Opinion
DOCKET NO. A-1564-13T4
02-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANCISCO J. SANTIAGO, a/k/a CISCO SANTIAGO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-12-0871. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On December 13, 2012, a grand jury sitting in Union County returned a ten-count indictment charging defendant Francisco J. Santiago with drug and weapons offenses. After the denial of his motion to suppress, defendant pled guilty, pursuant to a negotiated plea agreement, to second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count ten), and third-degree possession of marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two). Defendant was sentenced in accordance with the plea agreement to consecutive terms of three years on count two and five years, with a three-year period of parole ineligibility, on count ten.
We glean the following facts from the hearing on the motion to suppress. On May 7, 2012, a man was admitted to Lehigh Valley Hospital-Muhlenberg in Bethlehem, Pennsylvania with a gunshot wound. The Easton Pennsylvania Police Department was notified and Detective Matthew Rush was dispatched to interview the victim. After initially claiming he was shot during a robbery in Easton, the victim admitted he was shot after he delivered a large amount of marijuana to an apartment building on Walnut Street in Elizabeth, New Jersey. The victim arranged the sale with three Hispanic males, one of whom drove a Mercedes Benz he described as "black-on-black." He entered the apartment building from a side entrance, walked down a flight of stairs, and entered an apartment on the lower floor. He encountered the three men he negotiated the sale with, along with one or two others. After handing over the marijuana, the victim demanded payment. One of the men told the victim to leave. When he refused to leave without getting paid, the man pulled out a handgun and shot the victim in the right thigh.
Detective Rush included this information in a report he forwarded to the Elizabeth Police Department (EPD). On May 9, 2012, EPD Detective James Diorio was assigned to the investigation. Diorio spent the next few weeks attempting to contact the victim, to no avail.
On June 26, 2012, Detective Diorio and EPD Detective Christopher Flatley drove to the Walnut Street apartment building. Diorio was familiar with the neighborhood as he had conducted several investigations in the same building before, including cases involving narcotics and violent crime. He described the building as a multi-family apartment building with eight to twelve units. When the officers walked to the rear of the building, they noticed a black Mercedes Benz with black rims, matching the description given by the victim, parked in the rear of the building. The location where the Mercedes was parked heightened Diorio's suspicions as it appeared "hidden" behind the building in a spot not visible from the street and away from the building's marked parking spaces in a spot where a car would not normally be parked.
The officers contacted the building superintendent who unlocked the outer doors allowing them access to the common hallway. When they questioned the super about the Mercedes, Detective Diorio observed that "his whole demeanor changed and he appeared like he didn't want to have [anything] to do with that car."
The officers began to knock on apartment doors to find out who drove the Mercedes. One tenant was able to associate the Mercedes with someone who regularly goes into apartment 1-C, in the rear of the building. After the tenant identified the apartment, the officers asked the super for access to a rear common hallway where apartment 1-C was located. After quickly unlocking the door to the hallway, the super ran away toward the front the building.
Upon entering the common hallway, Detective Diorio immediately smelled a strong odor of raw marijuana. There were stairs going up to a second floor and stairs descending to an area where two apartments were located. Recalling the victim's statement to Detective Rush, that after entering the building he went down a set of stairs, the officers descended the stairwell and immediately noticed the door to apartment 1-C.
Detective Diorio immediately detected a strong smell of marijuana coming from the apartment. Diorio quietly went back up the stairs and left the building to call for additional officers.
Once backup units were in place around the windows of the apartment, Detective Diorio went back down the stairs and knocked on the door to 1-C. Defendant came to the door and opened it. Diorio immediately spotted a black handgun on the back of a couch approximately five to seven feet behind defendant.
Detective Diorio rushed forward and forced defendant to the floor while yelling "gun" to the other officers. Those officers handcuffed defendant while Diorio secured the gun. Diorio then conducted a protective sweep of the apartment to see if there was anyone else there. He noticed a large open plastic container with numerous plastic bags of marijuana.
After defendant was arrested, Detective Diorio asked for permission to search the apartment. Defendant was "extremely cooperative" and told Diorio, "You got me. You can search all you want." Subsequently, defendant signed a consent to search form.
The police recovered twenty-three bags containing marijuana. The handgun was determined to be a .40 caliber Glock semi-automatic, loaded with one round in the chamber and fourteen rounds in the magazine. In addition, police recovered one empty magazine for a semi-automatic handgun, two .45 caliber Winchester broad hollow point bullets, one 9mm Luger bullet, and one 7.62 x 39mm Tulammo bullet. The officers also located a handwritten note pertaining to suspected drug sales, three digital scales, and $3,501.00 in cash.
A hearing on defendant's motion to suppress was held before Judge Robert J. Mega. Following testimony by Detective Diorio, Judge Mega entered an order denying the motion. The order was accompanied by a written decision.
On appeal, defendant challenges only the decision denying his motion to suppress:
POINT I
THE POLICE ACTED UNREASONABLY IN CONDUCTING A WARRANTLESS ENTRY INTO DEFENDANT'S HOME BECAUSE THEY HAD AMPLE OPPORTUNITY TO OBTAIN A WARRANT. ACCORDINGLY, THE HANDGUN, DRUGS, AND PARAPHERNALIA SHOULD BE SUPPRESSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST., ART. I, ¶ 7.
We affirm substantially on the basis of the thorough and thoughtful, fourteen-page decision by Judge Mega. We add only the following brief comments.
When reviewing a decision on a motion to suppress, we are obligated to uphold the factual findings underlying the motion judge's decision "so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). Here, the police investigated the shooting of a drug dealer who delivered a large quantity of marijuana to an apartment in Elizabeth. The dealer provided the address of the apartment building, but not the specific apartment. He also noted the drug purchasers drove a distinctive Mercedes Benz.
When the officers went to the address, they noticed a Mercedes fitting the description parked in the back of the building. When they canvassed the building, they learned the Mercedes was operated by someone who frequented apartment 1-C.
The building superintendent admitted the officers into the common hallway leading to apartment 1-C, where they perceived a strong odor of raw marijuana emanating from 1-C. When defendant opened the apartment door, Detective Diorio observed a handgun in plain view and easily accessible by defendant.
We find no transgression of defendant's constitutional rights and affirm for the reasons stated by Judge Mega.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION