STATE OF NEW JERSEY v. DALE KELLY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1981-04T41981-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DALE KELLY,

Defendant-Appellant.

__________________________________

 

Submitted May 8, 2006 - Decided June 13, 2006

Before Judges Yannotti and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0190.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of a suppression motion in a narcotics case and from the imposition of sentence. Defendant was charged with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); possession of CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and possession of CDS with intent to distribute within 100 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).

Defendant's motion to suppress was denied and defendant then pled guilty to count three. Defendant was sentenced to an extended eight-year term of imprisonment with a four-year period of parole ineligibility. Defendant raises the following issues on appeal:

POINT I -- THE WARRANTLESS SEARCH OF DEFENDANT'S AUTOMOBILE WAS UNCONSTITUTIONAL AS IT DID NOT FALL WITHIN A) THE AUTOMOBILE EXCEPTION OR B) THE CONSENT SEARCH EXCEPTION TO THE WARRANT REQUIREMENT.

POINT II -- THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION CONCERNING THE STATE'S PLEA OFFER OF EIGHT YEARS IMPRISONMENT WITH A FOUR YEAR PAROLE DISQUALIFIER AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS (NOT RAISED BELOW).

We affirm.

On October 2, 2002, at about 6:40 p.m., Detective Kevin O'Brien of the Plainfield Police Department Narcotics Bureau received a phone call from an informant who advised that an African-American male, wearing a sleeveless sky-blue shirt, blue jeans and a white headband, was selling drugs out of a gray Crown Victoria in the area of New Street and West Fourth Street in Plainfield. The informant gave O'Brien the license plate number. He stated that he observed drugs in the trunk of the car. The informant previously had provided the police with information that led to about seven arrests related to narcotics activity.

O'Brien and other officers from the Plainfield Narcotics Squad responded immediately to the scene. A public housing complex is located nearby and the police had received numerous complaints concerning drug activity in that area. O'Brien observed a man walking near the parking lot at New and West Fourth Streets. He fit the description given by the informant. The Crown Victoria was parked where the informant said it would be parked.

O'Brien approached defendant with another officer. Two other police officers stood about twenty-five feet away. O'Brien asked defendant where he lived, how he had arrived at that location, and whether he had any keys on him. Defendant answered the questions and showed the detective the keys. O'Brien asked if he could have the keys and defendant turned them over. O'Brien ran a license plate check on the Crown Victoria and determined that it had been reported stolen. O'Brien then opened the trunk where he found a fold of heroin in a peanut butter container.

Detective O'Brien retrieved the peanut butter container and instructed a fellow officer to place defendant under arrest. Defendant was searched following his arrest and was found to be in possession of title to the stolen vehicle along with $30. The police never observed defendant selling drugs or engaged in any criminal activity.

As he did on the motion to suppress, defendant contends here that there was neither probable cause nor exigent circumstances justifying the warrantless search.

"Probable cause is said to be a reasonable basis for the 'belief' that a crime has been or is being committed[,]" State v. Burnett, 42 N.J. 377, 386 (1964), and is the minimal requirement for a reasonable search. State v. Waltz, 61 N.J. 83, 87 (1972). All search warrants issued must be based upon probable cause and the judge's decision to so issue must be based on the "underlying facts or circumstances which would warrant a prudent man [to] believ[e] that the law was being violated." State v. Macri, 39 N.J. 250, 257 (1963).

Whether probable cause to issue a search warrant exists depends on an evaluation of the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). Probable cause will not be established "by a conclusory affidavit that does not provide a magistrate with sufficient facts to make an independent determination as to whether the warrant should issue." State v. Novembrino 105 N.J. 95, 109 (1987); see Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 2d 159 (1933). The officer's affidavit must allege specific facts, so that the judge may make an independent and neutral probable cause determination, as opposed to relying on the determinations of the affiant officer. Id. at 110.

"A warrantless search [or seizure] is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664, 751 A.2d 92, 95 (2000). The State, as the party seeking to validate the warrantless search, "has the burden of proving the validity of the search." State v. Maryland, 167 N.J. 471, 489, 771 A.2d 1220, 1231 (2001).

[State v. Moore, 181 N.J. 40, 44-45 (2004).]

See also State v. Bruzzese, 94 N.J. 210, 218 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984); State v. Patino, 83 N.J. 1, 7 (1980); State v. Ercolano, 79 N.J. 25, 41-42 (1979). The State must prove the validity of a warrantless search by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45, 51-52 (App. Div. 1976).

Our Supreme Court has enumerated the exceptions to the warrant requirement. State v. Hill, 115 N.J. 169, 173-74 (1989). Two recognized exceptions to the warrant requirement, which were first carved out by the United States Supreme Court are relevant here. The first is the automobile exception, Carol v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), and the second is the consent-search exception, United States v. Matlock, 415 U.S. 164, 165, 94 S. Ct. 988, 990, 39 L. Ed. 2d 242, 246 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S. Ct. 2041, 2049, 36 L. Ed. 2d 854, 864 (1973). We need not address the second exception as we are satisfied that the requirements of the first exception were met.

In New Jersey the State must prove both probable cause and exigent circumstances to sustain a warrantless search of a motor vehicle. State v. Cooke, 163 N.J. 657, 661 (2000). Whenever probable cause is supplied by an informant, the State must demonstrate that in light of the totality of the circumstances the informant's tip was reliable. Gates, supra, 462 U.S. 213 at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548; State v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998). Our Supreme Court first adopted the "totality of the circumstances" analysis under the New Jersey Constitution in Novembrino, supra, 105 N.J. at 122.

Hearsay may constitute evidence of probable cause "so long as a substantial basis for crediting the hearsay is presented." State v. Zutic, 155 N.J. 103, 110 (1998); Novembrino, supra, 105 N.J. at 111. An informant's "veracity" and "basis of knowledge" are two highly relevant factors in this analysis. Zutic, supra, 155 N.J. at 110. A deficiency in one of these factors may be compensated for, in determining overall reliability, by a strong showing as to the other, or by some other indicia of reliability. Id. at 110-111. An informant's past reliability will bolster his veracity. Id. at 111; State v. Sullivan, 169 N.J. 204, 213 (2001). If the informant does not identify a basis of knowledge, a reliable basis may be inferred from the level of detail and amount of hard-to-know information disclosed in the tip. Zutic, supra, 115 N.J. at 111.

The basis of knowledge is sufficient "if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Smith, supra, 155 N.J. at 94. Alternatively, 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," then the basis of knowledge is satisfied. Ibid.

"Independent corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip" and is considered "an essential part of the determination of probable cause." Smith, supra, 155 N.J. at 95, 713 A.2d at 1040. However, 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 affidavit justify a finding of probable cause. Sullivan, supra, 169 N.J. at 214, 777 A.2d at 66; Novembrino, supra, 105 N.J. at 121-22, 519 A.2d at 835-36. "'[T]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Smith, supra, 155 N.J. at 93, 713 A.2d at 1038-39 (quoting Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548).

[State v. Jones, 179 N.J. 377, 390 (2004).]

Of course, a court must give "sufficient weight to the officer's knowledge and experience and to rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise." State v. Arthur, 149 N.J. 1, 10-11 (1997). See also State v. Caldwell, 158 N.J. 452, 461 (1999).

The motion judge found that the veracity factor was established by the State by a preponderance of the evidence. The informant had provided seven prior tips which led to arrests. The tip he provided was corroborated at the scene. The informant described the car and the license plate and the officers observed the described car in the location where the informant said it would be found, and the license plate on the car matched the place number given by the informant. The car was parked in a high narcotics area and the police observed an African-American male wearing a sky-blue colored sleeveless shirt, blue jeans and a white headband, which was exactly the description of the person that the informant said was selling narcotics out of the trunk of that car. Further corroboration of the informant's veracity was found by the motion judge in the fact that the defendant had possession of a Ford motor vehicle key and, in fact, that key unlocked the trunk to the car in question. The court was satisfied that the State had proven by a preponderance of the evidence that the informant was reliable.

The court also found that the basis-of-knowledge factor had been demonstrated in that the informant had made personal observations of the defendant selling drugs out of the trunk of the Crown Victoria. The court then concluded that the State had established by a preponderance of the evidence that there was probable cause to search. There is substantial evidence in the record supporting these conclusions, and, thus, no error is found in the motion judge's conclusion that the tip was reliable and that probable cause existed for the search.

