Opinion
DOCKET NO. A-1893-12T1
03-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAUL CALDERON, a/k/a RAUL VEGA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-06-0714. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals his conviction subsequent to a guilty plea for second-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2). We affirm.
Because defendant argues that the trial court erred in denying a motion to suppress evidence resulting from a search warrant and questions the sufficiency of the affidavit supporting the search warrant, we derive the following facts exclusively from the four corners of the affidavit. State v. Evers, 175 N.J. 355, 380 (2003). In January 2011, a previously reliable confidential informant (C.I.) told an Elizabeth Police Department detective that defendant was using a cell phone to sell controlled dangerous substances (CDS) from his apartment. The C.I. described defendant as a six-foot-tall, Hispanic man in his thirties, weighing over three hundred pounds. The detective, believing he was familiar with defendant, showed the C.I. a picture, which the C.I. identified as defendant. The police and the C.I. arranged two controlled purchases of CDS from defendant. The C.I. made telephone calls in the detective's presence, spoke to someone referred to as "Raul," had drug-related conversations, and agreed to meet at an apartment.
Both times the officers observed the C.I. enter the building and exit five minutes later. Prior to the C.I.'s purchases, officers ensured the C.I. did not already have CDS on his person. After the first controlled buy, the C.I. turned over marijuana, and after the second, he turned over heroin. The C.I. told the police that on both occasions he went to a particular apartment and was kept in the hallway while defendant went inside the apartment, closed the door, and then re-emerged delivering the CDS to the C.I. for money.
On February 15, 2011, the police applied for a warrant to search defendant and his apartment. Citing the controlled buys and defendant's prior criminal history, the detective asked that the warrant permit a "no-knock" entry for the officers' safety. The judge granted the no-knock warrant, the search was executed, the police found CDS, and defendant was arrested.
Defendant moved to suppress the evidence obtained pursuant to the search warrant. On April 12, 2014, the motion judge denied the motion to suppress in an eleven-page written decision without a hearing. He concluded that the affidavit in support of the request for a search warrant established probable cause.
Pursuant to his plea agreement, on September 7, 2012, defendant was sentenced to a term of seven years with a three-and-one-half year period of parole ineligibly, as well as fines and forfeiture of his driving privileges for six months. In return, the State agreed to dismiss charges for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (Count One); third- degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Three); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Four); third-degree possession of marijuana in a quantity over fifty grams, N.J.S.A. 2C:35-10a(3) (Count Five); and third-degree possession of marijuana in a quantity of one ounce or more with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11) (Count Six).
On appeal, defendant argues the following:
POINT IIn his pro se supplemental brief, defendant also argues:
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE RESULTING FROM THE SEARCH AS THERE WAS NOT PROBABLE CAUSE TO SUPPORT THE ISSUANCE OF THE SEARCH WARRANT ITSELF OR THE "NO KNOCK" PROVISION ALLOWING THE POLICE TO ENTER MR. CALDERON'S HOME UNANNOUNCED U.S. Const. amends. IV, XIV; N.J. Const. Art. I, para. 7. (Partially Raised Below).
A. There Was Not Probable Cause To Support the Issuance of the Warrant (Raised Below).
B. There Was Not Probable Cause To Support the No-Knock Provision (Not Raised Below).
POINT II
THE SENTENCE IS EXCESSIVE AS THE COURT IGNORED A MITIGATING FACTOR WHEN IMPOSING THE TERM OF SEVEN YEARS WITH A THREE AND ONE HALF YEAR PERIOD OF PAROLE INELIGIBILITY.
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY THE POLICE.
I.
"Our role on appeal is limited [and] [a]ll we need to determine is whether the application made to [the warrant judge] provided sufficient evidence for [the] finding of probable cause to search[.]" State v. Chippero, 201 N.J. 14, 32 (2008), certif. denied, 207 N.J. 227 (2011). Courts must consider the totality of the circumstances in determining whether there was probable cause for a search warrant. State v. Sullivan, 169 N.J. 204, 212 (2001). Probable cause may be based upon information received from informants, so long as there is "substantial evidence in the record to support . . . informant[s'] statements." State v. Keyes, 184 N.J. 541, 555 (2005); see also State v. Jones, 179 N.J. 377, 399 (2003); Sullivan, supra, 169 N.J. at 212-13. "[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 and internal quotation marks omitted). "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 and internal quotation marks 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 and internal quotation marks 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 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)).
Even if the informant's tip does not demonstrate veracity or basis of knowledge, a judge may still issue a search warrant if other facts in the officer's affidavit "justify a finding of probable cause." Ibid. (citation and internal quotation marks omitted). 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.
Defendant argues that the State failed to satisfy the basis-of-knowledge factor because the affidavit contains no information about how the C.I. came by his or her knowledge. We disagree.
The trial judge found the C.I. had provided information to the police that led to prior search warrants, arrests and recovery of contraband, and the record supports the finding of veracity. Based on personal knowledge, the C.I. described defendant, saying he was a 300-pound, Hispanic male who distributed cocaine from a specific address using his cell phone. He identified defendant through a photograph. Moreover, the C.I.'s statements were corroborated through two separate controlled purchases wherein the C.I. turned over CDS to police after leaving the building. In addition, the police conducted their own investigation and provided corroboration, through police and utility records that defendant lived at the address in question. We find no error in the determination that the affidavit established probable cause.
Defendant argues for the first time that the inclusion of the no-knock provision invalidates the warrant. Arguments raised for the first time on appeal are reviewed under a plain error standard, meaning we disregard such errors "unless . . . [they are] clearly capable of producing an unjust result[.]" R. 2:10-2.
State v. Johnson, 168 N.J. 608, 619 (2001), lists the requirements to justify an unannounced entry. "First, a police officer must have 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." Ibid. Next, the "officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced." Ibid. Finally, "although the officer's assessment of the circumstances may be based on his or her experience and knowledge, 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. Moreover, "the showing required to justify an unannounced entry is not high." State v. Jones, 179 N.J. 377, 399-400 (2004) (citation and internal quotation marks omitted).
Applying this standard, we are satisfied that the facts included in the affidavit here justified an unannounced entry. The detective observed the C.I. enter defendant's building on two occasions where the C.I. purchased CDS from defendant. In addition, the detective's affidavit contained information concerning defendant's criminal history which included convictions for possession of drugs and assault. When viewed in the totality of the circumstances, we are satisfied that there was a reasonable suspicion of heightened risks to officer safety and preservation of evidence which justified the issuance of a no-knock warrant.
II.
We reject defendant's contention that his sentence is excessive and that the sentencing judge ignored a mitigating factor when he imposed sentence. Appellate review of a criminal sentence is limited and deferential. State v. Bolvito, 217 N.J. 221, 228 (2014). We reverse only on a clear showing of abuse of discretion, such as when "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Furthermore, a sentence imposed pursuant to a plea agreement is presumptively reasonable. State v. Fuentes, 217 N.J. 57, 70-71 (2014).
The trial court found aggravating factors three, six and nine and found no mitigating factors. Defendant asserts that the court should have found mitigating factor eleven, that defendant's imprisonment entailed excessive hardship due to his medical ailments. See N.J.S.A. 2C:44-1b(11). While the sentencing judge did not specifically address defendant's ailments as a mitigating factor, the judge instructed defendant to "bring [his] medical records to the jail" and informed defendant that "they will provide you the medical services you need." Implicit in those statements is the determination that defendant's needs could be addressed in prison, and, therefore, the court did not find an excessive hardship.
The Criminal Code only permits a downgraded sentence for a first-degree or second-degree crime where "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" the lower sentencing range. N.J.S.A. 2C:44-1f(2). The standard is a demanding one. See State v. Megargel, 143 N.J. 484, 496-502 (1996). Defendant fails to make the required showing of abuse of discretion. See Bolvito, supra, 217 N.J. at 228.
III.
In his pro se supplemental brief, defendant argues the trial court erred in denying his motion to suppress statements made to police in his residence, in violation of Miranda v. Arizona, 384 U.S. 436, 467-74, 86 S. Ct. 1602, 1624-27, 16 L. Ed. 2d 694, 720-23 (1966). The record reflects that while defendant raised this issue below, it was considered withdrawn upon the entry of defendant's plea. Rule 3:5-7(d) establishes an automatic right to review the denial of a motion to suppress following a guilty plea for physical evidence seized in violation of the Fourth Amendment, but not statements or confessions. As such, any unresolved issues concerning statements are deemed waived as a result of the entry of a guilty plea.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION