STATE OF NEW JERSEY v. CHRIS HARDLEY

NOT FOR PUBLICATION WITHOUT THE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-4964-13T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHRIS HARDLEY, a/k/a
CHRIS COVIL,

     Defendant-Appellant.
___________________________

              Argued March 1, 2017 – Decided May 9, 2018

              Before    Judges    Fuentes,    Carroll    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment Nos.
              10-08-0474 and 10-08-1075.

              Tamar Y. Lerer, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Tamar Y. Lerer, of counsel and on the brief).

              Ian C. Kennedy, Deputy Attorney General,
              argued the cause for respondent (Christopher
              S. Porrino, Attorney General, attorney; Ian
              C. Kennedy, of counsel and on the brief).

        The opinion of the court was delivered by

FUENTES, P.J.A.D.
      A Somerset County Grand Jury indicted defendant Chris Hardley1

and charged him with first degree possession of cocaine with intent

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

(count   one);     second   degree   conspiracy   to   distribute   cocaine,


N.J.S.A. 2C:5-2,; and second degree possession of a firearm while

committing crimes related to a controlled dangerous substance, as

more particularly described in 
N.J.S.A. 2C:39-4.1, (count four).

The   Grand   Jury   also   returned   a   separate    indictment   charging

defendant with one count of second degree possession of a firearm

by an individual previously convicted of one of the offenses listed

in 
N.J.S.A. 2C:39-7.

      Defendant moved to suppress the evidence against him, arguing

that the warrantless seizure and subsequent search of the package

that contained the cocaine by an agent of the Somerset County

Prosecutor's Office (SCPO) violated his rights under the Fourth

Amendment     of   the   United   States   Constitution    and   Article    I,

Paragraph 7 of the New Jersey Constitution.               The Criminal Part

denied defendant's motion.

      Pursuant to a negotiated plea agreement with the State,

defendant pled guilty to first degree possession of cocaine with


1
  Defendant's brother, Roger Covil, and defendant's wife, Keisha
Hardley, were also charged as co-defendants in count one of the
indictment.


                                       2                             A-4964-13T2
intent    to   distribute,      second   degree     conspiracy     to   distribute

cocaine, and second degree possession of a firearm under 
N.J.S.A.

2C:39-7.       In exchange, the State agreed to dismiss a disorderly

persons    offense    charge     of    possession     of    drug   paraphernalia,


N.J.S.A. 2C:36-2, and recommend that the court sentence defendant

to an aggregate term of twenty-five years, with seventy-two months

of parole ineligibility.2             The trial judge questioned defendant

directly at the plea hearing and determined he was aware of his

rights to a trial on the charges against him, and with the

assistance of counsel, defendant made a knowing, informed, and

intelligent decision to waive those rights and plead guilty.                    The

judge also found defendant provided a sufficient factual basis to

sustain his culpability on these charges.

     Defendant       appeared    before       the   court   for    sentencing     on

December 6, 2013.       After merging the second degree conspiracy to

distribute cocaine charge with the first degree possession of

cocaine with intent to distribute charge, the court sentenced

defendant to a term of eighteen years, with a period of seventy-

two months of parole ineligibility.                 On the separate charge of

second degree possession of a firearm under 
N.J.S.A. 2C:39-7, the



2
 The State also agreed to dismiss all charges against defendant's
wife, Keisha Hardley, and to proceed separately against his
brother, Roger Covil.

                                          3                                A-4964-13T2
court sentenced defendant to a term of eight years with sixty

months   of    parole    ineligibility,   to   run   concurrent   with   the

eighteen-year term, and imposed the mandatory fines and penalties.

     Pursuant to Rule 3:5-7(d), defendant now appeals the denial

of his motion to suppress, raising the following arguments.

     POINT I

              BECAUSE THE PACKAGE WAS UNLAWFULLY SEIZED AND
              SEARCHED, ALL EVIDENCE FOUND PURSUANT TO BOTH
              WARRANTS MUST BE SUPPRESSED AS FRUITS OF THE
              UNLAWFUL POLICE ACTION.

              A.   The Package Was Unlawfully Seized When
                   Police Officers Removed It From UPS
                   Without Any Reasonable Suspicion That It
                   Contained Contraband And Brought It To
                   An Undisclosed Location To Continue Their
                   Investigation Of The Package.

                   i.    The Physical Taking Of The
                         Package    By     The    Police
                         Constituted A Seizure That Must
                         be Supported By Cause.

                   ii.   There     Was      No     Reasonable
                         Suspicion     That    The    Package
                         Contained Contraband To Justify
                         The Warrantless Search Of The
                         Package.

              B.   The Dog Sniff Of The Package Constituted
                   A Warrantless Search. Because The Search
                   Was     Unsupported    By     Reasonable
                   Articulable Suspicion, That Search was
                   Unlawful.

              C.   Because Both Warrants Were Issued On The
                   Basis Of Information Discovered As A
                   Result Of The Unlawful Seizure and Search
                   Of The Package, All Evidence Found

                                      4                             A-4964-13T2
                   Pursuant  To  Each  Warrant  Must  Be
                   Suppressed As A Fruit Of The Unlawful
                   Seizure.

     We   reject    these   arguments   substantially   for   the   reasons

expressed in our unpublished opinion in State v. Covil, A-802-14

(App. Div. April 30, 2018), slip op. at 16 to 25.                   We also

incorporate by reference the factual background that led the SCPO

to discover the package containing the cocaine.         Id. at 4 to 15.

     Affirmed.




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