DOCKET NO. A-4153-13T3
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Jonathan Barrera, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Miller, Meyerson & Corbo, attorneys for respondent (Gerald D. Miller, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-12-2286. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Jonathan Barrera, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Miller, Meyerson & Corbo, attorneys for respondent (Gerald D. Miller, of counsel and on the brief). PER CURIAM
Defendant was arrested on July 26, 2013, for offenses relating to the alleged distribution of controlled dangerous substances (CDS). Defendant moved for the suppression of evidence seized from him during a warrantless search at the time of his arrest. After considering the testimony elicited over the course of a three-day hearing — during which three police officers and defendant testified — the trial judge granted defendant's motion. We thereafter granted the State's motion for leave to appeal.
In its brief, the State argues that the trial judge: misapplied the arrest exception to the warrant requirement; failed to apply the doctrine of inevitable discovery; and erred in finding defendant's testimony more credible than the arresting officer's. We reject these arguments and affirm substantially for the reasons set forth in the written opinion of Judge Mitzy Galis-Menendez. We add only the following brief comments.
In her written decision, the judge found that police were advised by a confidential informant that a "white blonde female" was seen purchasing CDS from a "black male" — defendant Darius Washington — driving a white Chevrolet Impala in a particular area of Jersey City. After an officer witnessed a hand-to-hand transaction between the two in that neighborhood, perimeter units were notified and closed in on both participants. An officer in one perimeter unit watched the female discard a "shiny tin foil" item; he found the item, which he believed to be cocaine. An officer in another perimeter unit stopped the Impala and, as he approached, observed defendant "stuff unknown objects in his waistband." Defendant was patted down for weapons; he was also placed under arrest, and officers then searched his pockets for "anything of evidentiary value." Nothing was found.
Based upon the credible testimony relating to these earlier events, Judge Galis-Menendez determined that police had probable cause to stop both the female and defendant's vehicle, and that the officers were justified in arresting defendant and conducting a search incident to that arrest. She found, and it is not disputed, that this permissible warrantless search did not lead to the discovery of any evidence. The motion, instead, turned on which of two later versions actually occurred.
According to Officer Winters, defendant volunteered that he had CDS in his pants, and the officer removed his handcuffs so that the CDS could be retrieved by defendant. This version, as the judge thoroughly discussed in her opinion, was inconsistent with the police report. She thus found Officer Winters's version unworthy of belief because his testimony "was not forthright -- not only because of the report, but in manner and demeanor as well." Instead, the judge found "[d]efendant's version that he was searched three (3) times, and the [o]fficer ultimately pulled his pants down in the middle of the street and retrieved the CDS is believable under the totality of the circumstances of the facts presented." The judge's credibility findings were based on her first-hand observations of the witnesses and are entitled to our deference. State v. Nash, 212 N.J. 518 540 (2013); State v. Locurto, 157 N.J. 463, 470-71 (1999). See also State v. Johnson, 42 N.J. 146, 161 (1964) (holding that an appellate court "should give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy").
We lastly reject the State's contention that the evidence should not have been suppressed because it would have been inevitably discovered once defendant reached the jail for a more thorough search. The trial judge found that police conducted a strip search of defendant in a public place in that police "[p]ull[ed] down [d]efendant's pants, in the middle of the street" while defendant "was handcuffed in police custody" and without facts to support a conclusion "that the evidence was in immediate danger of being destroyed." The judge found that this strip search met the definition of N.J.S.A. 2A:161A-3(a) and was "unreasonable and a violation of [d]efendant's state and federal constitutional rights." In again deferring to the judge's fact findings, which were based on evidence she found credible, we reject the contention that the inevitable discovery doctrine precludes suppression because that doctrine does not apply when evidence is seized by way of an improper strip search. State v. Hayes, 327 N.J. Super. 373, 381, 385 (App. Div. 2000); see also State v. Harris, 384 N.J. Super. 29, 50-51 (App. Div.), certif. denied, 188 N.J. 357 (2006).
Defendant testified that the officers "opened my pants up, and shook my pants out, and pulled down my pants, and they searched down by my groin area."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION