STATE OF NEW JERSEY v. THEORDORE COPELAND

NOT FOR PUBLICATION WITHOUT THE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.

THEORDORE COPELAND, a/k/a

THEODORE J. COPELAND, and

JAMES W. WATERS,

Defendant-Appellant.

______________________________

August 29, 2016

Submitted August 22, 2016 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-06-1909.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a January 14, 2015 judgment of conviction after he pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and third-degree possession of a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7. We affirm.

On October 3, 2012, New Jersey State Troopers Stec, Bartelt, and Lochetto were on patrol in an unmarked car in Camden where they observed Christopher Robb walk southbound towards a house on Eutaw Street and approach defendant who was on the porch of a house. There were between three and five people on the porch. The Troopers had the window down in the idling car, and observed that the weather was a "misty rain." The Troopers heard defendant ask Robb what he wanted. Robb requested "one red," and subsequently walked up the steps onto the porch of the house. Based on his training and experience, Trooper Stec knew that "one red" was street slang for crack cocaine. Stec observed Robb reach into his pocket and hand defendant currency, and in response, defendant handed Robb a small blue plastic bag. Robb walked down from the porch and began to walk away. Believing that they had observed a hand-to-hand drug transaction, Stec exited the patrol car, arrested and searched defendant. The Troopers recovered four bags of crack cocaine, a loaded handgun, and currency. Bartelt arrested Robb.1 The Trooper did not find CDS when they searched Robb.

Defendant was subsequently indicted for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3); third-degree possession of CDS within 500 feet of a school, N.J.S.A. 2C:35-7.1; second-degree possession with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 and 2C:35-5a; second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second-degree possession of a firearm during a drug offense, N.J.S.A. 2C:39-4.1; and third- degree receiving stolen property, N.J.S.A. 2C:20-7. Defendant moved to suppress the evidence, which the judge denied on July 10, 2014 after hearing testimony from one witness, Trooper Stec.

On September 16, 2014, defendant pled guilty to possession of CDS with intent to distribute in a school zone, and unlawful possession of a weapon. He was sentenced in accordance with the plea agreement to a five-year term of imprisonment with a three-year period of parole ineligibility. This appeal followed.

Defendant raises the following argument on appeal

POINT I

THE STATE FAILED TO ESTABLISH THAT TROOPER STEC HAD PROBABLE CAUSE TO ARREST AND SEARCH COPELAND WITHOUT A WARRANT.

A. There Was Not Sufficient Credible Evidence In The Record To Support The Trial Court's Finding of Probable Cause.

B. Even If Stec's Testimony is Credited In Its Entirety, Stec's Observations Did Not Furnish Him With Probable Cause to Arrest Copeland.

When reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence on the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant particular deference when they are 'substantially influenced by [the motion judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which the reviewing court cannot enjoy.'" Ibid. (quoting Robinson, supra, 200 N.J. at 15). "To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review." Ibid. (citing State v. J.D., 211 N.J. 344, 354 (2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).

Here, the motion judge found Stec to be credible. The judge also made very specific findings based on Stec's testimony, and rejected defendant's arguments that the Trooper could not have heard or seen what he testified about. The motion judge considered the totality of the circumstances and concluded that the Trooper had probable cause to arrest defendant based upon the Trooper's observation of the direct hand-to-hand drug transaction, his training and experience, and the location in which the transaction occurred, which the Trooper knew to be a drug crime area. The motion judge rejected defendant's argument that the Trooper's entry onto the porch, as curtilage to the house, violated defendant's Fourth Amendment rights pursuant to Florida v. Jardines, __ U.S. __, __, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495, 501 (2013). The judge found that the porch was curtilage and subject to a diminished expectation of privacy and the Officers had, from a lawful vantage point, observed the transaction in plain view on an open porch and had a valid basis to proceed without a warrant.

Areas of a property open to the public are subject to a diminished expectation of privacy. See State v. Johnson, 171 N.J. 192, 209 (2002). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Id. at 209 (alteration omitted) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)). Thus, a front porch open to full view from the street is not "part of the curtilage . . . protected by the Fourth Amendment." Id.at 208. As there is no reasonable expectation of privacy on an open front porch, it is a "public place" in which a person may be arrested without a warrant so long as the police have probable cause to believe a felony has been committed. See State v. Nikola, 359 N.J. Super. 573, 582-83 (App. Div.), certif. denied, 178 N.J. 30 (2003).

Defendant asserts that Stec's testimony failed to establish probable cause because the State could not explain why no CDS was discovered in Robb's possession immediately following the alleged transaction on the porch. Defendant accordingly asserts that it was impossible to credit Stec's testimony that defendant handed Robb CDS. We disagree. The motion judge based his findings upon Stec's testimony that he observed a complete hand-to-hand drug transaction on the porch, found probable cause based on that testimony, and indicated that the unexplained dismissal of charges against Robb was not necessarily inconsistent with the State's version of events.

Defendant also asserts that the transaction Stec witnessed, although suspicious, did not have a sufficient "tenor of illegality" and the arrest was premature. However, based upon our review of the record, particularly Stec's testimony about the details of the transaction he observed, as well as his training, experience, and his familiarity with what was a high crime area involving narcotics distribution and weapons possession, we are satisfied that the motion judge's determination was supported by sufficient credible evidence and should not be disturbed.

Affirmed.

1 Robb's charges were dismissed. Stec testified that he believed Robb had swallowed the CDS, but the record does not establish why the charges were dismissed. Like the motion judge, we draw no conclusions regarding the dismissal of Robb's charges.