Opinion
DOCKET NO. A-6125-12T2
05-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRAD TOBY a/k/a BRAD J. TOBY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Haas. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-12-0173. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After the denial of his motion to suppress evidence, defendant Brad Toby entered a guilty plea to first-degree drug distribution, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1). In accord with the plea agreement, he was sentenced on June 17, 2013, to nine years imprisonment subject to fifty-four months of parole ineligibility. Appropriate fines and penalties were imposed. Defendant appeals and we now affirm.
Defendant's co-defendant Anthony M. Fernandez joined in the motion. Fernandez was convicted after a jury trial of some counts of the indictment, and his appeal is addressed by way of a separate opinion. --------
The State proffered two witnesses during the suppression hearing, including New Jersey State Police Detective Sergeant First Class Cesar Huaman, who worked with the United States Drug Enforcement Agency (DEA) and functioned as the administrator of the High Intensity Drug Trafficking Area (HIDTA) Task Force. Huaman testified that in early September 2011, the DEA passed on information from two confidential informants, CW1 and CW2, for action by the State Police. CW1 and CW2 had given the DEA substantiated leads in four prior investigations. Huaman assigned the case to Detective Christopher Wright, a member of the State Police Drug Trafficking Unit, who also testified.
CW1 told Wright that an individual named "Chiquito," who worked at a barber shop in Woodbridge, was able to sell "bulk quantities of cocaine[.]" CW1 described Chiquito as a Hispanic male of average build, and he passed on Fernandez's phone number. Fernandez matched the informant's description, and State Police conducted surveillance at his place of employment and home.
While in Huaman and Wright's presence, CW1 called Fernandez to arrange a drug buy. Only Huaman understood the conversation as it was in Spanish. At the officers' instruction, CW1 placed a second call to Fernandez, telling him he had a buyer interested in purchasing two kilograms of cocaine at a cost of $32,000 or $35,000 per kilogram.
On September 22, 2011, the day of the transaction, police staked out Fernandez's home and his workplace. CW1, at the officers' direction and while in their presence, confirmed the details of the sale. During that call, Fernandez directed CW1 to his home.
Before they entered Fernandez's home, CW1 and CW2 were searched to confirm they had no money or contraband on their persons, were fitted with wires, and introduced to the undercover officer who would play the role of prospective buyer. A visual signal indicating that the drugs had been delivered was agreed upon. CW1 and CW2 went inside Fernandez's residence where they waited for approximately an hour before the drugs arrived. Because the wires did not work, CW1 and CW2 communicated with the officers via text messages and phone calls.
The transaction was delayed because Fernandez's first supplier was not able to deliver the drugs, and he had to find another person to bring the cocaine to the house. Eventually, the informants communicated to the officers that "a third party came with a [duffle] bag that contained the drugs." The man with the duffle bag, whose arrival was not seen by the officers, was later identified as defendant.
Meanwhile, a taxicab dropped off a woman and small child, Fernandez's girlfriend and two-year-old son. Approximately fifteen minutes later, Fernandez and CW1 walked outside to meet the undercover officer posing as the buyer, who had been waiting in a car, in order to verify he had the money for the purchase.
As prearranged, CW1 took off his baseball cap and ran his fingers through his hair, signaling that he had actually seen the cocaine. The team, consisting of nineteen police officers and two canine officers, arrested CW1 and Fernandez outside the house. The undercover officer "fled" the scene as previously instructed. CW1 and Fernandez said there were two other men in the house, in addition to Fernandez's girlfriend and his son. Once outside of Fernandez's hearing, CW1 confirmed that it was defendant who had brought the duffle bag containing drugs into the residence.
The officers decided to "clear" and "secure" the premises prior to obtaining a search warrant because of their concern about the presence of drugs and other persons in the home. Before entry, officers posted in the back of the house saw defendant attempt to escape through the side entrance of the house. He was immediately arrested. While "clearing and securing" the home, the officers removed CW2, Fernandez's girlfriend, and Fernandez's son.
Once the premises were secured, a deputy attorney general applied for a telephonic warrant authorizing the search of "any enclosure located within" Fernandez's home that "may reasonably contain" drugs or drug paraphernalia. After being sworn, Wright testified regarding the circumstances of the arranged buy of a bulk quantity of cocaine through confidential informants. Wright described observing the informants enter the residence, and that the informants confirmed seeing the drugs before the officers moved in. The deputy asked Wright if the informant was "someone you've worked with in the past and has the information provided been reliable?" Wright said, "Yes." The State Police recorded the search warrant application.
Upon executing the warrant, the officers located a gray and white duffle bag, as described by the informants, behind the door of the master bedroom. It contained approximately one kilogram of cocaine.
At the scene, Fernandez took full responsibility for the drugs found in his house, including the cocaine in the duffle bag. Defendant was questioned and agreed to give a statement. He said he was in the house to visit Fernandez, whom he described as "a Spanish guy." Defendant denied any knowledge about any bag, and referred all such questions to Fernandez.
Defendant raises the following point on appeal:
POINT I
THE COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO SUPPRESS THE DRUGS DISCOVERED IN THE [DUFFLE] BAG SEIZED FROM HIS CO-DEFENDANT'S HOUSE.
A. Warrantless entry into and sweep and seizure of house and its contents.
1. Illegality of warrantless entry, sweep and seizure.
2. Unavailability of the independent source doctrine.
B. Invalidity of the search warrant.
1. Lack of probable cause.
2. Procedural defects.
I.
Our Supreme Court recently reaffirmed the protective-sweep doctrine. See State v. Cope, ___ N.J. ___ (2016) (slip op. at 17-20). The protective-sweep doctrine legitimizes a warrantless search of a home under both the Fourth Amendment and Article I, Par. 7 of our State Constitution. Id. at 17; Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990). Arguably, Wright's explanation of the purpose of the officers' entry to "clear" and "secure" the property made it a protective sweep. "[A] 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." State v. Davila, 203 N.J. 97, 113 (2010). "The rationale for [a] protective sweep is officer safety." Cope, supra, slip op. at 18.
Although defendant and Fernandez's arrest took place outside the home, the officers could not be certain as to whether other persons were on the premises. At that point in time, CW2 remained inside with Fernandez's wife and child. The officers had no way of ascertaining, other than walking through the house, as they "arrested" CW2 and obtained Fernandez's girlfriend's information, if anyone else was in the home. Just as the officers failed to see defendant enter, they could have failed to see others enter the premises. There was every reason to ensure that the house was empty as they took the confidential informant into custody and spoke with Fernandez's girlfriend. Therefore, the entry was justified as a protective sweep.
Additionally, no evidence was seized as a result of that initial entry. Although the duffle bag was presumably seen, it was not moved until after the search warrant had been obtained. The police were already aware of its existence and contents from the confidential informants, and gained no benefit from the protective sweep other than to ensure their safety. The nature of the sweep was so unremarkable that neither Huaman nor Wright were questioned about it during the suppression hearing.
Since the entry into the home was lawful, necessitated by the arrest of CW2 and detention of the co-defendant's girlfriend, we will not reach defendant's argument that the independent source doctrine does not apply. That issue is moot as a result of our decision.
II.
We now turn to defendant's arguments regarding the search warrant as to whether an anticipatory warrant should have been obtained, as well as whether the warrant issued as a result of Wright's misstatement of fact, and whether the lack of necessary formalities called for by the rule made it a nullity.
To argue that the officers should have obtained an anticipatory warrant while contending the warrant lacked probable cause is inconsistent. Regardless, until the afternoon on the day of the transaction, the officers were unsure as to where the drug transaction would occur, if it all. Wright testified that for that reason, both Fernandez's home and workplace were surveilled. Therefore, the officers would have been unable to obtain an anticipatory warrant because they could not provide an affidavit demonstrating that "the items to be seized [would] be at the specified place at a specified later time." State v. Ulrich, 265 N.J. Super. 569, 575 (App. Div. 1992), certif. denied, 135 N.J. 304 (1994). Since they could not have specified the place and timeframe for the transaction, nor even stated with certainty that drugs would be delivered, the standard for obtaining an anticipatory warrant would not have been met.
Insofar as the lawfulness of the search warrant that was issued, such applications "must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). In deciding search warrant applications, a court must consider the totality of the circumstances to determine whether probable cause exists. State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).
When information is based on an informant's tip, a court must also consider the "'veracity and basis of knowledge' of the informant," as well as the police's ability to corroborate the tip. Keyes, supra, 184 N.J. at 555-56 (quoting State v. Jones, 179 N.J. 377, 389 (2004)). A reviewing court must consider only the "four corners" of the affidavit and any sworn testimony given before the issuing judge. State v. Wilson, 178 N.J. 7, 14 (2003). A defendant has the burden to show the absence of probable cause. Keyes, supra, 184 N.J. at 554.
"Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Moore, 181 N.J. 40, 46 (2004) (alterations in original) (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)).
As a threshold matter, we disagree with defendant's contention that Wright's misstatement rises to the level of willful misrepresentation of the sort identified in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The misstatement in this case was not material. Even if it is disregarded, Wright conveyed enough information to support a finding of probable cause. Id. at 171-72, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682.
This was a controlled drug buy, arranged by the confidential informants in the officers' presence. At the appointed hour, the confidential informants went into the home and reported back that they had seen the drugs defendant brought into the house. When arrested, Fernandez acknowledged that the drugs were his, however, the confidential informants told Huaman that it was defendant who brought the duffle bag containing the drugs into the house. CW1 told Huaman that "the black male brought the bag[,]" and officers apprehended "a black male attempting to flee to the back[.]" Defendant was apprehended as he was attempting to flee without the bag.
Thus, the information supplied by the confidential informant was corroborated by the circumstances surrounding and leading up to the application for a search warrant. The concern might be different if the informants only gave a tip. But here police arranged an actual buy, and the aborted transaction took place in the officers' presence. It defies common sense to ignore the fact that everyone's presence at the scene as events unfolded was itself substantial corroboration. Even if Wright's misstatement about prior experience with the informants is removed from consideration, the circumstances he described to the issuing magistrate established ample probable cause. The incorrect statement was immaterial.
Defendant also objects to the search warrant because the Deputy Attorney General recorded the sworn testimony, the State Police transcribed the proceedings, and Wright did not specify any exigency necessitating a telephonic warrant. Additionally, the issuing judge kept no records verifying the accuracy of the transcription.
The rule provides: "A Superior Court judge may issue a search warrant upon sworn oral testimony of an applicant who is not physically present. . . . If a recording is made, the judge shall direct that the testimony be transcribed as soon as practicable." R. 3:5-3(b). The "transcribed record shall be certified by the judge." Ibid. The rule goes on to state that a "judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate longhand notes summarizing what is said shall be made by the judge." Ibid. In the absence of bad faith, where noncompliance with the warrant rules is insubstantial, it is tolerated. State v. Valencia, 93 N.J. 126, 134 (1983); R. 3:5-7(g).
In this case, despite the enumerated procedural irregularities, defendant cannot show any substantial error or prejudice. It bears noting that had some impropriety occurred, Wright's misstatement regarding his alleged prior experience with the confidential informants would have been omitted from the transcript. That mistake, the basis for a substantial portion of defendant's arguments on appeal, was transcribed. We therefore conclude that the failure to meet the procedural requirements of Rule 3:5-3(b) in this instance was ultimately harmless.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION