Opinion
DOCKET NO. A-3539-11T4
05-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRANCE BEALE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-00537.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Terrance Beale appeals from his judgment of conviction for distribution, dispensing, and possessing with intent to distribute a controlled dangerous substance (CDS) within 1,000 feet of a school. Defendant challenges the denial of his motion to suppress, and claims that the sentence entered pursuant to his guilty plea is excessive. We affirm.
I.
The facts, as contained in the trial judge's written opinion and in the uncontradicted testimony, are as follows. On November 28, 2010, Officer David Weber and another plainclothes Jersey City police officer were conducting narcotics surveillance from an unmarked car across from the Montgomery Housing complex, a high drug area. At approximately 11:35 a.m., Officer Weber saw defendant approaching a group of males standing in the center of the parking lot. After a brief conversation, defendant and two of the males began to walk toward a parked Nissan Altima. As they neared the Nissan, defendant removed a clear plastic sandwich bag from his right jacket pocket. Cupping it in his hand so that only the two males could see, he showed them the contents inside the bag, and put the bag right back in his right jacket pocket.
Officer Weber could not see the contents of the bag. However, he was a thirteen-year veteran of the police department, and had been in the Narcotics Division for six years, attended several drug schools, made over a thousand drug arrests, and conducted numerous narcotics investigations at this location. He knew that clear sandwich bags are commonly used to package CDS. Based on how defendant was holding the clear sandwich bag and showing its contents to the two males, in a high drug area, Officer Weber believed that defendant was going to make a narcotics sale.
The two males and defendant got into the Nissan, which drove ten feet and stopped. The officers then pulled up to the stopped Nissan and exited from the unmarked car. Officer Weber, with his badge exposed, advised defendant and the males that this was a narcotics investigation. He asked defendant to step out of the Nissan. After defendant did so, Officer Weber went into defendant's right jacket pocket and took out the clear sandwich bag containing thirty-one smaller clear plastic zip-lock bags filled with marijuana. Defendant also had $84. As the officer tried to arrest defendant, defendant started running through the parking lot. The officer chased, stopped, and arrested defendant.
A grand jury indicted defendant for: fourth-degree dispensing or distributing marijuana, N.J.S.A. 2C:35-5a(1) and - 5b(12); third-degree possessing with intent to dispense or distribute marijuana within 1,000 feet of a school, N.J.S.A. 2C:35-5a(1) and -7; third-degree possessing with intent to distribute marijuana within 500 feet of a public housing project, N.J.S.A. 2C:35-5a(1) and -7.1; and third-degree resisting arrest, N.J.S.A. 2C:29-2a(1)(b).
Officer Weber testified at the suppression hearing, and the trial judge found his testimony "extremely credible." In a written opinion, the trial judge denied the motion to suppress.
Defendant then entered into a plea agreement which preserved his right to appeal the denial of his suppression motion. He entered a guilty plea to possession with intent to distribute within 1,000 feet of a school in violation of N.J.S.A. 2C:35-5a(1) and -7, in return for the dismissal of the other charges. He acknowledged that the prosecutor had agreed to recommend a sentence of five years with the mandatory minimum period of parole eligibility of eighteen months, concurrent to the sentence for his violation of probation. The trial judge imposed that bargained-for sentence on January 13, 2012.
Defendant appeals, raising the following claims:
POINT I
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE SEARCH AND SEIZURE WITHOUT PROBABLE CAUSE.
POINT II
THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
We must hew to our standard of review. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (citations omitted). "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
Defendant properly conceded that Officer Weber had reasonable suspicion sufficient to conduct an investigatory stop. See State v. Pineiro, 181 N.J. 13, 25 (2004). The officer, however, exceeded the scope of an investigatory stop when he reached directly into defendant's pocket and removed the drugs. See id. at 22 (citing State v. Arthur, 149 N.J. 1, 14-15 (1997)). As the trial judge recognized, such a search requires probable cause. See State v. O'Neal, 190 N.J. 601, 614-15 (2007); State v. Moore, 181 N.J. 40, 44-45 (2004).
In Arthur, police with reasonable suspicion stopped a woman and immediately grabbed from her a bag believed to contain drugs. Arthur, supra, 149 N.J. at 5. The Court noted that "observation of a possible drug transaction between two people could not by itself justify a protective search," which must be based on "'an objectively reasonable belief that defendant was armed and dangerous,'" and which "must be confined to an intrusion designed to discover weapons that could be used to assault the officer," not designed to discover drugs. Id. at 13-15 (citations omitted).
The Supreme Court in Moore laid out the standard for probable cause:
We have often stated that the probable cause standard is not susceptible of precise definition. Nevertheless, our jurisprudence has held consistently that a principal component of the probable cause standard "'is a well-grounded suspicion that a crime has been or is being committed.'" "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 is being committed." "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."
In determining whether there is probable cause, the court should utilize the totality of the circumstances test . . . . That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." The factors to be considered in applying that test include a
police officer's "common and specialized experience," and evidence concerning the high-crime reputation of an area. Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause."
[Moore, supra, 181 N.J. at 45-46 (citations omitted).]
Here, as the trial judge found and the uncontradicted facts show, the evidence is sufficient to show probable cause under this standard. Officer Weber saw a group gathered in a high drug area, and saw defendant and two men leave the group to commence what appeared to be a drug transaction. Defendant removed a clear sandwich bag from his jacket pocket, cupped it in his hand so that only the two males could see the bag's contents, and immediately put the bag back in his jacket pocket.
"[D]efendant's attempt to conceal the object" from onlookers is an important "factor[] to be considered in determining whether probable cause existed." See State v. Johnson, 171 N.J. 192, 217 (2002) (stuffing an unknown object (later determined to be a clear plastic bag) into a hole). Defendant's use of "cupped hands and [his] subsequent stuffing of the [plastic] bag back into his coat pocket, suggest[s] an attempt to conceal the object of their transaction" and, while not itself sufficient, helps show probable cause. See United States v. Green, 670 F.2d 1148, 1151 (D.C. Cir. 1981); see State v. Demeter, 124 N.J. 374, 382 (1991) ("We recognize that in some situations a police officer may have particular training or experience that would enable him to infer criminal activity in circumstances where an ordinary observer would not," citing the "furtive movements of cupped hands" in Green); State v. Kuhn, 213 N.J. Super. 275, 282 n.1 (App. Div. 1986) (citing the use in Green of cupped hands as "suggesting an attempt to conceal the object of the transaction"). Indeed, courts have found that using cupped hands to conceal an object in a street encounter itself goes a long way towards establishing reasonable suspicion, even where the officers have no idea of the nature of the object.
E.g., Vactor v. State, 181 S.W.3d 461, 465-66 (Tex. App. 2005) (the defendant cupped his hands out in front toward a woman, appearing to show something in his hands to her, and then stuffed it into his pants); Thornton v. State, 559 So. 2d 438, 439 (Fla. Dist. Ct. App. 1990) (the defendant showed something to a man in an outstretched, cupped hand, and then put it in his pants).
Here, Officer Weber had a reasonable idea of the nature of the object. He knew that defendant was trying to conceal in his cupped hands a container that the officer testified "is commonly used to package CDS," namely a clear sandwich bag. The trial judge found Officer Weber's testimony "extremely credible," and with good reason. "Plastic baggies . . . are well-known tools for the packaging and sale of drugs." United States v. Carrasco, 257 F.3d 1045, 1048 (9th Cir.), cert. denied, 534 U.S. 1061, 122 S. Ct. 658, 151 L. Ed. 2d 574 (2001); accord United States v. Triana, 477 F.3d 1189, 1195 (10th Cir.), cert. denied, 551 U.S. 1110, 127 S. Ct. 2928, 168 L. Ed. 2d 257 (2007); United States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006), cert. denied, 549 U.S. 1234, 127 S. Ct. 1313, 167 L. Ed. 2d 124 (2007); United States v. Parcels of Real Property, 913 F.2d 1, 3 n.2 (1st Cir. 1990). "[E]ven though a clear plastic bag may be used for a multitude of noncriminal purposes, it is common knowledge that such a bag is frequently used to stash illegal narcotics." Moya v. United States, 761 F.2d 322, 333 (7th Cir. 1984); see United States v. Betts, 16 F.3d 748, 757 (7th Cir. 1994) (Ziploc baggies are "hallmark paraphernalia"). Indeed, plastic bags are "commonly used to store marihuana." New Jersey v. T.L.O., 469 U.S. 325, 347, 105 S. Ct. 733, 746, 83 L. Ed. 2d 720, 738 (1985); United States v. Cowgill, 68 M.J. 388, 396 (C.A.A.F. 2010) ("It is common knowledge that marijuana is kept and distributed in sandwich baggies").
Thus, the totality of the circumstances here included defendant's solicitation of the two men in a high drug area, defendant's pulling out a commonly-used drug container, his suspicious efforts to show the males the contents of that container while concealing the contents from onlookers, his immediate pocketing of the container, and their gathering together within the car. That totality, viewed with the benefit of Officer Weber's extensive specialized experience and his common experience in this area, was sufficient to give rise to a well-grounded suspicion that a crime was being committed. We agree with the trial judge's practical, common sense determination that there was a fair probability that contraband would be found in the clear plastic sandwich bag. See Moore, supra, 181 N.J. at 45-46.
Indeed, the facts supporting probable cause here raise a level of suspicion comparable to the facts the Supreme Court found sufficient for probable cause in Moore. There, detectives in a high drug area observed a group of people congregating in a vacant lot. Id. at 43. A man walked away from the group toward the rear of the lot, and the defendant and a companion left the group and joined the man. "Defendant and his companion handed currency to that man and each received from him a small item in return, which they both immediately pocketed, before returning to the group." Ibid. When detectives approached, the defendant placed his hand in his right pocket and began to walk away. The Court concluded that these facts constituted probable cause:
Detective Abrams was an experienced narcotics officer. He previously had made
numerous drug arrests in the same neighborhood, which was known to the police for heavy drug trafficking. Using binoculars, he observed three men move away from the group to the back of a vacant lot, and he saw defendant and his companion give money to the third person in exchange for small unknown objects. Based on his experience and those factors, it was reasonable for Detective Abrams to conclude that the totality of the circumstances supported a well-grounded suspicion that he had witnessed a drug transaction.
[Id. at 46-47.]
Here, as in Moore, a narcotics officer with extensive experience, including in the pertinent high drug area, was performing undercover drug surveillance, and observed three men in a high drug area move away from a group and commence what appeared to the officer to be a drug transaction. In Moore, the exchange was completed; here, the men got in a car first. Significantly, while the detectives in Moore saw only "a small item" or "small unknown objects," Officer Weber saw a commonly-used drug container that defendant was trying to conceal.
In contesting that Officer Weber had probable cause, defendant tries to equate this case with Pineiro. There, an officer on routine patrol in a high drug area saw two men "standing on the corner," and saw the defendant openly "give [the other man] a pack of cigarettes." Pineiro, supra, 181 N.J. at 18. The Court emphasized repeatedly that "[t]he activity observed by [the officer] was the passing of a cigarette pack." Id. at 29. Although the officer, whose experience was not detailed, was "aware that a cigarette pack sometimes is used to transport drugs," the Court stressed that
there was no proof of "regularized police experience that objects such as [hard cigarette packs] are the probable containers of drugs." The sum of the evidence was merely the officer's prior general narcotics training and experience, and his conclusory testimony that he knew that cigarette packs are used to transport drugs because he had seen that type of activity before. The evidence did not even include the number of times the officer had encountered the use of cigarette packs to exchange drugs or what percentage of observed cigarette packs held drugs.Even with the other circumstances in Pineiro, the Court could not find that the unconcealed giving of a cigarette pack to another man gave rise to probable cause:
[Id. at 28 (quoting Demeter, supra, 124 N.J. at 385-86 (35mm film canister was not shown to be a common drug container).]
more is required to support a fair probability that contraband or evidence of a crime would be found in the cigarette pack. After all, the passing of the cigarette pack just as easily could have been nothing more than the transfer of a cigarette pack between two adults.Similarly, the Court cited the cigarette pack in distinguishing Pineiro from Moore:
[Id. at 29.]
Here, unlike in Moore, there was no observation of currency or anything else exchanged, rather, there was merely a transfer of a cigarette pack under circumstances that had both innocent and suspected criminal connotations.Even while refusing to find probable cause based on "the transfer of a cigarette pack between two adults," the Court in Pineiro still "recognize[d] that this is a close case." Id. at 28-29.
[Id. at 28.]
The Court gave short shrift to the additional circumstances in Pineiro. It mentioned, but apparently put little weight on, the officer's knowledge that the defendant was a suspected drug dealer, and the other man was a drug user. In discussing probable cause, id. at 28-29, the Court did not even mention that the defendant and the other man, after noticing the patrol car and looking at the officer with shock and surprise, walked and biked away respectively; in finding reasonable suspicion, the Court "did not emphasize flight as a factor" because neither man ran, and because the officer "previously had cleared defendant from the same corner, so the men may have departed in anticipation of [the officer] 'clearing the corner' again." Id. at 18-19. Finally, the Court did not find the fact that when accused of purchasing drugs, the other man began to cry and denied any drug involvement, "even when considered with the other circumstances, reached the level of the elusive concept of probable cause." Id. at 29. We note that none of these additional circumstances were present in Pineiro's companion case, Moore, but the Court found probable cause in Moore nonetheless.
We recognize that this too is a close case, but on the other side of the line. Although "there was no observation of currency or anything else exchanged," id. at 28, probable cause is not determined based on checklists, "rigid rules, bright-line tests, and mechanistic inquiries," but based on "a more flexible, all-things-considered approach." Florida v. Harris, _ U.S. _, _, 133 S. Ct. 1050, 1055-56, 185 L. Ed. 2d 61, 67-68 (2013); see State v. Miller, 47 N.J. 273, 278 (1966) (rejecting "the contention that evidence obtained by search and seizure ought to be excluded by reason of some mechanical rule or technical concept excerpted from a judicial opinion"). Under that approach, the experienced officer here could reasonably infer that defendant was commencing a drug transaction in a high drug area by showing to his prospective customers the contents of a commonly-used drug container, while trying to conceal it from observation by non-participants in the transaction. Defendant's concealment, and his use of a common drug container, distinguish this case from Pineiro. The trial judge did not err in finding probable cause.
Defendant argues that the trial judge mistakenly believed that the officers saw not only the clear sandwich bag but also its contents. To the contrary, the judge heard Officer Weber testify that "I didn't actually see the contents inside the bag"; the judge acknowledged at argument that the officer "didn't say he actually saw it"; and the "Statement of Facts" in his opinion accurately restated the officer's testimony that he saw defendant "remove a clear plastic bag from his right jacket pocket and began showing the contents of the bag to the two males, before returning the bag to his right jacket pocket." The comments defendant cites from the opinion's "Legal Analysis" simply incorporate the judge's conclusion that the officers, "based on their training and experience, immediately believed that the bag contained a controlled dangerous substance." The judge fully recognized, as he stated in argument, that the issue was whether the officer could reach that belief based upon his experience, or "does he actually have to see with his own eyes the fact of what's in the bag is drugs?"
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Defendant's sentencing claim is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION