STATE OF NEW JERSEY v. EDGAR L. RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3501-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDGAR L. RODRIGUEZ, a/k/a LOUIS HECTOR,

LUIS HECTOR, LUIS RODRIGUEZ, LOUIE

RODRIGUEZ,

Defendant-Appellant.

_______________________________________

March 15, 2011

Submitted January 31, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0244.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant entered a guilty plea to count three of Indictment No. 08-02-0244, charging him with third-degree possession with intent to distribute cocaine within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7. The State agreed to recommend a term of five years imprisonment with thirty months of parole ineligibility. This sentence would run concurrent to defendant's sentence on Indictment No. 07-12-1985. The State further agreed to dismiss the remaining counts of Indictment No. 08-02-0244 as to defendant, as well as charges under several other indictments. Judge Lorraine Pullen sentenced defendant to the agreed-upon five-year prison term with a thirty-month parole ineligibility period to run concurrent to the sentence on Indictment No. 07-12-1985. Appropriate fines and penalties were assessed. Defendant appeals from the order denying the suppression motion. We now affirm.

The facts as revealed by the suppression motion hearing and by Judge Deborah J. Venezia's oral opinion denying the motion are not in dispute except in a few critical areas. They may be summarized as follows.

On March 29, 2007, Police Officer Rosario Mamon was participating in an investigation regarding defendant. Along with Police Officer Weiss, he was assigned, as Judge Venezianoted, "to transport the defendant . . . to headquarters in order to perform a search of the defendant pursuant to a search warrant."

According to Judge Venezia, the search warrant was issued by a New Brunswick Municipal Court judge on March 22, 2007, and provided authority to search "the premises located at 211 Baldwin Street, first floor apartment, as well as the person of the defendant . . . for the purpose of seizing items at th[e] residence and/or on [his] person . . . in violation of N.J.S.A. 2C:35-5 and 2C:35-10, possession of and trafficking in controlled dangerous substances": namely, cocaine, or other related items of "packing material, scales, cutting agents, records of drug transactions, [and] cash proceeds of drug transactions."

Judge Venezia further noted that in support of the search warrant, it was indicated that a confidential informant had advised that "defendant was selling cocaine from his apartment at 211 Baldwin Street, as well as [at] various bars in New Brunswick," naming a few of them. Surveillance was conducted over a two-week period. That surveillance revealed various drug-related activities with "suspected drug buyers entering the premises" and only remaining for "short periods of time." Individuals were observed "looking up and down the street from within 211 Baldwin Street before proceeding" with any transaction. The informant also purchased drugs on two separate occasions within a week prior to the preparation of the supporting affidavit for the search warrant.

Defendant was transported to headquarters and brought into the general booking area. Officer Weiss secured permission for a strip search from the desk sergeant who was in charge of the station at the time. Once authorization was secured, defendant was placed in a room, off the booking area.

Officer Mamon testified that defendant was asked to remove his clothing and did so, article by article. When he was naked, defendant was instructed to turn around with his back facing the officers. As soon as he assumed that position, a paper towel coming out of defendant's buttocks was observed. Defendant tried to reach toward his buttocks, when Officer Mamon grabbed his hand. Officer Weiss recovered the bag from defendant's buttocks. A plastic bag containing thirty-two cocaine packets was wrapped in the towel. Officer Mamon testified that there was no struggle.

In a pocket of defendant's pants, a single packet of cocaine was found in a matchbook. There was some brown matter on the paper towel that was identified by Officer Mamon as feces. As Judge Venezia noted, Officer Mamon denied on cross-examination that "defendant was ever asked to 'spread his ass cheeks.'"

Defendant's testimony was, by and large, consistent with that of Officer Mamon. Defendant added that he "asked to see the search warrant," but was not shown the warrant. He indicated that he complied with removing his clothing. He admitted that there was a packet of cocaine within a matchbook tucked down into a change-type pocket in his pants. Defendant testified that when he was naked, Officer Mamon held his hand against the wall and he was asked by Officer Weiss to spread his buttocks, using his left hand. At that point, he stated that he had concealed drugs, which he had "boofed," a street expression for this type of concealment. He had used a K-Y jelly to conceal the drugs in his anal cavity. Defendant did acknowledge that he left a piece of the paper and the bag sticking out so that the drugs could be retrievable. According to defendant, the drugs would not have been observable as testified to by Officer Mamon without the buttocks having been spread.

In resolving the credibility of the testimony, Judge Venezia made the following findings:

I find that in large part the chronology of events, except for matters that were critical were not inconsistent. That they were inconsistent in those critical areas, such as whether or not the officers ever left the defendant, and whether or not, by reason of that fact, the permission from the Desk Sergeant could have been obtained, as well as the testimony concerning whether or not the defendant was asked and told to spread his buttocks cheeks so that the officers could look in.

I find that in those areas the testimony of Officer Mamon as to the events was not lacking in credibility. I find that his testimony appeared and sounded forthright with respect to the recitation of the events as he testified to in Court.

As it relates to the ultimate question of whether or not the search in this matter, which I deem to be a strip search based upon the testimony of Officer Mamon. And reference to the statute regarding the requirements therefor. Insofar as in this case there was a search warrant for the search of the person of the defendant, Edgar Rodriguez. And insofar as that search took place at headquarters with the permission obtained of the Desk Sergeant, that the search was not a search that was invalidated or unconstitutional or illegal.

On appeal, defendant raises the following issue for our consideration:

POINT I

THE EVIDENCE MUST BE SUPPRESSED BECAUSE THE BODY CAVITY SEARCH OF DEFENDANT AT THE POLICE STATION VIOLATED THE PROVISIONS OF NEW JERSEY'S STRIP SEARCH STATUTE.

Our Supreme Court has held that "an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). We must give deference to a 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." Id. at 244 (citation and internal quotation marks omitted).

We are in no position to second-guess the findings made by Judge Venezia, which are supported by the evidence that she has found credible. The trial judge determined that this was a strip search, not a body cavity search, which defendant argues took place.

Defendant cites State v. Hayes, 327 N.J. Super. 373 (App. Div. 2000), in which a strip search was distinguished from a body cavity search, with the main difference being that the defendant there was ordered to spread open his buttocks. The spreading of the buttock cheeks was found not to have occurred here, but the paper towel containing the cocaine packets was visible. The strip search conducted here was done in a constitutional manner based on a search warrant for the person of defendant.

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