STATE OF NEW JERSEY v. TARIK MADISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4086-09T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TARIK MADISON and ANDRE

STANLEY,

Defendants-Respondents.

________________________________________________________________

April 11, 2011

Submitted February 15, 2011 - Decided

Before Judges Payne and Koblitz.

On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-07-00669.

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

Yvonne Smith Segars, Public Defender, attorney for respondent Tarik Madison (Alan I. Smith, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent Andre Stanley (Alison Perrone, Designated Counsel, on the brief).

PER CURIAM

We granted the State's motion for leave to appeal the trial court's order of April 5, 2010, which granted defendants' motion to suppress the evidence found as a result of an unlawful search. On July 29, 2009, a Union County Grand Jury returned Indictment No. 09-07-00669, charging defendant Andre Stanley with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); and charging defendant Tarik Madison with third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); third-degree distribution of heroin and/or cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A 2C:35-5(b)(3) (count five); second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count six); second-degree distribution of heroin and/or cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight). Co-defendant Geraude Stewart was charged with third-degree possession of heroin and/or cocaine, N.J.S.A. 2C:35-10(a)(1) (count two), and co-defendant Michael Walsh was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three).1 After reviewing the record in light of the contentions advanced on appeal, we reverse the trial court's order suppressing the evidence.

Plainfield Police Officer Adam Green, the only witness at the pre-trial hearing, testified to the following facts. At approximately 2:00 p.m. an April 2, 2009, Green and Sergeant Kevin O Brien began performing surveillance of the Elmwood Gardens Public Housing Complex, which Green testified was a high crime, high narcotics area. At approximately 3:40 p.m., Green and O Brien saw co-defendant Stewart enter the complex and stop in front of 528 West Second Street. O Brien immediately recognized him and related to [Green] that he recognized that male from an earlier narcotic[s] investigation at the same location.

Defendant Madison approached Stewart. O Brien immediately recognized Madison as well. O Brien told Green that he had received numerous complaints about Mr. Madison conducting narcotic activity, distribution of narcotics, from . . . 544 West Second Street." O'Brien said he had dealt with Madison "several times in the past regarding distribution of narcotics and other related offenses." After Madison approached Stewart, they engaged in a brief conversation before walking towards the building located at 544 West Second Street and entering it. Green was unable to see the men once they entered the building. A minute after the two men entered the building, Stewart exited and walked over to a white Ford Explorer. A short time later, Madison exited the building and entered the building located at 536 West Second Street. Green testified that based on his experience people frequently engage in drug transactions in common hallways. Based on his observations and the information related to him by O Brien, Green believed Madison had sold drugs to Stewart.

When Green noticed that Stewart was about to enter the Ford Explorer, he called for backup. Lieutenant Newman,2 accompanied by additional police officers, stopped the Explorer after it exited the housing complex. While approaching the Explorer, Newman saw the driver, Walsh, put something in his mouth. Green explained that it was not uncommon for people to ingest drugs to avoid arrest.

Newman grabbed Walsh's mouth and recovered one clear plastic knot which contained . . . crack cocaine." Walsh was arrested, and Stewart was then searched. Police found crack cocaine and heroin in Stewart s pocket. The heroin was stamped Bentley on the packaging. Neither Stewart nor Walsh disclosed the source of the drugs.

At 6:10 p.m. that same day, the officers saw Madison exit the 544 West Second Street building. He walked east while talking on his cell phone until he met defendant Andre Stanley. None of the police officers had any previous information about Stanley. Stanley and Madison engaged in a brief conversation and walked to 544 West Second Street where they entered the front of the building and came out a minute later. Green could not see what the men did inside the building. Stanley then walked west quickly, and Madison headed east slowly, while looking back at Stanley. Green believed that he "had just observed a second narcotics transaction."

Green directed that Stanley be stopped and searched. The police kept Stanley in sight until they stopped him and found heroin on his person with the marking Bentley on the packaging.

Madison was arrested approximately three months later pursuant to an arrest warrant. In a written decision, the trial court found that the evidence should be suppressed because "the totality of the circumstances fail[ed] to support a finding of probable cause." The decision was based primarily on State v. Pineiro, 181 N.J. 13 (2004).

The State raised the following arguments on appeal,

POINT I

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

A. The Trial Court Incorrectly Found That Defendant Madison had Standing To Challenge the Seizure of Narcotics From Walsh, Stewart, and Stanley; Further The Court Erred in Failing to Examine Madison's Expectation of Privacy in the Drugs he Sold and in the Persons of Those To Whom he Sold Those Drugs.

B. The Trial Court Did Not Use the Totality of the Circumstances Test to Determine Whether the Police had Probable Cause, Ignored Facts Establishing Probable Cause, Incorrectly Concluded that the Police Lacked Probable Cause to Arrest and Search The Buyers, Including Defendant Stanley; Further, the Court Ignored the Fact that Defendant Madison was arrested Pursuant to a Warrant.

I

The State concedes that Stanley has standing to challenge the search of his person and subsequent seizure of the heroin on his person. The State argues, however, that Madison does not have standing to challenge the searches and seizure of drugs from his three co-defendants as he was not searched personally and abandoned his interest in the drugs when he sold them.

A defendant must have standing to challenge the validity of a search and seizure of evidence. State v. Bruns, 172 N.J. 40, 43 (2002). In Bruns, the defendant sought to suppress evidence seized from a vehicle that was subject to a warrantless stop and search for reasons unrelated to the robbery defendant allegedly committed. Id. at 43. The defendant had no connection with the vehicle, but the evidence seized from it implicated him in the robbery. Id. at 44-45. The Court found that the defendant did not have standing, stating:

In order to contest at trial the admission of evidence obtained by a search or seizure, a defendant must first demonstrate that he has standing. Generally speaking, that requires a court to inquire whether defendant has interests that are substantial enough to qualify him as a person aggrieved by the allegedly unlawful search and seizure.

[Id. at 46.]

The Court noted that the standing requirement is broader under the New Jersey Constitution, Article I, 7, than under the Fourth Amendment of the United States Constitution. Ibid. In New Jersey, standing depends upon "whether that defendant has a proprietary, possessory or participatory interest in the place searched or the items seized." Ibid. The Court explained that "in most cases in which the police seize evidence implicating a defendant in a crime that defendant will be able to establish an interest in the property seized or place searched." Id. at 59. The term "participatory"

connotes some involvement in the underlying criminal conduct in which the seized evidence is used by the participants to carry out the unlawful activity . . . . It thus provides standing to a person who, challenging the seizure and prosecutorial use of incriminating evidence, had some culpable role, whether as a principal, conspirator, or accomplice in a criminal activity that itself generated the evidence.

[State v. Mollica, 114 N.J. 329, 339-40 (1989).]

The Court in Bruns noted that a defendant's basis for challenging the search will be diminished if "substantial time passes between the crime and the seizure of the evidence and a proprietary connection between defendant and the evidence no longer exists." Bruns, supra, 172 N.J. at 59. The Court also explained that "a showing that the search was not directed at the defendant or at someone who is connected to the crime for which he has been charged also will diminish a defendant's interest in the property searched or seized. Ibid. (citing United States v. Smith, 621 F.2d 483 (2d Cir. 1980)).

The defendant in Bruns was found not to have standing because

the passage of seven days between the crime and the seizure of the evidence, defendant's lack of any physical proximity to the evidence when it was seized, as well as the lack of any connection between defendant and the events leading to the initial motor vehicle stop or the arrest that eventually resulted in the search of the vehicle preclude[d] him from having standing to challenge the vehicle search.

[Ibid.]

The State is correct that Madison does not have a possessory or proprietary interest in the drugs seized because the drugs were not found in his constructive or actual possession. Madison is charged, however, with selling the drugs to his co-defendants immediately before the men were searched. The State intends to use the drugs seized from the other individuals as evidence of Madison's guilt. Under these circumstances, as the trial court found, Madison has a sufficient participatory interest to challenge the constitutionality of the seizure of the drugs.

II

Both Madison and Stanley allege that the police searches and subsequent arrests of Stanley, Walsh and Stewart violated the United States and New Jersey Constitutions. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see also N.J. Const. art. I, 7. Not all police-citizen encounters implicate the Fourth Amendment. For instance, police may approach a person in a public place and ask him if he is willing to answer questions without any grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 125-26 (2002). However, when a person is temporarily detained by police and feels his right to move has been restricted, it constitutes a "seizure" of his person within the meaning of the Fourth Amendment. Id. at 126. Thus, the Fourth Amendment requires that such detentions be reasonable. Ibid.

"It is well-settled that the police may arrest only if they have probable cause; may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002) (internal quotation marks and citations omitted). Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles. Ibid.

"Probable cause exists if at the time of the police action there is a well-grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001). The determination "requires nothing more than a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found . . . ." State v. Johnson, 171 N.J. 192, 214 (2002) (internal quotation marks and citations omitted). In making this determination, consideration is given to any reasonable inference that the officer draws from the facts in light of his experience. Id. at 215 (citation omitted).

The trial court found that the police had reasonable suspicion to stop Walsh, Stewart and Stanley based on Stewart and Stanley's interactions with Madison, but that these interactions did not give the police probable cause to arrest or search the men. In finding that the police lacked probable cause to search Walsh, Stewart and Stanley, the trial court analogized the facts in this case to those in Pineiro, supra, 181 N.J. at 18, where the Court found that the police did not have probable cause to search an individual known to the police as a drug user after seeing him receive a pack of cigarettes from the defendant who was a suspected drug dealer. The Court found 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. In relying on the reasoning in Pineiro, the trial court did not address the additional factor for consideration present here, that the police saw Walsh make a furtive gesture towards his mouth, which afforded the police probable cause to retrieve the crack cocaine.

We agree with the trial court that the police had reasonable suspicion to stop the Explorer. The police received numerous complaints from members of the Elmwood Gardens community that Madison was selling narcotics from an apartment located at 544 West Second Street. "There is an assumption grounded in common experience that [an ordinary citizen] is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J 490, 506 (1986). Therefore, "an individual of this kind may be regarded as trustworthy and information imparted by him to a policeman concerning a criminal event would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is taken." Ibid. (quoting State v. Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974)). After receiving the citizen complaints, the police observed Stewart suspiciously interact with Madison at the suspected location and then enter the Explorer. The police had sufficient grounds to conduct an investigatory stop of the vehicle at that time.

We find that the police subsequently obtained probable cause to search Walsh once they saw him move his hand to his mouth after being pulled over because he was with Stewart, who they suspected had just participated in a drug transaction.

The courts have recognized that associating with known drug offenders is a legitimate factor in assessing probable cause, especially where corroborating circumstances are present. State v. Williams, 117 N.J. Super. 372 (App. Div.), aff d, 59 N.J. 535 (1971). In Williams, while investigating reports of illegal drug activity in a known high-drug area, the police observed Williams talking to a drug offender. Id. at 376. The police pulled up behind Williams, exited their patrol car and approached him. Ibid. After looking in the officers' direction, Williams discarded a package on the floor of his car, which was seized and found to contain illegal drugs. Ibid. We found that the police had probable cause to believe that the package contained evidence of a crime. Ibid. In this matter, the police knew Stewart, the passenger in the vehicle Walsh was driving, from prior drug investigations and also had just seen Stewart interact suspiciously with another individual suspected of distributing drugs.

The fact that Walsh, the driver, appeared to place something in his mouth after being stopped by the police coupled with the passenger's, Stewart, recent interaction with Madison gave the police probable cause to search Walsh. See State v. Sheffield, 62 N.J. 441, 447 (1973); State v. Harris, 384 N.J. Super. 29, 48 (App. Div. 2006). The facts in Sheffield and Harris relate to those present here because both cases involved individuals attempting to conceal drugs in their mouths after being confronted by the police.

In Sheffield, supra, the police observed the defendant, "a known narcotics' pusher and dealer," who the police had previously arrested on a narcotics charge and who the officer conducting surveillance had seen in the area approximately forty times. 62 N.J. at 443-44. When the police approached the defendant in an unmarked car, he did not respond and walked quickly in the opposite direction of the police car. Id. at 444. The officer then exited the car and followed the defendant while calling his name. As he did so, the officer saw the defendant put his hand to his mouth. Ibid. Once the officer caught up with the defendant, he pushed the officer away. Ibid. The officer proceeded to attempt to arrest the defendant for assault and a struggle ensued during which the defendant fell to the ground and drugs fell out of his mouth. Ibid. The Court found that after seeing the defendant "make a gesture to his mouth," the officer had probable cause to "suspect criminal activity on defendant's part." Id. at 445. The officer in Sheffield also said that "based on his experience on the narcotics squad [the] defendant's gesture indicated he was attempting to conceal narcotics evidence." Id. at 444. The Court explained that:

A narcotics officer is especially qualified to detect traffic in narcotic drugs. He learns through experience how to spot an addict or pusher, how an addict or pusher acts and reacts, and where the areas of narcotics activity are. When an officer applies his expertise in a narcotics situation, it should not be given grudging recognition when assaying the existence of cause to take police action.

[Id. at 445.]

In Harris, supra, while one police officer went inside to investigate an unrelated crime in a bar, the police officer who remained in the unmarked car saw two men walking down the street. One man, the defendant, was counting money. 384 N.J. Super. at 40. The men reversed direction after they saw the uniformed police officer exit the bar. Ibid. The officers then went to a nearby alleyway that one officer, based on his experience in conducting narcotics investigations, knew was often used for drug transactions. Ibid. The officers parked outside of the alleyway, exited the car and entered the alleyway from opposite sides to prevent the men from running away. Id. at 41. The officers saw both men and "[a] torn up piece of a cigar and tobacco, which [one officer] suspected to be a 'blunt' - - a hollowed out cigar use for smoking marijuana," at their feet. Ibid. One officer attempted to speak with the defendant, whom he recognized from previous arrests on narcotics charges, but noticed that he was having difficulty speaking, "as if he were concealing something in his mouth." Ibid. The officer then proceeded to ask the defendant to spit out whatever was in his mouth, and the defendant complied, spitting out a plastic bag of marijuana. Ibid. Probable cause to inspect the object in the defendant's mouth developed in large part because he seemed to be hiding something in his mouth and was "uncharacteristically friendly" to the police officers. Ibid. We said "in light of all the facts and circumstances that gave rise to reasonable suspicion, it was reasonable for the officers to believe further that [the] defendant was concealing evidence of illegal drug activity." Ibid.

The circumstances here are similar to those in Sheffield and Harris because the police had reasonable suspicion to stop the Explorer based on their observations in a high-crime area known for drug activity. Probable cause to believe that Walsh was concealing evidence of illegal drug activity developed after he moved his hand to his mouth. The police then had a "well-grounded suspicion that a crime has been or [was] being committed." State v. Nishina, 175 N.J. 502, 515 (2003). Although the police did not recognize Walsh or see him interact with Madison, they recognized the passenger, Stewart, from previous investigations, received tips from the community that Madison was selling drugs and observed the two men conduct what they believed to be a drug transaction. The police had reasonable suspicion to stop the car after Stewart entered it, and subsequently acquired probable cause after seeing Walsh move his hand towards his mouth. Therefore, based on the officers' knowledge and observations of Walsh's association with Stewart, they had probable cause to search him when he motioned towards his mouth after being stopped by the police. We must, however, still consider whether exigent circumstances were present.

A warrantless search is justified by exigent circumstances where "the search is supported by probable cause and is necessary to prevent the disappearance of the suspect or of evidence, and where the circumstances fail to permit the searching officer sufficient time to obtain a warrant. State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989). However, "the destructible nature of drug evidence, in and of itself, does not constitute an exigency sufficient to avoid the warrant requirement." State v. De La Paz, 337 N.J. Super. 181, 198 (App. Div.), certif. denied, 168 N.J. 295 (2001).

The following factors are to be considered when determining whether exigent circumstances are present:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause[;] and (9) the time of entry.

[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).]

Regardless of the disposability of the evidence, if a search is undertaken solely for investigative purposes and without probable cause, its results will be suppressed. See, e.g., State v. Baker, 112 N.J. Super. 351, 358 (App. Div. 1970).

We find that exigent circumstances were present justifying the warrantless searches of Walsh and Stewart because Walsh was concealing the drugs in his mouth and could have swallowed them, and because exigent circumstances are generally present when an officer has probable cause to believe that an individual possesses drugs in the officer's presence. See Nishina, supra, 175 N.J. at 517; Guerrero, supra, 232 N.J. Super. at 512.

In Guerrero, supra, we found that there were exigent circumstances justifying a warrantless search of the defendant because the police had probable cause to believe that the defendant had just "engaged in a narcotics transaction and . . . there was insufficient time in which to procure a warrant because of the likelihood that evidence on the defendant's person would be consumed, hidden or sold." 62 N.J. at 443-44. The police in Guerrero saw the defendant exchange money for a small object that they believed to be drugs, but they did not recognize the defendant or the individual who sold the drugs from any previous investigations nor did they receive any tips that the defendant or the other individual were involved in drug activity.

In support of finding exigent circumstances in Guerrero, we discussed our decision in State v. Smith, 129 N.J. Super. 430 (App. Div.), certif. denied, 66 N.J. 327 (1974), where an experienced police officer was conducting surveillance of an alleged drug distribution location. The defendant, who the officer recognized as having committed previous narcotics offenses, exited a car parked in front of the building, entered the building and returned to the car moments later. Id. at 432-33. The police stopped the car, ordered defendant out of the vehicle and searched him, recovering heroin in one of his shoes. Id. at 33. We found that the exigent circumstances exception to the warrant requirement applied because the officers had probable cause to believe that the defendant had just purchased narcotics and thus was in possession of them at the time of the stop. Id. at 435.

The Court in Nishina cited Guerrero with approval and applied its exigency rationale to a search of an individual after the officer had probable cause to believe the individual possessed contraband in the officer's presence. Nishina, supra, 175 N.J. at 517. The rationale of Nishina and Guerrero is applicable to Walsh, since in attempting to hide the drugs from police, he could have swallowed them and destroyed the evidence.

Although the police did not witness a drug transaction between Stewart and Madison because their interaction took place inside a building, the police discovered crack cocaine on Walsh, heightening their reasonable suspicion of Stewart to probable cause to search him. The police reasonably linked the two men together as sharing a joint purpose because Stewart was the passenger in the Explorer driven by Walsh. In Smith, supra, the police received an anonymous phone call and a tip from a reliable informant that drugs were being dispensed from a particular location. 129 N.J. Super. at 434. Although the police did not witness any drug transaction, we found that the "[d]efendant's known narcotics record; his recent presence in areas being investigated for narcotics activity; his presence at [the specific address indicated by the two sources] for a period just long enough to make a narcotics purchase and his furtive glances after exiting under the circumstances" gave the police probable cause to search him. Id. at 434-35. We noted that although none of these factors alone would have provided the police with probable cause, the combination of factors justified the search of the defendant. Id. at 434. Here, the police received anonymous complaints from members of the community that Madison was selling drugs at 544 West Second Street and saw Stewart, who they recognized from a prior drug investigation at the same location, enter that building with Madison and leave after approximately one minute. These factors coupled with the discovery of drugs on Stewart's companion, Walsh, minutes later, gave the police probable cause to search Stewart.

Under Nishina, once the police had probable cause to believe that Stewart had drugs on his person in their presence, exigent circumstances permitted an immediate search without a warrant because "evidence could have been consumed, hidden or sold by the time . . . a warrant was issued." Nishina, supra, 175 N.J. at 517 (quoting Guerrero, supra, 232 N.J. Super. at 512).

Although the police did not know anything about Stanley before observing him interact with Madison, the police had probable cause to believe that Stanley had just purchased drugs from Madison before searching him. After observing Stewart's interactions with Madison, lawfully seizing drugs from Stewart and Walsh and then observing Stanley's interactions with Madison only a few hours later, the police had probable cause to believe that Stanley had purchased drugs from Madison. Both Stanley and Stewart entered the same building with Madison and exited it after a very short period of time. Additionally, after exiting the building, Stanley proceeded to walk very quickly away from the building in the opposite direction of Madison.

Not only did the police have probable cause, but they also had exigent circumstances to search Stanley, given that he could have discarded or destroyed the evidence if the police had waited to secure a warrant.

We therefore reverse the trial court's order suppressing the drugs seized from Walsh, Stewart and Stanley.

Reversed.

1 Neither Stewart nor Walsh joined in the motion to suppress and thus did not participate in this appeal.

2 Lieutenant Newman's first name was not in the record.