State v. Smith

• Citation: 291 N.J.Super. 245,677 A.2d 250
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Shawn SMITH, Defendant-Appellant.
• Decision Date: 14 June 1996
• Court: New Jersey Superior Court – Appellate Division

Page 245

291 N.J.Super. 245

677 A.2d 250

STATE of New Jersey, Plaintiff-Respondent, v. Shawn SMITH, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued April 30, 1996.

Decided June 14, 1996.

Mark H. Friedman, Assistant Deputy Public Defender, for appellant (Susan L. Reisner, Public Defender, attorney; Mr. Friedman, of counsel and on the brief).

Frank Muroski, Prosecutor's Agent, for respondent (Edward M. Neafsey, Assistant Attorney General, Acting Union County Prosecutor, attorney; Mr. Muroski, of counsel and on the brief).

Before Judges BAIME, VILLANUEVA and BILDER.

The opinion of the court was delivered by

BAIME, J.A.D.

Following the denial of his motion to suppress evidence, defendant pled guilty to possession of cocaine within a school zone with intent to distribute ( N.J.S.A. 2C:35-7) and was sentenced to four years imprisonment. He appeals on the ground that the police violated his federal and state constitutional rights by engaging in an unlawful search and seizure. We disagree and affirm defendant's conviction.

I.

On February 23, 1993, Detective Robert Hilongos, a highly experienced member of the Elizabeth Police Department, received a telephone call from an informant who had proven reliable in the past by providing information that had led to an arrest and conviction. The informant told the detective that a black male wearing a three-quarter length black jacket and a yellow cap was selling drugs from the lobby of a building located at 400 Irvington Avenue in Elizabeth. According to the informant, the individual was accepting orders in the lobby and retrieving the drugs from apartment 2L. The informant added that the drug seller was using a red Datsun with license number H10 33D. The gist of the conversation was that the drug transactions were taking place while the informant was talking and that the informant was actually witnessing the illegal sales.

Detective Hilongos was familiar with the housing project described by the informant, having executed several search warrants in the area. The officer described the project as a "high narcotic trafficking area." Upon their arrival, the detective and four other officers observed defendant, dressed in a three-quarter length black jacket and wearing a yellow cap, "standing ... on the sidewalk in front of the ... building." They also observed the automobile described by the informant parked across the street from the building.

Because the lobby was partially hidden from view and there was no safe location from which to conduct a surveillance, the police were unable to monitor defendant's movements. Instead, the officers immediately approached defendant and searched him, discovering a set of keys.

While defendant was detained, Detective Hilongos proceeded to apartment 2L. The site manager, Kathy Ryan, was notified and soon arrived at the apartment. After knocking on the door and receiving no response, the detective was approached by Andrea Smith, who lived in a nearby apartment. Smith told the officer the apartment belonged to Stacy Walker, whom she identified as her sister. According to Smith, Walker was in the hospital. This was confirmed by Patricia Wright, another neighbor, who immediately telephoned Walker. Walker, who was pregnant at the time, had been hospitalized for approximately one week due to hypertension.

The details of the telephone conversation involving Walker, Ryan and Hilongos were hotly contested at the motion hearing. Detective Hilongos could not recall whether he advised Walker of her right to refuse to consent to a search, but nevertheless claimed that Walker ultimately granted permission.

Walker testified that she became quite upset during the telephone call because she had never given defendant permission to enter her apartment and was concerned that she would be evicted because of his criminal conduct. She emphasized, however, that no one threatened to evict her, and that, in fact, Ryan disavowed any intent to take such a course. Walker related that Ryan told her the police wished to search her apartment, but that she had the right to refuse. Despite these assurances, Walker testified that she feared she would be evicted if she refused to consent. Although Detective Hilongos allegedly told Walker that the police wished to enter her apartment in order to obtain defendant's wallet, this falsehood apparently played no part in Walker's decision to grant the police permission to search. In any event, Walker conceded that she unequivocally gave the police her consent at some point during the conversation.

Both Smith and Ryan corroborated Walker's account. Ryan added that she told Walker the police would "probably" obtain a warrant if she refused to consent to the search and that she would be responsible for any damages if the officers found it necessary to break down the door to her apartment. Smith emphasized that defendant had forcibly taken from her the keys to Walker's apartment earlier in the day.

Upon obtaining Walker's consent, the police used the keys seized from defendant to gain entry to the apartment. Once inside, they conducted a search and discovered fifty-nine vials of cocaine in the door shelf of the refrigerator. Detective Hilongos then notified the officers detaining defendant, and defendant was formally placed under arrest.

The Law Division judge found that the seizure of the keys from defendant was unlawful because the police lacked probable cause to make an arrest and the search was too intrusive to be categorized as a legitimate frisk for weapons. The judge further concluded, however, that the detention of defendant was proper because it was based on reasonable suspicion, that the search of Walker's apartment and the seizure of the drugs found in the residence were lawful because she had voluntarily consented, and that the keys would have been inevitably discovered during a subsequent lawful search incident to defendant's arrest notwithstanding the initial police illegality. The judge denied defendant's motion to suppress the drugs and the keys on that basis.

II.

We first consider whether the police acted unlawfully when they searched defendant and seized the keys to Walker's apartment. We agree with the Law Division judge's conclusion that the officers' search of defendant exceeded the scope of a permissible frisk for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. The informant had given no indication that the suspect was armed, and the police observed nothing prior to searching defendant that would warrant such a conclusion. See Adams v. Williams, 407 U.S. 143, 147-49, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 618 (1972); State v. Thomas, 110 N.J. 673, 684, 542 A.2d 912 (1988). Detective Hilongos candidly admitted that the object of the officers' search was narcotics. Such conduct is not sanctioned by Terry. See Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 343, 62 L.Ed.2d 238, 247 (1979). As recently reaffirmed by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the scope of a permissible frisk is "strictly 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.' " Id. at 373, 113 S.Ct. at 2136, 124 L.Ed.2d at 344 (quoting Terry v. Ohio, 392 U.S. at 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908).

We regard the exploratory activity of the police as a search incident to an arrest. Of course, a warrantless search conducted in order to produce grounds for an arrest is invalid, and, "conversely, an arrest without at least contemporaneous probable cause does not become justified by what the subsequent search discloses." State v. Contursi, 44 N.J. 422, 433, 209 A.2d 829 (1965); State v. Hutchins, 43 N.J. 85, 101, 202 A.2d 678 (1964); State v. Doyle, 42 N.J. 334, 342, 200 A.2d 606 (1964). We thus focus upon whether there was probable cause to arrest defendant prior to the search of his person.

Probable cause is an elusive concept heavily dependent upon the particular factual complex. It is more than mere suspicion but less than legal evidence necessary to convict. State v. Mark, 46 N.J. 262, 271, 216 A.2d 377 (1966). It has been described by our Supreme Court as a "well grounded" suspicion that an offense has been committed. State v. Burnett, 42 N.J. 377, 387, 201 A.2d 39 (1964); see also State v. Waltz, 61 N.J. 83, 87, 293 A.2d 167 (1972); State v. Kasabucki, 52 N.J. 110, 116, 244 A.2d 101 (1968); State v. Laws, 50 N.J. 159, 173, 233 A.2d 633 (1967), cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968); State v. Davis, 50 N.J. 16, 24-25, 231 A.2d 793 (1967), cert. denied, 389 U.S. 1054, 88 S.Ct. 805, 19 L.Ed.2d 852 (1968); State v. Dilley, 49 N.J. 460, 463-64, 231 A.2d 353 (1967). Our courts have eschewed technisms in reviewing factual circumstances to determine whether probable cause exists. State v. Esteves, 93 N.J. 498, 505, 461 A.2d 1128 (1983). Probable cause must be drawn from the "practical considerations of everyday life" as tested by reasonably prudent persons. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949). In dealing with probable cause, "as the very name implies, we are concerned with probabilities." Ibid. We must not forget that resolution of questions regarding whether or not probable cause exists often "involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law, and indeed a value judgment which inevitably reflects the seasoning and experience of the one who judges." State v. Funicello, 60 N.J. 60, 72-73, 286 A.2d 55 (Weintraub, C.J., concurring), cert. denied sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). It bears repeating that "the common and specialized experience and work-a-day knowledge of police [officers] must be...