Opinion
DOCKET NO. A-6104-12T2
02-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD E. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-04-0578. Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Richard E. Brown appeals from the July 31, 2012 order denying his motion to suppress the illicit drugs found as a result of a search of his hotel apartment conducted pursuant to a warrant. He subsequently pled guilty to third-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)(3), and was sentenced to five years in prison with a two-year term of parole ineligibility. We affirm.
The search warrant was issued on the basis of an affidavit written by Detective Carlos Rodriguez of the Perth Amboy Police Department. In the affidavit, Rodriguez stated that he had extensive police experience with drug users and traffickers, which provided him with knowledge on "the methods and procedures by which controlled substances are packaged and sold."
Rodriguez stated that he was contacted by a reliable confidential informant (C.I.), "whose information has proven reliable in the past," having previously provided information about persons conducting narcotics activity that led to their arrests. The C.I. informed Rodriguez that "a black male, approximately 5'06", weighing approximately 180 pounds, with a bald head, and brown eyes, known to the C.I. as 'Ricardo,'" was selling cocaine from his hotel room. Rodriguez related:
The C.I. states that "Ricardo" is originally from Plainfield, N.J. The C.I. states that the room is located on the first floor and that access is gained through the rear first floor entrance. The C.I. states that after entering the rear first floor entrance door, the room belonging to "Ricardo" is the first door located immediately on the right side. The C.I. states that the C.I. would proceed to "Ricardo's" room and purchase Crack
Cocaine. The C.I. states that "Ricardo" utilizes a scanner in order to intercept police communications. The C.I. states that the current manager of the hotel is aware of "Ricardo's" actions and the C.I. believes that the manager has been paid off by "Ricardo". The C.I. states that "Ricardo" drives a silver Mercedes Benz. The C.I. states that "Ricardo" conducts bussiness [sic] from 300 PM until 0400 AM.Rodriguez was familiar with defendant as a person known as "Ricardo" through information received from Sergeant Carmelo Jimenez. Jimenez knew through his own informant that crack cocaine was being sold from the Perth Amboy address by an African-American male. Further, Jimenez had previously investigated a burglary at the hotel, and had spoken with defendant while he was at the address. Rodriguez stated that another detective had obtained a tenant list from the hotel as a result of a prior narcotics investigation, which noted that defendant and another individual occupied apartment 1A.
Rodriguez stated that he searched the New Jersey Department of Corrections inmate database, and printed a photograph of defendant. Rodriguez showed the photograph to the C.I. and Jimenez, who both positively identified defendant. Rodriguez also stated that he conducted surveillance near the hotel, and observed defendant enter a silver Mercedes Benz, which Rodriguez later discovered was registered to defendant's roommate.
Rodriguez also described several controlled narcotic purchases conducted using the C.I. The C.I. contacted defendant on his cell phone in Rodriguez's presence to set up the purchase. After the C.I. was searched to ensure that he had no money or contraband, the C.I. was provided with money for the purchase and, under constant surveillance, he entered the premises. The C.I. exited soon after, and met with Rodriguez, where he provided an amount of crack cocaine that, based upon Rodriguez's experience, was consistent with the currency provided to make the purchase.
Rodriguez stated that another similar purchase was orchestrated the following week. During both purchases, the C.I. indicated that defendant retrieved the contraband from the bathroom in the apartment. Rodriguez also described two other controlled purchases that were made a week later away from the hotel.
Rodriguez stated that he had checked defendant's criminal history, discovering that he had five felony convictions, several of which were narcotics related. Rodriguez went on to request a search of defendant, his hotel apartment 1A, and the silver Mercedes Benz.
Defendant raises the following issues on appeal:
POINT I: THE AFFIDAVIT DID NOT PROVIDE PROABLE CAUSE TO SEARCH THE DEFENDANT'S HOME
BECAUSE THE VERACITY AND BASIS OF KNOWLEDGE OF THE ANONYMOUS INFORMANT UPON WHICH THE AFFIDAVIT RELIED WAS NOT ESTABLISHED, THUS, THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS.
POINT II: THIS COURT SHOULD ADOPT THE PRINCIPLES OF STATE V. CASAL, 699 P. 2D 1234 (WASH. 1985), WHICH ALLOW FOR IN CAMERA HEARINGS THAT ALLOW DEFENDANTS TO CHALLENGE THE TRUTHFULNESS AND ACCURACY OF AFFIDAVITS THAT CONTAIN THE HEARSAY RECITATION OF INFORMATION SUPPOSEDLY PROVIDED BY A CONFIDENTIAL INFORMANT.
I
Defendant contends that the affidavit provided insufficient background information concerning the C.I.'s reliability, did not sufficiently support the C.I.'s basis of knowledge for the information conveyed, and did not contain sufficient corroborating support.
"[S]ubstantial deference must be paid by a reviewing court to the determination of the judge who has made a finding of probable cause to issue a search warrant." State v. Evers, 175 N.J. 355, 381 (2003). Thus, "the resolution of doubtful or marginal cases [concerning the validity of affidavits] should be largely determined by the preference to be accorded to warrants." State v. Perry, 59 N.J. 383, 394 (1971) (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 698 (1965)).
"It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). Further, "a defendant challenging the veracity of the allegations contained in an affidavit in support of a warrant bears the burden to 'make[] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit[.]'" State v. Robinson, 200 N.J. 1, 7 (2009) (alterations in original) (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978)). Pursuant to Franks, a hearing is required if the false statement is necessary to find probable cause. Ibid. However, "New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law" as stated in Franks. State v. Howery, 80 N.J. 563, 568 (1979), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).
"When determining whether probable cause exists, courts must consider the totality of the circumstances, and they must deal with probabilities." Jones, supra, 179 N.J. at 389 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). Importantly, "[i]nformation related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." Ibid. "When examining an informant's tip to determine whether it establishes probable cause to issue a search warrant, the issuing court must consider the 'veracity and basis of knowledge' of the informant as part of its 'totality' analysis." Ibid. (quoting State v. Novembrino, 105 N.J. 95, 123 (1987)).
In assessing the veracity of an informant, past performance is a relevant factor and the weight of that performance is measured on a case-by-case basis. State v. Smith, 155 N.J. 83, 93-94 (1998), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). Past instances of reliability are not determinative of an informant's reliability. Id. at 94.
As to the informant's basis of knowledge, a court should assess if "the information was obtained in a reliable way." Ibid. "The 'basis of knowledge' can be disclosed by the informant if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Ibid. (citing Novembrino, supra, 105 N.J. at 113).
In assessing whether probable cause is demonstrated, the court's essential function is to make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 93 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). Thus, even "if the informant's tip fails to demonstrate sufficient veracity or basis of knowledge, a search warrant issued on the basis of the tip may still pass muster if other facts included in a supporting affidavit justify a finding of probable cause." Jones, supra, 179 N.J. at 390.
Statements provided by informants that form the basis of an affidavit are considered to be hearsay. State v. Keyes, 184 N.J. 541, 556 (2005). As such, police corroboration is required to verify the reliability and accuracy of the informant's information. Ibid. The amount of corroboration necessary is evaluated on a case-by-case basis, and a warrant may still be issued based upon sufficient independent facts included in the affidavit. Ibid. "[R]elevant corroborating facts may include a controlled drug buy performed on the basis of the tip, positive test results of the drugs obtained, records confirming the informant's description of the target location, the suspect's criminal history, and the experience of the officer who submitted the supporting affidavit." Ibid. Although no specific corroborating fact is determinative, a controlled buy is strong evidence to establish probable cause and, in some circumstances, may significantly lessen the amount of additional proof required. Id. at 556-57; see Jones, supra, 179 N.J. at 392 (finding that "even one additional circumstance might suffice, in the totality of the circumstances, to demonstrate probable cause when the police successfully have performed a controlled drug buy").
Defendant argues that the affidavit is insufficient because it fails to state the precise number of occasions in which the information provided by the C.I. resulted in a conviction or whether the C.I. had a criminal record or pending charges. Defendant also argues that the affidavit fails to specify the precise manner in which the C.I. had obtained the information that formed the basis of his or her knowledge. Lastly, defendant argues that the information offered by the C.I. was insufficiently corroborated by Rodriguez.
Evidence of past reliability, contained in general terms in this affidavit, is a practical way to establish the veracity of the informant. State v. Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974). Any deficiency in the specificity of this information is merely considered as part of the totality of the circumstances. See Jones, supra, 179 N.J. at 390.
The affidavit indicates that the C.I. provided a detailed description of the appearance of defendant and also knew that defendant had originally lived in Plainfield. The C.I. described the specific process of purchasing narcotics from defendant. Further, the C.I. provided defendant's cell phone number, had knowledge of the vehicle he drove, and provided defendant's "business hours." Lastly, the C.I. identified defendant as the person he or she had previously described using a photograph from the Department of Corrections (DOC) database.
Defendant's argument also fails based upon the significant corroboration offered in the affidavit, including the four controlled purchases. See Jones, supra, 179 N.J. at 389-90. The identity of defendant was procured and confirmed from multiple sources, including not only the C.I., but a separate investigation by Jimenez, who had a previous encounter with defendant. Jimenez also confirmed defendant's identity using the DOC photograph.
The judge had more than enough evidence to conclude that "there is a fair probability that contraband or evidence of a crime [would] be found" in hotel apartment 1A. Smith, supra, at 94. Given the substantial deference we accord to the determination of the judge and the strength of the supporting affidavit, we see no reason to second guess the judge's decision.
II
Defendant argues in his second point that, because his motion involved allegations of incorrect statements in the affidavit, he should have been provided an in camera hearing. Our Supreme Court recognized that, following the United States Supreme Court's ruling in Franks, supra, 438 U.S. at 154, 98 S. Ct. at 2674, 57 L. Ed. 2d at 667, "as a matter of federal constitutional law[,] . . . where a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he [or she] must be afforded an opportunity to inquire further into the veracity of the affidavit." Howery, supra, 80 N.J. at 566. Our Supreme Court explained:
The limitations imposed by Franks are not insignificant. First, the defendant must make a "substantial preliminary showing" of falsity in the warrant. In keeping with the purpose of the exclusionary rule as a deterrent to egregious police conduct, the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. He must allege "deliberate falsehood or reckless disregard for the
truth," pointing out with specificity the portions of the warrant that are claimed to be untrue. These allegations should be supported by an offer of proof including reliable statements by witnesses, and they must be proved by a preponderance of the evidence. Finally, the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause.
[Id. at 567-68 (internal citations omitted).]
Defendant urges us to adopt the holding set forth in State v. Casal, 699 P.2d 1234 (Wash. 1985). In Casal, the Supreme Court of Washington held that a trial court should exercise its discretion and require an in camera hearing "where the defendant's affidavit casts a reasonable doubt on the veracity of material representations made by the affiant." Casal, supra, 699 P.2d at 1239. Notably, the Court further held that "in any case where probable cause is established independently of the affiant's challenged statements, the rule in today's case will not be applicable." Ibid. (emphasis in original).
No affidavit from defendant was provided, nor did defendant explicitly request an in camera hearing. --------
This case is distinguishable from Casal because here the statements of the C.I. did not form the sole basis for issuance of the warrant. The search warrant affidavit described four separate controlled drug purchases that provided an independent basis for probable cause. Thus, even if we were to adopt the rule from Casal, defendant would not benefit from its protection.
In defendant's motion to suppress, he also argued that the information stating that defendant lived at the address in the hotel, the fact that defendant owned a Mercedes Benz, and the assertion that defendant owned a gun were false. In fact, the C.I. did not state that defendant owned the Mercedes Benz, but rather that defendant drove the car. An independent source provided information that defendant was living at the address in the hotel. Although defendant did not have a gun when arrested, that fact hardly proves that he did not own a gun. Defendant failed to make a substantial preliminary showing that the informant's statements in the affidavit were false and thus no hearing was required on that basis.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION