STATE OF NEW JERSEY v. TRACEY RICHARDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6300-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACEY RICHARDSON,

Defendant-Appellant.

November 9, 2010

Submitted October 27, 2010 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-0971.

Yvonne Smith Segars, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Tracey Richardson appeals the denial of her motion to suppress physical evidence. After that motion was denied, Richardson entered guilty pleas to two counts of third-degree possession of a controlled dangerous substance with the intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-7. The sentencing judge imposed an aggregate term of three years incarceration, with eighteen months of parole ineligibility. Defendant presents the following point for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE VIALS AND BAGS OF CONTROLLED DANGEROUS SUBSTANCES SEIZED IN CONNECTION WITH HER ARREST.

We disagree, and accordingly affirm the conviction and sentence.

I.

A.

The State presented the testimony of one witness at the motion to suppress: Sergeant Johnnie Whitaker of the Newark Police Department. He testified that on December 13, 2007, he and Lieutenant Broner1 while assigned to that city's Central Narcotics Division were engaged in an investigation of alleged illicit drug transactions in the vicinity of Stratford Place. The focus of their interest was a "huge apartment building" in a neighborhood noted for being "heavy on narcotic activity in that area." The particular locale where they were advised drug sales were being conducted was on a second floor landing inside the apartment building. The motion record is silent regarding the particular source of the police officers' information concerning the drug dealings.

After making their way to the landing, the plain-clothes police officers encountered an individual who, in response to Whitaker's street-talk inquiry about whether anyone was selling drugs, indicated in the affirmative. The individual left, but almost immediately another individual, co-defendant Lisa Verpent, walked from the rear of the second floor hallway and approached the undercover officers carrying a "clear plastic bag containing numerous vials of C.D.S. cocaine." After fielding an inquiry as to their needs, Whitaker and Broner told Verpent that they wanted a total of six bags of "diesel," which Whitaker testified "is a street term for C.D.S. heroin."

Verpent instructed her faux customers to wait, presumably while she left to retrieve the requested "diesel." Whitaker elected to disregard her command and "tried to secretly sneak behind her at which time [he] observed her speak to a third female who was later identified as [defendant] Tracey Richardson [w]ho was standing directly in front of apartment 2B" in the hallway. When Verpent detected Whitaker's presence and demanded an explanation, the police officer verbally identified himself as a police officer and displayed his official badge. Defendant, who was holding an opaque container described as a "Duncan Hines" frosting can, dropped the object to the floor, "with numerous vials of C.D.S. [cocaine] spilling out as well as . . . [glassine] envelopes of [C.D.S.] heroin."

The two women were placed under arrest. Whitaker seized the bag that Verpent was carrying, which contained "[fifty-two] glass vials of C.D.S. cocaine, with red tops," together with a small amount of cash from Verpent's person. Additionally, defendant's objects were collected, which included "[fifty-two glass vials with yellow tops . . . along with [thirty-six] envelopes of C.D.S. heroin." An additional small cache of cash was retrieved from defendant's person. According to Sergeant Whitaker, the entire encounter took place in the second floor hallway.

B.

Defendant presented the testimony of herself and two other witnesses at the suppression motion. Their testimony told a tale quite unlike that conveyed by Sergeant Whitaker. According to two defense witnesses, a police contingent of five or six police officers barged into apartment 2B with firearms drawn, and ransacked the dwelling looking for contraband. Defendant, however, testified that police officers did not barge into the apartment; rather, they rang the doorbell first, harassed Verpent at the threshold, and then marched into the apartment where they engaged in a fifteen to twenty-minute search.

C.

The motion court rendered a written opinion in which it rejected the testimony of the defense witnesses, but found that Whitaker was "wholly credible." The court, as conceded by the State, made two factual findings that are not readily supported by the motion record. First, the court wrote, "Sergeant Whitaker was advised or received information, presumably from a citizen informant, that 2 Stratford Place was the site for ongoing drug sales presently." Second, the court noted, "Whitaker, a seasoned veteran police officer, with an unobstructed view of the hallway, observed what he believed, from his extensive narcotics experience, to be a hand-to-hand drug transaction."2

Using these two challenged factual findings, together with "look[ing] to the totality of the circumstances," the motion court found "ample probable cause to support the defendant's arrest." The court, however, additionally found that "the activities of the defendant[] as described by Sergeant Whitaker were in plain view while he was in the hallway of the multi-family dwelling." Although not expressly bottoming the finding of probable cause on the plain view exception, the court explicated the contours of the "plain view doctrine [as] one of the recognized exceptions to the warrant requirement." The court also noted that upon defendant's arrest, the police seizure of the contraband dropped by her was validated because of the nature of "[t]he abandoned drugs" and further the seizure of cash was permissible as "a search incident to a lawful arrest."

II.

We defer to the motion court's findings as to the witnesses' credibility, State v. Locurto, 157 N.J. 463, 474 (1999), and the conclusion that the drug contraband was observed in plain view. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Ibid. Notwithstanding the State's concessions concerning the two factual incongruities that defendant identifies, we perceive no basis upon which to overturn the motion court's credibility determinations.

However, the motion court's factual conclusion regarding the involvement of a citizen informant and the description of a hand-to-hand drug transaction cannot be adopted by us because there is an absence of credible evidence in the record to support it. Id. at 471. In turn, the motion court's derivation of probable cause from the nature of the citizen's tip or from the hand-to-hand drug transaction was misplaced. Nevertheless, if the motion record amply supports one or more other legitimate grounds to validate the search and seizure, the motion to suppress was properly denied. We believe that it does.

A warrantless search or seizure is presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). "Because our constitutional jurisprudence evinces a strong preference for judicially issued warrants, the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well- delineated exceptions to the warrant requirement.'" State v. Elders, 192 N.J. 224, 246 (2007) (quoting Pineiro, supra, 181 N.J. at 19-20); see also State v. Pena-Flores, 198 N.J. 6, 18 (2009). The State argues that the plain view exception authorized the seizure of the contents of defendant's frosting can, including the cocaine-laden vials and the envelopes containing heroin.

The plain view doctrine consists of three elements. First, the officer must "lawfully be in the viewing area." State v. Johnson, 171 N.J. 192, 206 (2002). Second, the discovery of the evidence must be "inadvertent," meaning that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Finally, the officer must have probable cause to associate the property with criminal activity. State v.Lane, 393 N.J. Super. 132, 144 (App. Div.), certif.denied, 192 N.J.600 (2007). All three components were clearly demonstrated by the State's witness.

The undercover officers were lawfully on the second floor landing and hallway of defendant's apartment house. New Jersey courts have held that a common hallway in a multiple-unit apartment building is not within the zone of privacy protected by the Fourth Amendment and the parallel provision of the New Jersey Constitution. Our Supreme Court has indicated that generally in "'multi-occupancy premises . . . 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)).

At the moment Sergeant Whitaker identified himself to defendant, he could not have been aware of the contents of her container. Defendant's unforeseen action of dropping the frosting can, which revealed the drug-filled vials and glassine envelopes in plain view gave rise to the probable cause supporting his eventual arrest and search of her person incident thereto. See State v. Crawley, 187 N.J. 440, 451-52 (2006), cert. denied, ___ U.S. ___, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006); State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006).

Lastly, there was abundant evidence to link the immediately-observed property with criminal activity. "Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The resolution of that issue depends upon a practical, yet fact-sensitive analysis of the totality of the circumstances. See State v. Moore, 181 N.J. 40, 46 (2004) (probable cause is to be determined by examining the totality of the circumstances including police officer's experience and high-crime reputation of the area). In this case, the nature of Sergeant Whitaker's investigation, his extensive tenure as a police officer, and the location where he interacted with defendant all combine to produce the necessary probable cause to validate the police conduct.

Affirmed.

1 The transcript of the suppression motion, as well as the parties' briefs, refer to Sergeant Whitaker's partner's surname as "Broner." The motion judge's written opinion calls him "Lt. Brona." We elect to follow the transcript and parties' spelling.

2 It is entirely plausible that what the motion court intended to convey when it wrote about the "hand-to-hand drug transaction" was either the incipient interchange between the police officers and Verpent or an anticipatory description of the about-to-be-consummated drug deal between the police officers and defendant.