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

NOT FOR PUBLICATION WITHOUT THE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:
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[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-
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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