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DOCKET NO. A-6357-06T46357-06T4








Submitted January 14, 2009 - Decided

Before Judges A. A. Rodr guez and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-0533.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).


Defendant Abdul Rashan Rodriguez appeals his conviction for third-degree distributing, dispensing or possessing a controlled dangerous substance with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. Defendant was sentenced to a five-year prison term with a three-year period of parole ineligibility and the requisite fines and penalties were imposed. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On March 11, 2006, Elizabeth Police Officers Flatley and Merten were assigned to conduct a surveillance operation at Third Street and Magnolia Avenue, due to numerous complaints of narcotics distribution in that area. The officers were in plain clothes and in an unmarked vehicle. The officers parked their vehicle on Third Street at the intersection of Bond Street facing south. From their location, the officers had a clear and unobstructed view of the intersection of Third Street and Magnolia Avenue. At approximately 8:22 a.m., the officers observed a black male, later identified as defendant, wearing a black jacket, a grey hooded sweatshirt, blue jeans, and wearing headphones, approach the corner. Approximately five minutes later, a black female wearing a black jacket approached defendant. The officers observed the female hand defendant an unknown amount of United States currency. Defendant then pulled a small item out of his right front pants pocket and handed it to the female. The officers suspected at that time that a narcotics transaction had taken place and contacted other officers, providing them with the description of the suspects.

While the female started to walk on Magnolia Avenue towards Second Street, defendant continued to stand on the corner of Magnolia Avenue and Third Street. At that time, two other Elizabeth Police Officers, who had earlier received the communication from Officers Flatley and Merten that they had observed what they suspected to be a drug transaction, as well as a description of the suspects, pulled up to the corner where defendant was standing. Once defendant saw the officers, he immediately started to run on Third Street, toward Bond Street. The officers gave chase on foot. Officers Flatley and Merten also arrived on the scene, exited their vehicle, and started to give chase. The officers yelled numerous times to defendant to stop. Defendant eventually ran into an alley and was attempting to climb over a fence when the officers grabbed his legs. Defendant started to kick his feet at the officers and caused the wood fence he was attempting to climb over to collapse. The officers and defendant struggled. Defendant reached into his right front pants pocket and discarded a bundle of glassine envelopes on the ground. Once defendant was handcuffed, the officers retrieved the envelopes, which eventually proved to contain drugs.

Defendant was indicted and charged with third-degree possession of a controlled dangerous substance, pursuant to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance with intent to distribute, pursuant to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree possession of a controlled dangerous substance with intent to distribute in or within 1000 feet of school property, pursuant to N.J.S.A. 2C:35-7 (count three); second-degree possession of a controlled dangerous substance with intent to distribute in or within 500 feet of a public park, pursuant to N.J.S.A. 2C:35-7.1 (count four); third-degree resisting arrest, pursuant to N.J.S.A. 2C:29-2(a) (count five); fourth-degree obstruction, pursuant to N.J.S.A. 2C:29-1(a) (count six); and fourth-degree aggravated assault, pursuant to N.J.S.A. 2C:12-1(b)(5) (counts seven, eight and nine).

Defendant filed a motion to suppress the evidence seized at the time of his arrest. The motion was heard and decided on December 8, 2006, by Judge William L'E. Wertheimer. Judge Wertheimer concluded that the officers had probable cause to stop defendant and ultimately arrest him and that the drugs seized were abandoned and, therefore, properly seized. Accordingly, he denied defendant's motion to suppress.

On February 22, 2007, defendant pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property. This appeal ensued.

On appeal, defendant presents the following arguments for our consideration:



A. The Police Officers did not have probable cause to arrest Mr. Rodriguez.

B. This case is distinguishable from State v. Moore, 181 N.J. 40 (2004).

C. The search was unlawful and the evidence was not abandoned.

We begin our analysis by reviewing the applicable law.

Under the Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of our State Constitution, judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984); State v. Elders, 192 N.J. 224, 246 (2007). Because our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are "presumptively unreasonable." Elders, supra, 192 N.J. at 246. Therefore, when the police act without a warrant, the State bears the burden of proving by a preponderance of the evidence not only that the search or seizure was premised on probable cause, but also that it "f[ell] within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19-20 (2004) (quotations omitted). For example, our case law permits a warrantless search when incident to a lawful arrest, when consent is given, when government officials act in a community-caretaking function, and when exigent circumstances compel action. State v. Moore, 181 N.J. 40, 45 (2004) (citing State v. Hill, 115 N.J. 169, 173-74 (1989)).

[State v. Johnson, 193 N.J. 528, 552 (2008).]

In this case, the State relies on the search incident to a lawful arrest exception to the warrant requirement to justify the search of defendant, as well as the claim that the drugs were abandoned. For a warrantless search incident to an arrest to be lawful, probable cause to arrest must exist prior to the search itself. Our Supreme Court has found that "for a search to be justified as incidental to a valid arrest, there must have been an intention on the part of the officers to arrest on the information possessed by them prior to the search, without regard to what the search might disclose." State v. Sims, 75 N.J. 337, 353 (1978).

The standards for determining probable cause to arrest and probable cause to search are identical. State v. Smith, 155 N.J. 83, 92 (1998). We have often stated that the probable cause standard is not susceptible of precise definition. State v. Wilson, 178 N.J. 7, 13 (2003). Nevertheless, our jurisprudence has held consistently that a principal component of the probable cause standard "'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000) (first and second alterations in original) (citation and internal quotation marks omitted), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001). "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769 (2003); accord State v. Dangerfield, 171 N.J. 446, 456 (2002).

In determining whether there is probable cause, the court should utilize the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). State v. Novembrino, 105 N.J. 95, 122 (1987). That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 544. The factors to be considered in applying that test include a police officer's "common and specialized experience," Schneider, supra, 163 N.J. at 362 (citation and quotation marks omitted), and evidence concerning the high-crime reputation of an area, State v. Johnson, 171 N.J. 192, 217 (2002). Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause." State v. Zutic, 155 N.J. 103, 113 (1998).

[Moore, supra, 181 N.J. at 45-46.]

Defendant argues that the police officers in this case did not have probable cause to arrest defendant and that the case is distinguishable from the facts in Moore, supra, 181 N.J. 40. We disagree.

Based on the police officers' clear and unobstructed view of the exchange of money and an indescribable small object at 8:00 o'clock in the morning; a detailed description of defendant; the fact that this area was one for which the police had numerous complaints of narcotics activity; the fact that when the police officers arrived in front of defendant, he immediately ran and not just walked away; and the fact that defendant kept running after being ordered to stop by the police officers, there were reliable and sufficient facts when taken cumulatively to believe that a crime had been committed and that defendant was the one who committed it.

Because we find that sufficient probable cause to justify the arrest of defendant existed prior to the search, we affirm the trial judge's determination to deny the motion to suppress, as well as the conviction.

Because the search was lawful as one incident to a lawful arrest, we need not address the argument that the evidence was not abandoned.


We also note that even if one were to conclude that probable cause did not exist at the time the police officers initially approached defendant, there certainly was reason for suspicion to justify an investigatory stop. See Pineiro, supra, 181 N.J. at 20-21. Further, once defendant fled from what could have been termed an investigatory stop after being told to stop by police officers, the police officers had probable cause to arrest him for obstruction of justice pursuant to N.J.S.A. 2C:29-1(a). See State v. Williams, 192 N.J. 1 (2007) and State v. Crawley, 187 N.J. 440, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).





February 10, 2009