STATE OF NEW JERSEY v. RAHEEM A. SPRUELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2579-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHEEM A. SPRUELL, a/k/a

Raheem Spruel, Raheem Spruell,

Dashawn Harris and Jahad Sprueill,

Defendant-Appellant.

________________________________________________________________

August 29, 2011

Submitted August 24, 2011 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-05-1525 and 07-06-2039.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Raheem A. Spruell appeals from his April 4, 2008 conviction, under Indictment No. 07-06-2039, of second-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5 (count one); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5 (count three). On the same date, defendant was convicted and sentenced on an unrelated indictment, no. 07-05-1525; however, because defendant confines his arguments on appeal to Indictment No. 07-06-2039, we limit our discussion accordingly. As to Indictment No. 07-06-2039, defendant argues:

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH[ES] AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE WITHOUT PROBABLE CAUSE.

We affirm.

I.

Defendant filed a pro se motion to suppress on a date not specified in the record. Because defendant presented no dispute of material fact, in accordance with Rule 3:5-7(c), the trial court considered the police report, the State's brief, and the parties' arguments without conducting an evidentiary hearing. The police report prepared by Newark police officers Ramos and Nieves on March 9, 2007 revealed that they were directed by their sergeant on that day to proceed to a specific address on South Orange Avenue in Newark due to numerous narcotics complaints in the area. The building contained three apartments and had a common hallway and a front porch. After parking their vehicle in a location where it could not be observed, Officer Ramos, under cover of darkness, hid fifteen to twenty feet away from the front of the building. In the past, Ramos and his fellow officers had made a number of arrests for drug distribution at that specific location.

On the night in question, Officer Ramos observed co-defendant, Albert Short (Albert),1 receive money from two individuals at different times, after which Albert used a silver Nextel phone to make a call, and told the person on the other end of the phone to bring him more "baggies." In particular, Ramos observed Albert standing in front of the building, when an unknown black female approached Albert and handed him currency. As soon as she did so, Albert pulled the phone from his pocket, and Ramos was able to hear Albert say to the person on the other end of the phone "yo, I need three baggies." Approximately ten seconds later, the door to the designated address on South Orange Avenue opened and defendant stood at the top of the porch. Albert walked two steps up toward defendant who handed him unknown items. Albert then handed these unknown items to the black female, who, after briefly inspecting them in her right palm, quickly left the area.

Shortly after the black female left, Officer Ramos observed a green pickup truck pull up in front of 317 South Orange Avenue, at which time Albert approached the passenger side of the vehicle. He engaged in a brief conversation with the driver, after which the driver reached through the open passenger-side window and handed Albert paper currency. Ramos observed Albert again utilize the silver Nextel phone, and heard him say "bring five baggies down." A few seconds later, defendant again opened the front door and handed Albert what appeared to be several small blue baggies. Defendant reentered the hallway. Albert walked toward the green pickup truck, reached into the passenger-side window and handed the driver the small blue baggies. The green pickup truck immediately left the scene.

A short while later, a marked police vehicle on routine patrol drove past 317 South Orange Avenue heading east. After observing the police vehicle, Albert utilized the Nextel and stated, "yo, police, police." At that point, Officer Ramos decided to end his surveillance, satisfied that what he had observed were narcotics transactions. Ramos communicated with backup officers by radio and directed them to move in.

The officers detained Albert outside the building. Finding the door to the three-story apartment building to be unlocked, the officers opened it and observed an unknown black male, later identified as Robert Short (Robert), sitting midway on the hallway stairs between the first and second floor. On his lap was a clear bag containing small items.

After observing the officers entering the well-lit hallway, Robert stated "oh shit," dropped the clear bag and ran up the stairs. One of the officers retrieved the clear bag from the step and pursued Robert. The bag discarded by Robert held small zip-lock baggies containing a substance later determined to be cocaine.

Defendant was found hiding behind the first floor door, and he, along with Albert and Robert, were arrested. Police searched Albert and found him to be in possession of $207.

