STATE OF NEW JERSEY VS. COREY R. TURNER (17-06-0432, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 9, 2020
• Docket: A-1129-18T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1129-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY R. TURNER, a/k/a MECCA, CORE-MEGA MECCA, TURNER RICHARD, CORYE R. TURNER, COREY BOWENS, and CORY TURNER,

Defendant-Appellant. _____________________________

Argued telephonically May 18, 2020 – Decided July 9, 2020

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17-06-0432.

Elana Rose Beale, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Alison Stanton Perrone, First Assistant Deputy Public Defender, of counsel; Moses Silverman, Luke X. Flynn-Fitzsimmons, Bolutito Adewunmi and Edgar Aliferov, Designated Counsel, on the briefs).

Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Erin M. Campbell, on the brief).

PER CURIAM

Defendant Corey R. Turner was indicted for third-degree possession of a

controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one);

third-degree possession of a controlled dangerous substance—heroin in a

quantity of less than one-half ounce—with intent to distribute or distribution,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and three);

third-degree possession of a controlled dangerous substance with intent to

distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts four

and five); and second-degree possession of a controlled dangerous substance

with intent to distribute within 500 feet of a public housing facility, public park,

or public building, N.J.S.A. 2C:35-7.1 (counts six and seven). After his motion

to suppress heroin and cash seized from his person following his arrest was

denied, defendant pleaded guilty to count four of the indictment, specifically

reserving his right to appeal the motion judge's order. He appeals from that

conviction, arguing:

A-1129-18T4 2 [POINT I]

[DEFENDANT'S] MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE HAS NOT MET ITS BURDEN OF SHOWING THAT [DEFENDANT] WAS SEARCHED PURSUANT TO A LAWFUL ARREST.

A. A Lawful Arrest Requires Probable Cause that an Offense Has Been or Is Being Committed.

B. There Was No Probable Cause that [Defendant] Sold CDS; Rather, There Was at Most a Reasonable Suspicion of Illegal Activity, Which Would Have Permitted Further Investigation of [Defendant], But Not His Arrest.

C. Case Law Establishes that Probable Cause Was Missing.

D. The Court Should Suppress Evidence Recovered During the Search of [Defendant] Incident to His Unlawful Arrest.

Unpersuaded, we affirm.

In an oral decision, the motion judge made findings of fact based on the

evidence adduced during the suppression hearing at which he heard testimony

from a defense investigator and a Jersey City police officer who was a five-year

veteran assigned for the last year of that tenure to the City Wide Unit, a plain-

A-1129-18T4 3 clothes unit that responded to and investigated CDS transactions, disorderly

groups, shootings and like matters.

We defer to the trial court's factual findings on a motion to suppress,

"unless they were 'clearly mistaken' or 'so wide of the mark' that the interests of

justice require[] appellate intervention." State v. Elders, 192 N.J. 224, 245

(2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279

(2007)). Because the motion judge observed the character and demeanor of the

witnesses at the suppression hearing, he was in a better position to determine

credibility. State v. Locurto, 157 N.J. 463, 474 (1999). However, we exercise

plenary review of the court's application of the law to the facts on a motion to

suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

Inasmuch as police searched defendant without a warrant, it was

incumbent upon the State to prove the search was valid under an exception to

the warrant requirement. See State v. Moore, 181 N.J. 40, 44-45 (2004). The

State advances the search of defendant was valid as incident to his lawful arrest.

A search incident to arrest does not require a warrant, so long as probable cause

existed for the arrest. State v. Gibson, 218 N.J. 277, 293 (2014).

"Probable cause exists if at the time of the police action there is 'a "well[-

]grounded suspicion" that a crime has been or is being committed.'" State v.

A-1129-18T4 4 Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87

(1972)). "[P]robable cause is more than a mere suspicion of guilt, [but] less than

the evidence necessary to convict a defendant of a crime in a court of law." State

v. Basil, 202 N.J. 570, 585 (2010). "In determining whether there was probable

cause to make an arrest, a court must look to the totality of the circumstances,

and view those circumstances 'from the standpoint of an objectively reasonable

police officer.'" Ibid. (citations omitted) (quoting Maryland v. Pringle, 540 U.S.

366, 371 (2003)). Some of the circumstances to be considered in the totality

include a police officer's "common and specialized experience," [Schneider v. Simonini, 163 N.J. 336, 362 (2000)], and evidence concerning the high-crime reputation of an area, State v. Johnson, 171 N.J. 192, 217 (2002). Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause." State v. Zutic, 155 N.J. 103, 113 (1998).

[Moore, 181 N.J. at 46.]

Under that lens we agree with the motion judge that the State established

probable cause that defendant distributed CDS.

From testimony the motion judge deemed credible, we discern on March

17, 2017 the officer set up surveillance at a liquor store named by an anonymous

tipster as the location where a black male wearing dark pants and a black and

A-1129-18T4 5 white jacket was distributing CDS. The liquor store was located in a high-crime

area where the illegal activities included CDS crimes. Approximately twenty or

thirty minutes after setting up surveillance, the officer observed a black male

wearing dark pants and a black and white jacket—later identified as defendant—

approach the liquor store. The officer entered the liquor store ahead of

defendant. Moments later, defendant walked in the store with another man later

identified as Jackie Castleberry.

From no more than ten feet away, the officer observed defendant take a

small, white, shiny object from his waistband or jacket and hand it to

Castleberry. Castleberry placed the object in his right jacket pocket. Both men

left without making a store purchase and walked in different directions.

The officer testified that he believed the object transferred by defendant

was heroin because of the attendant circumstances, including "[t]he information

[the police] had received and pretty much from [his] training and experience and

being that there was no actual business done." "[D]efendant and [Castleberry,]

[did] no actual business within the liquor store other than what they had going

on [between them]." As such he notified perimeter units to stop Castleberry.

Over defendant's interposed hearsay objection to what the officer was told

by the perimeter unit, the motion judge limited the officer's testimony to "a

A-1129-18T4 6 summary of what was reported to him" by the perimeter unit, reserving the

discretion to assign what weight to the hearsay testimony the judge deemed

appropriate. The officer related that Castleberry, when approached by the

officers "reached into his right jacket pocket and pretty much put the white small

object in his mouth." Although one officer tried to prevent Castleberry from

swallowing the object, Castleberry ingested it.

Perimeter units were unable to locate defendant so the officer maintained

his surveillance point for approximately forty minutes before he saw defendant

return to the liquor store where he was arrested. Forty-nine glassine bags and

twenty dollars was recovered from defendant's person. The officer described

the quantity of heroin as a brick—a bundle usually containing fifty glassine

bags—less one.

Initially, the motion judge did not err by considering the hearsay

testimony about Castleberry's actions. In State v. Bynum, 259 N.J. Super. 417,

420-21 (App. Div. 1992) we recognized evidentiary rules, save for exclusion of

relevant evidence under N.J.R.E. 403 1 and valid claims of privilege, do not apply

1 N.J.R.E. 403 provides: "Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." A-1129-18T4 7 to pretrial evidentiary hearings. See also State v. Gibson, 429 N.J. Super. 456,

466 (App. Div. 2013) ("[T]he suppression hearing may include evidence

inadmissible in the trial on the merits. . . . The Rules of Evidence do not apply

in the suppression hearing, except as to N.J.R.E. 403 and claims of privilege."

(citing N.J.R.E. 104(a))), rev'd on other grounds, 219 N.J. 227 (2014). The

judge did not exercise his discretion to exclude the evidence as unreliable. See

Bynum, 259 N.J. Super. at 420-21. We see no reason to disturb the exercise of

that discretion. See State v. Perry, 225 N.J. 222, 233 (2016).

In State v. Smith, the police received an anonymous phone call and a tip

from a reliable informant that drugs were being dispensed from a particular

location. 129 N.J. Super. 430, 432-34 (App. Div. 1974). Although the police

did not witness any drug transaction, we found that the "[d]efendant's known

narcotics record; his recent presence in areas being investigated for narcotics

activity; his presence at [the specific address indicated by the two sources] for a

period just long enough to make a narcotics purchase and his furtive glances

after exiting under the circumstances" gave the police probable cause to search

him. Id. at 434. We noted that although none of these factors alone would have

provided the police with probable cause, the combination of factors justified the

search of the defendant. Ibid. Likewise, here, the discrete circumstances do not

A-1129-18T4 8 establish probable cause. It is established, however, by the totality of the

evidence.

Anonymous tips alone are generally insufficient to establish a reasonable

suspicion, much less probable cause. See State v. Golotta, 178 N.J. 205, 228

(2003). Two important factors for consideration in the totality of the

circumstances analysis to determine if there was a substantial basis to credit an

informant's tip are the informant's veracity and the informant's basis of

knowledge for the information supplied. State v. Smith, 155 N.J. 83, 93 (1998)

(citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). If inadequately

demonstrated by the information provided by the informant, as here, either the

veracity prong or basis of knowledge prong can be bolstered by a corroborative

investigation which lends them independent weight. Id. at 98; see Sullivan, 169

N.J. at 213-14. The tip merely established that the described male was dealing

CDS from the liquor store.

Corroboration of the alleged criminal activity added to the establishment

of probable cause, for "without the corroboration of suspicious detail there can

be no inference that defendant was engaged in criminal activity." Zutic, 155

N.J. at 112. Defendant matched the meager description given by the tipster.

A-1129-18T4 9 Obviously he also approached and later entered the exact liquor store described

in the tip with the man to whom he ultimately transferred the suspected CDS.

While we agree with defendant's present contention that the officer never

testified that the object transferred was, as the motion judge found, "consistent

with the size and shape of CDS heroin," and that the officer never specified the

any training he received, particularly in the packaging and identification of CDS,

he did describe a small, white, shiny object. He observed defendant remove that

object from his jacket or waistband, and transfer it to Castleberry who

immediately put it in his right jacket pocket before the pair exited the store.

Based on his five years of experience as an officer, including one year in the

City Wide Unit which dealt with CDS transactions, if not his unspecified

training, he believed he witnessed a CDS distribution, albeit without any

observed exchange of money.

Certainly, the item transferred was not as benign as a cigarette pack. See

State v. Piniero, 181 N.J. 13, 28 (2004) (holding an officer's observation of the

transfer of a cigarette pack absent an exchange of money, was insufficient to

establish probable cause notwithstanding the officer's "conclusory testimony

that he knew that cigarette packs are used to transport drugs because he had seen

that type of activity before"). The brevity of the transaction, the nature of the

A-1129-18T4 10 item transferred, the immediate pocketing of the item by Castleberry and, as the

motion judge found, "the fact that neither man purchased anything while inside

the store" supported the officer's deduction that he witnessed a CDS transaction.

See Moore, 181 N.J. at 43, 46-47 (2004) (concluding officer’s observation of

defendant briefly meeting with an individual, exchanging currency, and

immediately pocketing a small unknown object supported the officer’s

determination that a drug transaction occurred); see also Johnson, 171 N.J. at

217 (recognizing an attempt to conceal an object is a factor in probable cause

determination).

The incriminatory nature of the object was confirmed when Castleberry

swallowed it when approached by police officers. Castleberry retrieved the item

from the same pocket in which he had, just a short time before, placed the small,

white, shiny object defendant gave to him. He succeeded in preventing the

arresting officer from retrieving the object from his mouth. Even attempt s by

suspects to conceal CDS in their mouths when police approached have been held

key factors in establishing probable cause.

In State v. Sheffield, when police officer in an unmarked car approached

the defendant, "a known narcotics' pusher and dealer," he did not respond and

walked quickly away from the police car. 62 N.J. 441, 444 (1973). The officer

A-1129-18T4 11 exited the car and called defendant by name as he followed him. The officer

then observed defendant put his hand to his mouth. Ibid. A struggle ensued

when the officer apprehended the defendant during which CDS fell from

defendant's mouth. Ibid. The Court found that after seeing the defendant

"[make] a gesture to his mouth[,] the officer had probable cause to suspect

criminal activity on defendant's part." Id. at 445; see also State v. Harris, 384

N.J. Super. 29, 48 (App. Div. 2006) (noting the defendant concealed evidence

of illegal drug activity in his mouth in an attempt to avoid detection by

investigating officers).

Castleberry's actions were inconsistent with possession of an innocuous

item. His actions, the description of the item he consumed as a white small

object, and the location of the object in the same jacket pocket linked the item

to given to Castleberry by defendant and established probable cause to believe

it was CDS. Added to the probable cause amalgam is the nature of the

neighborhood in which the transfer took place and defendant's return to the store

a short time after the transfer.

Notwithstanding the lacunas in the State's proofs caused by its failure to

elicit the officer's training and relating same to the size, shape and color of the

object he saw transferred, and the fact that the officer did not witness the

A-1129-18T4 12 exchange of cash for the object, the totality of circumstances established

probable cause to believe defendant distributed heroin to Castleberry, justifying

the seizure as incident to his lawful arrest. We discern no error in the court's

decision to deny defendant's motion to suppress.

Affirmed.

A-1129-18T4 13