Opinion
DOCKET NO. A-0288-14T2
02-09-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN K. BLUE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-09-0934. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Brian Blue appeals his conviction subsequent to a guilty plea for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). We affirm.
I.
We gather the following information from the record before us. In February 2012, a confidential informant (CI) told Mercer County Investigator Eric Rivera that defendant was selling phencyclidine (PCP) from his residence located on Greenwood Avenue in Hamilton. The CI described defendant as "a black male, approximately 35-40 years of age, approximately 5'10" to 5'11" in height and approximately 175 to 180 pounds in weight." The CI, who had previously provided information which led to several arrests for narcotics and weapons offenses, advised the investigator that defendant has prospective PCP buyers come to his residence and knock on the front door. After defendant answers, he has the buyer wait outside while he retrieves the PCP from a "stash house." Once defendant retrieves the PCP, defendant invites the buyer into his residence and completes the transaction.
According to the CI, in the past few months, he had purchased PCP from defendant on a few occasions through an acquaintance who was unaware that the CI was working with the police. The CI explained that he would initiate the drug transaction by calling the acquaintance, referred to as an unwitting confidential informant (UCI), and inform the UCI that he wanted to purchase PCP. The UCI and the CI would then drive to defendant's residence to conduct the transaction.
The informant's gender is not disclosed in the record. For convenience, we will use masculine pronouns when referring to the informant.
Investigator Rivera conducted a New Jersey motor vehicle license inquiry on defendant as well as other database checks, which confirmed that a Brian Blue resided at the address provided by the CI. A criminal history check revealed defendant had four indictable convictions that included weapons and drug offenses. After the CI positively identified defendant's photograph, law enforcement officers arranged for the CI to make a "controlled buy" of PCP from defendant at his residence on two separate occasions during the weeks of February 19 and March 1, 2012. Each purchase was carried out in an identical manner.
First, law enforcement officers set up surveillance of defendant's residence and vehicle, a 2000 silver Mercedes Benz. Investigator Rivera searched the CI and his vehicle, to ensure he did not possess any money or contraband, and then provided the CI with currency to complete the transaction. Investigator Rivera then instructed the CI to contact the UCI and inform him that he wished to purchase PCP from defendant. The CI called the UCI as instructed and Investigator Rivera overheard the conversation. Next, Investigator Rivera followed the CI to the location where the UCI instructed the CI to meet him. There, the UCI entered the CI's vehicle and they proceeded to defendant's residence while under constant surveillance.
Similar to the CI, the UCI's gender is not disclosed in the record. We will therefore use masculine pronouns when referring to the UCI for the sake of convenience.
Upon arriving at defendant's residence, the CI and the UCI exited the vehicle and knocked on the front door. Defendant exited the residence and engaged in a brief conversation with the CI, during which the CI handed defendant what appeared to be money. Defendant then left his residence and walked toward South Logan Avenue while the CI and UCI remained at his residence. Defendant entered the residence on South Logan Avenue (the stash house) with a key and, after about five minutes, returned to his residence.
The property on South Logan Avenue was located in Trenton.
Defendant, the CI and the UCI then entered defendant's residence and, after about two minutes, the CI and the UCI returned to the CI's vehicle. The CI dropped the UCI at their original meeting location and met with Investigator Rivera at a prearranged location. There, the CI turned over to Investigator Rivera a quantity of PCP he stated he had purchased from defendant with the money provided to him. A search of the CI's person and vehicle was conducted with negative results and a field test of the substances the CI purchased from defendant on both controlled buys tested positive for PCP.
Following the last controlled buy, Investigator Rivera prepared an affidavit detailing the investigation. The affidavit also stated that Rivera had "participated in approximately 290 narcotic investigations since 2004 . . . which have resulted in the arrests of numerous individuals for various narcotics violations." Based on Rivera's affidavit, on March 6, 2012, a judge issued a search warrant for defendant's person as well as his residence located on Greenwood Avenue and his "stash house" located on South Logan Avenue. Police executed the warrants the following day.
A search warrant was issued on March 8, 2012 for defendant's vehicle. --------
A search of the stash house resulted in the seizure of numerous clear plastic vials containing suspected PCP. A search of his Greenwood Avenue residence resulted in the seizure of an unloaded Winchester .243 caliber rifle, a black .357 caliber Taurus handgun loaded with hollow nose bullets, a plate containing suspected cocaine residue, a digital scale, two partially used boxes of sandwich bags, a burnt marijuana cigar, three bags of suspected marijuana and $1635 in currency.
Defendant was subsequently indicted for third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(6) (count two); and two counts of second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7(b)(1) (counts three and four). Following the denial of his motion to suppress all evidence seized pursuant to the search warrants, defendant pled guilty to count one of the indictment and was sentenced to a four-year prison term in accordance with a plea agreement. Defendant appeals from his April 15, 2014 judgment of conviction and raises the following singular argument for our consideration:
POINT I
DEFENDANT'S MOTION TO SUPPRESS THE ITEMS SEIZED SHOULD HAVE BEEN GRANTED; THERE WAS NOT PROBABLE CAUSE FOR THE ISSUANCE OF THE SEARCH WARRANTS.
II.
On appeal, defendant argues as he did before the trial court that the denial of his motion to suppress was improper. Specifically, defendant asserts that the search warrants were invalidated by "the fact that the normal protocol for using a CI to make a controlled buy was violated for both of the controlled buys in a manner that failed to properly corroborate the veracity of the CI." We disagree.
