Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. MUKHRAN UMSTEAD

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1774-15T3

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

MUKHRAN UMSTEAD,

          Defendant-Appellant.
________________________________

              Submitted November 30, 2017 – Decided December 14, 2017

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 14-
              07-1861.

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

              Robert D. Laurino, Acting Essex Prosecutor,
              attorney for respondent (Lucille M. Rosano,
              Special   Deputy   Attorney   General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        A   grand   jury   returned     a   five-count    indictment     charging

defendant and his co-defendant, Walter Johnson, with second-degree
conspiracy, 
N.J.S.A. 2C:5-2 (count one); third-degree possession

of   heroin,    
N.J.S.A.    2C:35-10(a)     (count     two);    third-degree

possession of heroin with intent to distribute, 
N.J.S.A. 2C:35-

5(a)(1)   and   (b)(3)   (count   three);   third-degree       possession   of

heroin with intent to distribute within 1000 feet of school

property, 
N.J.S.A. 2C:35-7(a) (count four); and second-degree

possession of heroin within 500 feet of a public housing facility,

public park, or public building, 
N.J.S.A. 2C:35-7.1(a) (count

five).

     Following an evidentiary hearing, the trial judge denied

defendant's motion to suppress the heroin the police seized from

him in a search incident to his arrest.              The jury subsequently

convicted defendant on all counts of the indictment.

     At sentencing, the judge merged counts one through three into

counts four and five.      The judge sentenced defendant to five years

in prison with a three-year period of parole ineligibility on

count five, and to a concurrent five-year term with a thirty-six-

month period of parole ineligibility on count four.              This appeal

followed.

     On appeal, defendant raises the following contentions:

            POINT I

            THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
            MOTION TO SUPPRESS EVIDENCE FOUND DURING A
            WARRANTLESS SEARCH OF HIS PERSON.

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               A.   The Judge's Finding of Reasonable
               Suspicion Did Not Support His Conclusion
               That   The    Warrantless    Search   of
               [Defendant's] Person Was Valid.

               B.   The    Warrantless     Search    of
               [Defendant's] Person Was Not Incident To
               A Lawful Arrest Because, As The Trial
               Court Observed, The Detectives Did Not
               Have Probable Cause To Believe That
               [Defendant]   Committed    A   Narcotics
               Offense Before They Discovered Drugs In
               His Pocket.

After reviewing the record in light of the contentions advanced

by defendant on appeal, we affirm.

     At the evidentiary hearing, Detective Stanley Garns testified

that he and two other officers were conducting an undercover

surveillance of a street corner in a "high narcotic area" of

Newark.   The officers were in plain clothes and were sitting in

an unmarked vehicle that was parked about five or six houses away

from the corner.    One of the other officers used binoculars to

watch the corner.

     At approximately 10:40 a.m., Detective Garns saw two men,

later identified as defendant and Johnson, standing on the corner.

A woman approached and spoke to Johnson.     Detective Garns saw

Johnson reach into his pocket, retrieve an item, hand it to the

woman, and receive paper currency in exchange.     The woman then

walked away as Johnson put the money into his pocket.



                                3                          A-1774-15T3
     Johnson next handed defendant a clear plastic bag, which

defendant "placed . . . in his jacket pocket."           After he did so,

Johnson walked a short distance up the street and away from the

corner.

     A    man   then   approached   defendant   and   spoke   to   him.      In

response, defendant reached into his jacket pocket, took an item

out of the plastic bag, handed it to the man, received paper

currency in return, and placed the money in his pocket.                   After

completing the exchange, the man left the area.

     Detective Garns testified that the police believed they had

witnessed two illegal drug transactions and they moved in to arrest

defendant and Johnson.       They drove up to the corner, got out of

the car, identified themselves, and detained the two men.             One of

the other officers reached into defendant's pocket and retrieved

the clear plastic bag.      It contained 250 small glassine envelopes

of heroin.      The officers then placed defendant and Johnson under

arrest.    Detective Garns conducted a further search of defendant

and found $47 on his person.

     Following oral argument, the trial judge rendered an oral

opinion denying defendant's motion to suppress the heroin the

police seized from him.       The judge found that based on the facts

the State established at the hearing, the action of the police "in

searching and arresting [defendant and Johnson] . . . comport[ed]

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with the mandate . . . of both the Federal Constitution and the

. . . New Jersey Constitution."1        This appeal followed.

     On appeal, defendant argues that the trial judge erred by

denying his motion to suppress the heroin seized from him.                  We

disagree.

     Our review of a trial judge's decision on a motion to suppress

is limited. State v. Robinson, 
200 N.J. 1, 15 (2009). In reviewing

a motion to suppress evidence, we must uphold the judge's factual

findings, "so long as those findings are supported by sufficient

credible evidence in the record."          State v. Rockford, 
213 N.J.
 424, 440 (2013) (quoting Robinson, 
200 N.J. at 15).          Additionally,

we defer to a trial judge's findings that 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) (quoting

Robinson, 
200 N.J. at 15).       We do not, however, defer to a trial

judge's   legal   conclusions,   which    we   review   de   novo.     Ibid.



1
  During oral argument, the judge remarked to the prosecutor that
Officer Garns "misspoke" when he stated he had probable cause to
arrest defendant as opposed to having probable cause to search
defendant based upon his observations.      However, it is well-
established that a judge's colloquy with counsel during oral
argument is not the equivalent of the judge's findings of fact and
conclusions of law. Pardo v. Dominguez, 
382 N.J. Super. 489, 492
(App. Div. 2006). As noted above, the judge clearly held that
both the arrest and the search of defendant was constitutional.

                                    5                                A-1774-15T3
Applying   this   standard    of   review,   we   discern    no   basis   for

disturbing the judge's denial of defendant's suppression motion.

     "Warrantless searches are presumptively unreasonable and thus

are prohibited unless they fall within a recognized exception to

the warrant requirement[,]" such as a search incident to arrest.

State v. Pena-Flores, 
198 N.J. 6, 18 (2009).             However, "[u]nder

the search incident to arrest exception, the legal seizure of the

arrestee automatically justifies the warrantless search of his

person and the area within his immediate grasp."            Id. at 19.    "The

purpose of such a search is (1) to protect the arresting officer[s]

from any potential danger and (2) to prevent the destruction or

concealment of evidence."      State v. Dangerfield, 
171 N.J. 446, 461

(2002).      "[T]he ensuing search is valid even if there is no

particular    reason   to   believe   that   it   will   reveal   evidence,

contraband, or weapons."      Pena-Flores, 
198 N.J. at 19.

     "[A] principal component of the probable cause [to arrest]

standard 'is a well-grounded suspicion that a crime has been or

is being committed.'"        State v. Moore, 
181 N.J. 40, 45 (2004)

(quoting State v. Nishina, 
175 N.J. 502, 515 (2003)).             "Probable

cause exists where the facts and circumstances within             . . . [the

officers'] knowledge and of which they had reasonably trustworthy

information [are] sufficient in themselves to warrant a [person]

of reasonable caution in the belief that an offense has been or

                                      6                              A-1774-15T3
is being committed."     Id. at 46 (quoting Schneider v. Simonini,


163 N.J. 336, 361 (2000)).    In determining probable cause, a court

applies a totality of the circumstances test and, as part of that

test, may consider the police officer's "common and specialized

experience" and "evidence concerning the high-crime reputation of

an area."   Ibid.

     The facts in Moore are virtually identical to those presented

in this case. In Moore, undercover police officers were patrolling

"a high crime area."     Id. at 43.       With the aid of binoculars, the

officers saw six men congregating in a vacant lot.              Ibid.    The

officers then observed the defendant, a companion, and a man

wearing a hat walk away from the group.           Ibid.   The defendant and

his companion handed money to the third man and he gave each of

them "a small item in return, which they both immediately pocketed,

before returning to the group."           Ibid.

     Believing they had witnessed a drug transaction, the officers

approached the group, intending to arrest the defendant.                Ibid.

The defendant put his hand in his pocket and began to walk away.

Ibid.   One of the officers grabbed the defendant's arm and, as the

defendant removed his hand from his pocket, the officer saw that

he had two clear bags of what was later determined to be cocaine.

Id. at 43-44.       Under the totality of these circumstances, the



                                      7                             A-1774-15T3
Supreme Court held that the officers had probable cause to arrest

and search the defendant incident to that arrest.   Id. at 47.

     Similarly, in this case the officers were also conducting a

surveillance in an area known for drug transactions.   As in Moore,

the officers observed defendant hand a small item to an individual

in return for money and, just moments before, saw Johnson complete

the same type of transaction with a different person. Under Moore,

the officers clearly had a well-grounded suspicion that defendant

and Johnson had illegally sold narcotics to the two individuals.

Therefore, the police had probable cause to arrest and search

defendant incident to that arrest.

     Because the officers had probable cause to arrest defendant,

the fact that one of the officers took the plastic bag out of

defendant's jacket pocket before formally arresting him is of no

moment.   As the Court held in State v. O'Neal, "[w]hen the police

search an individual before placing him [or her] under arrest 'as

part of a single uninterrupted transaction, it does not matter

whether the arrest precedes the search.'"    State v. O'Neal, 
190 N.J. 601, 614 (2007) (quoting State v. Bell, 
195 N.J. Super. 49,

58 (1984)).

     Affirmed.




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