STATE OF NEW JERSEY v. JERMAINE L. CLARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3275-07T43275-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE L. CLARK,

Defendant-Appellant.

___________________________________

 

Submitted May 25, 2010 - Decided

Before Judges Wefing and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment Nos. 06-11-2496 and 07-05-1191.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alyssa Aiello,

Assistant Deputy Public Defender,

of counsel and on the brief).

Theodore F.L. Housel, Atlantic County

Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant County

Prosecutor, of counsel and on the

brief).

PER CURIAM

Following the denial of his motion to suppress cocaine seized on August 30, 2006, defendant Jermaine L. Clark pled guilty to two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a, charged in indictments 06-11-2496 and 07-05-1191. On September 28, 2007, defendant was sentenced to concurrent five-year terms of imprisonment and the appropriate fines, penalties, assessments, fees and license suspension were imposed. Defendant appeals contending that the search was illegal. He presents no challenge to his conviction or sentence under indictment 07-05-1191. Because the search on August 30, 2006 was a valid search incident to arrest, we affirm.

Detectives Ingenito and Armstrong of the Atlantic City Police Department received a tip from a concerned citizen who said a man was selling drugs on the beach block of Martin Luther King Boulevard and described the man's clothing. Detective Ingenito testified at the suppression hearing as follows. When the detectives went to the boulevard, they saw defendant in the middle of the first block near the Sands Hotel. Detective Ingenito gave an account of the citizen's description of the drug dealer's clothing and his own description of the clothes defendant was wearing; the descriptions before and after he reviewed his report and refreshed his recollection were different. Nonetheless, the judge found the detective credible.

Detective Ingenito also related the events that followed. The area where defendant was standing was well lighted, and the detectives watched defendant from about twenty yards away. The detectives' view of defendant was of his profile.

Detective Ingenito saw defendant engage several people in conversation. The people handed him currency. Each time defendant received money, he reached to the back of his pants, not into a rear pocket but under the waistband. Each time, defendant produced a small object that he handed to the person who had given him money. The object was white. The detective saw defendant do this "at least two, possibly even three, four" times. One of the people who took an object from defendant put it in his mouth and walked away. While the detectives watched, defendant was "constantly walking around that area and like looking around frantically."

Detective Ingenito, who had had taken two courses on investigating drug crimes and been involved in over one hundred investigations and arrests, believed that defendant was selling narcotics. The detectives approached him. Defendant placed his hands in his pockets and "bladed his body as if he was going to either fight or run." Detective Ingenito explained that by blading he meant assuming a stance with your weight on one foot. Based on his training and experience, the detective viewed this positioning as "an attack posture" and was in fear for his safety. He told defendant to take his hands from his pockets and patted him down to check for weapons.

The detective asked defendant what he was doing in the area. Defendant responded by saying he "was not involved in any sort of narcotics sales." The detective told defendant what he had seen and that he believed defendant had drugs in his pants. After several requests, defendant produced a plastic bag that contained a white rocky substance.

Although Detective Ingenito did not tell defendant that he was under arrest until defendant produced the drugs, in the detective's view, once defendant was stopped he was in custody and was not free to go. The State argued that the detectives had probable cause to arrest defendant when they approached him and that the search was a valid search incident to arrest. Defendant testified and gave an account that was in conflict with the detective's version, but the judge discredited his testimony.

The trial judge determined that the detectives had probable cause to arrest and search defendant based on the tip and their observations. Applying our standard of review, we see no basis for disturbing that determination. State v. Locurto, 157 N.J. 463, 470-71 (1999).

We acknowledge the detective's limited ability to recall what he observed about defendant's clothing that caused him to connect defendant with the description given by the citizen informant or distinguish him from others in the vicinity. Nonetheless, setting the tip aside, the detective's observations of the transactions, defendant's reaction when the detectives approached him and his peculiar response to the officer's inquiry about what he was doing in the area were sufficient to give the detectives probable cause to believe that defendant had committed a crime and was in possession of drugs.

The Fourth Amendment permits a police officer to make a warrantless arrest of a defendant in a public place provided the officer has probable cause to believe the defendant committed a crime. See Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct. 795, 799, 157 L. Ed. 2d 769, 774 (2003). Probable cause is the touchstone for determining the validity of the arrest in this case.

Probable cause cannot be defined with scientific precision, State v. Evers, 175 N.J. 355, 381 (2003), because it is a "'practical, nontechnical conception'" addressing "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890-91 (1949)). "[P]robable cause is a fluid concept turning on the assessment of probabilities in particular factual

contexts not readily, or even usefully, reduced to a neat set of legal rules." Gates, supra, 462 U.S. at 232, 103 S. Ct.

at 2329, 76 L. Ed. 2d at 544. Although probable cause is more than a mere suspicion of guilt, it is less than the evidence necessary to convict a defendant of a crime in a court of law. See Brinegar, supra, 338 U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at 1890; State v. Davis, 50 N.J. 16, 23-24 (1967), cert. denied, 389 U.S. 1054, 88

S. Ct. 805, 19 L. Ed. 2d 852 (1968). Between those two extremes, it is safe to say that a police officer has probable cause to arrest a suspect when the officer possesses "a well grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (citation and internal quotation marks omitted); Brinegar, supra, 338 U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at 1890 ("The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." (citations and internal quotation marks omitted)).

In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548; State v. Moore, 181 N.J. 40, 46 (2004), and view those circumstances "from the standpoint of an objectively reasonable police officer," Pringle, supra, 540 U.S.

at 371, 124 S. Ct. at 800, 157 L. Ed 2d

at 775 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 919 (1996)).

[State v. Basil, ___ N.J. ___, ___ (2010)

(slip op. at 14-16).]

"So long as there is probable cause to arrest, [an] ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons. New York v. Belton, 453 U.S. 454, 461, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775-76 (1981). The justification for the search of an arrestee is to preclude him from accessing a weapon or destroying evidence." State v. Pena-Flores, 198 N.J. 6, 19 (2009).

The detectives went to the location in response to a citizen's report of drug dealing. Once there, they observed defendant engage in two or more transactions during which the defendant reached behind the waistband of his jeans, and handed a person who had given him money a small, white object. Based on their observations, the detectives approached defendant and he put his hands in his pockets and assumed a threatening posture. When asked what he was doing, he explained he was not dealing drugs. The totality of these circumstances gave rise to "a well grounded suspicion that a crime ha[d] been [and was] being committed." Basil, supra, ___ N.J. at ___, ___ (slip op. at 15) (internal quotations omitted); see State v. O'Neal, 190 N.J. 601, 613 (2007) (concluding that police who "observed at least one and possibly two drug transactions, had reasonable grounds to believe that defendant had committed a criminal offense"). As the detectives had probable cause to arrest, the search they conducted by demanding that defendant surrender what he had in his pants was a valid search incident to an arrest. O'Neal, supra, 190 N.J. at 613-14. It is immaterial that the search preceded the announcement of the arrest. See ibid.

Affirmed.

 

(continued)

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A-3275-07T4

August 4, 2010