"It is well settled that a search executed pursuant to a warrant is presumed to be valid and . . . 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) (citation omitted). The evaluation of probable cause involves consideration of the "totality of the circumstances when assessing the reasonable probabilities that flow from the evidence submitted in support of a warrant application." State v. Chippero, 201 N.J. 14, 27 (2009) (citation omitted). "[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). Any "[d]oubt as to the validity of the warrant should ordinarily be resolved by sustaining the search." State v. Keyes, 184 N.J. 541, 554 (2005) (citation omitted).
"Information related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." Jones, supra, 179 N.J. at 389 (citation omitted). "[A] court must consider the veracity and basis of knowledge of [an] informant as part of its totality [of the circumstances] analysis." Keyes, supra, 184 N.J. at 555 (citation omitted). Notably, "[a] deficiency in one of those factors may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." State v. Zutic, 155 N.J. 103, 110-11 (1998) (citation omitted).
The veracity factor may be shown "by demonstrating that the informant has proven reliable" in "providing other dependable information in previous police investigations." Keyes, supra, 184 N.J. at 555. The basis-of-knowledge factor considers whether the informant obtained his information in a reliable manner. Ibid. An informant's basis of knowledge will be deemed sufficient if "the tip reveals expressly or clearly how the informant became aware of the alleged criminal activity." Id. at 555-56 (citation omitted). The informant's knowledge may even be demonstrated implicitly if "the nature and details revealed in the tip . . . imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." Id. at at 556 (quoting State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)).
A controlled buy of narcotics based upon an informant's tip "typically will be persuasive evidence in establishing probable cause." State v. Sullivan, 169 N.J. 204, 217 (2001). Generally, a controlled buy has, at a minimum, four components:
(1) a police officer meets the informant at a location other than the location where [it is] suspected that criminal activity is occurring; (2) the officer searches the informant to ensure the informant has no drugs on his person and (usually) furnishes the informant with money to purchase drugs; (3) the officer escorts or follows the informant to the premises where it is alleged illegal activity is occurring and watches the informant enter and leave those premises; and (4) the informant turns over to the officer the substance the informant has purchased from the residents of the premises under surveillance.
[Id. at 215 (quoting Commonwealth v. Desper, 419 Mass. 163, 643 N.E.2d 1008, 1011 (1994) (citation omitted)).]
While the fact that a controlled buy occurred may not conclusively demonstrate the existence of probable cause for the issuance of the warrant, "even one additional circumstance might suffice[.]" Jones, supra, 179 N.J. at 392. "[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." Keyes, supra, 184 N.J. at 556. Even if the informant's tip does not demonstrate veracity or basis of knowledge, a court may still issue a search warrant if other facts in the officer's affidavit "justify a finding of probable cause[,]" ibid. (citation omitted), and the court, in its determination, must also consider the extent to which the police have corroborated the information in the tip through their own investigation. Smith, supra, 155 N.J. at 95-96.
On this record, like the judge who issued the search warrant and the motion judge, we are satisfied that the investigator's affidavit recounting the CI's information demonstrated sufficient veracity and basis-of-knowledge. Specifically, the affidavit stated that (1) the CI provided information in the past which led to several arrests for narcotics and weapons offenses; (2) the CI provided an accurate description of defendant, whom he identified from a photograph, as well as defendant's address; and (3) the CI provided explicit details about the manner in which defendant conducted his drug transactions, including the fact that in the past few months, he had purchased PCP from defendant on a few occasions.
We are also persuaded that the additional police corroboration of the CI's veracity and basis-of-knowledge conclusively established probable cause in the totality of these circumstances. That additional corroboration included (1) the investigator's confirmation that a Brian Blue resided at the address provided by the CI; (2) the criminal history check revealing that defendant had four prior indictable convictions that included weapons and drug offenses; and (3) the confirmation that the substances purchased by the informant were PCP. Those facts served as sufficient indicia of the informant's reliability.
We reject defendant's contention that the presence of the UCI "who, obviously was not searched because he was an 'unwitting' participant in the police action" destroyed the corroborative effect of the controlled buy because the CI "could have easily gotten [the drugs] from the UCI while they were both in the car[,]" rather than from defendant. While "[t]he facts surrounding the controlled buy[] are relevant in analyzing the police corroboration of the informant's tip," Sullivan, supra, 169 N.J. at 214, the presence of the UCI is just another factor that the court should consider under the totality of the circumstances analysis. Given the extent of the police corroboration, the presence of the UCI does not alter our conclusion that the police had probable cause to obtain the search warrants. We note that to deviate from the procedure the CI normally followed to obtain drugs from defendant undoubtedly would have undermined the undercover investigation.
Further, as aptly pointed out by the motion judge,
the presence of the third party, the UCI, during the controlled buys does not undermine the probable cause for the issuance of the warrants. The pattern of the use of the UCI to make contact with defendant to arrange for the CDS purchases was fully disclosed to the court in the Rivera affidavit. The controlled buys followed that practice. The suggestion that, because law enforcement did not have the opportunity to search the UCI before the controlled buy transaction, there can be no ability to demonstrate probable cause under those circumstances, is totally unsupported by existing law. It would also create a dangerous precedent that drug dealers could insulate themselves from search warrants by insisting on the presence of a third party in every transaction.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION