State v. O'NEAL

Justice RIVERA-SOTO,

concurring in the result.

This street-level drug trafficking ease requires that we address the legal consequences arising from the everyday interactions between suspected drug sellers and the police, which result in both incriminating statements by a drug dealer and the seizure of drugs. Specifically, we are called on to determine, under these circumstances, what theory applies in respect of the authority of the police to detain, question, and search a person suspected of engaging in drug sales.

The majority concludes that the encounter between defendant Rahmil O’Neal and the police must be gauged under the probable cause standard, a conclusion that places defendant in a custodial *620 setting and, hence, triggers the requirement of Miranda 1 warnings prior to any interrogation. Ante, 190 N.J. 606 , 921 A.2d 1082 (2007). The majority, however, concludes that any violation of the Miranda requirements here was harmless and, thus, reinstates defendant’s convictions and sentence. Ibid.

Although I concur in the result reached by the majority, I differ in respect of the analysis to be applied either to defendant’s motion to suppress the statement he .made to the police that he had a bag of cocaine at his ankle or defendant’s motion to suppress the cocaine seized from him. As to the former, I conclude that defendant’s statement made in response to police inquiries during a Terry “stop-and-frisk,” was not the product of a custodial interrogation and, therefore, was not subject to suppression pursuant to Miranda and State v. Stott, 171 N.J. 348 , 364-65, 794 A.2d 120 (2002).

In respect of defendant’s motion to suppress the cocaine seized from him, I conclude as a threshold matter that “[i]f a timely motion [to suppress evidence] is not made [by defendant] in accordance with [the Rules of Court], the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained.” Rule 3:5 — 7(f). Because defendant first made and later withdrew his motion to suppress the contraband seized from him, that issue was waived and is not available for direct appellate review. Moreover, even if one were to consider defendant’s substantive arguments in respect of his belated application to suppress, I conclude that, in the circumstances presented, the contraband retrieved from defendant’s person was admissible as the result of a valid “stop-and-frisk” or protective search pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and State v. Roach, 172 N.J. 19, 27 , 796 A.2d 214 (2002), or as the product of a search incident to a lawful arrest pursuant to Chimel *621 v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), and State v. Moore, 181 N.J. 40, 45-46 , 853 A.2d 903 (2004).

I.

The constitutional mandate that “[n]o person ... shall be compelled in any criminal case to be a witness against himself,” U.S. Const. amend. Y, is engrained in the very fabric of our democracy. Indeed, although New Jersey “do[es] not have a similar provision in our State Constitution!;,] ... the privilege itself is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence.” State v. Presha, 163 N.J. 304, 312-13 , 748 A.2d 1108 (2000) (citations and internal quotation marks omitted; formatting supplied). That mandate provides the governing constitutional rule in respect of the admission of a criminal defendant’s oral statements: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. For that reason,

[t]he right against self-incrimination, and the corollary requirement that a suspect be informed of that right, are triggered “when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning[.]” Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. The requirement that interrogators warn suspects of certain rights is deemed necessary due to the pressure inherent in an “incommunicado interrogation of individuals in a police-dominated atmospheref.]” Id. at 445, 86 S.Ct at 1612, 16 L.Ed.2d at 707.

[Stott, supra, 171 N.J. at 364 , 794 A.2d 120 .]

Thus, Miranda’s requirements are triggered as a condition precedent to a valid custodial interrogation, that is, when the police interrogate a person who is in custody. This appeal focuses on the latter factor: was defendant in custody at the time that he responded to the police inquiry and stated that the bulge in his right ankle was a bag of cocaine?

*622 Miranda explained that “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. In that context,

[wjhether a suspect has been placed in custody is fact-sensitive and sometimes not easily discernible.

It is clear that custody in the Miranda sense does not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect’s home or a public place other than a police station.

We are satisfied that no precise definition can be formulated which would apply in advance to all eases and prescribe the outer limits of the protection afforded. The problem must be dealt with through a case-by-case approach in which the totality of the circumstances must be examined.

[State v Godfrey, 131 N.J.Super. 168, 175-77 , 329 A.2d 75 (App.Div.1974), aff'd o.b., 67 N.J. 267 , 337 A.2d 371 (1975).]

This Court also has explained that “[t]he critical determinant of custody is whether there has been a significant deprivation of the suspect’s freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect[.]” State v. P.Z., 152 N.J. 86, 103 , 703 A.2d 901 (1997). Another factor is whether a suspect knew that he or she was a focus of the police investigation. Stansbury v. California, 511 U.S. 318, 325 , 114 S.Ct. 1526, 1530 , 128 L.Ed.2d 293, 300 (1994); State v. Pearson, 318 N.J.Super. 123, 134 , 723 A.2d 84 (App.Div.1999).

[Stott, supra, 171 N.J. at 364-65 , 794 A.2d 120 .]

The Supreme Court of the United States has made clear that the determination of whether a person is in custody is an objective one that is independent of “the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, supra, 511 U.S. at 323 , 114 S.Ct. at 1529 , 128 L.Ed.2d at 298 . Stated bluntly, “[a] policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody[.]’ ” Berkemer v. McCarty, 468 U.S. 420, 442 , 104 S.Ct. 3138, 3151 , 82 L.Ed.2d 317, 336 (1984).

The calculus of whether a police-citizen encounter rises to the level of a custodial interrogation requires a discerning view, for not all police-citizen encounters trigger Miranda’s requirements. One category of encounter that does not rise to the custodial *623 interrogation level required by Miranda is a “stop-and-frisk” pursuant to Terry v. Ohio, supra, 392 U.S. at 22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906-07 . Terry explains that police officers “may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Ibid. For their protection, Terry permits police officers to conduct a warrantless, but nonetheless “carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Id. at 30 , 88 S.Ct. at 1884-85 , 20 L.Ed.2d at 911 . In doing so,

[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

[Id. at 27, 88 S.Ct at 1888 , 20 L.Ed.2d at 909 (citations and footnote omitted).]

The Terry “stop-and-frisk” exception to the warrant requirement has been incorporated into and made part of New Jersey’s constitutional doctrine. State v. Valentine, 134 N.J. 536, 543 , 636 A.2d 505 (1994) (citing New Jersey cases adopting Terry “stop- and-frisk” exception to constitutional warrant requirement, explaining that “we do not interpret the New Jersey Constitution to demand a higher standard than the Fourth Amendment in order to justify a frisk incident to a lawful investigatory stop”). Describing the Terry exception instead by its rationale as the “protective search exception,” it has been observed that

[t]he protective search exception to the warrant requirement was created to protect an officer’s safety where there is reason to believe that a suspect is armed and dangerous. The exception allows a law enforcement officer to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Specifically, the officer may conduct a carefully limited search of the outer clothing in an attempt to discover weapons which might be used to assault him. The search must, however, be confined in scope to an intrusion reasonably designed to discover weapons that might be used to assault the police officer. Therefore, in order to conduct a protective search, an officer must have a specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous. The existence of an objective *624 ly reasonable suspicion is based on the totality of the circumstances. The totality of the circumstances test balances the State’s interest in effective law enforcement against the individual’s right to be protected from unwarranted and/or overbearing police intrusions. Because the intrusion is designed to protect the officer’s safety, the standard governing protective searches is whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger.

The standard does not deal with hard certainties, but with probabilities and common-sense conclusions about human behavior.

Oftentimes law-enforcement officers must make instantaneous decisions about whether a frisk for weapons is justifiable. The task is an unenviable one often fraught with life-and-death consequences. Courts should not set the test of sufficient suspicion too high when the protection of the investigating officer is at stake.

Accordingly, courts have upheld seizures of unidentifiable objects on a suspect’s person where a lawful pat-down is either inconclusive or impossible. The reasoning in such cases is that the officer’s safety is paramount and that the officer is justified in taking further steps if necessary to protect his safety:

Clearly, a police officer does not need to perceive tactile recognition of a firearm before he may protect himself further by insisting on deliverance of the suspected weapon. It is not even necessary for him to identify by species the object of his concern, so long as the fear for his safety resulting from the pat-down is reasonable. A police officer is not required by his occupation or the Constitution of the United States to take unnecessary risks in the performance of his duties or to refrain from the taking of necessary measures to determine whether the person is in fact carrying a weapon (or the neutralizing of a) threat of physical harm.

[State v. Roach, 172 N.J. 19, 27-28 , 796 A.2d 214 (2002) (citations, internal quotation marks, and editing marks omitted; formatting supplied).]

In determining whether a police officer’s actions in conducting a protective search are reasonable, this Court repeatedly has made clear that the standard to be applied is an objective one. As State v. Arthur, 149 N.J. 1, 7 , 691 A.2d 808 (1997), explains, “[t]he standards by which the reasonableness of police conduct involving an investigatory stop of a person or an automobile originate with Terry v. Ohio[.]”

The facts used in that balancing test are to be judged objectively: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? When determining if the officer’s actions were reasonable, consideration must be given to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Neither “inarticulate hunches” nor an arresting officer’s subjective good faith can justify an infringement of a citizen’s constitutionally *625 guaranteed rights. Rather, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

[Id. at 7-8, 691 A.2d 808 (citations, internal quotation marks, and editing marks omitted).]

See also State v. Smith, 155 N.J. 83, 91 , 713 A.2d 1033 , cert. denied, 525 U.S. 1033 , 119 S.Ct. 576 , 142 L.Ed.2d 480 (1998) (holding that “[a] protective search does not entail a general search of the person for evidence of crime; rather it is designed to discover weapons that could be used to assault the officer [and it] may be based on reasonable articulable suspicion that a suspect is armed and dangerous” (citations and internal quotation marks omitted)); State v. Thomas, 110 N.J. 673, 677 , 542 A.2d 912 (1988) (rejecting analysis based on “the subjective factors that might prompt a law-enforcement official to search a suspect who is the subject of a lawful investigatory stop and is thought to pose a threat to the officer’s safety” and adopting test of “whether the record contains sufficient evidence of objective criteria to support the search of defendant, which in turn determines the admissibility of the evidence seized”); State v. Bruzzese, 94 N.J. 210, 219, 221 , 463 A.2d 320 (1983), cert. denied, 465 U.S. 1030 , 104 S.Ct. 1295 , 79 L.Ed.2d 695 (1984) (holding that “the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent” and explaining basis for rejecting analysis of police officer’s subjective intent because “practically every search-and-seizure case would require the court to engage in a costly and time-consuming expedition into the state of mind of the searching officer”).

In this context, objective evidence of drug dealing gives rise to a fair, objective inference that weapons also are present. See State v. Spivey, 179 N.J. 229, 240 , 844 A.2d 512 (2004) (citing Report to the Governor by the Attorney General on the Need to Update the Comprehensive Drug Reform Act of 1987 (Dec. 9, 1996) (stating that “[f]irearms have become ubiquitous in the world of illegal drug activity. Dealers are armed to protect themselves from law *626 enforcement officers, from other dealers and from their customers”)). Other jurisdictions likewise have made the sad but logical connection between drug dealing and the presence of weapons. See, e.g., United States v. Hishaw, 235 F.3d 565, 570 (10th Cir.2000), cert. denied, 533 U.S. 908 , 121 S.Ct. 2254 , 150 L.Ed.2d 241 (2001) (“[T]he evidence supporting the officers’ reasonable suspicion that [the defendant] was distributing drugs ... also indicated that [the defendant] might be armed and dangerous.”); Louisiana v. James, 795 So.2d 1146, 1150 (La.2000) (stating that “the frequent association of narcotics trafficking with firearms justified the officer’s brief, self-protective frisk”); Abraham v. Oklahoma, 962 P.2d 647, 647 (Okla.Crim.App.1998) (stating that “as the offense reported was an offer to sell drugs, the officer had an adequate basis for conducting a weapons search”).

A fair application of the objective standard governing the protective search — or Terry frisk — to the facts in this case leads to the conclusion that defendant was not in custody at the time that he made his incriminating statement and, as a result, the prerequisites for the issuance of Miranda warnings had not been triggered. Cantalupo explained that, after observing what appeared to be two separate hand-to-hand drug transactions conducted by defendant, he approached defendant. Cantalupo noted that his intention “was to investigate whether or not [defendant] was, in fact, selling drugs.” As Cantalupo next explained during cross-examination at the suppression hearing:

Q. Well, at that point you didn’t feel you had sufficient probable cause to arrest my client?

A. I thought I had enough suspicion to approach your client. Absolutely. I didn’t — at the time, like I said, it — to me, in my eyes, it was suspected cocaine. Once I approached and found that cocaine, that was my definite evidence that he was going to be placed under arrest.

Cantalupo also explained that, although defendant was not detained until the cocaine was found on his person, defendant was not free to leave during that initial questioning, but that defendant was not arrested until the cocaine was found.

*627 In these circumstances, the trial court correctly determined that “the description of what happened here up to the point of the question that resulted in the incriminating answer was not a custodial interrogation.” I also agree with the trial court’s analysis that “the issue still is what a reasonable person, innocent of crime in the defendant’s position, would have thought.” To that extent, the Appellate Division properly held that “based on all the circumstances, a reasonable person would not have believed that he was under arrest when Officer Cantalupo asked him what was around his ankle” and, because “there was no need for Miranda warnings at that point, ... defendant’s response was admissible as evidence.”

II.

A.

Defendant also claims that his trial counsel was ineffective because she did not move to suppress the bag of cocaine seized from defendant’s ankle. The Appellate Division concluded that such failure meant that 'defendant’s trial counsel was ineffective and, for that reason, remanded the matter for a new suppression hearing. I disagree. Because defendant in fact made and latér withdrew a motion to suppress the cocaine seized from him, Rule 3:5 — 7(f) bars consideration of defendant’s claim on his direct appeal.

Our Rules of Court specifically require that

[o]n notice to the prosecutor of the county in which the matter is pending or threatened, to the applicant for the warrant if the search was with a warrant, and to co-indictees, if any, and in accordance with the applicable provisions of R. 1:6-3 and R. 3:10, a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence obtained may be used against him or her in a penal proceeding, may apply to the Superior Court only and in the county in which the matter is pending or threatened to suppress the evidence and for the return of the property seized even though the offense charged or to be charged may be within the jurisdiction of a municipal court.

[Rule 3:5-7(a)J

*628 That Rule is not self-executing, and the failure to comply by its terms bears the mandatory consequential sanction of waiver. Rule 3:5 — 7(f) (“If a timely motion [to suppress] is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained.”).

Erroneously concluding that “defendant is not attempting to litigate a waived argument[,]” the Appellate Division rejected the State’s assertion of the Rule 3:5 — 7(f) bar, relying instead on defendant’s assertion that he was challenging his counsel’s effectiveness in failing to file a suppression motion, and not the results of that suppression motion itself. Ironically, in order to reach defendant’s ineffective assistance of counsel claim, the Appellate Division perforce was required to consider the merits of defendant’s suppression claim. Doing so, the panel concluded that “defendant’s Fourth Amendment suppression challenge has merit.” Thus, the Appellate Division permitted defendant to raise an indirect suppression challenge under the guise of an ineffective assistance of counsel claim when a direct challenge otherwise was barred. That it did so became obvious by the unique remedy the panel fashioned: a remand for a suppression hearing only.

If it is to have any meaning, then Rule 3:5 — 7(f) must mean precisely what it says. If a defendant fails to prosecute a motion to suppress in a timely manner, the immediate consequences are clear: “the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained.” Because a defendant whose counsel fails to advance a suppression motion cannot be entirely without a remedy, that consequence cannot be draconian and, instead, must be limited to a defendant’s direct appeal. Thus, a defendant nevertheless may claim that his or her counsel’s failure to prosecute a motion to suppress was constitutionally ineffective such as to warrant post-conviction relief. An ineffective assistance of counsel claim cannot serve as a subterfuge on direct appeal for the failure to prosecute a suppression motion.

*629 That said, however, because the Appellate Division found merit in defendant’s claim of ineffective assistance of counsel, I address that claim substantively.

B.

The rules governing ineffective assistance of counsel claims have been oft-repeated. As a matter of constitutional mandate, “a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel’s performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant’s conviction, the constitutional right will have been violated.” State v. Fritz, 105 N.J. 42, 58 , 519 A.2d 336 (1987). Whether a defendant’s constitutional right to competent counsel has been abridged is measured by applying “a simple, two-part test[,]” id. at 52 , 519 A.2d 336 , plainly set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 .]

In addition, when presenting a claim of ineffective assistance of counsel due to the failure to file a constitutionally-based suppression motion, “the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious.” State v. Fisher, 156 N.J. 494, 501 , 721 A.2d 291 (1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 , 106 S.Ct. 2574, 2583 , 91 L.Ed.2d 305, 319 (1986)). Those three factors — whether defense counsel’s performance was deficient, whether defendant was prejudiced as a result, and whether defendant’s Fourth Amendment-based constitutional claim had merit in *630 the first instance — must be addressed both in order and in their proper context.

Unlike the factual predicate presented to the Appellate Division and upon which the panel reasonably but mistakenly relied, it is now beyond doubt that defendant’s counsel in fact did file a pretrial motion to suppress both the statements defendant made prior to being placed under arrest as well as the cocaine seized from • defendant’s right ankle. Six weeks later, in a written pretrial memorandum signed by defendant, defendant’s counsel, the prosecutor, and the trial judge, defendant waived his motion to suppress in all respects. On the first day of trial, the trial court reviewed the pretrial memorandum on the record and noted that “[t]here are no pretrial motions.” Cautioning counsel that if “anybody disagrees [with] any of my statements, they should yell out[,]” the only exception arose when defense counsel noted that there was “a verbal admission” by defendant. The following colloquy ensued:

THE COURT: [A]re we going to have a hearing outside the presence of the jury regarding the admissibility of that statement if the State wishes to have it, or do you not see the need for that? Rule 104(c),2 if there’s a statement of a defendant being used, there’s an entitlement to a hearing if they really want to raise the issue and if you want to hold such a hearing outside the presence of the jury.

[DEFENSE COUNSEL]: I don’t think that will be necessary as a trial tactic, Your Honor.

The prosecutor explained that he intended to introduce two separate statements made by .defendant: when, in response to the

2 NJ.R.E. 104(c), titled "Preliminary Hearing on Admissibility of Defendant’s Statements,” provides that

[w]here by virtue of any rule of law a judge is required in a criminal action to make a preliminary determination as to the admissibility of a statement by the defendant, the judge shall hear and determine the question of its admissibility out of the presence of the jury. In such a hearing the rules of evidence shall apply and the burden of persuasion as to the admissibility of the statement is on the prosecution. If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible. If the judge subsequently determines from all of the evidence that the statement is not admissible, the judge shall take the appropriate action.

*631 police officer’s initial inquiry of “what’s going on,” defendant said “I didn’t do nothing wrongf,]” and when, in response to the police officer’s question during the protective search as to what the bulge in defendant’s right ankle was, defendant said it was a bag of cocaine. The trial court then clarified that those statements would not “be the subject of a [Rule 104(c) ] hearing [as] a matter of defense strategy.” To this, defense counsel responded: “Correct.”

In light of these facts, defendant was not deprived of the level of competent counsel that is constitutionally required. As explained above, supra, 190 N.J. at 607-15, 921 A.2d at 1083-87 (2007), defendant’s first detention was solely an investigative stop coupled with a protective search or, in other words, a garden-variety Terry “stop-and-frisk.” Indeed, “a bulge alone has been held sufficient to validate a protective pat-down.” State v. Smith, 134 N.J. 599, 621 , 637 A.2d 158 (1994) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111-12 , 98 S.Ct. 330, 334 , 54 L.Ed.2d 331, 337-38 (1977), and State v. Wanczyk, 201 N.J.Super. 258, 264 , 493 A.2d 6 (App.Div. 1985)). Moreover, “ ‘[m]. because a trial strategy fails does not mean that counsel was ineffective.’ ” State v. DiFrisco, 174 N.J. 195, 220 , 804 A.2d 507 (2002) (quoting State v. Bey (V), 161 N.J. 233, 251 , 736 A.2d 469 (1999)). See also State v. Davis, 116 N.J. 341, 357, 561 A.2d 1082 (1989) (holding that “[i]n assessing the adequacy of counsel’s performance, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable” (citation and internal quotation marks omitted)).

When gauged against these standards, defendant’s ineffective assistance of counsel claim fails. As a seizure made as a consequence of a valid Terry “stop-and-frisk,” the cocaine seized from defendant’s right ankle was clearly and unmistakably admissible. Defense counsel’s performance was not deficient and instead was the product of legitimate defense strategy. In the end, defendant was not prejudiced by the failure of defense counsel to prosecute what would have been a failed motion to suppress, and any motion *632 to suppress the cocaine was clearly lacking in merit and was doomed from the outset.

Finally, in the context of the merits of defendant’s ineffective assistance of counsel claim, the State also argues that the seizure of the cocaine from defendant’s right ankle was proper as a search incident to a lawful arrest, a proposition the Appellate Division rejected. I agree with the State and conclude that the search of defendant’s ankle also was justified as a search incident to a lawful arrest.

Based on Chimel v. California, supra, 395 U.S. at 763 , 89 S.Ct. at 2040 , 23 L.Ed.2d at 694 , and its progeny, “[wjhen a valid arrest based on probable cause has been made, a police officer is entitled to search the arrestee’s person in order to protect himself and to insure that evidence is not destroyed.” State v. Sims, 75 N.J. 337, 352 , 382 A.2d 638 (1978). See also State v. Gray, 59 N.J. 563, 569 , 285 A.2d 1 (1971) (“It is well settled that pursuant to a valid arrest a police officer may search a defendant and the area within his reach to protect himself from attack, to prevent escape or to prevent destruction of the evidence or fruits of a crime.”). Moreover, the fact of an arrest need not precede the search in order for that search to be lawfully incident to an arrest. Instead, “[t]he right to arrest must pre-exist the search [and that ojfficers cannot search in order to arrest, nor arrest because of the product of the search.” State v. Doyle, 42 N.J. 334, 342 , 200 A.2d 606 (1964) (emphasis supplied). In other words, “[a] search undertaken merely for the purpose of uncovering evidence with which to arrest and convict of crime is not made lawful because the desired evidence is obtained.” Ibid.

This is not to say that where an arrest is valid independently of, and is not made to depend on, the search or its result, evidence produced by a search will be suppressed simply because in precise point of time the arrest does not precede the search. It is sufficient if the valid arrest and search are reasonably contemporaneous, that is, they occur as parts of a single transaction, as connected units of an integrated incident. In such a setting a search should not be condemned as constitutionally unreasonable.

[Id. at 343, 200 A.2d 606 .]

*633 The operative events in this ease were clear: two police officers observed defendant engaging in what appeared to be two separate hand-to-hand drug transactions. Those observations caused the officers to approach defendant, and led one of the officers to remark on the bulge located on defendant’s right ankle. Once defendant identified the bulge on his right ankle as a bag of cocaine and the bag was retrieved by the police officer, defendant “was immediately handcuffed and placed into custody.”

Because “[t]he probable-cause requirement is the constitutionally-prescribed standard for distinguishing unreasonable searches from those that can be tolerated in a free society!,]” State v. Novembrino, 105 N.J. 95, 106 , 519 A.2d 820 (1987), the inquiry into determining whether the search of defendant was made incident to a lawful arrest is limited: “we need decide only whether the facts found by the trial court provided probable cause to arrest defendant!.]” State v. Moore, 181 N.J. 40, 45 , 853 A.2d 903 (2004). The following principles guide whether the facts provided probable cause:

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. The standard defies scientific precision. We have explained, however, that it requires nothing more than a practical, common-sense decision whether, given all the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place.

[State v. Nishina, 175 N.J. 502, 515 , 816 A.2d 153 (2003) (citations, internal quotation marks, and editing marks omitted).]

It is beyond question that Cantalupo and Bullock observed defendant engage in two separate and independent hand-to-hand drug transactions on an open sidewalk; that once the police officers approached defendant, his customer fled behind a locked metal door and defendant attempted to disguise his behavior by faking a non-existent telephone call; that when the officers simply asked him “what’s going on,” defendant’s immediate reply was “I didn’t do nothing wrong;” and that when asked about the bulge in the sock on his right ankle, defendant volunteered that it was a “bag of cocaine.”

*634 The aggregate of those facts clearly and unequivocally establish that the police officers had more than sufficient probable cause to arrest defendant before they actually searched his anide and seized the cocaine hidden there. It is also beyond peradventure that the search and defendant’s arrest, although occurring in that chronological order, were contemporaneous. Because the linchpin for a valid search incident to a lawful arrest is the presence of probable cause, and because there clearly was probable cause for defendant’s arrest before the officers seized the cocaine on defendant’s ankle, the search of defendant also was justified as a valid search incident to a lawful arrest.

C.

Precious few rights are more deserving of constitutional dignity than a criminal defendant’s right to counsel: that right is recognized explicitly in both the Sixth Amendment to the Constitution of the United States and Article I, paragraph 10 of the New Jersey Constitution. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall ... have the assistance of counsel for his defence.”); N.J. Const, art. I. ¶ 10 (“In all criminal prosecutions the accused shall ... have the assistance of counsel in his defense.”). For that reason, a claim that a criminal defendant’s rights were burdened by ineffective counsel is entitled to and does receive careful judicial scrutiny.

It has been a consistent feature of our law that “[ijneffectiveassistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.” State v. Preciose, 129 N.J. 451, 460 , 609 A.2d 1280 (1992). This is so because ineffective assistance of counsel claims “involve allegations and evidence that lie outside the trial record.” State v. Castagna, 187 N.J. 293, 313 , 901 A.2d 363 (2006). However, that rule is not absolute: “when the trial itself provides an adequately developed record upon which to evaluate defendant’s claims, appellate courts may consider the issue on direct appeal.” Ibid, (citing State v. Allah, 170 N.J. 269, 285 , 787 A.2d *635 887 (2002)). See also State v. Murray, 162 N.J. 240, 247-48 , 744 A.2d 131 (2000) (explaining that bar to ineffective assistance of counsel claims on direct appeal is based on recognition that such claims “often cannot reasonably be raised in a prior proceeding” (quoting Preciose, supra, 129 N.J. at 460 , 609 A.2d 1280 )).

This trial record discloses that defense counsel made but later withdrew defendant’s suppression motion, the latter action having been done with defendant’s concurrence in writing. Defense counsel explained that the withdrawal of the suppression motion was made as a matter of “trial tactics” and “defense strategy.” For those reasons, I concur substantively with the majority’s conclusion that because “there is no merit to defendant’s Fourth Amendment claim[,]” and because “a motion to suppress the drugs found on defendant would have failed[,]” “it is not ineffective assistance of counsel for defense counsel not to file a meritless motion, or as in this case, to waive the hearing on the motion to suppress.” Ante , at 619, 921 A.2d at 1089. 3

III.

In sum, in respect of defendant’s motion to suppress the statement he made to the police that he had a bag of cocaine at his anide, I conclude that defendant’s statement made in response to police inquiries during a Terry stop was not the product of a custodial interrogation and, therefore, was not subject to suppression. Further, in respect of defendant’s motion to suppress the cocaine seized from him, I conclude as a threshold matter that if a timely motion to suppress evidence is not made by a defendant in accordance with the Rules of Court, the defendant is deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained. Because defendant first made and later withdrew his motion to *636 suppress the contraband seized from him, that issue was waived and is not available for appellate review. Furthermore, even if one considers defendant’s substantive arguments in respect of his belated application to suppress, I conclude that, in the circumstances presented, the contraband retrieved from defendant’s person was admissible as either the result of a valid “stop-and-frisk” or “protective search,” or as the product of a search incident to a lawful arrest. Finally, for all those reasons, I reject defendant’s ineffective assistance of counsel claims.

For reversal and reinstatement — Chief Justice ZAZZALI and Justices LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS — 7.

Opposed — None.

Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

However, for the reasons I have noted, I do not join in the majority’s conclusion that “we need not address defendant’s ineffective assistance of counsel argument or the State's claim that defendant is procedurally barred from raising his motion to suppress.” Ibid.