STATE OF NEW JERSEY v. JAMAL MADISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAL MADISON, a/k/a JAMALL

MADISON, a/k/a JAMIL MADISON,

Defendant-Appellant.

________________________________________

July 2, 2015

Submitted March 18, 2015 Decided

Before Judges Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-08-0878.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jamal Madison appeals from his conviction by guilty plea following the trial court's denial of his motion to suppress evidence, see R. 3:5-7(d), and also from his fourteen-year sentence of imprisonment. We affirm.

The facts were developed at the suppression hearing. On May 11, 2011, Elizabeth police officers were conducting surveillance in a known narcotics selling area of the city. They saw defendant walking toward an SUV. The officers recognized him as a person previously charged with drug crimes and also previously involved in a murder investigation. As defendant got closer to the SUV, he looked around the area as if concerned about who might be watching him. He then entered the passenger side of the SUV.

The police officers used their unmarked car to block the SUV nose-to-nose. They saw that the driver was holding cash in his hand. An officer approached the passenger side and saw defendant move his left hand to the space between his seat and the center console. The officer immediately reached into the car and grabbed defendant's hand. Defendant's fist was clenched. As the officer ordered defendant out of the car, his fist opened and an item fell to the floor of the car. The police seized the item, a bundle of heroin.

Outside the car, the police saw a handgun tucked into defendant's waistband. Defendant struggled with the police but was subdued, and a loaded handgun was seized from his waistband.

A grand jury returned two indictments against defendant, one charging eight counts of drug and weapons offenses as well as assault and resisting arrest, and the second charging one count of possession of a firearm by a convicted person, N.J.S.A. 2C:39-7. Defendant moved to suppress the evidence seized at the time of his arrest. The only witness at the suppression hearing was one of the officers who made the arrest. On August 9, 2012, the court placed an oral decision on the record denying the motion.

Subsequently, defendant entered into a plea agreement and pleaded guilty on July 16, 2013, to three second-degree crimes. He pleaded guilty to the separate indictment charging possession of a firearm by a convicted person, ibid., and to two charges from the eight-count indictment, possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, and possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1(a). On September 20, 2013, the court sentenced defendant in accordance with the plea agreement to an aggregate of fourteen years in prison with seven years to be served before he is eligible for parole.

On appeal, defendant argues

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE.

A. The Police's Vantage Point Was Unlawful Because the Police Lacked Probable Cause to Enter the Vehicle, as the Police Were Searching for Narcotics During a Narcotics Surveillance Operation.

B. The Plain View Doctrine, Relied on by the Trial Court to Justify the Seizure of the Evidence Is Inapplicable: The Discovery of Narcotics Does Not Occur Inadvertently When Made During a Narcotics Surveillance Operation.

POINT II

THE SENTENCE IS EXCESSIVE.

A. The Trial Court Improperly Balanced the Aggravating and Mitigating Factors.

B. The Court Made Findings of Fact to Enhance the Sentence.

In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's fact findings and "feel" of the case and may not substitute its own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); accord State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007).

Defendant did not present evidence to dispute the officer's testimony at the suppression hearing and now does not dispute the facts as described in our narrative. Rather, he contends the facts do not amount to probable cause for the officer to have "entered" the SUV by reaching in and grabbing his hand. He argues the police did not see a hand-to-hand transaction between defendant and the driver of the SUV and thus did not have probable cause for the seizure of his person inside the car and the resulting search and seizure of the heroin and the gun.

A "seizure" of the person can be either an arrest or an investigatory detention, depending on the constraints placed upon the person and their duration. See State v. Davis, 104 N.J. 490, 498 (1986); State v. Contreras, 326 N.J. Super. 528, 538-39 (App. Div. 1999). An investigatory detention generally occurs at or near the scene of the initial police encounter and is of short duration. See Dunaway v. New York, 442 U.S. 200, 210-11, 99 S. Ct. 2248, 2255-56, 60 L. Ed. 2d 824, 834-35 (1979). During an investigatory detention, the police may restrict the person's movements but do not formally put the person under arrest or employ constraints that are the functional equivalent of an arrest. See State v. Toro, 229 N.J. Super. 215, 221-22 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989), overruled in part on other grounds by State v. Velez, 119 N.J. 185, 187 (1990). Our Supreme Court has described such investigatory detentions as "minimally intrusive" restraints on the person's freedom. State v. Dickey, 152 N.J. 468, 478 (1998).

