Opinion
DOCKET NO. A-4919-10T1
03-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN K. MCKENNEY a/k/a STEVE S. MCKINNEY, STEVE MCKENNY, STEVEN MCKINNEY, STEVEN GRAM, STEVEN MCKENNEY, STEVEN W. MCKENNEY, STEVEN MCKINEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-12-3061.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Steven K. McKenney, along with his co-defendant Danielle Y. McKenny, was charged in a nine-count Atlantic County Grand Jury indictment with drug and weapons offenses. Co-defendants moved to suppress the evidence seized by police after obtaining a no-knock warrant. The motion was denied following a hearing. Thereafter, defendant entered a negotiated agreement pleading guilty to count nine of the indictment, which charged second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. The judge imposed a seven-year custodial sentence, subject to a five-year period of parole ineligibility, along with applicable fines and penalties.
During the plea hearing, defendant also entered a guilty plea to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), which had been separately charged in Atlantic County Indictment No. 09-10-2375.
On appeal defendant argues:
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BECAUSE THE REQUEST FOR THE "NO-KNOCK" WARRANT IN THE AFFIDAVIT DID NOT PROVIDE REASONABLE SUSPICION OR PROBABLE CAUSE TO BELIEVE THAT DEFENDANT ACTUALLY RESIDED IN THE RESIDENCE TO BE SEARCHED.In a subsequent pro se submission, defendant also asserts:
THE PROSECUTOR CANNOT MAKE THREATS TO DEFENSE COUNSEL AND OR THE DEFENDANT THAT IF COUNSEL FILES ANY MOTIONS AND OR MOVING PAPERS THAT HE WILL ESCALATE THE PLEA OFFER.
Based on our review of these arguments in light of the record and applicable law, we conclude no error was committed. We affirm.
We summarize the facts presented during the suppression hearing, which are not disputed. It is important to note, all parties agreed no testimony would be presented as they stipulated to the facts set forth in the affidavit of Egg Harbor City Police Detective Steven W. Hadley, filed to obtain a no-knock search warrant.
Detective Hadley, a six-year police veteran with extensive training and experience in narcotics investigations, supported the warrant application with a detailed six-page affidavit, outlining the narcotics investigation and the facts supporting the warrant request. Detective Hadley had received information from a confidential informant (CI), who stated an African American male, whom he identified as defendant, sold heroin from his residence. Detective Hadley commenced surveillance of the identified residence on unspecified days during the week of September 13, 2009.
Detective Hadley averred he observed numerous vehicles arrive at the apartment, watched the driver exit the vehicle and walk to the door, which was answered by defendant. Detective Hadley saw an exchange occur during the brief encounter between defendant and the driver, after which the driver would immediately leave the area. Based on his investigation, enhanced by his experience, Detective Hadley believed he had witnessed the hand-to-hand sale of illicit narcotics.
The police arranged for the CI to participate in two "controlled buys" from defendant. On two unspecified days during the weeks of September 13, and 20, 2009, Detective Hadley, while maintaining constant surveillance, observed the CI arrive at the apartment, saw defendant answer the door, and then witnessed defendant make an exchange with the CI, transferring an object for cash. The CI then met Detective Hadley at a predetermined location and turned over the substance purchased during the exchange, which tested positive for heroin in a field test.
Based on these observations, as well as his training and education, Detective Hadley had reason to believe proscribed CDS, drug paraphernalia, and documents pertaining to possession and distribution of CDS was contained in the identified location. He sought a no-knock warrant, stressing concerns for the safety of the officers and bystanders based on co-defendants' lengthy criminal histories, which included assaults, and, in the case of defendant, weapons offenses. Further, he sought to prevent the destruction of evidence. The warrant was issued.
Early on October 10, 2009, police executed the warrant. Upon entering the residence, the police encountered defendant asleep in the living room, co-defendant asleep in a bedroom, and three minor children present in the home. The search recovered a .25 caliber semi-automatic handgun, 455 bags of heroin, $89, and drug paraphernalia containing white residue. Co-defendants were arrested and charged.
We recognize the scope of our review is limited. State v. Robinson, 200 N.J. 1, 15 (2009). "'On appeal we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" Ibid. (quoting State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999)).
On appeal, defendant attacks the trial judge's finding of probable cause supporting the warrant.
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. In considering such a challenge, we accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.Any doubt as to the adequacy of the facts offered to show probable cause should be resolved by sustaining the search. Ibid.
[State v. Jones, 179 N.J. 377, 388-89 (2004) (internal quotation marks and citations omitted).]
Probable cause must be shown to justify the issuance of a warrant. State v. Chippero, 201 N.J. 14, 28 (2009). "'Its function is to guarantee a substantial probability that the invasions involved in the search will be justified by discovery of offending items.'" Ibid. (quoting 2 Wayne R. LaFave, Search & Seizure § 3.1(b) (4th ed. 2004) (citations omitted)). The central component of probable cause "'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Nishina, 175 N.J. 502, 515 (2003) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001) (internal quotation marks and citations omitted)). Thus, to secure a warrant enabling law enforcement to search property, the police must show "reason to believe, to a reasonable probability, that the fruits, instrumentalities, or other evidence of a crime" may likely be found at the designated location. Chippero, supra, 201 N.J. at 29 n.6 (quoting United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993) (citations omitted)). "When determining whether probable cause exists, courts consider the totality of the circumstances, and 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)).
"Information related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." Ibid. (citation omitted). "'Independent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip' and is considered 'an essential part of the determination of probable cause.'" Id. at 390 (quoting State v. Smith, 155 N.J. 83, 95 (1998)). Corroborating factors "may include controlled drug purchases performed on the basis of the informant's tip, [and] positive test results of narcotics obtained during a controlled purchase[.]" Ibid. (citation omitted).
In this matter, defendant first suggests the alleged CDS sales took place outside the apartment; therefore, no proof supported the claim defendant resided in the residence authorized to be searched. He insists "there was no solid proof that defendant stayed in the apartment to such an extent that he would be found there when the police executed the warrant."
An examination of the affidavit filed in support of the warrant reveals several facts supporting a reasonable suspicion defendant resided in the subject apartment. The CI informed Detective Hadley the subject premises was defendant's residence. Also, Detective Hadley independently confirmed this claim by his own surveillance observations prior to commencing controlled buys. He also checked the lease, which was executed by co-defendant. When describing his observations of the CI's controlled buys, Detective Hadley averred he saw defendant exit from the identified apartment and then conduct the transaction. Therefore, prior to every observed hand-to-hand CDS sale, Detective Hadley saw defendant exit the first-floor apartment to meet the buyer at the door or immediately outside the door of the first-floor apartment.
We easily conclude, as did the trial judge, the affidavit contained facts confirming the CI's tip regarding defendant's residence. See Jones, 179 N.J. at 393-94 (requiring police corroboration of informant's tip regarding whether a suspect lived or was otherwise connected to a residence). Detective Hadley's independent observations and investigation supported the CI's claim that defendant lived at the identified location. Therefore, we find no ambiguity surrounding the judge's finding that the location set forth in the warrant was defendant's residence and the place where he kept his heroin, notwithstanding that his name is not on the lease.
We turn to defendant's claim Detective Hadley's affidavit failed to support the no-knock request, stating the request was grounded on mere conclusory statements of safety and destruction of evidence. We find this argument unavailing.
Typically, when police seek to search a dwelling, they are required to "knock and announce" their presence. State v. Johnson, 168 N.J. 608, 615 (2001). "[A] forcible entry to arrest or search 'where the officer failed first to state his [or her] authority and purpose for demanding admission'" is generally unlawful. Robinson, supra, 200 N.J. at 13-14 (quoting Miller v. United States, 357 U.S. 301, 308, 78 S. Ct. 1190, 1195, 2 L. Ed. 2d 1332, 1337 (1958)).
To justify and secure a no-knock warrant "authoriz[ing] police officers to enter a home . . . without first knocking and announcing their presence[,]" Johnson, supra, 168 N.J. at 611, the police must present specific facts that demonstrate "'a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence.'" Jones, supra, 179 N.J. at 397 (quoting Johnson, supra, 168 N.J. at 619). Further, the reasons for that suspicion must be articulated. Ibid. (citing Johnson, supra, 168 N.J. at 619). In doing so, the officer's assessment of the totality of the circumstances "may be based on his or her experience and knowledge," however, "the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch." Ibid. (internal quotation marks and citations omitted). This determination is fact-sensitive. Johnson, supra, 168 N.J. at 624 (citations omitted).
Here, there are several facts supporting the no-knock request. First, Detective Hadley's description of the location, as one apartment in a multi-unit dwelling with more than one means of egress, supported his assertion bystanders were at risk and evidence could be destroyed. Second, defendant's criminal history exhibited past violence against police and others. Specifically, among defendant's twenty adult convictions were four violent crimes -- including aggravated assault, resisting arrest, and robbery by injury -- along with many weapons offenses for illegal possession of explosives, firearms, and hollow point bullets.
Finally, we address the destructibility of evidence. The police identified the primary object of the search was CDS, which generally is susceptible to destruction or disposal. But see Johnson, supra, 168 N.J. at 620 (warning "a hypothetical possibility" the evidence could be destroyed alone cannot justify unannounced entry).
Considerations supporting a claim that evidence would be destroyed if police complied with the knock-and-announce requirement could include the size and layout of the premises, whether the suspect is expected to be home at the time the warrant is executed, and whether there may be other persons present who might destroy evidence or threaten the police. See State v. Bilancio, 318 N.J. Super. 408, 417 (App. Div.) (concluding warrant application's failure to include such facts failed to support the claim evidence would be destroyed), certif. denied, 160 N.J. 478 (1999).
The warrant reveals defendant and co-defendant resided at the premises, and both had prior criminal convictions specific to distribution of CDS and violence (co-defendant, too, had a prior conviction for aggravated assault). Further, both had been convicted of resisting arrest by eluding police, which increased the risk one or both might attempt to flee through the apartment's rear sliding glass doors if warned prior to police admittance.
Objectively, these facts, coupled with Detective Hadley's training and experience, the nature of co-defendants' prior criminal behavior, particularly "[p]ast evidence of violent criminal behavior, . . . directed towards law enforcement officers," not only provided facts supporting probable cause to obtain a search warrant, but also displayed heightened risk to citizens and police justifying the use of a no-knock warrant. Jones, supra, 179 N.J. at 402; State v. Fanelle, 385 N.J. Super. 518, 526 (App. Div. 2006). Accordingly, we find no basis to disturb the trial court's denial of defendant's motion to suppress.
In his separate pro se submission, defendant includes abstract arguments suggesting the voluntariness of a guilty plea should be supported by an inquiry of whether "your attorney or any other person threatened you in any way or insisted in any way that you plead guilty." He believes this would flush out "threats" by defense counsel to withdraw representation, or, what he labels prosecutorial "vindictiveness[,]" that is, a prosecutor who "may threaten the defendant with the prospect of a longer sentence if the defendant does not plead guilty." He concludes by suggesting counsel "made a minimum argument at best" and "did not argue much at [the s]uppression hearing" because the State advised it would "escalate the offer[] if we filed moving papers[.]" Defendant believes this warrants a remand for resentencing.
Defendant's request seems to challenge the voluntariness of his guilty plea or possibly argue ineffective assistance of counsel. In either event, we reject these arguments as unfounded. Defendant has not provided a factual basis to support setting aside his guilty plea as required by State v. Slater, 198 N.J. 145, 157-58 (2009) (outlining a four-pronged test to set aside a guilty plea), or to demonstrate counsel's representation was ineffective. See State v. Preciose, 129 N.J. 451, 463 (1992) (discussing a defendant's claim of ineffective assistance of counsel warranting a new trial or resentencing requires satisfaction of the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION