STATE OF NEW JERSEY VS. GERALD M. HARRIS

Defendant Gerald M. Harris appeals the Law Division's order

denying his motion to suppress evidence, and the jury verdict

finding him guilty of: third-degree distribution of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and 2C:35

5(b)(3) (count one); third-degree distribution of a CDS within

1,000 feet of school property, N.J.S.A. 2C:35-7 (count two);

third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count

three); third-degree possession of a CDS with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A 2C:35-5(b)(3)

(count four); and third-degree possession of a CDS with intent

to distribute within 1,000 feet of school property, N.J.S.A.

2C:35-7 (count five). He also appeals the court's decision not

to merge certain counts at sentencing.

Counsel for defendant raises the following issues on

appeal:

POINT I

THE ITEMS SEIZED AFTER [DEFENDANT'S] ARREST SHOULD HAVE BEEN SUPPRESSED BECAUSE THE PROSECUTION FAILED TO PROVE PROBABLE CAUSE THROUGH ONE SENTENCE OF CONCLUSORY TESTIMONY THAT A DETECTIVE "BELIEVED HE HAD OBSERVED A NARCOTICS TRANSACTION." U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.

POINT II

MERGER IS REQUIRED IN THIS RUN-OF-THE-MILL CASE ALLEGING A SINGLE DRUG SALE BECAUSE

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THERE WAS ONE DISTRIBUTION OFFENSE, NOT TWO, AND ONE POSSESSORY OFFENSE, NOT THREE.

In his pro se supplemental brief, defendant

argues:

POINT I

THE TRIAL COURT FINDINGS DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WERE NOT [FACTUALLY] SUPPORTED WITH SUFFICIENT CREDIBLE EVIDENCE. (PARTIALLY RAISED BELOW)

POINT II

DEFENDANT'S WARRANTLESS SEARCH AND SEIZURE INCIDENT TO ARREST WERE UNLAWFUL FLOWING FROM A DETENTION LACKING PROBABLE CAUSE. (RAISED BELOW)

POINT III

THE TRIAL COURT ERRED DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL. (RAISED BELOW)

For the reasons that follow, we affirm defendant's conviction,

but remand for entry of an amended judgment of conviction

reflecting the merger required by this opinion.

I

We discern the following facts from the record below. On

May 22, 2010, Plainfield Police Department Detective Joseph

Mulligan was performing surveillance in the area of East 6th

Street and South Avenue in Plainfield. At about 10:55 p.m.,

Mulligan witnessed what he believed to be a drug transaction

between a slim white male on foot and a heavy-set black male who

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was walking a bicycle. According to Mulligan, the white male

approached the black male and handed him some cash; in return,

the black male removed a plastic bag from the back of his pants,

took out a few small items, and handed them to the white male.

Mulligan saw no other individuals at the location. Mulligan

then radioed to the two officers assigned as a back-up unit,

detectives Michael Black and Adam Green, providing a description

of the suspects, and instructing them to investigate the drug

sale activity he believed he had just observed.

The detectives responded immediately in an unmarked police

vehicle. Within a minute of receiving Mulligan's dispatch, they

spotted the suspects walking on South Avenue, as they were the

only two people on the street. Black pulled the vehicle over

alongside the suspects. Green got out of the vehicle and

approached the white male, later identified as Martin Hibble.

Black also got out the vehicle, and approached the black male,

later identified as defendant.

Hibble noticed the arrival of the officers, who were

wearing plain clothes with visible police identifiers, and put

some items from his hand into his mouth and began chewing.

Green observed this, and believing the items to be narcotics,

detained Hibble, grabbing his lower jaw to prevent him from

chewing or swallowing any evidence. Hibble spit out what was

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later identified as three "knots"1 filled with cocaine, and was

placed under arrest.

Once Green had arrested Hibble, Black placed defendant

under arrest. Black asked defendant if he had anything on him,

and defendant admitted that he had some narcotics concealed down

the back of his pants. Black looked down the back of

defendant's pants, and saw a plastic baggie filled with 42 knots

of cocaine; these matched the knots Hibble spit out.2

On October 26, 2012, the trial court heard testimony on

defendant's motion to suppress evidence of the CDS. Black was

the only witness at the hearing. He testified as to why he and

Green went to East 6th Street and South Avenue in search of a

"suspected dealer" described as "a large build black male

walking a bike" and a "suspected buyer [who] was a slimmer white

male":

Q: Do you recall why you went to that area?

A: Detective Mulligan as you said was doing a surveillance. He instructed me to respond to that area and detain two individuals.

1 Knots are used to contain narcotics: the corner of a plastic sandwich baggie is filled with drugs (in this case cocaine) and tied into a knot, which is torn off from the rest of the baggie. 2 Hibble was also charged in count three and separately in count six for fourth-degree hindering apprehension, N.J.S.A. 2C:293(b)(1). Hibble ultimately pled guilty to possession of cocaine, but is not a party to this appeal.

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Q: Did he advise you why he wanted these two individuals detained?

A: Yes. He believed he had observed a narcotics transaction between the two. And he wanted myself and Detective Green to respond to the area and make contact with them and investigate further.

