Opinion
DOCKET NO. A-1113-14T3
04-10-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ADOLFO BELTETON-CASTANEDA, Defendant-Respondent.
Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-05-00439. Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the brief). PER CURIAM
By leave granted, the State appeals from a September 18, 2014 Law Division order suppressing evidence seized by police after a wiretap investigation led to the warrantless entry of an apartment on suspicion of drug activity. We affirm.
I.
The Union County Grand Jury returned Indictment 13-05-00439, which charged defendant Adolfo Belteton-Castaneda and co-defendant Jose Rodriguez with second-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), and 2C:35-5(b)(2) (count one); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count two); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count three); and third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four).
Defendant pled not guilty and filed a motion to suppress evidence. Following an evidentiary hearing held on July 24, 2014, Judge Stuart Peim granted the motion to suppress evidence by order and a written opinion dated September 18, 2014. The State argues that exigent circumstances existed that justified the police officers' warrantless entry into the apartment. We consider this argument in light of the facts in the record and the applicable law.
II.
Detective Gary Webb of the Union County Prosecutor's Office (UCPO) was the sole witness to testify at the evidentiary hearing held on defendant's motion to suppress. Webb testified that he was presently assigned to the UCPO's Guns, Gangs, Drugs, and Violent Crimes Task Force, and had previously participated in at least five-hundred narcotics investigations and arrests.
In fall 2012, Webb commenced a wiretap investigation in which he served as the affiant on some fifteen to twenty wiretap applications to the designated wiretap judge. It was Webb's practice to incorporate information set forth in earlier applications into each subsequent application.
The investigation came to involve Sharbell Azouki and Jose Lopez. On October 24, 2012, the police observed Azouki meeting with Lopez and Rodriguez. The police also intercepted a conversation between Lopez and Azouki in coded language in which they discussed that Lopez had poor quality heroin that should be mixed with better quality heroin prior to its sale. Shortly after the meeting, Azouki was arrested and the investigation continued to focus on Lopez. During the second week of November, Webb presented wiretap applications for Lopez's two telephones, as well as the telephone of another individual whose identity was not yet known.
On November 11, 2012, the police intercepted a conversation between Lopez and Rodriguez about "fixing" the bad quality heroin. The next day, there was a follow-up conversation in which Rodriguez told Lopez to come to his house. The police then conducted surveillance and followed Lopez from his house in Elizabeth to Webster Street in Newark, where Rodriguez was known to reside. However, the police could not follow Lopez onto Webster Street because "[i]t was a real, real busy block, there was no parking, and there was a lot of foot traffic." The police observed Lopez enter a row house, but were unable to identify exactly which door he entered. Webb then successfully applied for permission to install a pole camera, which afforded police "remote access to that camera . . . so we can conduct surveillance of blocks that we normally cannot surveillance in person . . . or sitting in a car, things like that, so we can watch it from a distance." The pole camera was installed on November 15, 2012.
Webb testified that the area of Webster Street at issue is not conducive to police surveillance because it had "a lot of . . . flat houses where . . . the front of the house is flat and close to the street." Additionally, because it is a Hispanic area where everyone knows one another, a stranger would stand out immediately, making it likely that police would be quickly noticed.
On November 16, 2012, Webb filed another wiretap application for the phone of an individual later determined to be Rodriguez. On November 17, the police intercepted a call between Lopez and Rodriguez in which they discussed bringing the "stuff" to Rodriguez's apartment. At about 12:19 p.m., Lopez was observed leaving his Elizabeth home and arriving at Webster Street in Newark around 2:13 p.m. Lopez entered a home on Webster Street (the Webster Street home), which he left at about 3:00 p.m. Acting on instructions from Webb, Lopez's vehicle was then stopped by Newark police officers, with the assistance of an FBI agent and a Prosecutor's Office detective, a few blocks from Webster Street.
Webb, who was in the wire room in Union, drove to the scene, which took forty minutes due to damage from Hurricane Sandy. When he arrived in Newark between 3:40 p.m. and 3:45 p.m., Lopez's car was being searched after Lopez gave consent. Lopez initially denied that he was at the Webster Street home, but eventually admitted to Webb that he had brought heroin to a friend whose name he did not know, who lived on the second floor of the home. Lopez also told Webb that his friend might be leaving his home to get more heroin at 7:00 p.m. At about 4:30 p.m., Webb's conversation with Lopez ended.
In addition to the UCPO, the investigation included agents from the Drug Enforcement Administration (DEA), and the Hudson County, Bergen County, and Middlesex County Prosecutor's Offices. At about 5:10 p.m., the multiple agencies decided that they would have officers secure the Webster Street home, and Webb would then apply for a warrant to search it. According to Webb, the agents were concerned that if Rodriguez left with the drugs, they would miss him and therefore, they planned to secure the home prior to obtaining a search warrant.
Additional personnel were assembled about twenty minutes later, and at 5:30 p.m., between ten and twelve officers approached the Webster Street home wearing police vests. Webb testified that they "want[ed] them to see that it's police" so they would not think the officers were burglars. Although they did not want to be seen as they were approaching, they "want[ed] to announce [their] presence" when they arrived. Newark police officers blocked off the street with their vehicles, and the group of officers then approached the home in a line. The first officer knocked on the door, and a woman looked out the first floor window. Upon seeing the police, she yelled up to the second floor. Webb then observed "a Hispanic male that matched the description that Mr. Lopez had given me earlier . . . look out the second-floor window, kind of had a startled look, and then appeared to run back into the apartment."
The officers forced the front door open with a battering ram and climbed the stairs. They then also forced open the door to the second-floor apartment due to their belief that people were fleeing the apartment. Webb observed heroin processing equipment on the kitchen table and floor, and that the back door was open and the window broken. The officers proceeded through the apartment to the backyard, where they found and detained defendant. Webb brought defendant back up to the apartment, where he seized a passport and $600 during a search of defendant's person. The officers ensured that no one else was inside the apartment, secured it, and did not perform any further search at that time.
At around 6:00 p.m., Webb left to return to his office to prepare the search warrant application, arriving there at about 6:30 p.m. He testified that it took him approximately forty-five minutes to prepare the application because he had to decide which prior wiretap affidavits to reference. At 7:16 p.m., Webb presented an oral application for a search warrant to the wiretap judge, which incorporated the previous applications. The judge authorized the warrant within ten minutes. The police then searched the apartment and found Rodriguez's cellphone, Rodriguez's paperwork, a laptop, and a video camera hard drive.
Webb testified that "[w]e don't do telephonic search warrants" and that "in Union County it's not a practice that we follow here." Webb also testified that he did not know when the judge was called, and believed the application had to be submitted specifically to the wiretap judge because of Webb's reference to prior applications. He further testified that he did not know if the judge was readily available or if the assistant prosecutor chose a specific time to apply for the warrant.
Judge Peim issued an eleven-page written decision concluding that the State failed to demonstrate that exigent circumstances justified the officers' warrantless entry into the Webster Street home, and that any exigent circumstances were self-created. The court determined that the police had the opportunity to obtain a telephonic search warrant, but made no effort to do so. Specifically, the judge reasoned:
During his testimony, Detective Webb did not provide any information regarding attempts to secure a telephonic warrant between the completion of the Lopez interview at 4:30 p.m. and the warrantless entry after 5:30 p.m., nor did he provide reasons for the failure to do so. . . . There is no reason offered why a search warrant could not have been obtained by [5:30 p.m.]. It appears no thought was given to getting a search warrant before the entry. The facts supporting the probable cause were simple and straight forward. The testimony took [ten] minutes. All the probable cause presented to the judge was known to the police no later than 4:30 p.m. There is nothing in the record that indicates a judge would not have been available telephonically to issue a warrant. I conclude from the testimony that a telephonic search warrant could have and should have been obtained prior to 5:30 p.m., there was no information that the evidence was to be moved or destroyed, to the contrary Rodriguez was not going to leave the apartment until 7:00 p.m., there was no danger to police officers or the public, there was no information that the suspects were aware of a police presence
until 5:30 p.m., and there was no information that the suspects were armed.
Like De La Paz, the officers here created the purported exigency when they attempted to secure the Webster Street apartment despite having sufficient probable cause and time to secure a warrant. Upon approaching [the Webster Street home] in force, it became apparent that the suspects were alerted and attempting to flee, and the officers proceeded to make their warrantless entry. In De La Paz, the amount of time between the officer's appearance on the scene and the self-created exigency was only twenty minutes. The court there did not find exigency to support the warrantless entry. De La Paz, [supra,] 337 N.J. Super. at 197. Here, probable cause was established by 4:30 p.m. at the latest upon completion of Lopez's interview. At least one hour elapsed between that time and the warrantless entry with no attempts to secure a telephonic warrant.
State v. De La Paz, 337 N.J. Super. 181, 196-97 (App. Div.), certif. denied, 168 N.J. 295 (2001) (suggesting that police should have obtained telephonic warrant before entering defendant's home "as there was no obvious urgency requiring their immediate response at the scene").
In a footnote, the judge added that his "review of the probable cause transcript makes clear that it was not necessary for the wiretap judge to hear the search warrant application" because "the evidence supporting the probable cause was simple, straight forward and contained in the testimony."
III.
Before us, the State reiterates the arguments made before Judge Peim. It contends that once the suspect was alerted to the police presence, exigent circumstances justified the warrantless entry into the home to prevent escape and the destruction of evidence. Additionally, the State contends that the court imposed an improper burden by requiring the police to seek a telephonic warrant. We reject these arguments as without merit, Rule 2:11-3(e)(2), and affirm substantially for the reasons expressed in Judge Peim's thoughtful written opinion. We add the following comments.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (citation and internal quotation marks omitted). We do not, however, defer to a trial judge's interpretation of the law, and review legal issues de novo. See State v. Gandhi, 201 N.J. 161, 176 (2010).
"The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee '[t]he right of the people to be secure . . . against unreasonable searches and seizures[.]'" State v. Shaw, 213 N.J. 398, 409 (2012) (alterations in original) (quoting U.S. Const. amend. IV and N.J. Const. art. I, ¶ 7). A warrantless search is presumptively invalid unless the State establishes that the search was justified by a recognized exception to the warrant requirement. State v. Frankel, 179 N.J. 586, 598, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004), abrogated in part by State v. Edmonds, 211 N.J. 117 (2012).
The exigent circumstances exception to the warrant requirement applies when the situation "preclude[s] expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974). For the exception to apply, there must be a "compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949-50, 56 L. Ed. 2d 486, 498 (1978).
Search warrants may issue telephonically "if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown." R. 3:5-3(b). Generally,
[w]hen the circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either
impossible or impracticable, but not so exigent that there is insufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search or seizure.
[State v. Johnson, 193 N.J. 528, 556 (2008); see State v. Pena-Flores, 198 N.J. 6, 33 (2009).]
While the State need not establish "that it would have been impossible for any [police officer] to have had the time to call for a search warrant telephonically," the "'traditional totality of the circumstances analysis'" takes into account the ability of police officers to secure a warrant and the amount of time to obtain a warrant. State v. Jones, 437 N.J. Super. 68, 74, 80 (App. Div. 2014) (quoting Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696, 710 (2013)).
In Pena-Flores, the Court declared that "we will amend R[ule] 3:5-3(b) to clarify the parity between the various methods for obtaining a warrant and to underscore that an officer may resort to electronic or telephonic means without the need to prove exigency." Pena-Flores, supra, 198 N.J. at 35. More recently, subsequent to the search at issue here, Chief Justice Rabner issued an order with an effective date of December 1, 2013, addressing the United States Supreme Court's holding in McNeely. Among other things, the attached Notice to the Bar stated that "[i]n accordance with the Supreme Court's holding in State v. Pena-Flores, 198 N.J. 6 (2009), the attached Order also removes the requirement in [Rule] 3:5-3(b) that exigent circumstances must exist in order to issue search warrants by telephone, radio or other means of electronic communication."
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In the present case the facts are undisputed. The question for analysis is whether these facts establish "exigent circumstances" to support the warrantless entry into the home. See State v. Cooke, 163 N.J. 657, 676 (2000); State v. Deluca, 168 N.J. 626, 632 (2001). We conclude that the State's argument is not supported by the facts developed at the suppression hearing. Based on the trial court's findings of fact, no exigency existed. Moreover, there is no indication in the record that the officers lacked sufficient time to obtain a telephonic warrant pursuant to Rule 3:5-3(b). The trial court's findings are supported by ample credible evidence in the record and therefore, we will not disturb them.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION