STATE OF NEW JERSEY v. DWAYNE MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5093-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE MOORE,

Defendant-Appellant.

____________________________________

July 8, 2011

Submitted June 2, 2011 Decided

Before Judges Fuentes, Ashrafi and Newman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No.

08-07-1353.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent, (Stephanie Davis-Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Following a guilty plea, defendant Dwayne Moore appeals the denial of his motion to suppress evidence. See R. 3:5-7(d). We affirm.

At the suppression hearing, Detective Keith Ludwig of the Jersey City Police Department testified that he received information from a confidential informant about a man selling illegal drugs inside and outside a high-rise apartment building at a public housing facility on Duncan Avenue. When he and other officers arrived, the suspected person ran into the building yelling "police." They followed him into the building and went up the stairwell, eventually losing the suspect on the eighth floor. Continuing up the stairs quietly, the police saw defendant on the eleventh floor landing engaged in suspected drug activity with another person. Detective Ludwig smelled a strong odor of PCP, an illegal drug in which cigarettes are sometimes dipped. He saw defendant smoking a cigarette and also showing the other person a plastic bag, which contained vials and other bags of the type commonly used for packaging of illegal drugs.

After the police identified themselves, defendant ran up to the twelfth floor and refused to obey the officers' command to get down on the floor. He fled into an apartment and locked the door. The police kicked and banged on the door for about two minutes until a woman opened the door. The police entered and immediately found defendant emptying the contents of a plastic bag out of a bedroom window. They arrested defendant and found three vials of cocaine on the windowsill. On the ground below the window, the police recovered a plastic bag, thirty-six additional vials of cocaine, seven broken vials, and 118 bags of heroin.

Defendant was indicted in a ten-count indictment charging second, third, and fourth-degree crimes, mostly drug charges. After his motion to suppress the drug evidence was denied, he entered into a plea agreement and pleaded guilty to third-degree possession of a controlled dangerous substance in a school zone with intent to distribute, N.J.S.A. 2C:35-7. In accordance with the terms of the plea agreement, he was sentenced to five years in prison with three years to be served before eligibility for parole. This appeal followed.

Defendant argues:

THE MOTION TO SUPPRESS WAS ERRONEOUSLY DENIED BECAUSE THE POLICE OFFICERS LACKED REASONABLE SUSPICION OF CRIMINAL ACTIVITY

SUFFICIENT TO JUSTIFY THEIR ACTIONS LEADING TO APPELLANT'S UNLAWFUL ARREST.

We find no merit in this argument.

Judge Michael Ravin heard defendant's suppression motion and issued a detailed written decision rejecting defendant's contentions that the evidence must be suppressed. He found Detective Ludwig to be a credible witness and made findings of fact based on Ludwig's testimony. On a suppression motion, we defer to the findings of fact and credibility determinations of the trial court. State v. Robinson, 200 N.J. 1, 15 (2009); State v. Johnson, 42 N.J. 146, 161 (1964).

Having considered defendant's arguments on appeal, we also conclude that Judge Ravin correctly applied the law of search and seizure in denying defendant's motion to suppress evidence.

The police could enter the common areas of the multi-family building without a warrant to investigate criminal activity. See State v. Smith, 37 N.J. 481, 496 (1962), cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963); cf. State v. Brown, 282 N.J. Super. 538, 547 (App. Div.) (police did not need a warrant to enter and search a utility room of an apartment building used by defendant and others), certif. denied, 143 N.J. 322 (1995).

When they observed defendant on the eleventh floor, the police developed reasonable and articulable suspicion that he was engaged in criminal activity. Reasonable suspicion has been described as "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)). The smell of PCP, an illegal substance, and the observation of defendant in possession of a plastic bag containing vials and other packaging materials supported the police suspicion that defendant was in possession of an illegal substance. See State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995). That suspicion gave the police the right to stop, temporarily detain, and question defendant. See United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607, 616-17 (1975); State v. Nishina, 175 N.J. 502, 510-11 (2003).

When defendant ran and refused to obey the police commands, reasonable suspicion grew into probable cause for defendant's arrest. See State v. Doss, 254 N.J. Super. 122, 129-30 (App. Div.), certif. denied, 130 N.J. 17 (1992). Probable cause "is a well-grounded suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001). Although under our State constitutional protections flight alone does not provide reasonable suspicion or probable cause to detain a person, see State v. Tucker, 136 N.J. 158, 169 (1994), when flight is coupled with other evidence of criminal activity, it can be a relevant factor in the totality of circumstances justifying a suspect's detention or arrest. See id. at 167-69; State in the Interest of J.B., 284 N.J. Super. 513, 518 (App. Div. 1995).

After defendant fled into an apartment, the police could follow without a warrant in "hot pursuit." See United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10, 49 L. Ed. 2d 300, 305 (1976); Warden v. Hayden, 387 U.S. 294, 298-00, 87 S. Ct. 1642, 1645-46, 18 L. Ed. 2d 782, 787 (1967); State v. Davis, 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986). The police had probable cause to believe that defendant was committing a serious crime and was in possession of evidence that may be destroyed. See Santana, supra, 427 U.S. at 43, 96 S. Ct. at 2410, 49 L. Ed. 2d at 305.

Also, having "seized" defendant while he was in a public place by ordering him to stop and get on the ground, see Tucker, supra, 136 N.J. at 166, the police could pursue him immediately into a dwelling to effect the detention and resulting arrest. See State v. Nikola, 359 N.J. Super. 573, 579, 584 (App. Div.), certif. denied, 178 N.J. 30 (2003). But cf. State v. Bolte, 115 N.J. 579, 585-86, 597-98 (police could not enter the defendant's home without a warrant to arrest him for driving while intoxicated), cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989).

The trial court did not err in its legal conclusions that the police conduct in this case did not violate defendant's constitutional rights.

A