Black testified that neither he nor Green witnessed the

suspected drug transaction, and they stopped defendant and

Hibble solely based on Mulligan's directive. Black also

testified that only Green witnessed Hibble putting suspected

drugs into his mouth. At the close of the motion hearing,

defense counsel argued that in the absence of Mulligan's

testimony as to the activity of defendant and Hibble, the State

had not proven probable cause sufficient to support an arrest.

The court reserved decision.

On November 27, 2012, the motion judge issued an oral

opinion denying defendant's motion to suppress. Stating that

hearsay is admissible in such a suppression hearing, the judge

determined that Black's testimony regarding what Mulligan told

him and Green was credible. The judge found that, based upon

Mulligan's communication regarding his surveillance, Black and

Green had probable cause to believe that defendant and Hibble,

both matching Mulligan's description, had just engaged in

criminal activity and were subject to arrest. Further, the

court found that the search of defendant was incident to his

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arrest, and that anything discovered therefrom was properly

seized.

Between January 29 and January 31, 2013, defendant was

tried before a jury. Mulligan, Black, Green, and Hibble each

testified against defendant. Although Hibble could not identify

defendant as the person from whom he purchased the cocaine,

Mulligan did so. Black, confirming the testimony he gave at the

suppression hearing, and Green both stated defendant was the

person they arrested at Mulligan's direction. The jury found

defendant guilty on all counts.

On March 15, 2013, the court granted the State's motion for

a mandatory extended term, and defendant was sentenced to a

seven-year prison term with a three-and-one-half year parole

disqualifier for each count to run concurrently. None of the

counts were merged. This appeal followed.

II

We first consider defendant's contentions in Point I of his

counselled brief, and Points I and II of his pro se brief, that

the trial judge erred in denying his motion to suppress.

Reiterating the unsuccessful argument raised at the suppression

hearing, defendant contends that the police did not have

probable cause to confront, arrest, and then search him.

Defendant asserts that it was impermissible for the trial judge

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to rely on Black's hearsay testimony regarding defendant and

Hibble's activity. In his pro se submission, defendant argues

that there was no probable cause or reasonable suspicion to

confront and then search Hibble.

We are guided by well-established principles. "Appellate

courts reviewing a grant or denial of a motion to suppress must

defer to the factual findings of the trial court so long as

those findings are supported by sufficient evidence in the

record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citations

omitted). "We defer to those findings of fact because they 'are

substantially influenced by [an] opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing

court cannot enjoy.'" Ibid. (alteration in original) (quoting

State v. Johnson, 42 N.J. 146, 161 (1964)). We do not, however,

defer to the trial court's legal conclusions, which we review de

novo. Id. at 263. "And for mixed questions of law and fact, we

give deference . . . to the supported factual findings of the

trial court, but review de novo the lower court's application of

any legal rules to such factual findings." State v. Harris, 181

N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185

(1997)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L.

Ed. 2d 898 (2005).

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Both the United States and New Jersey Constitutions

guarantee an individual's right to be free from "unreasonable

searches and seizures." U.S. Const. amend. IV; N.J. Const. art.

I, ¶ 7. A warrantless search is "presumed invalid unless it

falls within one of the recognized exceptions to the warrant

requirement." State v. Wilson, 178 N.J. 7, 12 (2003) (citing

State v. Cooke, 163 N.J. 657, 664 (2000), overruled by State v.

Witt, 223 N.J. 409, 450 (2015)). The State bears the burden of

proving that a warrantless search or seizure "falls within one

of the few well-delineated exceptions to the warrant

requirement." State v. Pineiro, 181 N.J. 13, 19 (2004)

(citation omitted). The same is true of the warrantless seizure

of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88

S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure

of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990)

(seizure of property).

Not every interaction between a citizen and the police

implicates the Fourth Amendment's warrant requirement. The

seizure of a person occurs in a police encounter if the facts

objectively indicate that "'the police conduct would have

communicated to a reasonable person that the person was not free

to decline the officers' requests or otherwise terminate the

encounter.'" State v. Tucker, 136 N.J. 158, 166 (1994) (quoting

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Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389,

115 L. Ed. 2d 389, 402 (1991)). In applying that test, our

courts implement the constitutional guarantee to protect the

"reasonable expectations of citizens to be 'secure in their

persons, houses, papers and effects.'" Id. at 165 (quoting N.J.

Const. art. I, ¶ 7).

The Supreme Court has defined a field inquiry as "the least

intrusive" form of police encounter, occurring "when a police

officer approaches an individual and asks 'if [the person] is

willing to answer some questions.'" Pineiro, supra, 181 N.J. at

20 (alteration in original) (quoting State v. Nishina, 175 N.J.

502, 510 (2003)). "A field inquiry is permissible so long as

the questions '[are] not harassing, overbearing, or accusatory

in nature.'" Ibid. (alteration in original) (quoting Nishina,

supra, 175 N.J. at 510). During such an inquiry, "the

individual approached 'need not answer any question put to him;

indeed, he may decline to listen to the questions at all and may

go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010)

(quoting State v. Maryland, 167 N.J. 471, 483 (2001)).

In contrast to a field inquiry, an investigatory stop, also

known as a Terry stop, is characterized by a detention in which

the person approached by a police officer would not reasonably

feel free to leave, even though the encounter falls short of a

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formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002);

see also Terry, supra, 392 U.S. at 20, 88 S. Ct. at 1878-79, 20

L. Ed. 2d at 904-05. The Terry exception to the warrant

requirement permits a police officer to detain an individual for

a brief period, if that stop is "based on 'specific and

articulable facts which, taken together with rational inferences

from those facts,' give rise to a reasonable suspicion of

criminal activity." State v. Rodriguez, 172 N.J. 117, 126

(2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880,

20 L. Ed. 2d at 906). Under this well-established standard,

"[a]n investigatory stop is valid only if the officer has a

'particularized suspicion' based upon an objective observation

that the person stopped has been or is about to engage in

criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

There is no mathematical formula for deciding whether the

totality of circumstances provides the required articulable or

particularized suspicion and, "[a]s the case law suggests, the

test is qualitative, not quantitative." Stovall, supra, 170

N.J. at 370.

Applying these principles to the record before us, we are

convinced there was a lawful search and seizure. We have no

reason to disagree with the judge's finding that the only

witness who testified at the suppression hearing, Black, was

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credible. His testimony was that, based upon Mulligan's

surveillance and directive, he and Green drove up to

"investigate" defendant and Hibble for engaging in a drug

transaction. Contrary to defendant's contention, Black's

testimony was not hearsay. N.J.R.E. 801(c) ("'Hearsay' is a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth

of the matter asserted."); see State v. Bankston, 63 N.J. 263,

268 (1973) (quoting McCormick on Evidence § 248 at 587 (2d ed.

1972)) ("[T]he hearsay rule is not violated when a police

officer explains the reason he approached a suspect or went to

the scene of the crime by stating that he did so 'upon

information received.'").3 There's another more basic rule why

this argument lacks merit. The rules of evidence do not apply

to a Rule 104 hearing, which is what a motion to suppress is.

The Rule itself provides for that.

Defendant and Hibble were the only two individuals in the

area, and both matched the description provided by Mulligan. As

3 Police officers' testimony elicited at hearings on motions to suppress evidence regarding whether officers had probable cause to arrest is "inapposite" to the Court's holding because the statements were not used to prove guilt. Bankston, supra, 63 N.J. at 270.

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soon as Black and Green approached, Hibble tried to swallow

something. Suspecting it was the drugs that Mulligan advised

Hibble had just bought, Green forced him to spit out what was in

his mouth. As it appeared to be cocaine, there was probable

cause to arrest Hibble for CDS possession, and defendant for

distribution of CDS. Moreover, once under arrest, defendant

admitted prior to a search incident to arrest, that he possessed

cocaine. The cocaine was then retrieved from the waistband of

defendant's pants.

We are convinced that the interaction with defendant and

Hibble was an investigatory stop, and conclude that there were

sufficient facts known to Black and Green for them to have had

"a reasonable suspicion of criminal activity." Rodriguez,

supra, 172 N.J. at 126. They received reliable information from

a fellow police officer conducting surveillance that defendant

and Hibble had engaged in a drug transaction. See e.g., Davis,

supra, 104 N.J. at 506 (information provided to the police by a

reliable informant may generate the reasonable suspicion

necessary for an investigatory stop). In fact, Black admitted

that he and Green were making an investigatory stop. Yet,

before they could do any "investigation," an arrest was

warranted when Hibble was observed attempting to discard

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suspected contraband from the precise criminal activity that

Mulligan reported.

Next, we address defendant's pro se contention that his

motion for a judgment of acquittal should have been granted. He

argues that the State failed to prove its case beyond a

reasonable doubt because Hibble could not positively identify

defendant as the man who sold him drugs. In light of the record

and applicable legal principles, we conclude it is without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). However, we make the following brief comments.

In considering a motion for judgment of acquittal based

upon the insufficiency of the State's evidence under Rule 3:18

1, the judge must decide,

whether[] viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted).]

We apply the same standard and review the judge's decision de

novo. See State v. Bunch, 180 N.J. 534, 548-49 (2004).

We see no reason to disturb the judge's ruling. Giving the

State the benefit of all its favorable testimony, there is ample

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proof that defendant sold drugs to Hibble. Despite the fact that

Hibble could not identify defendant at trial, held over two-and

one-half years after the incident, Hibble testified that he and the

man he purchased the cocaine from were arrested by the police

shortly after the transaction and that the man's name is Gerald

Harris. Moreover, in their testimony, Black and Green both

identified defendant in the courtroom as the man they arrested

along with Hibble for selling Hibble cocaine, and likewise

identified him as Gerald Harris. Finally, turning to defendant's challenge regarding his

sentence, we agree, as does the State, that his conviction of count

one should merge into his conviction of count two, and that his

convictions of count three and count four should merge into his

conviction of count five.

We therefore remand for the limited purpose of amending the judgment of conviction to reflect these mergers, which do not affect the aggregate term of defendant's

sentence. Affirmed in part, remanded in part.