After concluding that the informant was reliable and that there was probable cause to search, the trial court then concluded that exigent circumstances were present excusing the necessity of a warrant.

Exigent circumstances have been described as "unforeseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile ..." Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly. In addition, exigent circumstances may arise where "[a]ny element of surprise had been lost; the vehicle contained the 'contraband' drugs; there were 'confederates waiting to move the evidence'; the police would need 'a special police detail to guard the immobilized vehicle.'"

[Cooke, supra, 163 N.J. at 672 (citations omitted).]

Exigent circumstances may also arise where events unfold rapidly. State v. Irelan, 375 N.J. Super. 100, 108-109, 114 (App. Div. 2005). The sudden nature of a roadside stop and the events subsequent thereto is "unforeseen, spontaneous and swiftly developed." Id. at 119. The exception applies equally to a vehicle stopped on the highway and vehicles parked on a public street or in a parking lot. Cardwell v. Lewis, 417 U.S. 583, 594, 94 S. Ct. 2464, 2471, 41 L. Ed. 2d 325, 337 (1974); Cooke, supra, 163 N.J. at 664-65.

In New Jersey "exigency in the constitutional context amounts to 'circumstances that make it impractical to obtain a warrant when the police have probable cause to search the car.'" Cooke, supra, 163 N.J. at 676 (citing State v. Colvin, 123 N.J. 428, 437 (1991)). It is that impracticability and the existence of probable cause to believe that the vehicle contains evidence of a crime, together with a lessened expectation of privacy in an automobile, which tips the balance in favor of condoning the warrantless search. Ibid. Exigent circumstances do not disappear simply because the user of the vehicle has been removed from the car, arrested, or otherwise restricted in their freedom of movement. Cooke, supra, 163 N.J. at 672; State v. Alston, 88 N.J. 211, 234 (1981). Until the vehicle is removed from the scene by the police "it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it." Ibid.

The trial court addressed the exigent circumstances prong of the Cooke test as follows:

I believe, based on this case law and the facts of this case exigent circumstances [have] been shown. This car was not registered, could not be legally moved from the area. It was in a high narcotics area with people around in the area and in the parking lot. The confidential informant observed that there were drugs in the car. There were numerous apartments that looked down into the area where the car was, and it is a reasonable inference that there were other people in the area who could just have readily seen the drugs in the car and the defendant's activities regarding that. And based on the case law, case law does not require a special detail under these circumstances to be placed around the vehicle to secure it while the police go get [a search] warrant.

We have reviewed the record and these conclusions are supported by substantial evidence. As a result the motion judge properly denied the motion to suppress and his conclusion is affirmed on appeal. As a consequence, we need not reach the issue of a consent search.

Turning to the sentence imposed, defendant contends that the refusal of the prosecutor to waive the mandatory minimum sentence for an offense under the Comprehensive Drug Reform Act, as permitted by N.J.S.A. 2C:35-12, was arbitrary and capricious. A prosecutor's decision not to waive the mandatory minimum sentence is subject to review for abuse of discretion under State v. Vasquez, 129 N.J. 189, 195-96 (1992).

An extended term for a repeat drug distributor is the norm. State v. Lagares, 127 N.J. 20, 33 (1992). An extended term may be denied or vacated only where the prosecutor's decision to seek an extended term was made on a arbitrary or capricious basis. Vasquez, supra, 129 N.J. at 195-96. A defendant "'must show clearly and convincingly [his] entitlement to relief under that standard.'" Id. at 196 (citing Lagares, 127 N.J. at 33). Defendant has not demonstrated that the prosecutor's decision to seek an extended term was arbitrary or capricious in any fashion.

 
Affirmed.

In 1996 the United States Supreme Court concluded that probable cause that a vehicle contains contraband is itself sufficient justification to conduct a search of the vehicle without a warrant. Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996). In Cooke our Supreme Court declined to follow the lead of the United States Supreme Court, and, thus, exigent circumstances must be shown.

(continued)

(continued)

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A-1981-04T4

June 13, 2006