NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1838-07T41838-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERMAINE A. HANDY,

Defendant-Appellant.

________________________________

Argued February 24, 2010 - Decided

Before Judges Cuff, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 05-12-1153 and 06-11-1108.

Stephen P. Hunter, Assistant Deputy Public Defender, argued for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

Steven A. Yomtov, Deputy Attorney General, argued for respondent (Paula T. Dow, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).

The opinion of the court was delivered by

WAUGH, J.A.D.

Defendant Germaine A. Handy appeals his conviction, following a guilty plea, for possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-10(a)(1). The appeal requires us to determine whether evidence found during the search incident to Handy's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable. We conclude suppression is required and, consequently, reverse the conviction.

I.

The following facts are garnered primarily from the testimony of Millville Police Officer Carlo Drogo during the suppression hearing held on August 18, 2006.

On the evening of September 13, 2005, Drogo responded to a backup call from Special Officer Anthony Sills, who had stopped several individuals, including Handy, for city ordinance violations because they were riding their bicycles on the sidewalk. It appears that none of those individuals, including Handy, had drivers licenses or other forms of identification with them at the time. While Sills issued the appropriate summonses, Drogo collected the names and birth dates of the individuals and called the information into Millville Police dispatch to determine whether there were any outstanding warrants.

Handy told Drogo that his date of birth was "March 18, 1974" and that his name was "Germaine Handy," which he spelled for Drogo. He also informed Drogo of his address on Broad Street in Millville. Drogo provided Handy's name and date of birth, along with those of the other individuals, to the police dispatcher for the warrant check.

The dispatcher subsequently reported to Drogo that there was an outstanding warrant for Handy's arrest. Drogo informed Handy about the warrant, placed him under arrest, and conducted a search of his person. During the search incident to the arrest, Drogo discovered crack cocaine and marijuana.

Only after Handy had been arrested and placed in the back of the police car did the police dispatcher inform Drogo that there was a "discrepancy" with respect to the date of birth on the warrant. Drogo transported Handy to the police station and attempted to verify the warrant. In the process, Drogo also found that there was a difference in the spelling of Handy's first name and the first name on the warrant, a discrepancy that the police dispatcher had either not noticed or not reported to Drogo.

The arrest warrant, which had been issued on June 6, 1996, was for a "Jermaine O. Handy," whose date of birth was given as March 14, 1972, and whose address was listed as being in Los Angeles, California. The offense underlying the warrant was a violation of N.J.S.A. 39:3-38.1(b), now repealed, which makes it a disorderly persons offense to "[e]xhibit[] to a police officer or judge in accordance with R.S. 39:3-29 any falsely made, altered, forged or counterfeited motor vehicle certificate of registration or driver's license, knowing the same to be falsely made, altered, forged or counterfeited."

According to the pre-sentence report, Handy's middle initial is "A" for "Antonio." Although Drogo discovered that the date of birth provided to him by Handy differed from the one on Handy's driver's license and dates of birth listed under Handy's "arrest jacket" in the Millville computer system, we note that it is the same as the date of birth listed on the pre-sentence report.

Drogo placed a call to the Chesterfield Township Municipal Court, which had issued the warrant. The call was answered by automated voicemail. Drogo left a message inquiring about the warrant, but he never received a return call. Unable to verify that the warrant was for the person he arrested, Drogo only processed Handy on the new charge. The State offered no evidence at the suppression hearing that defendant was the Handy for whom the warrant had been issued ten years earlier.

Handy was indicted on December 14, 2005. Indictment No. 05-12-1153 charged him with one count of third-degree possession of a CDS. Handy filed a motion to suppress the evidence seized incident to his arrest. The motion was heard and denied on August 18, 2006. The motion judge found that the police dispatcher's behavior was "unreasonable" because the dispatcher failed to immediately inform Drogo that there were discrepancies with respect to the date of birth and spelling of the first name. The judge nonetheless determined that, although it was a "close call on the facts that [were] presented," the arresting officer's actions in searching and arresting defendant were reasonable in light of the information provided by the dispatcher.

On November 2, 2006, Handy was indicted on additional, but unrelated charges. Indictment No. 06-11-1108 charged him with third-degree possession of a CDS, in violation of N.J.S.A. 2C:35-10(a)(1) (count one), and fourth-degree tampering with physical evidence in violation of N.J.S.A. 2C:28-6(1) (count two).

Handy had moved for reconsideration of the denial of his motion to suppress. However, on December 20, 2006, he withdrew the motion and accepted a plea offer. He pled guilty to Indictment No. 05-12-1153, third-degree possession of a CDS, and to count two of Indictment No. 06-11-1108, fourth-degree tampering with physical evidence. In exchange, the State agreed to recommend three years imprisonment for the CDS charge and a concurrent one year of imprisonment for the tampering with evidence charge. The remaining charge was dismissed.

On July 20, 2007, the judge sentenced Handy in accordance with the State's recommendation as contemplated in the plea agreement. This appeal followed.

II.

Handy raises the following argument on appeal:

THE JUDGE'S FINDING THAT "THE DISPATCHER WAS UNREASONABLE" SHOULD HAVE RESULTED IN SUPPRESSION BECAUSE THE EXCLUSIONARY RULE APPLIES WHEN A POLICE DISPATCHER'S ACTIONS RESULT IN AN UNREASONABLE SEARCH OR SEIZURE. U.S. Const. amends. IV, XIV; N.J. Const. art. I,