STATE OF NEW JERSEY v. ABU Q. JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6658-06T46658-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABU Q. JACKSON a/k/a QUADIR

A. JACKSON,

Defendant-Appellant.

__________________________________

 

Submitted March 2, 2010 - Decided

Before Judges Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0335.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian P. O'Reilly, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Anne Marie Gibbons-Lejnieks, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Abu Q. Jackson of third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1). The trial judge sentenced defendant to three hundred and sixty-four days in the Union County jail and to a two-year probationary term. The judge also ordered defendant to complete drug and alcohol treatment, suspended defendant's driver's license for six months, and imposed the appropriate assessments, penalties and fees.

On appeal, defendant raises the following contentions:

Point I - Defendant was unreasonably detained and searched, tainting the subsequent search at police headquarters. U.S. Const. Amend IV; N.J. Const. Art 1, para. 7. (Raised Below).

Point II - The no-knock provision in the search warrant was plainly not warranted and the evidence against defendant should have been suppressed. R. 2:10-2. (Not Raised Below).

Point III - Defendant was denied his right to the effective assistance of counsel through counsel's failure to challenge the no-knock provision in the search warrant. (Not Raised Below).

We reject these contentions and affirm.

Evidence from the suppression hearing revealed the following. On December 9, 2004, the Elizabeth Police Department obtained a search warrant for the person of James Richardson at an apartment in Elizabeth (the apartment). The scope of the warrant included "all common areas of ingress, egress, and access associated with the apartment[,]" and "all persons who may be present who are believed to be involved in the investigation." The warrant also authorized the police to enter the premises without first knocking and identifying themselves as police officers.

Rasheeda Richardson, James Richardson's sister and defendant's aunt, leased the apartment. On December 14, 2004, the police executed the warrant at the apartment. Prior to the arrival of the police, defendant, who was at the apartment, had allegedly gone to the back of the building to dispose of garbage. The wind closed the door, locking defendant out of the building. Defendant went to the front door and rang the doorbell. The police then arrived at the premises.

When he arrived at the premises, Detective Lawrence Smith of the Elizabeth Police Department saw defendant standing at the front door. Defendant told the detective that he did not live at the premises but was visiting his aunt and taking out her garbage. Defendant, who had no garbage in his hands, pointed to the apartment, indicating that it was his aunt's apartment. Smith entered the building and instructed defendant to come inside and sit on the floor in the hallway. Defendant was not placed under arrest.

Smith continued toward the apartment and searched it and the common areas. The search revealed sixty-six vials of cocaine hidden inside a door that opened into the common stairwell that Smith believed was accessible to all the inhabitants of the building. Cash, pills, and rolling papers were found inside the apartment.

Approximately five minutes after instructing defendant to remain in the hallway, Smith returned to defendant and asked for defendant's name. Smith then contacted police headquarters for a warrant check on defendant, which revealed two active municipal warrants for unpaid fines. Defendant was arrested and patted down for weapons. A more extensive search later conducted at police headquarters revealed five vials of cocaine in defendant's left sock.

The trial judge found Smith's testimony more credible than defendant's testimony. The judge concluded that Smith had a legitimate basis for suspecting that defendant may be involved in the investigation because he had a connection to the apartment, thus providing Smith with the authority to take necessary and limited action to direct defendant to briefly remain at the premises until he could confirm defendant's identity. The judge also concluded that defendant's arrest and subsequent search were legal.

Defendant contends for the first time on appeal that: (1) there was an insufficient basis for the no-knock provision in the search warrant because there was no reasonable basis for the issuing judge to believe that Richardson was likely to destroy evidence; and (2) trial counsel was ineffective in failing to raise this issue.

We will not consider questions or issues not presented to the trial court unless they go to the jurisdiction of the trial court or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Arthur, 184 N.J. 307, 327 (2005). Defendant's contentions do not satisfy the exceptions. Further, the contentions lack merit. Defendant lacks standing to challenge the search warrant. Although present at the scene of the search, none of the evidence of the search was used against him. Rather, the evidence used against defendant was that evidence seized at police headquarters incident to his lawful arrest on two outstanding warrants. Accordingly, trial counsel was not ineffective in failing to raise the no-knock issue.

Defendant also contends that he was unreasonably detained and searched without a warrant in violation of his Fourth Amendment rights. He argues that: (1) his detention was without probable cause and solely for the purpose of obtaining incriminating information unrelated to any concerns for Smith's safety; (2) the search was illegal under the Fourth Amendment because his detention was not investigative in nature, nor was it to insure Smith's safety; and (3) because his illegal detention led to a search incident to an arrest, that search was illegal and any evidence found should have been suppressed. These arguments lack merit as well.

Our review of the record satisfies us that defendant's brief detention was reasonable, that it was not in violation of the Fourth Amendment, and that the police did not violate his Fourth Amendment rights by conducting a search for outstanding warrants. The search warrant included all persons who may be present and who were believed to be involved in the investigation. Such language authorized Smith to make an on-the-spot determination whether persons present during the execution of the warrant should be detained and searched based on his assessment. State v. Carlino, 373 N.J. Super. 377, 392-93 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005).

Here, Smith briefly detained defendant while the police executed the warrant based on defendant's statement that he was visiting his aunt, on defendant's pointing to his aunt's apartment, which was the apartment to be searched, and on defendant's statement that he was taking out his aunt's garbage but his hands were empty. Defendant's statements justified his temporary detention as a person who may be involved in the alleged criminal activity when the police executed the warrant.

Further, for Fourth Amendment purposes, "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595, 69 L. Ed. 2d 340, 351 (1981). "The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant. Id. at 703-04, 101 S. Ct. at 2594-95, 69 L. Ed. 2d at 350. If evidence that a residence is harboring contraband is sufficient to persuade a judicial officer to issue a search warrant, it is constitutionally reasonable to require a person connected to the premises to remain while officers execute the warrant. Id. at 704-05, 101 S. Ct. at 2595, 69 L. Ed. 2d at 351.

Finally, when a person is arrested for a crime with or without a warrant, a search of his person or of the things within his immediate possession or control is considered incidental to the arrest. State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984 (1993); State v. Doyle, 42 N.J. 334, 344 (1964). A search consequent to a lawful arrest may occur at the scene of the arrest or at the police station. State v. Malik, 221 N.J. Super. 114, 121 (App. Div. 1987). Accordingly, the search of defendant at police headquarters after his arrest was lawful and any evidence found was properly admitted by the trial judge.

 
Affirmed.

U.S. Const. amend. IV

(continued)

(continued)

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A-6658-06T4

March 18, 2010