STATE OF NEW JERSEY VS. ROBERT L. GILLIARD (14-10-1836, 15-03-0546, 16-05-0798, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-0410-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT L. GILLIARD, a/k/a
ROBERT GILLARD,
Defendant-Appellant.
____________________________
Submitted June 19, 2018 - Decided July 20, 2018
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment Nos.
14-10-1836, 15-03-0546, 16-05-0798.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defender, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Frank Muroski, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Robert L. Gilliard appeals from three convictions
for third-degree drug charges in three different Monmouth County
indictments. He takes issue with the denial of his motion to
suppress filed in connection with one indictment, arguing the
police did not have probable cause to ask his drug purchaser to
open her mouth, causing her to spit out the heroin that forms the
basis of Indictment No. 15-03-0546. We disagree and affirm.
Defendant pled guilty to third-degree drug charges in three
Monmouth County indictments: No. 15-03-0546, distribution of
heroin, N.J.S.A. 2C:35-5(b)(3); No. 14-10-1836, possession of
heroin, N.J.S.A. 2C:35-10(a)(1); and No. 16-05-0798, possession
of cocaine, N.J.S.A. 2C:35-10(a)(1). On August 5, 2016, the judge
sentenced defendant to concurrent five-year drug court
probationary terms on the three convictions and dismissed all
other counts in the three indictments.
We glean the following facts from the suppression hearing.
On January 19, 2015, at about noon, Long Branch Detective Joseph
Spitale went to Chelsea Avenue and the railroad tracks on a report
that "they were selling heroin." Spitale was a passenger in an
unmarked police car accompanied by three other officers. He saw
defendant, who Spitale knew to live on Chelsea Avenue and have the
"street name" of "Biz." Defendant noticed Spitale and left, as
did a woman in a gold Saturn car. The Saturn drove to the front
of a nearby liquor store. Spitale was dropped off where he could
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surreptitiously stand and look through the slats of a fence and
see the woman and defendant interact.
Spitale saw defendant signal the Saturn to wait. Defendant
returned in five to ten minutes and approached the car. The front
passenger gave him money and defendant gave her a white object.
The Saturn drove off and Spitale stopped defendant. Spitale also
advised the other officers through his hand-held radio that he had
seen a drug transaction involving the front passenger of the
Saturn.
Long Branch Police Officer Gary Vecchione was in that unmarked
police car, parked where he could observe defendant approach the
gold Saturn. After hearing from Spitale, the officers followed
and stopped the Saturn, which had failed to stop at a stop sign.
Another officer then said out loud that he saw the front seat
passenger, Shirley Kell, put something in her mouth. She was told
to open her mouth. She spit out a white envelope containing heroin
that Vecchione retrieved from the ground. Kell told the police
she had purchased the heroin from "Biz."
On appeal, defendant argues:
POINT I: BECAUSE THE STATE DID NOT PROVE THAT
OFFICERS HAD PROBABLE CAUSE FOR A WARRANTLESS
SEARCH OF PASSENGER SHIRLEY KELL'S MOUTH, THE
COURT ERRED BY DENYING MR. GILLIARD'S MOTION
TO SUPPRESS.
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Probable cause exists where, given the totality of the
circumstances, there is a "fair probability that contraband or
evidence of a crime will be found in a particular place." State
v. Moore, 181 N.J. 40, 46 (2004) (quoting Illinois v. Gates, 462
U.S. 213, 238 (1983)). The central component of probable cause
"is a well-grounded suspicion that a crime has been or is being
committed." State v. Nishina, 175 N.J. 502, 515 (2003) (quoting
State v. Sullivan, 169 N.J. 204, 211 (2001)). This standard for
probable cause is identical under both the Fourth Amendment of the
Federal Constitution and Article I, Paragraph 7 of the New Jersey
Constitution. State v. Novembrino, 105 N.J. 95, 122 (1987).
Probable cause may be established by an officer's
observation of a hand-to-hand exchange in a high narcotics-
trafficking area. Moore, 181 N.J. at 43-44 (2003). Although the
police did not testify that this area was a high-crime area, an
anonymous tip that a drug transaction was taking place adds to the
quantity of incriminating information known to the police.
Contrary to defendant's argument, the police had reasonable
and articulable suspicion to stop the Saturn. State v. Scriven,
226 N.J. 20, 33-34 (2016). The police had seen what they believed
was a drug transaction involving the front seat passenger and had
also observed the driver commit a traffic infraction. N.J.S.A.
39:4-144(a) (failure to stop at a stop sign).
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The police then saw the front seat passenger, Kell, who had
been seen purchasing the suspected drugs, place something in her
mouth. When asked to open her mouth, the white envelope was
visible as she spit the drugs out. The police had probable cause
to believe that Kell, after being stopped, was trying to conceal
the drugs she had just purchased from defendant. They were
therefore justified in asking Kell to open her mouth.
Affirmed.
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