Here, the blocking of the SUV was a temporary detention for purposes of investigating possible drug offenses. To subject a person to such an investigatory detention, the police must have reasonable and articulable suspicion of conduct that violates the law. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968); United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604, 612 (1985); Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 20-22 (2004).

Reasonable suspicion has been described as "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). It requires less evidence than probable cause to make an arrest for violation of the law. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990); Stovall, supra, 170 N.J. at 356.

In this case, the police recognized defendant as a person who had been charged previously with drug offenses. They saw him in an area known for drug-selling activity as he approached the SUV and reconnoitered the area before getting into the passenger seat. The police were aware that drug sales happen in that manner inside a vehicle. Their observations provided reasonable suspicion to detain defendant temporarily to investigate whether he was engaged in the sale of drugs. See State v. Citarella, 154 N.J. 272, 280-81 (1998); State v. Arthur, 149 N.J. 1, 10-12 (1997).

After the vehicle was blocked, the police saw cash in the hand of the driver and then saw defendant reach his hand to the gap between his seat and the center console. Those observations added to the reasonable suspicion of a possible drug sale and also gave the police reasonable suspicion that a weapon might be concealed and defendant might have access to it. At that point the police could increase the level of restraint upon defendant. They could restrict the movement of his hand as part of a "protective search" for their safety and the safety of the public. State v. Roach, 172 N.J. 19, 24-25, 27-28 (2002). Probable cause is not required for such a protective seizure and search of a suspect. "[A]n objectively reasonable suspicion that defendant was armed and dangerous" is sufficient. Id. at 27 (quoting State v. Thomas, 110 N.J. 673, 683 (1988)).

The officers were conducting their investigation in a high-crime area and had prior knowledge of defendant's involvement in drug sales and a murder investigation. His reaching for an area in the SUV from which a weapon could be retrieved created a potential for danger to the officers and the public that justified the minimal police infringement of his freedom of movement when the officer reached into the car and grabbed his hand. See Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201, 1220 (1983); State v. Privott, 203 N.J. 16, 30 (2010).

Once that action was taken, the revelation of the bundle of heroin was the result of defendant's conduct in unclenching his fist and dropping the bundle to the floor in plain view of the police. The plain view doctrine permits the police to seize evidence without a warrant where the officer is "lawfully . . . in the viewing area," the evidence is discovered "inadvertently," and it is "'immediately apparent' to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure." State v. Johnson, 171 N.J. 192, 206-07 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S. Ct. 2022, 2037-40, 29 L. Ed. 2d 564, 582-85 (1971); 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)). The seizure of the heroin met all these requirements.

Likewise, the firearm concealed in defendant's waistband was in plain view after defendant was justifiably removed from the car. In addition, seizure of the gun was constitutional as incident to defendant's arrest for the drug offense. See State v. Pena-Flores, 198 N.J. 6, 19 (2009); State v. O'Neal, 190 N.J. 601, 614-15 (2007).

Each part of the police conduct was justified as a reasonable warrantless seizure or search. The trial court correctly denied defendant's motion to suppress the heroin and the handgun seized at the time of his arrest.

With respect to sentencing, the thirty-one-year-old defendant had four prior indictable convictions, including prior drug dealing offenses. He also had several convictions in municipal court and an extensive juvenile offense history. There was no error in the court's finding that aggravating factors three, six, and nine applied to his sentence. N.J.S.A. 2C:44-1(a)(3), (6), (9).

Nor is there any merit in defendant's argument that mitigating factors one, two, and twelve should have been found. The sale of heroin by an armed person does not warrant a finding that the conduct did not cause harm or that defendant did not contemplate that his conduct would cause harm. N.J.S.A. 2C:44-1(b)(1), (2). Also, the fact that defendant entered into a plea agreement and pleaded guilty on the eve of trial does not suffice to find that he was willing to cooperate with law enforcement authorities. N.J.S.A. 2C:44-1(b)(12).

As to the length of the sentence, defendant acknowledges that the charges to which he pleaded guilty required a sentence of at least ten years imprisonment and a mandatory five years without parole eligibility. The imposition of a fourteen-year aggregate sentence with seven years of parole ineligibility was both in accord with the terms of the plea agreement and not an abuse of the trial court's sentencing authority and discretion. See State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.