Opinion
DOCKET NO. A-3446-10T2
08-21-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID ORTIZ, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0436.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After denial of his motion to suppress a gun found on his person and drugs found in his motel room, defendant David Ortiz, Jr. pled guilty to count five of Middlesex County Indictment No. 10-03-0436, which charged him with possession of a handgun. N.J.S.A. 2C:39-5(b). Pursuant to the negotiated plea, the State dismissed the other six counts of the indictment: third-degree possession of cocaine and possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts one and two); third-degree possession of heroin and possession of heroin with the intent to distribute, N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts three and four); second-degree possession of a firearm while engaged in drug activity, N.J.S.A. 2C:39-4.1 (count six); and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count seven). On November 8, 2010, the sentencing judge sentenced defendant on the second-degree gun charge, in accordance with the plea agreement, to a three-year prison term with a mandatory three-year term of parole ineligibility pursuant to N.J.S.A. 2C:43-6(c). Defendant received credit for 329 days in custody.
The judge imposed this sentence even though he found the aggravating factors outweighed the mitigating factors.
On appeal, defendant argues that the trial court erred by denying his motion to suppress. For the reasons that follow, we affirm.
Sergeant Daniel Muntone of the Middlesex County Prosecutor's Office and Perth Amboy Police Sergeant Ben Salerno testified that they were members of a narcotics task force. On December 14, 2009, they received information from a reliable informant that defendant was armed and selling drugs from Room 59 of the Circle Motor Lodge (Lodge) in Sayreville. Sergeant Salerno instructed the confidential informant to buy drugs from defendant with money supplied by the county. The informant bought the drugs and reported back that defendant had a black handgun. Sergeant Muntone instructed Sergeant Salerno to remain at the Lodge and detain defendant if he attempted to leave. Sergeant Muntone then drew up a search warrant for defendant's motel room and called a judge in anticipation of having the warrant signed.
Before Muntone obtained the judge's signature on the search warrant, Sergeant Salerno detained defendant after he left his room and entered a car. As Salerno was patting him down, defendant told Salerno he had a gun. Upon seizing a Glock 9mm handgun, Salerno discovered that it was loaded with hollow-nose bullets. Defendant was advised that he was under arrest and subsequently signed a consent form allowing the police to search his motel room. He did not check the box on the consent form indicating a waiver of his right to be physically present during the search of the room.
The exact language of the form states "I hereby expressly waive my right to be physically present during the execution of this search."
After Sergeant Muntone was informed that defendant had been arrested and consented to the room search, Muntone abandoned his plan to seek judicial approval of a search warrant. Instead, he proceeded immediately to the Lodge, where defendant was handcuffed in the parking lot in close proximity to Room 59 while it was searched and the drugs were seized.
In an oral decision on July 27, 2010, the motion judge denied defendant's suppression motion. The judge found that defendant's arrest was supported by probable cause and the pat-down of defendant pursuant to that arrest, during which the gun was located, was therefore constitutional. Because defendant was under arrest and the subsequent consent search was confined to a motel room rather than a larger residence, the judge found that defendant's right to be present during the search was not absolute. The judge indicated:
Defendant cites to State v. Santana, 215 N.J. Super. 63, 72 (App. Div. 1987) and State v. Hampton, 333 N.J. Super. 19, 30 (App. Div. 2000), both involving automobile searches, in support of his contention that he had an absolute right to be present at the motel room search and, absent waiver of that right, the search was improper.
I don't find that it is entirely clear whether the defendant waived his right to be present or not. He clearly did not, according to the testimony, ask to be present.The judge also determined that the drugs would inevitably have been discovered without defendant's consent had the police proceeded with the search warrant. Based on those findings, the judge denied defendant's motion to suppress.
On appeal, defendant raises the following issues:
POINT I MR. ORTIZ NEVER WAIVED HIS RIGHT TO BE PRESENT DURING THE SEARCH OF HIS ROOM AND THE SEARCH WAS THEREFORE INVALID.
POINT II THE DECISION TO NOT SEEK A SEARCH WARRANT IN A TIMELY FASHION AMOUNTED TO A DELIBERATE CIRCUMVENTION OF THE WARRANT REQUIREMENT AND SO INVALIDATED BOTH THE ARREST OF MR. ORTIZ AND THE SUBSEQUENT SEARCH OF HIS ROOM.
As defendant did not plead guilty to any charge stemming from the search of his motel room, we decline to address his appeal of the denial of his motion to suppress the drugs found in that search, as it is moot. "When a party's rights lack concreteness from the outset or lose it by reason of developments subsequent to the filing of suit, the perceived need to test the validity of the underlying claim of right in anticipation of future situations is, by itself, no reason to continue the process." JUA Funding Corp. v. CNA Ins., 322 N.J. Super. 282, 288 (App. Div. 1999) (citing Milk Drivers and Dairy Emps. v. Cream-O-Land Dairy, 39 N.J. Super. 163, 177 (App. Div. 1956)). However, "the New Jersey Constitution does not restrict the exercise of judicial power to actual cases and controversies." State v. McCabe, 201 N.J. 34, 44 (2010) (citing State v. Gartland, 149 N.J. 456, 464 (1997)); see also N.J. Const. art. VI, § 1, ¶ 1. We consider an issue moot when "our decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting New York S. & W. R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (1984), aff'd, 204 N.J. Super. 630, (App. Div. 1985)).
Although the courts will sometimes consider the merits of an issue notwithstanding its mootness where significant issues of public import appear, Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003), we do not perceive such an issue in this case.
We note that the State did not raise the issue of defendant's right to appeal the aspect of the suppression motion relating only to dismissed charges. Additionally, after we sought additional briefing from both parties, the State's brief did not squarely address this issue.
Defendant argues in his supplemental brief, submitted at our request to address the issue of mootness, that the validity of the motel search is still a viable issue. He maintains that the dismissed charges were a material consideration in his decision to accept the plea agreement because he faced a longer sentence if found guilty of the original charges at trial. He also argues that because the exclusionary rule is intended to deter improper police conduct, its deterrent effect would be thwarted should we decline to review the search that resulted in the dismissed charges.
Finally, defendant suggests that, should we determine that only the search of the motel room was improper, we should order the remedy suggested by State v. Kovack, 91 N.J. 476 (1982) and State v. Johnson, 182 N.J. 232, 244 (2005). Defendant describes this remedy as requiring defendant on remand to demonstrate that "the error was material to defendant's guilty plea." According to defendant, if he could so demonstrate, he would then be allowed to "either renegotiate his [] plea agreement or accept sentencing as imposed." He could also elect to withdraw his plea of guilty. Kovack, supra, 91 N.J. at 485. See State v. Diloreto, 362 N.J. Super. 600, 615-16 (App. Div. 2003), aff'd, 180 N.J. 264 (2004) (noting the right of a defendant to withdraw his plea if the motion to suppress was wrongly decided).
As defendant is only a few months short of serving his entire sentence, he may not view proceeding to trial as a desirable option.
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Notably, however, both Kovack and Johnson concerned situations where a remand was ordered because the defendants were not fully informed of the consequences of their guilty plea. Here, defendant knew he could appeal the denial of his motion to suppress the evidence seized in the motel room if he entered a guilty plea to one of the charges resulting from that search. See R. 3:5-7(d). By dismissing all charges stemming from the motel search, both the State and defendant should have been aware that the legality of that search would not come under appellate review.
Defendant also argues that his arrest and the subsequent seizure of the gun on his person was improper. While he concedes that, "[b]ased on an earlier controlled purchase of [controlled dangerous substance] by an informant, there can be little argument that the officers had probable cause for the arrest as soon as Mr. Ortiz left the room," he argues that Sergeant Muntone was constitutionally obligated to obtain a search warrant earlier. Defendant argues that as soon as Sergeant Muntone decided to arrange the drug purchase, he had sufficient probable cause and an obligation to seek a search warrant. Defendant notes that Sergeant Muntone could have obtained a telephonic warrant without the need of demonstrating exigent circumstances, pursuant to State v. Pena-Flores, 196 N.J. 6, 35 (2009). Defendant contends that waiting until after the controlled purchase to begin applying for a warrant was fatally defective and invalidated defendant's arrest as well as the search of his motel room.
Defendant cites State v. Ulrich in support of this argument. 265 N.J. Super. 569, 574-76 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). Ulrich, however, is factually inapposite. The police in Ulrich delivered a package containing drugs to the defendant at his residence, hoping to obviate the need for a search warrant by creating exigent circumstances to search the home and arrest the defendant. Here, defendant was arrested based on probable cause and searched pursuant to that arrest. He was arrested because he chose to leave his motel room before law enforcement obtained a search warrant. Law enforcement did not act improperly in waiting for the results of the controlled buy to seek a search warrant. Law enforcement is permitted to accumulate stronger evidence than minimally required prior to seeking a warrant. Thus, we are unconvinced that the conduct of law enforcement was in such conflict with the warrant requirement that suppression of the gun found on defendant's person must be ordered.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION