State v. Sharpless

• Decision Date: 04 August 1998
• Citation: 314 N.J.Super. 440,715 A.2d 333
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ronnie R. SHARPLESS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 440

314 N.J.Super. 440

715 A.2d 333

STATE of New Jersey, Plaintiff-Respondent, v. Ronnie R. SHARPLESS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 15, 1997.

Decided Aug. 4, 1998.

Ivelisse Torres, Public Defender, for defendant-appellant (Albert D. Barnes, Designated Counsel, of counsel and on the brief).

John Kaye, Monmouth County Prosecutor, for plaintiff-respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

Before Judges PETRELLA, SKILLMAN and EICHEN.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

This appeal requires us to decide whether the police may stop and conduct a patdown search of a person whose physical description matches the description contained in an anonymous informant's tip concerning a man armed with a gun, even though the tip is not corroborated by observations of the suspect's conduct which correspond with conduct predicted by the informant. This appeal also requires us to decide whether the act of hiding or discarding criminal contraband upon the approach of a police officer constitutes tampering with evidence within the intent of N.J.S.A. 2C:28-6.

Defendant was indicted for possession of heroin, in violation of N.J.S.A. 2C:35-10a(1), possession of heroin with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(3), and tampering with evidence, in violation of N.J.S.A. 2C:28-6. After an evidentiary hearing, the trial court denied defendant's motion to suppress. Thereafter, a jury found defendant guilty of all charges. The court sentenced defendant to an extended term of ten years imprisonment, with five years of parole ineligibility, as well as the statutorily mandated penalties and fees, for possession of heroin with the intent to distribute. In addition, the court imposed a concurrent term of five years imprisonment, with two and a half years of parole ineligibility, for tampering with evidence. The court merged defendant's conviction for possession of heroin into his conviction for possession with the intent to distribute.

At the hearing on defendant's motion to suppress, Officer Raymond Tilton of the Asbury Park Police Department, testified that he received a radio dispatch shortly after noon on February 15, 1995, reporting that someone had seen a black man wearing a green jacket with a hood armed with a handgun in the area of Atkins Avenue and Adams Street. It was later revealed that this dispatch was based on a telephone tip from an anonymous informant. Officer Tilton drove to the location mentioned in the dispatch and saw a man later identified as defendant, who fit the description provided by the informant, standing on a mound of dirt with his hands in his overcoat pockets. When Officer Tilton approached him, defendant took his right hand out of his pocket and started to walk away. At this point Officer Tilton hollered to defendant to take his other hand out of his pocket and to get down on the ground. However, defendant responded by saying: "[W]hat for, I didn't do nothing." Officer Tilton kept yelling at defendant to take his hand out of his pocket and get down on the ground but defendant did not respond. Officer Tilton and another officer who had arrived on the scene pulled out their guns and repeated this command, which defendant then obeyed. The officers conducted a patdown search for weapons, which did not reveal anything. Nevertheless, the officers placed defendant under arrest for "alarming conduct," put handcuffs on him and placed him in the police car. Officer Tilton returned to the area where defendant had been standing to look for the weapon. He failed to find a weapon in that search but did find twenty-three decks of heroin in glassine bags. The police took defendant to police headquarters, where they conducted a further search which revealed a glassine bag containing heroin in his overcoat pocket. This bag had the same markings as the twenty-three bags found near the dirt mound where defendant had been standing.

Based on this evidence, the trial court upheld the validity of defendant's arrest and the search incident to that arrest. The court concluded that the police had a reasonable basis for detaining defendant and ordering him to take his hand out of his pocket and get down on the ground, and that defendant's disobedience of that command provided probable cause to arrest him for a violation of N.J.S.A. 2C:33-2a(2). A jury found defendant guilty of all charges based on substantially similar testimony presented at trial.

On appeal, defendant makes the following arguments:

I. THE ARREST OF THE DEFENDANT AND THE SEARCH PURPORTEDLY INCIDENT TO THE ARREST WERE UNLAWFUL. (Raised Below).

II. THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES OF EVIDENCE TAMPERING. (Partially Raised Below).

III. THE COURT COMMITTED REVERSIBLE ERROR IN ADMITTING THE TESTIMONY OF THE STATE'S MODUS OPERANDI EXPERT. (Not Raised Below).

IV. THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GIVE LIMITING INSTRUCTIONS TO THE JURY ON THE ROLE OF AND WEIGHT TO BE GIVEN THE TESTIMONY OF THE STATE'S MODUS OPERANDI EXPERT. (Not Raised Below).

V. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING THE MAXIMUM EXTENDED SENTENCE AND PAROLE DISQUALIFIER. (Not Raised Below).

We affirm the denial of defendant's motion to suppress. We also reject defendant's arguments relating to the State's expert opinion evidence and the sentence. Accordingly, we affirm defendant's conviction and sentence for possession of heroin with the intent to distribute. However, we conclude that defendant's discard of the twenty-three decks of heroin upon the approach of the police did not constitute tampering with evidence and consequently reverse his conviction for that offense.

I

Defendant makes three arguments relating to the denial of his motion to suppress. First, he argues that the police did not have the reasonable suspicion required to stop him because the source of the information that a person fitting his description was in possession of a handgun in the area of Atkins Avenue and Adams Street was an unknown informant. Second, defendant argues that even if the police had the reasonable suspicion required to stop him, his subsequent conduct did not establish the probable cause required for an arrest and search incident to an arrest. Third, defendant argues that the search of the area where he had been standing prior to his arrest, which revealed the twenty-three decks of heroin in glassine bags, was "unconstitutionally broad" because the area was not within his control.

In Terry v. Ohio, 392 U.S. 1, 22, 24, 88 S.Ct. 1868, 1880-81, 20 L.Ed.2d 889, 906-08 (1968), the Court held that "a police officer may in appropriate circumstances ... approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest," and that the officer may conduct a reasonable search for weapons if he is "justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others."

A telephone tip from an unknown informant does not provide the objectively reasonable suspicion required for a Terry stop and frisk unless it is sufficiently corroborated by other evidence. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L. Ed.2d 301, 308 (1990). In White, the police received an anonymous telephone tip that defendant "would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case." Id. at 327, 110 S.Ct. at 2414, 110 L.Ed.2d at 306-07. The Court stated that "a tip such as this one, standing alone, would not 'warrant a man of reasonable caution in the belief' that [a stop] was appropriate." Id. at 329, 110 S.Ct. at 2416, 110 L.Ed.2d at 308 (quoting Terry, supra, at 22, 88 S.Ct. at 1868, 20 L.Ed.2d at 889) (alteration in original). However, the Court concluded that the police officer's observations of defendant's conduct, which corresponded with some of the conduct predicted by the informant, provided sufficient corroboration to establish reasonable suspicion:

What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information--a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. ...

[W]e conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent's car.

[Id. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310.]

Under White, an anonymous tip that a person of a particular race and body type and wearing specifically described clothing is selling drugs at a particular location does not provide the reasonable suspicion required for a Terry stop, even if the police observe a person fitting that description at the location, because such a tip "contain[s] no 'details of future actions of third parties ordinarily not easily predicted.' " United States v. Roberson, 90 F.3d 75, 80 (3rd Cir.1996) (quoting Alabama v. White, supra, 496 U.S. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310)); see also State v. Zutic, 155 N.J. 103, 713 A.2d 1043 (1998) (corroborated informant's tip insufficient under totality of circumstances to establish probable...