STATE OF NEW JERSEY v. DONNA ABRAHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3228-06T43228-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNA ABRAHAM,

Defendant-Appellant.

_________________________________________________

 

Submit November 6, 2008 - Decided

Before Judges Payne and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 03-10-0293.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kisha M.

Hebbon, Designated Counsel, on the brief).

David J. Weaver, Sussex County Prosecutor,

attorney for respondent (Joseph M. Corazza,

Assistant Prosecutor, on the brief).

PER CURIAM

Following denial of her motion to suppress evidence seized pursuant to a search warrant, defendant, Donna Abraham, pled guilty to two counts of theft by deception, N.J.S.A. 2C:20-4, downgraded from a second-degree to a third-degree crime for purposes of the plea. She was sentenced to a three-year term of probation, with sixty days to be served in the Keogh-Dwyer Correctional Facility. Restitution was required, and appropriate fines and penalties were imposed.

On appeal, defendant raises the following issues:

POINT I

THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE APPLICATION FOR THE WARRANT MISLED THE COURT IN THAT IT FAILED TO PROVIDE SPECIFIC DATES AND TIMES, INCORRECTLY STATED THAT OFFICER TOSTI OBSERVED CORRESPONDENCE AND PAPERWORK IN VARIOUS PEOPLE'S NAMES WHILE IN MS. ABRAHAM'S HOME, AND INCORRECTLY STATED THAT OFFICER TOSTI DESCRIBED MS. ABRAHAM'S HOME AS BEING ABANDONED.

POINT II

EVEN IF THE SEARCH WARRANT WAS SUPPORTED BY PROBABLE CAUSE, THE SEARCH OF MS. ABRAHAM'S HOME AND MOTOR VEHICLE VIOLATED HER RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION BECAUSE THE WARRANT WAS BASED IN PART ON INFORMATION OBTAINED AS A RESULT OF TWO UNLAWFUL SEARCHES AND, THEREFORE, IS FRUIT OF THE POISONOUS TREE.

A. The Search of Ms. Abraham's Home Was

Illegal.

B. The Search of The Motor Vehicle Was

Illegal.

Following our review of the record on appeal and applicable legal precedent, we affirm.

I.

Testimony at the suppression hearing was offered on behalf of the State by United States Postal Inspector Thomas Tretola, Stillwater Township Police Officer Thomas Tosti, Sussex County Prosecutor's Office Detective Diane Hemschot, Fort Lee Police Detective James Hunt, and Fort Lee Police Detective Thomas Provenzano. That testimony disclosed that defendant and her husband, Terrance Abraham, came to the attention of Postal Inspector Tretola in the fall of 1999 following a complaint of credit card fraud, made by a person named Najazi Leka. It was determined that an American Express credit card in Leka's name had been delivered to the residence occupied by the Abrahams and owned by Winston Cover, located at 901 West End Drive, Newton, New Jersey. Over $14,000 in charges had been made by use of the card.

In January 2001, following a report to the police that a suspicious person had been observed at 901 West End Drive, Officer Tosti responded to the site. Once there, he inspected the exterior of the residence and, finding no cars in the driveway, but the front door ajar and lacking a door handle, he entered to determine whether a burglary was in progress. Although Tosti's inspection disclosed that no one was present in the home, he noticed large amounts of paperwork scattered "all over the place" and several phones and phone jacks, which "seemed odd" to Tosti. He did not examine any of the "tons and tons of paperwork" that he observed. Tosti testified that the ceiling looked like it had unrepaired water damage and that the overall condition of the residence had deteriorated markedly from what he recalled under prior ownership. Tosti testified:

I was thinking that it could definitely be a house where kids would go in and party. Like maybe even I wouldn't go as far [as] saying abandoned, but it was going -- I was thinking that. I was thinking that.

The record disclosed that, in March 2001, the Newton Post Office informed Inspector Tretola that the Abrahams had moved to 906 West End Drive.

