The Warren County prosecutor on Wednesday won reversal of a trial judge’s suppression of drug evidence on the ground that police arrested the suspect before positively identifying him.
The Appellate Division found the appearance of a vehicle matching a tipster’s detailed description at an arranged place and time was enough to establish probable cause for arresting the driver.
According to the opinion in State v. Dority, A-4017-11, and an attorney in the case, Phillipsburg police executed a search warrant in March 2010 on the home of William Joe, who was suspected of street-level drug distribution.
Arrested and brought to headquarters, Joe quickly offered to cooperate by arranging a drug purchase with a dealer who had been selling him cocaine every few days for at least two months.
He described the dealer — later identified as Don Dority — as a black male, stocky and six feet tall, with curly black hair and green eyes, and his vehicle as a red Ford Taurus with tinted windows and Pennsylvania license plates.
Joe dialed Dority and asked, in code, to purchase 30 grams of crack cocaine. Dority allegedly hung up to check his supply, and then called back and offered to deliver 7 grams of powder cocaine to Joe’s house.
Detective James McDonald, with a prosecutor’s authorization, listened in on the calls, though the conversations were not intercepted or recorded.
McDonald alerted officers who had stayed behind at Joe’s home to continue searching. They took positions outside the house, waited and eventually saw a car matching Joe’s description pull up to the house for a few moments and leave.
Joe — at the direction of McDonald, who was receiving updates from the officers waiting at Joe’s house — called Dority back and asked him to return.
When the car reappeared in front of Joe’s home, at least five officers surrounded it. They were unable to see inside because of the window tints but directed Dority to show his hands and exit the vehicle, which he did. They allegedly found cocaine in his possession. Dority was charged with two third-degree drug counts, pleaded not guilty and moved to suppress the evidence.
In a March 2012 opinion, Superior Court Judge Ann Bartlett granted the motion, finding probable cause lacking and the arrest unlawful.
"The problem with the facts of this case is that the police jumped the gun" because they couldn’t see Dority’s face and arrested him without matching his physical description, Bartlett wrote.
Officers "did not give [Dority] a chance to perfect the probable cause by walking up to the informant’s door in performance of the planned transaction," so his actions "never evolved into probable criminal activity," she added.
Appellate Division Judges Marie Lihotz and John Kennedy reversed on Wednesday, finding probable cause to arrest even before Dority left his car.
"While it would have been better to let the driver exit the vehicle so that the police could assure themselves that the driver matched the physical description, … the police were not required to wait for that potentially dangerous maneuver to occur before it could be said that they had probable cause to arrest the driver," the panel said in a per curiam opinion.
The judges noted that probable cause can be based on informants’ tips if their veracity, and the reliability of the tip, are independently corroborated.
Joe’s veracity was borne out by his detailed description of the Taurus and the car’s appearance at the location and time he’d specified, they said. "Joe told the officers what to expect, and events played out precisely as Joe stated they would."
Also, the phone conversations that McDonald listened to "made it very evident" that whoever was driving the Taurus possessed cocaine and sought to deliver it to Joe’s home.
Assistant Warren County Prosecutor Tara Kirkendall says "it’s easier to control the situation from a safety perspective" when officers arrest someone sitting in a vehicle rather than on foot.
The decision "spoke to the need to take into account officers’ safety when we’re reviewing investigative decisions," she adds. "This does help us figure out what probable cause is under this set of circumstances."
Dority is represented by Assistant Deputy Public Defender John McGuigan Jr. He did not return a call Wednesday. Office spokesman Dale Jones declines comment. Dority, 48, is out of jail on a $500 bond.