STATE OF NEW JERSEY v. KEVIN L. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5736-05T25736-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN L. WILLIAMS,

Defendant-Appellant.

_______________________________________

 

Argued November 14, 2007 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-00400-B.

Stephen F. Funk argued the cause for appellant (Jacobs & Barbone, attorneys; Mr. Funk, on the brief).

Betsy Phillips, Chief Assistant County Prosecutor, argued the cause for respondent (Theodore F.L. Housel, Atlantic County Prosecutor, attorney; Ms. Phillips, on the brief).

PER CURIAM

Defendant Kevin L. Williams was charged with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and possession of a CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count four). After his motion to suppress was denied, defendant pled guilty to counts three and four, reserving his right to appeal the denial of the motion.

Defendant was sentenced to a five-year term of incarceration, with a two-and-one-half-year period of parole ineligibility on count three, and a concurrent five-year term on count four. Defendant's driving privileges were suspended for twenty-four months, and appropriate fines and assessments were imposed. Defendant now appeals from the order entered on June 13, 2005, denying his motion to suppress.

We briefly summarize the evidence presented at the suppression hearing held on June 6, 2005, before Judge Robert Neustadter. Officer William Warner of the Atlantic City Police Department testified that in January 2004, he was assigned to the "Vice Tactical Patrol Unit," which deals primarily with narcotics offenses. Warner has been involved in hundreds of investigations of narcotics cases.

Warner stated that at about 10:00 p.m. on the evening of January 8, 2004, he and several other police officers were on undercover duty and conducted a "walk through" of a building in a housing complex called Stanley Holmes Villages. Warner was familiar with the complex because he had been there on a number of occasions to deal with narcotics, weapons violations, shootings, and fights. He said that "CDS calls" are very common at Stanley Holmes Villages, and heroin is the CDS most frequently recovered there.

Warner stated that the police conduct "walk throughs" in high crime areas of the city and focus mainly on Stanley Holmes Villages because that is where the police "get the most complaints." Warner said that on the evening in question, the officers came out of the complex and walked towards a parking lot where the trash dumpsters are located. Warner said that this area is well-lit at night. Warner saw a four-door, white taxicab pull into the parking lot. A male exited the rear passenger seat of the vehicle and closed the door. Warner observed the man reach back into the taxicab through the open window. Two males were in the rear seat.

Warner said that the man retrieved something from a passenger in the rear seat and began to walk away. Warner could not see the item that the man took from the rear passenger, nor could he see whether the man gave the rear passenger any money. Warner said that the man looked up at him, identified the undercover officers as police, and ran into the courtyard of the housing complex. Warner was asked what led him to believe that the man had identified the officers as police. He replied that the man looked nervous and "just took off at the sight of us." The officers followed the man but they were unable to apprehend him.

Warner testified that immediately thereafter, the taxicab "took off south, screeching its tires." Warner got into his vehicle, which was near the parking lot, and followed the taxi. Officer Russo, another officer working undercover with Warner, contacted other officers by radio transmission. Warner said that he never lost sight of the taxicab. Other officers stopped the taxicab as a result of Russo's transmission. Warner got out of his car and approached the passenger side of the vehicle. Warner had a flashlight. He walked up to the taxicab and illuminated the back seat with his flashlight. Warner saw two individuals in the rear seat.

Warner stated that a male passenger "quickly" reached into his breast pocket and threw something to the floor of the taxi. Warner illuminated the floor and observed what he believed to be a bundle of heroin by the man's left foot. Warner said that it was a "bunch of packets secured by a rubber band." Warner explained that this was how a bundle of heroin is commonly packaged.

Warner asked the occupants of the rear seat to step out of the taxicab and he immediately retrieved the bundle from the vehicle. Defendant was one of the passengers. Warner knew defendant from "past encounters" and there was a warrant outstanding for defendant's arrest. One of the officers placed defendant in custody. The officer searched defendant's pockets and found a packet of heroin.

Judge Neustadter filed a letter opinion dated June 7, 2005, in which he concluded that the officers made a valid investigatory stop of the taxicab. The judge found that the officers had reasonable suspicion that criminal activity had occurred. The judge further found that seizure of the heroin without a warrant was permitted under the automobile exception to the warrant requirement because the search of the vehicle was a valid search incident to an arrest, and because the heroin was in plain view of the officer who approached the taxicab. The judge accordingly denied the motion to suppress.

Defendant appeals and raises the following argument for our consideration:

THE STOP OF THE DEFENDANT AND THE VEHICLE IN WHICH HE WAS RIDING WAS ILLEGAL, AND EVIDENCE OF DRUGS RECOVERED AS A RESULT SHOULD HAVE BEEN SUPPRESSED AS "FRUIT OF THE POISONOUS TREE."

We have carefully considered the record in light of the arguments raised by defendant and the applicable law. We are convinced that there is no merit in the appeal, and for the reasons that follow, we affirm the denial of defendant's suppression motion.

A law enforcement officer may stop a person or automobile for investigative purposes when the officer has reasonable suspicion of criminal activity. State v. Nishina, 175 N.J. 502, 510-11 (2003). However, "an investigative stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). The suspicion of criminal activity "must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced." Ibid. "Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom." Ibid.

In this matter, Judge Neustadter correctly found that the investigatory stop of the taxicab in which defendant was riding as a passenger was valid. The judge viewed the totality of circumstances that Officer Warner was confronted with, and determined that the officer had reasonable suspicion of criminal activity that warranted a stop of the taxicab for investigative purposes. We are satisfied that the judge's findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

As we pointed out previously, Officer Warner testified that he observed a passenger exit the taxi, reach back into the open window, and retrieve an item. Based on his knowledge and experience with narcotics investigations, Warner believed that a drug transaction had occurred. In addition, Warner testified that the man apparently recognized the undercover officers as police and ran off. The taxicab quickly exited the area with its tires screeching. The incident occurred in a parking lot near the Stanley Holmes Villages, an area known to the police for the unlawful possession of narcotics and other criminal activity. As the judge correctly observed, although each of these facts may not be sufficient to establish reasonable suspicion of criminal activity, when viewed as part of the totality of the circumstances, they gave rise to a reasonable suspicion that criminal activity had occurred or was about to occur. We therefore conclude that the officers validly stopped the taxicab for investigative purposes.

We are additionally convinced that there is sufficient credible evidence in the record for the judge's determination that the plain view doctrine allowed for the seizure of the bundle of heroin without a warrant. That doctrine applies when a police officer is lawfully in the place where he views the evidence; the evidence is discovered inadvertently; and the officer immediately recognizes that the items in plain view are evidence of a crime. 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)). Judge Neustadter correctly found that the requirements for application of the plain view doctrine had been met in this matter.

First, Officer Warner was lawfully standing next to the taxicab following the valid investigatory stop. Although Warner used a flashlight to illuminate the interior of the cab, his "'use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.'" Id. at 210 (quoting Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502, 512 (1989)).

Second, Officer Warner found the bundle of heroin inadvertently. There was no evidence that the police knew "'in advance the location of the [heroin] and intend[ed] to seize it.'" Id. at 211 (quoting Coolidge, supra, 403 U.S. at 470, 91 S. Ct. at 2040, 29 L. Ed. 2d at 585).

Third, it was immediately apparent to Officer Warner that the bundle on the floor of the taxicab was contraband. To satisfy the "immediately apparent" prong of the doctrine, the officer must have probable cause to associate the object in plain view with criminal activity before its seizure. Id. at 213. Probable cause exists if the officer had "a 'well-grounded' suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

Here, the officers made a valid investigatory stop of the taxicab because they had reasonable suspicion of criminal activity. Officer Warner observed the apparent drug transaction in a parking lot of a high crime area where there are frequent reports of illegal narcotics transactions. Officer Warner has extensive experience in the investigation of offenses involving CDS, and he testified that he was familiar with the manner in which heroin is packaged. We are satisfied that when Officer Warner observed the bundle on the floor of the taxicab, he had probable cause to believe that the bundle was associated with criminal activity.

In view of our determination that the plain view doctrine applies to the seizure of the heroin from the taxicab, we need not consider whether the seizure of this evidence could have been justified by the automobile exception to the warrant requirement, or whether the evidence was validly seized during a search incident to a lawful arrest.

We have considered defendant's other contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-5736-05T2

December 7, 2007