STATE OF NEW JERSEY v. VINCENT JOHNSON

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT JOHNSON,

Defendant-Appellant.

__________________________

January 7, 2014

 

Submitted November 20, 2013 Decided

 

Before Judges Simonelli and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-02-0311.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).

 

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Nidara Y. Rourk, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Vincent Johnson pled guilty to third-degree manufacturing, distributing or dispensing a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1), -5b(3) (count two); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count eight).1 The trial judge sentenced defendant on count two to a five-year term of imprisonment with three years of parole ineligibility, and a concurrent five-year term of imprisonment with five years of parole ineligibility on count eight. The judge also imposed the appropriate penalties, fees, and assessments.

On appeal, defendant raises the following contention:

POINT I

 

THE TRIAL.J.DGE ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS THE DRUGS AND GUN FOUND IN HIS HOME BECAUSE WITHOUT [DEFENDANT'S] ALLEGED ADMISSION, THE SEARCH WARRANT APPLICATION WAS NO LONGER SUPPORTED BY PROBABLE CAUSE.

 

We reject this contention and affirm.

We derive the following facts from the record. In September 2010, Detective Anthony Goodman of the Jersey City Police Department received a tip from a confidential informant that defendant was selling bricks of heroin for $225 and kept the heroin in his apartment. The informant also gave the detective a physical description of defendant, defendant's nickname, and the nicknames of the individuals for whom defendant was selling the heroin who were also the targets of several police CDS investigations. Detective Goodman deemed the informant reliable based on prior tips the informant gave him that resulted in the seizure of substantial amounts of drugs and weapons, as well as numerous arrests and convictions of CDS offenders.

While conducting surveillance of defendant's apartment on October 5, 2010, Detective Goodman saw defendant exit his apartment, walk up the street, meet with a man, and hand the man objects in exchange for money. After completing the transaction, defendant returned to his apartment. Although the detective determined he had witnessed a drug transaction, he decided not to arrest defendant at that time, and instead, continued the surveillance in order to obtain the heroin in defendant's apartment.

Later on October 5, 2010, Sergeant Stephen Trowbridge of the Jersey City Police Department met with the informant and gave the informant pre-recorded money to make a controlled drug purchase from defendant. Detective Goodman then saw defendant meet with the informant, hand the informant objects in exchange for money, and then return to his apartment. The informant immediately returned to Sergeant Trowbridge and gave him 146 bags of heroin he had just purchased from defendant.

Surveillance continued on October 7, 2010. Detective Goodman saw that defendant had money in his hand and was walking toward his apartment with two men. Defendant entered the apartment while the men waited outside, exited a few minutes later, and walked up the street with the men towards where Sergeant Trowbridge's unmarked patrol car was located. Detective Goodman radioed Sergeant Trowbridge to pick up the surveillance of defendant. Sergeant Trowbridge saw defendant with bags of suspected heroin in his left hand and radioed other police officers to stop him. The officers stopped defendant and arrested and searched him, finding two bags of heroin in his possession. According to Detective Goodman, after defendant was arrested, he admitted there was heroin in his apartment.

In an affidavit submitted in support of a search warrant for defendant's apartment, Detective Goodman stated there was probable cause based on the tip from the confidential informant, whom he deemed reliable based on past interactions, and on his observation of the first drug transaction and the controlled purchase. Following the issuance of the search warrant, the police searched defendant's apartment and found heroin and a handgun.

Defendant testified at the suppression hearing and denied he made any admissions. He did admit, however, that he had two bags of heroin in his possession at the time of his arrest and the heroin came from a "stash" in his apartment.

In a May 9, 2012 written opinion, the motion judge found there was probable cause to issue the search warrant based on the confidential informant's tip, Detective Goodman's observations of the two drug transactions, and the heroin found in defendant's possession at the time of his arrest.

On appeal, defendant argues there was no probable cause for the search warrant because the motion judge rejected defendant's alleged admission there was heroin in his apartment, and the judge should not have relied on the month-old informant's tip without additional information as to the informant's veracity and basis of knowledge. Defendant posits that without his admission and the "stale" tip, the remaining evidence in Detective Goodman's affidavit did not establish probable cause to search the apartment.

Our review of a trial judge's decision on a motion to suppress evidence is limited. State v. Vargas, 213 N.J. 301, 326-27 (2013) (citations omitted). In reviewing a motion to suppress, we must uphold the trial judge's factual findings that are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). We also defer to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (internal quotation marks omitted). However, we give no deference to a trial judge's interpretation of the law, and review legal issues de novo. Vargas, supra, 213 N.J. at 327; State v. Gandhi, 201 N.J. 161, 176 (2010).

Moreover, "'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. Keyes, 184 N.J. 541, 554 (2005) (quoting State v. Jones, 179 N.J. 377, 388 (2004)). "Accordingly, courts 'accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Ibid. (alteration in original) (quoting Jones, supra, 179 N.J. at 388).

In reviewing search a warrant application, we need only determine whether the application provided sufficient evidence for a finding of probable cause to search the premises for the items authorized. State v. Chippero, 201 N.J. 14, 32 (2009). The judge issuing the search warrant must "make the [probable cause] determination based on only that information which is 'contained within the four corners of the supporting affidavit' or sworn testimony provided by law enforcement personnel." Id. at 26 (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959, (2001)). "'When determining whether probable cause exists, courts must consider the totality of the circumstances, and they must deal with probabilities.'" Jones, supra, 179 N.J. at 389 (quoting Schneider, supra, 163 N.J. at 361).

"Information that police receive from confidential informants may serve as a valid basis for a court to find probable cause and issue a search warrant." Keyes, supra, 184 N.J. at 555. Our Supreme Court cautioned, however, that

there must be substantial evidence in the record to support the informant's statements. Specifically, [w]hen examining an informant's tip . . ., the issuing court must consider the veracity and basis of knowledge of the informant as part of its totality analysis. Importantly, [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.

[Ibid. (alterations in original) (internal citations and quotation marks omitted).]

 

"The veracity factor may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." Ibid. "However, 'past instances of reliability do not conclusively establish an informant's reliability.'" Ibid. (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)). "The current evidence must give the court an opportunity to make an independent evaluation of the informant's present veracity." Ibid.

"The second factor, basis of knowledge, analyzes whether the informant obtained his information in a reliable manner." Ibid. The Court held that

[t]o determine an informant's basis of knowledge, the court must decide whether the tip reveals expressly or clearly how the informant became aware of the alleged criminal activity. Even without an explicit disclosure, the police can still adequately demonstrate the informant's basis of knowledge 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. For instance, the information will be deemed to have come from a trustworthy source if the informant provides sufficient detail in the tip or recount[s] information that could not otherwise be attributed to circulating rumors or easily gleaned by a casual observer.

 

[Id. at 555-56 (alteration in original) (internal citations and quotation marks omitted).]

 

Even "'if the informant's tip fails to demonstrate sufficient veracity or basis of knowledge, a search warrant issued on the basis of the tip may still pass muster if other facts included in a supporting [police] affidavit justify a finding of probable cause.'" Id. at 556 (alteration in original) (quoting Jones, supra, 179 N.J. at 390). As the Court held,

[t]he degree of corroboration that the police must present to the issuing court depends on a qualitative analysis of the unique facts and circumstances presented in each case. Nonetheless, relevant 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. Although no corroborating fact, by itself, conclusively establishes probable cause, a successful controlled buy typically will be persuasive evidence in establishing probable cause.

 

[Ibid. (internal citations and quotation marks omitted).]

 

Here, there was probable cause to issue the warrant based on the confidential informant's tip. Detective Goodman deemed the informant reliable based upon past interactions that resulted in the seizure of substantial amounts of drugs and weapons, as well as numerous arrests and convictions of CDS offenders. Moreover, the informant provided specific information to the detective, including an accurate physical description of defendant and defendant's nickname, a description of the drug defendant was selling and its form and price, the location where defendant kept the drugs, and the nicknames of the individuals for whom defendant was selling the drugs. The informant's past reliability, combined with the amount of detail in and accuracy of the information he provided to Detective Goodman, more than corroborated the informant's veracity and basis of knowledge.

Even without the confidential informant's tip, the totality of the circumstances established probable cause for issuing the search warrant. On October 5, 2010, Detective Goodman saw defendant exit his apartment and engage in a drug transaction. On October 7, 2010, Detective Goodman saw defendant enter his apartment with money in his hand and then exit the apartment. After defendant exited the apartment, Sergeant Trowbridge saw him with bags of suspected heroin in his left hand, and the police found two bags of heroin in defendant's possession when they arrested him. We are satisfied that the totality of evidence in this case showed a sufficient nexus to defendant's illegal drug activity and his apartment.

Because the search warrant was, in the totality of the circumstances, based upon sufficient probable cause gleaned from a confidential informant's tip that was substantially corroborated by a controlled purchase and other factors, the warrant was properly issued. Thus, the motion judge correctly denied defendant's motion to suppress.

Affirmed.

1 Pursuant to the plea agreement, the following charges were dismissed: third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count one); third-degree distributing, dispensing or possessing a CDS on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree distributing, dispensing or possession of a CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four); second-degree possession of a weapon during commission of a CDS crime, N.J.S.A. 2C:39-4.1a (count five); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven).