STATE OF NEW JERSEY v. LEONARD FOAT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD FOAT,

Defendant-Appellant.

________________________________

November 23, 2015

Submitted October 21, 2015 Decided

Before Judges Fuentes and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-07-0949.

Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his motion to suppress the warrantless seizure of physical evidence following his conditional plea of guilty to third-degree possession of heroin in violation of N.J.S.A. 2C:35-10(a)(1). Having reviewed the facts and law, we affirm.

Defendant was arrested in New Brunswick and a search incident to that arrest revealed that defendant was in possession of heroin. Defendant was indicted for (1) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); (2) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); (3) third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; and (4) second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1. Defendant was also charged with a disorderly persons offense of possessing drug paraphernalia, N.J.S.A. 2C:36-2. Defendant moved to suppress the physical evidence of the drugs and paraphernalia found at the time of his arrest. The trial court conducted an evidentiary hearing and found the police had probable cause to arrest defendant who was thereafter lawfully searched and found to be in possession of heroin.

Defendant pled guilty to third-degree possession of heroin, reserving his right to appeal the denial of his motion to suppress. As part of the plea agreement, the State recommended that defendant be sentenced to three years in prison and that all other charges be dismissed. The court sentenced defendant in accordance with the plea agreement, and defendant now appeals.

On appeal, defendant makes one argument

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE LACKED PROBABLE CAUSE TO ARREST.

Our scope of review of the motion court's factual findings and credibility determinations in a suppression hearing is limited. We uphold the court's factual findings when they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). Appellate review of the motion court's legal conclusions, however, remains plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff d, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, 7. There is a constitutional preference for law enforcement officers to obtain a warrant from a neutral magistrate before conducting searches. State v. Ravotto, 169 N.J. 227, 236 (2001). One exception to the general warrant requirement is a search incident to a lawful arrest. State v. Minitee, 210 N.J. 307, 318 (2012). That exception is premised on the rationale that such searches protect law enforcement officers by preventing a detained suspect from "accessing a weapon or destroying evidence." State v. Pena-Flores, 198 N.J. 6, 19 (2009).

A lawful arrest is predicated on probable cause that there is "a well-grounded suspicion that a crime has been or is being committed." State v. Marshall, 199 N.J. 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)). The facts and circumstances must show "reasonable grounds for belief of guilt." Ibid. (quoting O'Neal, supra, 190 N.J. at 612). "Although several factors considered in isolation may not be enough," when analyzed under the totality of the circumstances, their cumulative effect can support probable cause. State v. Moore, 181 N.J. 40, 46 (2004).

Sergeant John Quick was the only witness who testified at the evidentiary hearing. Quick testified that he observed defendant hand another man heroin in exchange for money. Quick knew defendant from prior encounters and the area where the transaction occurred was known for drug activity. Quick decided not make an immediate arrest because he did not have backup at that time. Later that same day, a known confidential informant (CI) called Quick and reported that defendant was selling heroin. According to Quick, the CI described to him what defendant was wearing and reported that defendant was selling heroin from a black plastic bag. Quick, along with other detectives, went to the location and saw defendant talking with another known drug user. He observed that defendant was wearing clothing that matched the description the CI gave to him, and defendant was carrying a black plastic bag.

Quick approached defendant and asked him to come over to speak with him. Defendant responded, "Yo, Quick, I got nothing" and then shook his pants and a small rubber band fell out of his pants. Based on training and experience, Quick recognized the rubber band as the type commonly used in drug transactions. Quick and the other officers detained defendant. A search of his person revealed nine bags of heroin and a pipe commonly used to smoke "crack cocaine." Defendant was arrested and a subsequent search revealed he also had $139 in cash.

On this evidence, the trial court found the officers had probable cause to arrest defendant and to search and seize the drugs found on his person pursuant to a lawful arrest. Specifically, the trial court found Quick's testimony credible. The court then found that there was probable cause for defendant's arrest based on Quick's own initial observations of defendant engaging in a hand-to-hand drug transaction. In addition, the court found that the information from the known CI, together with Quick's observation when he saw defendant a second time, provided probable cause. Finally, the trial court reasoned that the combination of Quick's initial observations combined with the information from the CI and Quick's follow-up observations provided ample probable cause for the arrest of defendant.

Based on our review of the record, we are satisfied that the trial court's findings are supported by sufficient credible evidence and the court's conclusions predicated on those findings are legally sound. We, therefore, find no basis to reverse the trial court's denial of defendant's motion to suppress the physical evidence.

Affirmed.