STATE OF NEW JERSEY v. FREDDIE WILLIAMS

NOT FOR PUBLICATION WITHOUT THE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.

FREDDIE WILLIAMS a/k/a

FRED BURGESS, R. WILSON,

ROBERT WILSON,

Defendant-Appellant.

December 10, 2015

Submitted October 28, 2015 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-03-0525.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Freddie Williams appeals from the denial of his motion to suppress evidence, after which he entered a guilty plea to one count of the indictment pending against him, a charge of third-degree possession with intent to distribute heroin within 1000 feet of a school zone, N.J.S.A. 2C:35-7. As called for by the plea agreement, on November 14, 2013, he was sentenced to five years probation in Drug Court with conditions. The remaining six counts of the indictment were dismissed, and the court imposed all requisite fines and penalties. We affirm.

I.

Jersey City Narcotics Unit Officer Michael Burgess, a ten-year veteran of the department, testified at defendant's suppression hearing that on August 16, 2011, he was on duty at a surveillance location in a "known drug trafficking area" at approximately 10:20 a.m. He observed defendant standing at a street corner when he was approached by a woman, later identified as S.S. After a brief conversation, defendant retrieved some objects from his right pant pocket and handed them to S.S. in exchange for currency. Believing that he had just witnessed a drug transaction, Burgess radioed perimeter units to stop S.S. Once she was in custody, two bags of suspected heroin were found on her person.

Jersey City Police Street Crime Unit Officer Christopher Daliani also testified on behalf of the State. When called to the scene, he was dressed in street clothes and wore his "badge necklace" around his neck. He and the other officer in the car pulled up, left the vehicle, and began to walk towards defendant. Daliani said once "aware of [his] presence," defendant discarded fifteen bags of heroin. He made no attempt to flee as the officers approached. After arresting defendant, Daliani found $60 on his person. Defendant did not testify or present any witnesses at the suppression hearing.

The judge found both officers' testimony "to be extremely credible." Thus he opined that having witnessed an exchange of objects for money in a high narcotics high-crime area, the officers had reason to believe that defendant had sold drugs to S.S. and had probable cause to arrest both. The judge further found that the probable cause for arrest existed even prior to the officers' identification of the objects defendant discarded.

On appeal, defendant raises a single point for our consideration

POINT I

THE COURT ERRED IN FINDING PROBABLE CAUSE TO ARREST DEFENDANT; THE STATE'S ARGUMENT THAT THE DRUGS WERE ABANDONED AND THEREFORE ADMISSIBLE IGNORES WELL-SETTLED LAW THAT EVIDENCE DISCARDED DUE TO THE UNLAWFUL CONDUCT OF THE POLICE IS NOT CONSIDERED ABANDONED PROPERTY. U.S. CONST. AMENDS. IV, XIV; N.J. CONST., ART. I, 7.

II.

We defer to the factual findings made by the trial court in the course of a suppression hearing where supported by sufficient credible evidence in the record. State v. Rockford, 213 N.J. 424, 440 (2013). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original) (internal quotation marks omitted). We assess credibility determinations employing that same deferential standard. State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010). "To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review." Rockford, supra, 213 N.J. at 440 (citing State v. J.D., 211 N.J. 344, 354 (2012)).

It is the State's burden to establish by a preponderance of the evidence that a warrantless search or seizure falls within one of the well-recognized exceptions to the warrant requirement. State v. Mann, 203 N.J. 328, 337-38 (2010). Defendant contends that the court erred in this case because police lacked sufficient probable cause for the warrantless seizure of the drugs and his arrest, and that Burgess's observations of his interactions with S.S. gave rise to no more than a hunch that some criminal activity had occurred. Contrary to defendant's contention, the State met its burden in this case.

The motion court, once having concluded the officers were credible, properly credited their testimony that defendant, upon seeing the police, immediately tossed the drugs onto the ground. Defendant acted before Daliani did anything other than leave his vehicle. Hence defendant's act of discarding the drugs constituted an abandonment, meaning he had no reasonable expectation of privacy at the time they were seized. See State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006). The seizure was thus proper.

In State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.), certif. denied, 149 N.J. 410 (1997), we found the seizure of a bag of cocaine lawful when a defendant discarded the bag while being followed by police officers. That defendant, like this one, threw the drugs on the ground even though he had not been ordered to stop nor questioned in any fashion. Id. at 293. In this case, the officers did nothing before defendant decided to rid himself of the heroin. This act of voluntary abandonment means the officers' seizure of the heroin was constitutional and that the motion to suppress, on that basis, was properly denied. See id. at 296.

III.

As separate grounds for reversal, defendant argues that his arrest was invalid and, therefore, the seizure of the drugs was similarly illegal. This argument also lacks merit.

Probable cause is the "well-grounded suspicion that a crime has been or is being committed." State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 45-46 (2004)). In making that determination, the totality of the circumstances are considered. Ibid.

Applying those legal principles to the facts in this case, it is clear the police had probable cause to arrest defendant, even in the absence of a warrant, based on their observations of defendant's encounter with S.S. Burgess was a veteran officer who saw the exchange in broad daylight between seeming strangers in a high drug trafficking area. When arrested, S.S. had drugs in her possession. That satisfied the definition of probable cause, and justified defendant's arrest. See id. at 613-14.

Accordingly, the State met its burden of proof by a preponderance of the evidence that defendant's arrest fell within the ambit of one of the warrant requirement exceptions. The judge's factual findings, supported by ample credible evidence in the record, readily justified his conclusion that probable cause existed for the arrest.

Affirmed.