STATE OF NEW JERSEY v. TAVARES DILLARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6043-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAVARES DILLARD, a/k/a

TAYERES DILLARD, TAYARES L.

DILLARD, TRAVARES L. DILLARD,

TAVARES MILLERD,

Defendant-Appellant.

________________________________________________

March 5, 2012

Submitted October 26, 2011 - Decided

Before Judges Cuff and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0462.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel; Emily R. Anderson, Special Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Tavares Dillard appeals from an order denying his motion to suppress evidence. We affirm.

In February 2007, an Essex County grand jury returned an eight count indictment charging defendant with: third degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute it, contrary to N.J.S.A. 2C:5-2 (Count One); fourth degree possession of marijuana, contrary to N.J.S.A. 2C:35-5b(12) (Count Two); third degree possession of marijuana with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count Three); third degree possession of Ecstasy, contrary to N.J.S.A. 2C:35-10(a)(1) (Count Four); third degree possession with intent to distribute Ecstasy, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Five); third degree possession with intent to distribute Ecstasy within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (Count Six); second degree possession of a firearm during the commission of a drug offense, contrary to N.J.S.A. 2C:39-4.1 (Count Seven); and fourth degree violation of firearm permit regulations, contrary to N.J.S.A. 2C:58-3(a) (Count Eight).

After his motion to suppress evidence was denied, defendant entered a conditional plea of guilty to counts three, six, and eight in the indictment. All other charges were dismissed. In accordance with his plea agreement, defendant was sentenced to three concurrent sentences: five-years imprisonment with two- and-a-half-years of parole ineligibility for the marijuana charge; five-years imprisonment with three years of parole ineligibility for the Ecstasy charge; and eighteen-months imprisonment with nine months of parole ineligibility for the firearm regulation charge. The trial judge also imposed monetary penalties as required by statute.

On defendant's motion to suppress evidence, the trial judge conducted a hearing during which one police witness testified,

Officer Carlos Rivera, a twelve-year veteran, and a member of the Newark Police Department's Third Precinct Narcotics Bureau. Officer Rivera testified that he received training in the field of illegal narcotics, undertook investigations, and has made numerous arrests.

On November 9, 2006, at 9:45 p.m., Officer Rivera was in plain clothes, and accompanied by five other police officers, including Sergeant DiFabio and Officer Cosgrove. The Narcotics Division was assigned that night with patrolling Newark streets to investigate narcotics complaints.

Officer Rivera was the front passenger in an unmarked vehicle on patrol when he observed three African-American males, two of whom were later identified as defendant and co-defendant, Donyel Reaves, on the porch of 42 Seymour Avenue, a location of prior narcotics arrests.

When the officers exited their vehicles and identified themselves, Reaves removed a plastic bag from his pocket, dropped it on the porch, and then ran into the house with the other men. Officer Rivera pursued them on foot. When Reaves tossed the plastic bag, Officer Cosgrove recognized its contents as suspected CDS and yelled, "9-0-8," which meant there was contraband present, and the individuals fleeing should be arrested. Inside the plastic bag were eighteen smaller, sealed baggies containing substances resembling marijuana, plus ten blue pills resembling Ecstasy.

Defendant and Reaves entered a hallway inside the house, and then ran into the last apartment on the right. Officer Rivera continued running after defendant and Reaves, but when he reached the door of the apartment, it was locked. He hit the door with his shoulder approximately three times and forced it open. He entered the apartment accompanied by Sergeant DiFabio and proceeded to an interior hallway leading to the kitchen, where he observed defendant holding a shotgun. Officer Rivera unholstered his service weapon and ordered defendant to put the shotgun down. Defendant complied by placing the shotgun on the floor. He was then arrested.

Judge Michael A. Petrolle, in a comprehensive oral opinion, denied defendant's motion to suppress the seized CDS and shotgun. The motion judge contrasted the facts and holding in State v. Williams, 192 N.J. 1 (2007), with the facts before him, noting that here the officers simply walked towards the porch, displaying their badges, and addressing the individuals. They did not initially chase them. The judge noted that Reaves discarded the bag even though he was not being detained by the police officers and that, in fact, he had the right to walk away. Citing State v. Josey, 290 N.J. Super. 17, 24 (App. Div.), certif. denied, 146 N.J. 497 (1996), the motion judge determined that once the police identified the suspected CDS, they were in "hot pursuit" when they pursued defendant into the house and forcibly entered the apartment.

When an appellate court reviews the factual findings made by a trial judge during a hearing on a defendant's motion to suppress, the reviewing court is obliged to uphold the judge's findings of fact "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). An appellate court "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

On appeal, defendant argues:

THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION TO SUPPRESS.

We reject this contention, and affirm defendant's conviction and sentence.

Defendant argues that the police lacked probable cause to arrest him, and the warrantless search could not be justified by any exception to the warrant requirement. In making that argument, defendant does not disagree with the judge's statement that, under the proper circumstances, an officer who is in hot pursuit of an individual, whom he has probable cause to arrest, is entitled to pursue that individual even if he runs inside a house. Instead, defendant maintains that Officer Rivera "crossed the threshold of the home and ran after the men" before he heard the command "9-0-8." Thus, according to defendant, prior to entering the building, Officer Rivera lacked a reasonable basis to conclude that defendant was engaged in criminal behavior, and therefore, because he lacked probable cause, all evidence seized should be suppressed. Defendant does not point to any facts, either in the record of the suppression hearing or in the motion judge's decision, to support the factual contention that Officer Rivera was in the building before he heard the command "9-0-8."

The motion judge determined "[o]nce the police had a person fleeing from them having committed a drug offense they had a perfect right to pursue that person . . . into the house . . . ." We reject defendant's invitation to substitute our evaluation of the factual record for that of Judge Petrolle, who had the opportunity to see and hear the witness and evaluate his credibility. Mann, supra, 203 N.J. at 336-37. We see no reason to argue with the judge's factual findings since they are supported by sufficient, credible evidence in the record.

Having addressed the facts, we now review the motion judge's application of the law. To the extent the motion judge's decision implicates legal principles, we independently evaluate those legal assessments de novo. See State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

While the police may order a suspect to stop based only upon a reasonable and articulable suspicion that the suspect has engaged in criminal activity, State v. Pineiro, 181 N.J. 13, 20 (2004), police may not arrest a suspect without probable cause, namely, a well-grounded belief that the individual has committed a crime, State v. O'Neal, 190 N.J. 601, 612 (2007).

In determining whether a police officer had a legitimate basis for ordering a suspect to stop, we consider the totality of the circumstances from the standpoint of an objectively reasonable police officer. State v. Arthur, 149 N.J. 1, 10-12 (1997). Here, Officer Rivera was provided with probable cause when Reaves discarded the bag jointly possessed by Reaves and defendant, containing the CDS, and Officer Cosgrove issued the "9-0-8" command. Officer Cosgrove observed Reaves discard the bag and, upon seeing the suspected CDS in the bag, issued the command to arrest Reaves and defendant because probable cause then existed. State v. Henry, 133 N.J. 104, 110-11 (holding that an officer has probable cause to arrest where defendant commits an offense in the officer's presence), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993).

Because Officer Rivera had probable cause to arrest defendant, the motion judge properly concluded that exigent circumstances justified Officer Rivera's warrantless entry into the house to effectuate an arrest of defendant, as he was in "hot pursuit" of a fleeing felon. See State v. Nikola, 359 N.J. Super. 573, 584 (App. Div.), certif. denied, 178 N.J. 30 (2003); see also Josey, supra, 290 N.J. Super. at 30-31 (holding that when police saw the defendant selling CDS, they had "ample probable cause to arrest him" and to pursue him into his apartment). Once Officer Rivera was lawfully in the kitchen hallway, he observed the shotgun in plain view, and he was therefore entitled to seize it. See 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).