Opinion
DOCKET NO. A-5246-13T3
01-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HORACE E. WARTHEN, a/k/a ERIC WARTHEN, ERICK WARTHEN, HORACE WARTHEN, HORCE WATRHEN, ERIC WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief; Teresa Sia, Volunteer Attorney, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno.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, Burlington County, Indictment No. 13-07-0843. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief; Teresa Sia, Volunteer Attorney, on the brief). PER CURIAM
After his motion to suppress was denied, defendant Horace E. Warthen entered a guilty plea, pursuant to a plea agreement, to third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). Defendant was sentenced, consistent with the terms of that agreement, to a three-year prison term with eighteen months of parole ineligibility. He now appeals and raises the following point:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, AS THERE WAS NOT SUFFICIENT PROBABLE CAUSE TO SUPPORT THE NO-KNOCK RESIDENTIAL SEARCH WARRANT, WHICH WAS BASED ON UNCORROBORATED INFORMATION FROM AN UNNAMED INFORMANT.
We glean the following facts from the hearing on defendant's motion to suppress. On April 17, 2013, Detective Sergeant David King of the Pemberton Township Police Department (PTPD) met with a concerned citizen (CC) who wanted to provide information to the police, but wished to remain anonymous to avoid retaliation. The CC told King that just prior to their meeting, he had observed an assault rifle in the home of a person later identified as defendant. Defendant told the CC he had four or five "AK rifles" and asked the CC if he knew anyone who would purchase them.
We employ the term "concerned citizen" as it was used by the police, the issuing judge, and the motion judge. It should not be inferred, as defendant suggests, that the mere use of that term implies reliability.
The AK 47, or "Kalashnikov," is an assault rifle designed after World War II in the former Soviet Union. Mikhail Kalashnikov with Elena Joly, The Gun that Changed the World, xx-xxi (Polity Press 2006).
The CC did not know the exact address of defendant's residence but told King that it was a duplex on Kinsley Road and the other unit in the duplex was owned by someone street-named "B-rupt." The CC also mentioned that the rifle had a high-capacity detachable magazine.
On April 18, 2013, the CC again contacted King and provided the exact address on Kinsley Road. King showed the CC a photo of defendant, and the CC identified him as the person who offered the rifles for sale.
Detective Brian Smith, also of the PTPD, spoke with a confidential informant (CI) who had previously provided information to the PTPD. The CI said that a black male, with a medium build and short black hair, lived at the address on Kinsley Road with a female, Melinda, and drives a black Hyundai Sonata. The CI also confirmed that B-rupt lived in an adjoining duplex, and identified defendant from a photo. Smith was familiar with B-rupt from a prior investigation and knew where he lived.
Smith confirmed that a black 2001 Hyundai Sonata was registered to a woman named Melinda Roberts residing at the Kinsley address. Smith also found that defendant was issued a summons on April 9, 2013 for driving with a suspended license. The summons listed the Kinsley address as defendant's residence. That same day, Melinda Porter was arrested and charged with obstruction and provided the Kinsley address. Finally, Smith confirmed that the Kinsley Road premises had been rented to Melissa Porter since 2010.
The discrepancy as to Melinda's last name was not resolved on the record before us but is not material to our decision. --------
On April 18, 2013, Smith obtained a warrant to search the Kinsley Road premises and defendant. The warrant provided that it could be executed "anytime" and "without first knocking and announcing your identity and purpose." At approximately 6:25 p.m. that day, Smith and other PTPD officers executed the warrant and recovered one assault rifle, a high-capacity magazine containing three bullets, a digital scale, and cocaine.
Defendant moved to suppress the items recovered during the search. The court held a hearing on defendant's motion on November 21, 2013. Neither party called witnesses and the court heard argument from the parties. The judge found adequate probable cause to support the warrant and denied the motion.
Defendant now argues that the information provided by the CC was uncorroborated and there was no information about that person's relationship to defendant or whether the person had a criminal background. Defendant also complains that his motion to have the CC questioned in camera was never ruled on.
Although we normally grant deference to the findings of fact made by a trial judge in connection with a motion to suppress, there was no evidentiary hearing in this case. State v. Elders, 192 N.J. 224, 243-44 (2007). Instead, counsel and the judge relied on the text of Smith's affidavit. Our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution afford protection from unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498-99 (1986). "Before issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched." State v. Evers, 175 N.J. 355, 381 (2003). Because a search warrant is presumed to be valid, defendant bears the burden of demonstrating that the warrant was issued without probable cause. Ibid. Therefore, when reviewing the validity of a search warrant we must give substantial deference to a judge's determination that probable cause existed to issue the search warrant. Ibid.
Detective Smith described the details of his investigation, including the information provided to Sergeant King by the CC and the efforts taken by Smith and other officers to corroborate that information. The CC contacted Detective King to report defendant's offer to sell assault rifles "immediately" after observing a firearm in defendant's residence. The CC did not recall defendant's address on Kinsley Road, but called King on the following day to provide the house number. Information of this type, imparted by a citizen directly to a police officer, will receive greater weight than information received from an anonymous tipster. State v. Basil, 202 N.J. 570, 586 (2010) (citing State v. Amelio, 197 N.J. 207, 212 (2008), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009)). Thus, Smith could assume that this "ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information." Ibid. The Court in Basil held that a tip made in person contains additional indicia of reliability because the officer "can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action without further questioning." Ibid. (quoting United States v. Palos-Marquez, 591 F. 3d 1272, 1275 (9th Cir. 2010)).
In addition, Smith attempted to corroborate the CC's information by contacting a CI who provided additional information confirming defendant's address and the identity of a woman who resided with him. The CI also corroborated the CC's information regarding the identity of a resident in an adjoining duplex.
We are satisfied that Smith's affidavit contained sufficient specific information to enable the issuing judge to determine that there was probable cause to believe that a search would yield evidence of past or present criminal activity.
We find defendant's additional arguments, including the claim that the motion judge erred by not conducting an in camera interview of the CC, lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION