State v. Foreshaw

• Decision Date: 08 January 1991
• Citation: 245 N.J.Super. 166,584 A.2d 832
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Caswell FORESHAW, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Arthur BROWN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 166

245 N.J.Super. 166

584 A.2d 832

STATE of New Jersey, Plaintiff-Respondent, v. Caswell FORESHAW, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Arthur BROWN, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 27, 1990.

Decided Jan. 8, 1991.

Wilfredo Caraballo, Public Defender, Newark attorney for defendant-appellant Caswell Foreshaw (William Welaj, Designated Counsel, Somerville, of counsel and on the brief).

Wilfredo Caraballo, Public Defender, attorney for defendant-appellant Arthur Brown (Keith A. McKenna, Designated Counsel, Newark, of counsel and on the brief).

James F. Mulvihill, Sp. Asst. Atty. Gen., Acting Camden County Prosecutor, attorney for plaintiff-respondent (Roseann A. Finn, Sp. Deputy Atty. Gen., Acting Asst. Camden County Prosecutor, of counsel and on the brief).

Before Judges MICHELS and GRUCCIO.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendants Arthur Brown (Brown) and Caswell Foreshaw (Foreshaw) were convicted of (1) possession of a controlled dangerous substance, namely 502 grams of cocaine with 197 grams of pure free base drug in violation of N.J.S.A. 2C:35-10a(1) and (2) possession of said cocaine with intent to distribute it in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). The trial court merged defendants' convictions for possession of cocaine with their convictions for possession of cocaine with intent to distribute and committed each of them to the custody of the Commissioner of the Department of Corrections for 20 years with a 10 year period of parole ineligibility. In addition, the trial court assessed against each defendant a $30 Violent Crimes Compensation Board penalty, a $3,000 Drug Enforcement and Demand Reduction penalty, a $50 laboratory fee and suspended their driver's licenses for six months. Defendants appealed and we consolidated the appeals for purpose of this opinion.

Defendant Foreshaw seeks a reversal of his convictions or alternatively, a modification of his sentence on the following grounds set forth in his brief:

I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.

II. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO COMPEL DISCLOSURE OF THE CONFIDENTIAL INFORMANT.

III. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL.

IV. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant Brown also seeks a reversal of his convictions or alternatively, a modification of his sentence on the following grounds set forth in his brief:

I. THE TRIAL COURT ERRED IN RULING THAT ARTHUR BROWN'S FOURTH AMENDMENT RIGHTS WERE NOT VIOLATED BY THE SEARCH AND SEIZURE OF THE VEHICLE.

II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We have carefully considered these contentions and all of the arguments advanced by both defendants in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). Further comment is appropriate with respect to some of these contentions.

I.

The Trial Court Properly Denied Defendants' Motion to

Suppress The Evidence

Defendants contend that the trial court erred in denying their motions to suppress the cocaine seized from their motor vehicle without a search warrant. Specifically, Brown argues that the police had sufficient time to obtain a search warrant before stopping the vehicle and, thus, the warrantless search was illegal. Foreshaw claims that the information provided by the confidential informant was deficient for constitutional purposes and was not a proper foundation for a warrantless search.

According to the State's proofs, at approximately 3:30 p.m. on the afternoon of August 27, 1987, Sergeant Gregory Buttari of the Camden County Prosecutor's Office received a tip from a confidential informant that a vehicle had departed the Camden area around 10:00 a.m. that morning for New York City to pick up cocaine and would be returning to Camden at approximately 4:30 p.m. The informant told the officer that the vehicle was a silver or gray Eldorado Cadillac with New Jersey license plates and a spare tire mounted on the back. The informant also stated that three people would be inside the car--two Jamaican males and a Spanish female.

As a result of this information, Sergeant Buttari and Detective Cruz from the Camden City Police Department traveled north on the New Jersey Turnpike as far as Exits 5-6. At that point, they spotted a vehicle traveling southbound on the Turnpike matching the description of the vehicle received from the informant. Sergeant Buttari immediately made a U-turn and pursued the suspect car. As described by the informant, the vehicle was a silver-gray Eldorado Cadillac with a rear mounted spare tire carrying two black males and one Hispanic female. Sergeant Buttari followed the Eldorado to Exit 4 of the Turnpike. The vehicle left the Turnpike at Exit 4 and headed towards the City of Camden. At Exit 4, Sergeant Buttari and Detective Cruz were joined in the pursuit by Investigators Acevedo and Villegas. Sergeant Buttari and the other officers stopped the Eldorado at the Route 130--Airport Circle.

Sergeant Buttari identified defendant Brown as the driver, Sandra Jackson as the front seat passenger and codefendant Foreshaw as the rear seat passenger. After stopping the Eldorado, the officers removed the three occupants from the car and conducted a search of the vehicle. As a result of the search, the officers found a Garden State Racetrack bag under the driver's seat that contained 502 grams of cocaine. All three occupants of the car were then placed under arrest.

A.

The Search of the Automobile was Proper.

The fourth amendment protects the "right of people to be secure in their person, houses, papers and effects against unreasonable searches and seizures." U.S. Const. amend. IV. See N.J. Const. of 1947 art. 1, p 7. The fourth amendment, however, does not forbid all searches and seizures. State v Bruzzese, 94 N.J. 210, 217, 463 A.2d 320 (1983), cert. denied sub nom. Bruzzese v. New Jersey, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984); State v. Anderson, 198 N.J.Super. 340, 348, 486 A.2d 1311 (App.Div.), certif. denied 101 N.J. 283, 501 A.2d 946 (1985). "Rather it only proscribes those that are judicially deemed unreasonable." State v. Anderson, supra, 198 N.J.Super. at 348, 486 A.2d 1311. See State v. Bruzzese, supra, 94 N.J. at 217, 463 A.2d 320 (citing State v. Campbell, 53 N.J. 230, 233, 250 A.2d 1 (1969)). "Indeed the touchstone of the fourth amendment is reasonableness." State v. Bruzzese, supra, 94 N.J. at 217, 463 A.2d 320. Fourth amendment issues are complex and are "peculiarly dependent upon the facts involved." State v. Anderson, supra, 198 N.J.Super. at 348, 486 A.2d 1311. "Commonly, such constitutional issues involve no more than a seasoned 'value judgment upon a factual complex rather than an evident application of a precise rule of law.' " Id. (citing State v. Funicello, 60 N.J. 60, 72, 286 A.2d 55, cert. denied sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972) (Weintraub, C.J., concurring)).

" 'Probable cause' for a search or arrest exists where a police officer has a well-founded suspicion or belief of guilt." State v. Wanczyk, 201 N.J.Super. 258, 266, 493 A.2d 6 (App.Div.1985). "That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." Id. In other words, "[p]robable cause to arrest or search an individual generally is defined as a well grounded suspicion or belief on the part of the searching or arresting officer that a crime has been or is being committed." State v. Guerrero, 232 N.J.Super. 507, 511, 557 A.2d 713 (App.Div.1989). See State in the Interest of A.R., 216 N.J.Super. 280, 285, 523 A.2d 678 (App.Div.1987).

"[S]earch warrants are strongly favored under the federal and state constitutions." State v. Malik, 221 N.J.Super. 114, 118, 534 A.2d 27 (App.Div.1987). See State v. Bell, 195 N.J.Super. 49, 55, 477 A.2d 1272 (App.Div.1984). "The warrant requirement is predicated upon the premise that the necessity and reasonableness of a search can best be determined 'by a neutral and detached magistrate instead of ... [a police] officer engaged in the often competitive enterprise of ferreting out crime.' " State v. Malik, supra, 221 N.J.Super. at 118, 534 A.2d 27 (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948)).

It is well settled, however, that there are several narrowly tailored exceptions to the warrant requirement. Id. See Horton v. California, 495 U.S. ----, ---- n. 4, 110 S.Ct. 2301, 2306 n. 4, 110 L.Ed.2d 112, 120 n. 4 (1990); State v. Bell, supra, 195 N.J.Super. at 55, 477 A.2d 1272 (holding "there is no requirement that the Government obtains a warrant at the first moment probable cause exists ... [t]he touchstone for determining the constitutionality of warrantless searches is one of reasonableness under the circumstances."). As our Supreme Court expressed in State v. Bruzzese, supra, 94 N.J. at 218, 463 A.2d 320:

Over the years, the United States Supreme Court has developed a number of circumscribed exceptions to the warrant requirement. E.g., New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (automobile search incident to arrest of occupant); Chimel v. California, [395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ] (limited area search incident to custodial arrest); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (investigatory "stop and frisk"); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 1647, 18 L.Ed.2d 782 (1967) (search of premises in "hot pursuit" of fugitive); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (vehicle search in circumstances where impracticable to secure a warrant). These recognized exceptions are justified on the...