STATE OF NEW JERSEY v. WAKIL EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2610-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAKIL EDWARDS aka WALID A.

EDWARDS aka WAKIL SAIB EDWARDS

aka KENNEY LEWIS,

Defendant-Appellant.

______________________________

April 19, 2011

Submitted March 15, 2011 - Decided

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-09-2996 and 06-10-3073.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress evidence, defendant Wakil Edwards pled guilty pursuant to a negotiated agreement to four counts of Indictment No. 06-09-2996: conspiracy, N.J.S.A. 2C:5-2 (count one); second-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), b(1), b(2) (counts three and nine); third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count seven); and to one count of Indictment No. 06-10-3073, third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7.1 In return, the prosecutor agreed to recommend concurrent aggregate terms of seven years with a two-year period of parole ineligibility and dismissal of all remaining charges. Defendant reserved the right to appeal the denial of his motion to suppress. Defendant was sentenced, consistent with the plea agreement, to an aggregate seven-year term with a two-year parole bar.

On appeal, defendant contends the court erred in denying his motion to suppress. That motion was originally brought by Timothy Guest, a co-defendant in Indictment No. 06-09-2996, in which defendant joined. The motion involved evidence seized on January 9 and 18, 2006, and also pursuant to a search warrant issued in February 2006. Defendant argued then, as he does now, that the police investigatory stop of co-defendant Guest's vehicle on January 9, 2006 and stop, pat-down and arrest of Guest on January 18, 2006 were unconstitutional, as they were not based on a reasonable suspicion of criminal activity. Accordingly, the authorizations for wiretaps and search warrants that flowed therefrom were unlawfully obtained and their fruits should be suppressed.

The motion judge conducted an evidentiary hearing, after which he made detailed findings of fact in his written opinion, which we adopt as supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 471 (1999); State v. Slockbower, 79 N.J. 1, 13 (1979), and reiterate here.

The events underlying this appeal have their genesis in the State's then-ongoing investigation of defendant, Guest and Curtis Crowley for suspected narcotics activity. In the summer of 2005, Daniel Francis, an undercover investigator with the Essex County Prosecutor s Office (ECPO), acting on information received, contacted Crowley in an effort to buy a kilogram of cocaine. Crowley then contacted defendant by telephone and asked defendant to obtain the kilogram of cocaine that Crowley had promised to sell to Francis. These telephone conversations were intercepted and recorded pursuant to a communications data warrant issued by a Superior Court judge.

On November 5, 2005, defendant received a telephone call from a then-unknown individual using a cell phone with the number 973-920-0912. Defendant advised the caller that he had a potential buyer for a kilogram of cocaine and asked whether the caller could provide the cocaine and the price thereof.

Subsequently, on December 8, 2005, a "concerned citizen" advised Investigator Francis that defendant associated with Timothy Guest. A record check of Guest revealed that he had nine prior indictable convictions and that he used the name Wakil Edwards as an alias. On December 17, 2005, Francis was advised by a representative of the United States Drug Enforcement Administration (DEA) that the wireless number 973-920-0912 was changed to 973-765-3689, but that all other information regarding the cell phone remained the same.

On January 9, 2006, acting on information provided by other officers, Investigator Francis began surveillance of a beauty supply store on Prospect Street in East Orange. Shortly after the surveillance was set up, Investigator Francis saw Guest pull up to the beauty shop in a white GMC Denali SUV, which the officers had previously observed defendant driving during suspected drug transactions. Investigator Francis instructed the officer with him, Officer Elizabeth Bazan, to call 973-765-3689 and then pretend to have dialed the wrong number. When she placed the call, Investigator Francis observed Guest lift his cell phone and speak into it at the same time, and then hang up. Guest drove off in the Denali.

Later that day, Guest was stopped by Captain Patrick DeFrancisci and Detective Consuelo Perez of the Essex County Narcotics Task Force, acting on instructions from Investigator Francis. The purpose of the stop was to determine if Guest had possession of the cell phone. While Guest was detained under the guise of a motor vehicle check, Officer Bazan and Investigator Francis were watching with binoculars from a distance of 200 yards. Officer Bazan called 973-765-3689 twice and Detective Perez observed Guest switch his cell phone to voice mail at the same time that Officer Bazan placed the calls. Guest was permitted to drive off after approximately fifteen minutes.

On January 18, 2006, at 4:30 p.m., Lieutenant Phyllis Bindi and Captain Paul Davis East Orange police officers unconnected with the ECPO investigation were on patrol in an unmarked vehicle when they observed Guest in the Denali, parked illegally in the fire zone of a parking lot in front of Discount Cleaners, a dry cleaner located at 450 Central Avenue in East Orange. Discount Cleaners is located in an area known to be a high narcotics trafficking area. They watched Guest get out of the vehicle and approach another male. The two spoke briefly while standing between two parked cars and, according to the officers, looked nervously around, repeatedly peering up and down the street "in a suspicious manner." The officers saw the man hand Guest an undetermined amount of currency.

Based on these observations, Lieutenant Bindi decided to investigate the situation and approached Guest and the man, asking Guest "What's going on here?" and "What are you doing here?" The men appeared "[v]ery nervous and evasive," and Guest placed his hands in his pockets as the officers approached. Since Lieutenant Bindi "didn t know what actually [Guest] was putting in the side of his jacket pocket," the officers conducted pat downs of both men for their own protection. Feeling a bulge in his pants pocket, Lieutenant Bindi reached into Guest s pocket and retrieved a bundle of cash. Lieutenant Bindi later testified that when she felt the bulge, she knew that it was not a gun. The officers conducted a record check of Guest, which revealed an active warrant. Guest was subsequently arrested and taken to East Orange police headquarters.

Prior to being removed from the scene, Guest indicated that he had a car that had to be dealt with. The East Orange officers explained to Guest that he was under arrest and that his vehicle, the Denali, was improperly parked in a fire zone and therefore would be towed and impounded. A tow truck was then called to remove the vehicle to an East Orange police station.

Suspecting that the vehicle might contain unlawful drugs on the basis of their earlier observation, the officers, while awaiting the tow truck, called for a K-9 unit to conduct a "scent test" of the Denali. The dog was walked around the exterior of the vehicle and responded in a manner suggesting that drugs were inside. The Denali was thereafter towed to police headquarters.

On January 19, 2006, East Orange Detective Charles Hinton, Jr. signed an affidavit reciting the events of the preceding day and stating that the same drug-sniffing dog that reacted positively to the car had also reacted positively to the money that had been confiscated from Guest at the scene by Lieutenant Bindi. Based on this affidavit, a judge issued a warrant permitting the officers to search Guest's vehicle. A search of the vehicle, executed on January 19, 2006, revealed a hidden compartment containing cocaine, a handgun, ammunition, and various items of drug paraphernalia. Guest was not informed that the officers had located these items and was later released.

On January 31, 2006, after Guest had been released, Investigator Francis applied for a communications data warrant for the cell phone number 973-765-3689. In his forty-six-page affidavit, Investigator Francis detailed all the events through January 19, 2006. The warrant was granted on January 31, 2006 and surveillance of the cell phone number commenced on February 2, 2006.

On February 2, 2006, and on several dates thereafter, officers intercepted telephone conversations between Guest and others in which Guest arranged the sale of cocaine and indicated that he had quantities of cocaine at his residence in Woodbridge. Guest was also seen driving a 1998 Chevrolet van during various meeting with others regarding suspected drug sales and utilizing the premises in Woodbridge for such purposes, as well. On February 14, 2006, the court issued search warrants for the Chevrolet van and for defendant's residence in Woodbridge based on an affidavit from the lead investigator recounting the above facts.

On February 15, 2006, Essex County Narcotics Task Force members set up surveillance outside Guest's variety store at 526 Prospect Street in East Orange. Telephone calls were thereafter intercepted in which it appeared that Guest made arrangements to transfer drugs at that location. Guest was also observed at that location meeting with people who appeared to be involved in pre-arranged drug transactions. Officers executed the warrant at defendant's residence in Woodbridge that same day and uncovered a handgun, ammunition, a bulletproof vest, money, and various items of drug paraphernalia.

On February 24, 2006, after obtaining a warrant to search Guest's store, officers executed the warrant and recovered various items of drug paraphernalia, including glass vials and multi-colored caps.

In his written opinion, the judge set forth his reasons for denying defendant's suppression motion. The judge found that the January 9, 2006 motor vehicle stop was permissible because the officers had a reasonable and articulable suspicion that Guest and the vehicle were involved in a criminal event. Guest had engaged in conversations with defendant regarding the sale of narcotics, and Investigator Francis received information that Guest was the individual speaking with defendant about narcotics transactions during an intercepted phone call. He was observed driving a vehicle that defendant had previously used during suspected drug transactions. Finally, before approaching defendant, Investigator Francis saw defendant respond to his cell phone shortly after the officer with him dialed the phone number 973-765-3689. Thus, even if an investigatory stop were not justified, Guest's access to a cell phone with number 973-765-3689 was reasonably supported by the first observed call to that phone on January 9, 2006, which involved no detention of Guest. Consequently, if the portions of the affidavit (submitted in support of the subsequent wiretap application for Guest's cell phone) relating to the January 9, 2006 "motor vehicle stop" were deleted, there was still a sufficient basis for the issuance of the intercept order.

The judge also found "objective justification" for the stop of Guest on January 18, 2006, citing Lieutenant Bindi's experience in narcotics investigations; her knowledge that Guest had been arrested for narcotics offenses in the past; the high-volume drug trafficking area where the stop occurred; Guest's odd behavior, appearing nervous and repeatedly peering up and down Central Avenue and then quickly exchanging a roll of currency which Guest put into his pocket; and the fact that Guest had parked his car in a fire zone and placed his hands into his pockets upon being approached by the officers. Although the subsequent pat-down of Guest and extraction of money from his pants pocket were impermissible because there was no reason to believe Guest was armed and dangerous, State v. Arthur, 149 N.J. 1, 13 (1997), the judge nevertheless found that "because [Guest] was shortly thereafter lawfully arrested and searched incident thereto, the money would have been inevitably discovered anyway, and thus should not be suppressed. State v. Sugar, 100 N.J. 214, 238 (1985)."

The judge further found that the employment of a drug-sniffing dog on the outside of Guest's vehicle was not constitutionally offensive. By the time the dog arrived, Guest had already been arrested on an outstanding warrant and removed from the scene. The vehicle in question was parked improperly in a fire zone and was to be towed from the scene to a police impoundment lot. Thus, the judge concluded that "the use of a drug-sniffing dog to examine the outside of a vehicle . . . while awaiting arrival of a tow truck, offends no state or federal constitutional provisions."

Lastly, having found that Guest's initial investigatory stop, his subsequent arrest and attendant search of his person, as well as the use of a drug-sniffing dog were all constitutionally permissible, the court concluded that the ultimate search of Guest's Denali pursuant to a search warrant was likewise constitutionally sound.

On July 2, 2010, in an unpublished per curiam opinion, State v. Guest, A-5452-07T4 (slip. op. July 2, 2010), we affirmed the denial of the motion to suppress as to Indictment No. 06-09-2996, "substantially for the reasons set forth in Judge Kennedy's written opinion." Id. at 5. We reach the same result here and add only the following comments.

An investigatory stop or detention, otherwise known as a Terry2 stop, is constitutional only if it is based on "specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (citation and internal quotation marks omitted). In other words, an investigative stop may be justified "if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002). The suspicion necessary to justify an investigative detention is a lower standard than probable cause and has been described as "some minimal level of objective justification" for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); see also Stovall, supra, 170 N.J. at 356.

"'Such a determination can be made only through a sensitive appraisal of the circumstances in each case.'" State v. Preciose, 181 N.J. 13, 27 (2004) (quoting State v. Dennis, 104 N.J. 490, 504-05 (1986)). These include the officer's knowledge, experience and expertise. Stovall, supra, 170 N.J. at 363; State v. Citarella, 154 N.J. 272, 279 (1998). Further, "under circumstances demonstrating particularized suspicion

. . . such as a high crime location . . . police would have greater latitude to subject a citizen to an investigatory stop." State v. Tucker, 136 N.J. 158, 168 (1994); see also State v. Pineiro, 181 N.J. 13, 26 (2004) (noting that "the reputation or history of an area and an officer's experience with and knowledge of the suspected transfer of narcotics [are] relevant factors to determine the validity of a Terry stop"). Also in determining reasonable suspicion, an officer may take into account the suspect's nervousness, Stovall, supra, 107 N.J. at 367, as well as the suspect's prior criminal history. State v. Valentine, 134 N.J. 536, 550 (1994) (holding that "[c]ourts assessing the reasonableness of an officer's assessment of probable cause to arrest may consider evidence of prior crime on the part of the suspect"). And finally, "[t]he fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as a reasonable person would find the actions are consistent with guilt." Citarella, supra, 154 N.J. at 279-80 (citations and internal quotations marks omitted).

Here, the trial court properly found that the officers had a reasonable and articulable suspicion that Guest and the vehicle he was driving on January 9, 2006, were involved in criminal activity based on the totality of the circumstances known to them. Defendant had engaged in phone conversations regarding the sale of cocaine with an individual using the cell phone number 973-920-0912, which conversations were intercepted and recorded pursuant to a communications data warrant. Investigator Francis learned from a DEA agent that the cell phone number 973-920-0912 had been changed to 973-765-3689, but that all other information regarding the cell phone remained the same. On January 9, 2006, Investigator Francis observed Guest respond to his cell phone shortly after his accompanying officer dialed the phone number 973-765-3689. Investigator Francis also observed Guest driving the Denali SUV, a vehicle that defendant had previously used during suspected drug transactions. Given these circumstances, it was reasonable for the officers to suspect that Guest was involved in narcotics activity, and as such, were justified in briefly stopping Guest.

Even assuming the motor vehicle stop was not justified, Guest's access to a cell phone with the number 973-765-3689 - which number had been used in drug trafficking conversations with defendant - was reasonably supported by the first observed call to that number when Guest was under surveillance near the beauty supply store earlier that same day. That observation involved no detention of Guest and was not a search or seizure within the meaning of the Fourth Amendment. See State v. Foley, 218 N.J. Super. 210 (App. Div. 1987). Indeed, the motor vehicle stop only confirmed the existing evidence that Guest was in possession of a cell phone with the number 973-765-3689, which number had been used in drug trafficking conversations. Thus, even if the two pages of Investigator Francis's forty-six page affidavit relating to the January 9, 2006 motor vehicle stop were deleted, there was still a sufficient basis for the issuance of the communications data warrant for 973-765-3689. See State v. Chaney, 318 N.J. Super. 217 (App. Div. 1999) (reversing the trial court's grant of the defendant's suppression motion on grounds that the affidavit in support of the search warrant application contained unlawfully obtained evidence because the affidavit also contained lawfully obtained information that was sufficient to establish probable cause for the search of the defendant's motel room).

We find the January 18, 2006 investigatory stop of Guest, his subsequent arrest on an outstanding warrant, and the search of his motor vehicle the next day pursuant to a search warrant also to be constitutionally permissible. The initial encounter on January 18, 2006 rose to the level of an investigatory stop but was, once again, supported by the officers' "reasonable and particularized suspicion" that Guest had just engaged in or was about to engage in criminal activity. Stovall, supra, 170 N.J. at 356. Lieutenant Bindi, a highly experienced narcotics officer, observed Guest in an area known for a high volume of drug activity and car thefts. Further, Guest and his companion were behaving oddly, nervously "peering out and shifting back and forth up and down Central Avenue" as if "to see if someone was watching," and then quickly exchanged some money, which Guest put into his pants pocket, as Lieutenant Bindi approached. Moreover, the Denali SUV that Guest had been driving was illegally parked in a fire zone in front of the dry cleaners. Even "a group of innocent circumstances in the aggregate can support a finding of reasonable suspicion." Stovall, supra, 170 N.J. at 368. In this case, when viewed in the aggregate, the circumstances confronting the officers on January 18, 2006, support a finding of reasonable suspicion that illegal narcotics activity was taking place sufficient to justify Guest's detention.

Although these same circumstances may not have further justified the pat-down and seizure that followed, the money found in Guest's person would inevitably have been discovered pursuant to a search incident to Guest's lawful arrest on an outstanding warrant. In this regard, the "inevitable discovery rule" is an exception to the exclusionary rule which permits evidence to be admitted in a criminal case, even though it was obtained unlawfully, when the government can show that discovery of the evidence by lawful means was inevitable. State v. Holland, 176 N.J. 344, 361-62 (2003). The rationale behind the rule - which places the police in the same position that they would have been in had no police misconduct occurred - is that "the deterrent purposes of the exclusionary rule are not served by excluding evidence that, but for the misconduct, the police inevitably would have discovered." State v. Sugar, 100 N.J. 214, 237 (1985) (Sugar II). Indeed, "[i]f the evidence would have been obtained lawfully and properly without the misconduct, exclusion of the evidence would put the prosecution in a worse position than if no illegality had transpired." Ibid.

In order to invoke the inevitable discovery doctrine, the State must 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.

[Sugar II, supra, 100 N.J. at 238.]

Unlike the federal standard, under which prosecutors need prove inevitable discovery only by a preponderance of the evidence, in New Jersey, the State must show inevitable discovery by clear and convincing evidence. Id. at 240.

Here, after being detained based on reasonable suspicion of criminal activity, Guest was lawfully arrested pursuant to an open warrant and searched incident thereto. Accordingly, the money found on his person would inevitably have been discovered during such a search. Given the visible bulge in Guest's pants pocket, Lieutenant Bindi's observation that Guest placed in his pants pocket the money that his companion handed him, and Guest's placement of his hands in his pockets when the officers approached him, there is ample evidence to support the assumption that a search incident to arrest would have included a search of Guest's pants pockets.

The weapon and drug paraphernalia found in the Denali the next day, January 19, 2006, were similarly lawfully seized pursuant to a search warrant based, in part, on the results of a "scent test" on the exterior of the vehicle by the K-9 unit's drug-sniffing dog, which suggested drugs were inside. As noted, the activity of the drug-sniffing dog, limited to the exterior of the car, did not constitute a "search," and did not extend Guest's investigatory detention as he had already been validly arrested by then. Moreover, the vehicle, which had been illegally parked, was lawfully impounded and towed to police headquarters. The subsequent search of its interior pursuant to a search warrant was therefore proper.

1 Indictment No. 06-09-2996 covered events from August 10 to November 20, 2005. Indictment No. 06-10-3073 covered events from November 4, 2005 to March 28, 2006, during which the searches challenged on this appeal occurred. The relevancy of the evidence obtained in these searches to the charges in Indictment No. 06-09-2996 is not self-evident to us.

2 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).