At the conclusion of oral argument, Judge Petrolle denied defendant's motion to suppress, concluding that the officers had ample probable cause to conclude that Robert, Albert and defendant were working together to distribute cocaine. He reasoned that the officers "observed what appeared to them to be drug transactions, hand-to-hand transactions, an exchange of currency for baggies, and that would appear to constitute probable cause to believe that those hand-to-hand drug transactions were taking place." The judge also observed that when Officer Ramos and the other officers pursued defendant and the other two suspects, they were not entering a private home, but were instead entering the "common hallway" of a three-family apartment building. Because it was a "common hallway," the judge concluded the police "had a perfect right to enter that hallway, as well as anyone else did" because there was "no expectation of privacy in the common hallway of a multi-family building."

After noting that the three suspects "had a real stream of commerce going," the judge concluded that Robert had abandoned the CDS on the stairway at the time when the police were lawfully pursuing him and the others. The judge also concluded that the police were justified in arresting all three. At the conclusion of the hearing, the judge denied defendant's motion to suppress.

II.

On appeal, defendant argues that the denial of his motion to suppress should be reversed because the police lacked probable cause to arrest him. "Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). "When no warrant is sought, the State has the burden to demonstrate that the search falls within one of the few well-delineated exceptions to the warrant requirement." Ibid. (internal quotations marks and citation omitted).

A search or seizure incident to a lawful arrest that is based on probable cause is a long-recognized exception to the warrant requirement. State v. Sims, 75 N.J. 337, 352 (1978). The Court has described the probable cause standard as follows:

The probable cause standard is a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.

[State v. O'Neal, 190 N.J. 601, 612 (2007) (alterations in original) (citations and internal quotation marks omitted).]

In evaluating the existence of probable cause, the totality of the circumstances must be considered. Ibid.

As the Supreme Court observed in State v. Sheffield, 62 N.J. 441, 445, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973), when a judge evaluates the totality of the circumstances, the judge must recognize the police officer's experience and training and consider how that experience bears upon the officer's determination of probable cause. The Court stated:

A narcotics officer is especially qualified to detect traffic in narcotic drugs. He learns through experience how to spot an addict or pusher, how an addict or pusher acts and reacts, and where the areas of narcotics activity are. When an officer applies his expertise in a narcotics situation, it should not be given grudging recognition when assaying the existence of cause to take police action.

[Ibid.]

Defendant urges us to conclude that the judge erred when he held that Officer Ramos's observations of the hand-to-hand transactions, the use of a cell phone by Albert, and the agitated reference to "police" by one of the three suspects, together constituted probable cause. Defendant argues, "the police never observed any drugs, and cell phones are ubiquitous; consequently, the police lacked probable cause [and] [t]he motion to suppress evidence should have been granted."

While it may appear to a layperson that Albert's request to defendant to bring him more "baggies" constituted merely innocuous behavior, in the experience of Officer Ramos, this was a classic drug distribution scheme. As we have observed:

[T]he distribution of dangerous drugs [is a] business . . . carried on warily and guardedly and in as many different ways and by as many conceivable methods as human ingenuity can devise in order to escape detection. . . . Law enforcement officers have an even higher and more detailed degree of knowledge than judges of the devious ways of the drug distributor. In all respects, the common and specialized experience and work-a-day knowledge of police [officers] must be taken into account.

[State v. Alvarez, 238 N.J. Super. 560, 565-66 (App Div. 1990) (internal quotation marks and citation omitted).]

So viewed, we are satisfied that the circumstances observed by Officer Ramos constituted probable cause to believe that the crime of drug distribution was being committed in his presence. The approach of two individuals, who exchanged currency for small objects packaged in "baggies" and hurriedly left the scene thereafter, constitutes, as the trial judge found, a classic pattern of street-level drug distribution. The clandestine and furtive methods used by Albert and defendant to avoid apprehension, with Albert taking steps to avoid storing the CDS on his person, and instead relying on defendant to hand him the "baggies" as needed, further contributed to Officer Ramos's "well-grounded suspicion that a crime [was] committed" in his presence. O'Neal, supra, 190 N.J. at 612. As the arrest of defendant was supported by probable cause, Judge Petrolle properly denied defendant's motion to suppress.

1 We refer to him by his first name because a person with the same surname was also involved.