STATE OF NEW JERSEY v. NOLAN MITCHELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4015-05T44015-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NOLAN K. MITCHELL,

Defendant-Appellant.

__________________________________

 

Submitted May 23, 2007 - Decided August 2, 2007

Before Judges Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-2062.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

As the result of a guilty plea, defendant Nolan Mitchell was convicted of third-degree possession of a controlled dangerous substance (CDS), specifically cocaine, contrary to N.J.S.A. 2C:35-10a(1). His guilty plea followed the trial court's denial of a motion to suppress the cocaine, which police had seized from a vehicle in which defendant had been riding. Consistent with the terms of the plea agreement, the trial court sentenced defendant to three years of probation. The sentence was conditioned upon 180 days confinement in the county jail and the payment of appropriate fines and penalties.

Defendant appeals on three grounds: (1) the trial court erred in denying his suppression motion; (2) the court wrongfully refused to allow him to withdraw his guilty plea on the day of sentencing; and (3) the court erred in declining to admit defendant to the so-called "HEDS" program. We affirm.

I.

The following facts are pertinent to our review of the suppression issues.

On August 4, 2004 at about 2:30 a.m., defendant was seen by Atlantic City police, on surveillance in an area known for drug sales and other criminal activity, apparently making hand-to-hand transactions with four other persons. The observing patrolman, Officer Eric Cruse, saw no money given to defendant, but did notice him taking his customers aside in an alleyway and hand them something from his pants pocket. Defendant then bicycled over to a pickup truck, and had a short conversation with the truck's two occupants.

Officer Cruse then saw defendant put his bicycle on the back of the truck. Defendant got into the truck, joining the driver and a female passenger. In light of the apparent hand-to-hand transactions, Officer Cruse decided to have the vehicle stopped. He and his partner radioed to another patrolman, Officer Christopher McMahon, who was on uniform patrol at that time. Officer Cruse alerted Officer McMahon that a green pickup truck was headed his way with a male passenger who was potentially selling CDS. Officer Cruse watched the truck until Officer McMahon stopped it.

After stopping the truck, Officer McMahon and two other patrolmen, Officers Billy Logan and Howard Johnson, approached it at about the same time. Officer McMahon observed that defendant was in the far passenger seat, and there was a male driver and another female passenger. Officer McMahon approached the passenger side of the vehicle while Officer Logan, accompanied by an Officer Johnson, approached the driver's side.

At that point, Officer McMahon observed defendant with his hand inside a white plastic grocery bag. Defendant then removed his hand from the bag, rolled it up, and placed it between his legs on the seat of the vehicle. Officer McMahon notified Officer Logan of what he had seen concerning the plastic bag. Officer Logan asked defendant to exit the vehicle, and he complied.

As he got out of the truck, defendant left the plastic bag on the seat of the vehicle. Officer Logan took defendant to the back of the truck, approximately eight feet away from the passenger-side door. Officer Johnson then got the driver out of the vehicle on the driver side; the female passenger remained inside. While all of this was transpiring, the female passenger did not seem to move towards the bag.

Officer Logan patted defendant down, while Officer McMahon retrieved the plastic bag from the truck. The bag was not opaque enough to be seen through, and the top of it was tightly rolled so that Officer McMahon could not see its contents while it was resting on the seat. Officer McMahon suspected that the bag contained drugs because of the radio report he had received concerning potential CDS sales.

When asked by the police if the plastic bag was his, defendant acknowledged that it was. Concerned as to whether there was any contraband or weapons in the bag, Officer McMahon opened it. He did not see any CDS in the bag at first. He then reached into the bag and pulled out a can of Arizona-brand iced tea. A small white rock that appeared to be crack cocaine was on top of the can. Another small white rock and a "very tiny little piece," believed by the officer to have broken off from one of the other rocks, was stuck to the side of the can because of condensation.

Officer Johnson field-tested the substance found on the can. The tests showed that it was cocaine. Defendant was subsequently indicted for the possession of CDS.

At the ensuing suppression hearing, the trial judge heard testimony from Officers Cruse and McMahon. Defendant presented no witnesses. After considering the testimony and the arguments of counsel, the judge ruled that the warrantless search of the plastic bag and the seizure of the cocaine found on the can inside the bag was constitutional.

In particular, the trial judge found that

the search of [defendant], together with that area of the car which was within his reach and had been, where he had been seated . . . [was] subject to search as incident to arrest . . .[.] [H]e was within a proximity that would sustain a search of the vehicle as incident to arrest.

Accordingly, the judge found that there was probable cause to search the bag. Additionally, the judge concluded that the police had the requisite probable cause and exigent circumstances necessary to bring the search of the vehicle within the automobile exception.

Defendant now renews his argument that the search and seizure of the plastic bag was unconstitutional. The standard for review of a ruling on a motion to suppress evidence is limited. We are only to consider whether the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record," and whether the judge's legal conclusions are consistent with controlling legal principles. See State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Assessed by that standard, the denial of the suppression motion here must be affirmed.

"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). Among those recognized exceptions, which the trial judge relied upon here, are the "search as incident to arrest" exception and the "automobile" exception. We consider those exceptions in turn.

As a preliminary matter, we consider whether the officers had probable cause to arrest defendant when they stopped the pickup truck. Defendant argues that no such probable cause was present. The trial judge found otherwise, citing State v. Moore, 181 N.J. 40 (2004), and State v. Pineiro, 181 N.J. 13 (2004).

In Moore, detectives had observed a group of people in a vacant lot by a delicatessen in a high-crime area. Moore, supra, 181 N.J. at 43. A man wearing a hat left the group and walked towards the back of the delicatessen, and was joined by the defendant and another man. Ibid. The defendant was observed handing currency to the man with the hat, and receiving an item in return, which he placed into his pocket. Ibid. A detective, believing he had witnessed a drug transaction, approached the defendant, who then placed his hand into his pocket and began to walk away. Ibid. The detective arrested the defendant and removed defendant's hand from the pocket, revealing two bags of cocaine. Id. at 44.

Evaluating these circumstances in Moore, the Supreme Court observed that in determining whether there is probable cause for an arrest, a court should use the "totality of the circumstances" test. Id. at 46. The factors to be considered include a police officer's "common and specialized experience," Ibid. (quoting Schneider v. Simonini, 163 N.J. 336, 362 (2000)), and evidence concerning the area's reputation for crime, Ibid. (quoting State v. Johnson, 171 N.J. 192, 217 (2002)). While these factors may not be independently sufficient, they cumulatively may establish probable cause. Ibid. (quoting State v. Zutic, 155 N.J. 103, 113 (1998)). Accordingly, the Court held in Moore that, given the experience of the detectives involved and the notoriety of the neighborhood, there was probable cause to arrest defendant based upon what they had observed.

The scenario in Pineiro, which was decided on the same day as Moore, was rather different There, a police officer was on patrol in a high-crime, high-drug area. Pineiro, 181 N.J. at 18. The officer observed the defendant give the codefendant a pack of cigarettes. The officer recognized the defendant from having previously encountered him, and he had received reports indicating that the defendant was a drug dealer. Ibid. Additionally, the officer was familiar with the co-defendant, who was a known drug user. Ibid. The officer was suspicious of the transfer of the cigarette pack because he knew that cigarette packs were sometimes used to pass drugs. Ibid. At the time, neither the defendant nor the co-defendant were smoking, and both men looked nervous upon seeing the officer. The officer requested assistance to pursue the defendant while he pursued the codefendant. Ibid. After detaining the codefendant, the officer informed him that he was observed in a suspicious transaction. Ibid. The officer asked to see the cigarette pack and found heroin inside. Id. at 19. At the same time, other police officers arrested the defendant. Ibid.

The Court held in Pineiro that the officers did indeed have reasonable suspicion to conduct an investigatory stop of the defendant. Id. at 25. However, the Court held that under the circumstances, that suspicion did not rise to the level required to arrest and search the defendant without a warrant. Id. at 28. The Court reasoned that "the passing of the cigarette pack just as easily could have been nothing more than the transfer of a cigarette pack between two adults." Id. at 29.

Here, Officer Cruse and his partner observed defendant make hand-to-hand transactions with approximately four individuals over the course of an hour. The area of observation was known for high levels of crime and drug trafficking. Officer Cruse, in his four years of experience, had made twenty to thirty arrests in that same area, and he suspected defendant of likewise selling CDS. Defendant's actions of lingering in an open area and glancing around, as seen by Officer Cruse, raised legitimate suspicions of illegality. Defendant tried to evade observation by leading other people down an alleyway four separate times. Once in the alley, he reached down into his pants and handed something to the other individuals. These observations are even stronger than the police observations that supported the arrest in Moore.

Defendant tries to analogize this case instead to Pineiro. Although he concedes that Officer Cruse had reasonable and articulable suspicion to conduct a Terry stop, he alleges the situation never gave rise to the requisite probable cause because the items he exchanged with his four apparent customers on the street were unknown.

However, as the trial judge aptly noted, the justification for an arrest here is stronger than Pineiro in several key respects. First and foremost, there was more than a single observed transaction, instead there were about four of them. Second, although there was no direct proof that the particular items defendant transferred were contraband, the totality of circumstances surrounding defendant's furtive behavior supported such an inference, and were consistent with Officer Cruse's expertise and experience.

Taking the facts as a whole, we agree with the trial judge that the police had probable cause to arrest defendant. Before an arrest could be performed, however, defendant left the scene with his bike and all of his other belongings when the pickup truck arrived. The trial judge held that probable cause was established and that it attached to anything defendant was carrying with him, including the white plastic bag.

Even if, for the sake of argument, Officer Cruse had only suspicion without probable cause at the time defendant got into the truck, that suspicion rose to probable cause after Officer McMahon helped stop the truck and noticed defendant with his hand in the bag, fumbling around inside it, and placing it between his legs. At this point the police clearly had reasonable cause to suspect that the bag contained evidence of defendant's drug transactions from the alleyway, some kind of weapon, or both. The police thus had probable cause to arrest defendant.

Probable cause for an arrest being present, we are satisfied that the police search of the plastic bag that defendant had been clutching was valid, as incident to his arrest. Such an incidental search did not transgress State v. Eckel, 185 N.J. 523 (2006).

Eckel concerned a warrantless search of an automobile, incident to an arrest, after the occupants were removed from the vehicle and held in police custody. The defendant was a passenger in the car. Id. at 524. Police officers stopped the suspected vehicle and informed the defendant that he was under arrest for an outstanding warrant. Id. at 525. The officers handcuffed him, and placed him in the rear seat of the patrol car, which was parked behind the stolen vehicle. Ibid. The driver of the vehicle, defendant's girlfriend, was asked to get out of the car. Ibid. She requested that she be allowed to retrieve from the car some clothes for the defendant. An officer, concerned with his safety, went to the vehicle to retrieve those clothes. Ibid. While retrieving the clothes, the officer noticed marijuana and cocaine. Id. at 525-26. Rejecting the State's claim that these circumstances justified a search incident to an arrest in Eckel, the Court held that "[o]nce the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable." Id. at 541.

We concur with the trial judge that the circumstances here materially differ from those in Eckel. Defendant was indeed removed from the vehicle in connection with his arrest. However, at the time in which Officer McMahon retrieved the plastic bag, defendant was only about eight feet away. Moreover, he was not in handcuffs. The need to secure the area in proximity to defendant for police safety was far more compelling than in Eckel.

In any event, even if Eckel were read to prohibit reliance upon the incident-to-arrest exception here, the automobile exception clearly applies. The automobile exception originated in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 132, 69 L. Ed. 543 (1925). There are two primary elements to the exception: (1) probable cause that contraband will be found in the vehicle and (2) exigent circumstances present when the vehicle is being searched. State v. Cooke, supra, 163 N.J. at 661; see also State v. Carroll, 386 N.J. Super. 143 (App. Div. 2006).

For probable cause to search a vehicle under this exception, police must have a "well-grounded suspicion" that evidence of some sort of crime will be found within the suspected vehicle. Cooke, 163 N.J. at 671. Probable cause will be satisfied if an officer made a "common-sense decision" that there was a fair probability that contraband would be found in the vehicle. State v. Nishina, 175 N.J. 502, 515 (2003). "[O]nce probable cause exists to search the interior of a motor vehicle, the police may search every part of the vehicle, including containers in which there is probable cause to believe that the object of the search may be found." State v. Hammer, 346 N.J. Super. 359, 367 (App. Div. 2001) (citing United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572, 593 (1982)).

The determination of exigent circumstances requires a "fact-sensitive" analysis. Nishina, 175 N.J. at 517. An exigency may be found if it is "impracticable" to post a police officer to watch over the vehicle while a warrant is being sought. Cooke, 163 N.J. at 674. Additionally, these circumstances "may exist if the unanticipated circumstances that give rise to probable cause occur swiftly." Cooke, 163 N.J. at 672. Police safety and the preservation of evidence are of paramount concern. State v. Dunlap, 185 N.J. 543, 551 (2006).

The trial judge correctly found that the warrantless search of the vehicle came within the two prongs of the automobile exception. First, as we already noted in finding ample grounds to arrest defendant at the scene, there was probable cause that contraband or a weapon would be found within the vehicle. The standards for determining probable cause to search and probable cause to arrest are identical. Moore, supra, 181 N.J. at 45 (quoting State v. Smith, 155 N.J. 83, 92 (1998)). Consequently, the police had both probable cause to arrest defendant and also to search the vehicle that he alighted before he could be apprehended.

Second, the record suffices to indicate exigent circumstances for an immediate search of the pickup truck. The events in question took place at about 2:30 a.m. in a high- crime, high-drug area. The pickup truck's arrival at the scene of the surveillance, and defendant's getaway on the truck, rather than on foot or on his bicycle, was unanticipated. The truck was stopped in an open area, potentially accessible to third parties. The police officers, who did not outnumber the three occupants in the truck, had reasonable concerns to act quickly for their safety. Cf. State v. Dunlap, supra, 185 N.J. at 550-51 (invalidating a search under the automobile exception in which the police significantly outnumbered the vehicle occupants). When defendant and the driver were removed from the vehicle, the female passenger was left inside. Although she showed no signs of movement, she could have easily destroyed the small amount of evidence present, or even worse, attempted to drive away. It was not mandatory for one of the three officers to procure a warrant at that late hour in that high-crime area while his two colleagues attempted to guard the truck and the three occupants. The circumstances were demonstrably exigent. State v. Cooke, supra, 163 N.J. at 667.

Because the search was permissible under one or more recognized exceptions to the warrant requirement, we affirm the trial court's denial of the suppression motion. Defendant's remaining arguments, concerning his attempted plea withdrawal and his sentence, require little comment.

The trial judge had ample justification to refuse defendant's belated effort to withdraw his guilty plea on the day of sentencing almost three months after its entry. The plea was entered pursuant to a written agreement. Defendant had the advice of counsel, and clearly assented to its terms knowingly and voluntarily in response to thorough questioning from the court. The judge at sentencing had sufficient grounds to reject defendant's subsequently-professed feeling that he was "uncomfortable" with the plea, and that his lawyer allegedly had urged him to plead guilty against his will. See State v. Smullen, 118 N.J. 408 (1990)(noting the importance of finality of guilty pleas entered with a detailed foundation of voluntariness). We are unpersuaded that the judge, as defendant now argues, was too abrupt with defendant on this point at his sentencing. We also note that defendant did not amplify his allegations of undue pressure from counsel with a certification filed with the trial court. We thus affirm the denial of retraction of the plea.

Lastly, we find no error in the trial judge's discretionary denial of admission of defendant to the HEDS program for eligible disabled offenders. The plea form makes no reference to the HEDS program, simply indicating that the State would not oppose "day reporting," which is not the same thing as the HEDS program. Although the prosecutor in the plea colloquy agreed not to oppose defendant's application into HEDS, the judge still retained the power to approve or disapprove the application. We are not persuaded that the prosecutor's subsequent comments at sentencing on this issue materially affected the judge's decision. The judge noted that the present offense is defendant's fifth adult indictable conviction, and that he has a serious risk of reoffense. The judge's imposition of an 180-day jail term, given the aggravating factors present, was neither arbitrary nor capricious. State v. Roth, 95 N.J. 334, 364 (1984).

Affirmed.

 

The briefs and transcripts at times also spell the program "HEADS."

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

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A-4015-05T4

August 2, 2007