you have in any way, shape or form an unreasonable search and seizure. Because you have a minimally invasive and intrusive procedure -- and that's not been contested here -- by the police in accordance with Sergeant Ruark's testimony that they take this guy away from where the people are, they really let him go down his pants first and he's the one who puts his hands first in the crotch area where the needle is, and then they go retrieve the needle and the bottle.

. . . .

So . . . in my view, [you] don't have a Fourth Amendment violation of an unreasonable search and seizure.

You could probably justify this search four or five different ways. You have an inevitable discovery doctrine. You have search incident to lawful arrest. You have probable cause all over the place from the three drug deals . . . .

So you have all of that in addition to the fact that there doesn't appear to be any invasive or intrusive or obnoxious or evil or vile conduct by the police . . . .

On appeal, defendant first contends that he was subjected to an unlawful strip search. We disagree. N.J.S.A. 2A:161A-3(a) defines "strip search" as "the removal or rearrangement of clothing for the purpose of visual inspection of the person's undergarments, buttocks, anus, genitals or breasts." The statute applies only when the suspect is detained or arrested for commission of an offense other than a crime. N.J.S.A. 2A:161A-1. This warrantless search of defendant's person, however, was incident to an arrest based upon probable cause that he committed three crimes the sales of drugs in which the confidential informant had participated. Defendant does not contend that the officers lacked probable cause to believe that he committed those crimes.

Defendant also relies on the Attorney General's Guidelines to establish that the intrusion was unreasonable, but what was done here was not in violation of those guidelines. The guidelines permit a strip search in exigent circumstances when there is probable cause to believe that the person is concealing a weapon or contraband. As the trial judge found, defendant's admission about the location of a hypodermic needle on his person gave the officers probable cause that he was in possession of an instrumentality that can be used as a weapon. Attorney General's Strip Search and Body Cavity Search Requirements and Procedures for Police Officers, July 1995 II (A)(1)(b).

Defendant further argues that the officers failed to comply with the procedures set forth in the guidelines. We cannot agree. The guidelines simply require that the search be done by an officer of the same sex as the defendant, in private, under sanitary conditions and in a professional and dignified manner. Id. at III (A). While this search was done in a public parking lot, the officers did not subject defendant to an intrusion or public exposure beyond that essential to secure the hypodermic needle from the place where defendant told them it would be found. Their conduct was no more intrusive than what was required to eliminate the potential danger to the officers who would be transporting defendant following his arrest.

In short, the search and seizure were accomplished in a professional and sanitary manner that was consistent with defendant's interest in avoiding exposure of his person. There is, in our view, no basis for a finding that the guidelines were violated or that the balance of the individual and societal interests at stake required the officers to delay the search until they had transported defendant to the police station. See generally State v. Hayes, 327 N.J. Super. 373, 380 (App. Div. 2000) (discussing the constitutionality of a strip search following an arrest for a minor offense and the balancing of interests relevant to the reasonableness of the search).

Defendant further contends that the trial judge erred in relying on the doctrine of "inevitable discovery." Because the warrantless search was a reasonable search incident to defendant's lawful arrest, it is not necessary to address this claim. See State v. Oyenusi, 387 N.J. Super. 146, 153 (App. Div. 2006) (upholding the right of police, upon the arrest of a suspect, to "conduct a search of his 'person and the area within his immediate control'") (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)), certif. denied, 189 N.J. 426 (2007).

Finally, defendant contends that his six-year sentence with a three-year parole ineligibility period is excessive. Again, we disagree. Although the record provided on appeal does not include an pre-sentence report, the plea form indicates, and defendant does not deny, that he was eligible for an extended term and a mandatory minimum sentence for a minimum of three years. The trial judge noted that defendant had six indictable convictions and a parole violation evidencing defendant's long history of substance abuse. Based on the colloquy in the record and the plea form, it appears that defendant was extended-term eligible and subject to the mandatory minimum term pursuant to N.J.S.A. 2C:43-6(f), because he was "convicted of . . . possessing with intent to distribute . . . [heroin] under N.J.S.A. 2C:35-5," and he had "been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog . . . ." He was, thus, subject to an extended prison term between five and ten years on his third-degree conviction. N.J.S.A. 2C:43-7(a)(4), (c).

The trial judge found three aggravating factors to be applicable to defendant: the "risk that [he] will commit another offense"; the "extent of [his] prior criminal record and the seriousness of the offenses of which he has been convicted"; and the "need for deterring [him] and others from violating the law . . . ." N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found no mitigating factors applicable.

When reviewing a "criminal sentence challenged for excessiveness[,] . . . [a]n appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 200 N.J. 601, 608 (2010) (citations omitted). We review those findings to determine if they are "'supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 181 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). Our review satisfies us that this standard has been met here. We discern no basis to disturb the sentence under review.

Affirmed.

 

The inevitable discovery exception to the exclusionary rule requires the State to

show that (1) proper, 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 the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[State v. Sugar, 100 N.J. 214, 238 (1985).]

(continued)

(continued)

13

A-3115-08T4

September 1, 2010