On August 15, 2001, Fort Lee Police Detective Hunt was informed by PNC Bank employee Vote that she believed that two women, identified as defendant and Susan Pierce, had submitted a fraudulent loan application, which had appended to it a seemingly bogus certificate of incorporation. Hunt initiated an investigation that included speaking to the attorney who appeared to have prepared the incorporation certificate and speaking with Inspector Tretola regarding his Sussex County investigation. Having been informed by Vote that defendant and Pierce intended to return to the bank to complete the loan application on August 16, Hunt returned as well and, after interviewing the two women, determining that Pierce was the victim of fraud and concluding that defendant was culpable, he arrested defendant.

Among the information provided by Vote was the fact that the women had arrived at the bank on both August 15 and 16 in a black SUV. After arresting defendant, Detective Hunt requested that a marked police vehicle respond to the bank. When Hunt left the bank with defendant, responding Officer Provenzano was standing beside the SUV with Terrance Abraham, who was thereupon arrested as a co-conspirator. Upon looking into the SUV through the window, Hunt, an experienced white collar crime investigator, observed "a number of documents, files, articles that [he] believed were potentially related to the crime under investigation." Hunt seized the documents.

Following the arrests of the Abrahams, on August 17, 2001, Inspector Tretola prepared an affidavit in support of an application for issuance of warrants authorizing the search of the residences at 901 and 906 West End Drive. Officer Tosti, who was present, disclosed the circumstances of his prior search of 901 West End Drive, and his description was included, in a somewhat inaccurate form, in the affidavit.

The affidavit drafted by Inspector Tretola was ten pages in length. Its factual foundation, commencing on page three, paragraph four, consisted of ten numbered subparagraphs. Tretola first detailed in subparagraphs one and two the Abrahams' credit card fraud utilizing the name of Najazi Leka, which included obtaining American Express accounts, a Capital One credit card, and other lines of credit including a GE/Exxon credit card and charging a total of $16,454. Tretola next described in subparagraphs three and four his investigation of credit card fraud committed by the Abrahams on Mohammed Alsam, which involved two American Express credit cards and charges of approximately $9,000. He stated further that his investigation had disclosed correspondence directed to 901 West End Drive in the names of Leka, Alsam, Cover and eighteen others, as well as fifteen businesses.

Additionally, Tretola stated in subparagraphs five and six of his affidavit that he had learned that Cover, the nominal owner of 901 West End Drive, had signed documents at the Abrahams' behest with respect to the residence, but he did not know what the documents were and did not know where Stillwater was. Documents utilized to obtain a mortgage of $327,750 on the property were false and altered. No money had been paid on the mortgage. Additionally, Cover advised that the Abrahams had procured credit cards in Cover's name, and that a Citibank account and an AT&T credit card account each had a balance of $6,000. Additionally, a loan in the amount of $15,000 had been obtained in Cover's name from First Union Corporation without Cover's knowledge. The loan had been transferred to an account in the name of a business, Abrahams Daughters and Sons, located at the 901 West End Drive address.

Tretola also recounted in subparagraph six the information provided to him by Tosti regarding his inspection of the premises following the suspicious person report. However, Tretola incorrectly stated that Tosti had observed "numerous paperwork including letters, correspondence, business paperwork, located in the house in various names." Tretola also erroneously reported that the house appeared to be abandoned.

The affidavit included, in subparagraph seven, evidence of potential fraud in connection with the purchase of 906 West End Drive and the securing of mortgages on that property. In subparagraph eight, Tretola stated that a truck, driven by the Abrahams but allegedly owned by Mohammed Alsam, valued at $100,000, had been repossessed. Tretola also noted that various loan applications submitted by the Abrahams in the names of Cover, Najazi, Leka and Alsam had been discovered.

In subparagraph nine, Tretola detailed the events surrounding the attempted fraud upon PNC Bank. Tretola stated that at the time of the Abrahams' arrest, they had in their possession numerous credit cards, some in the names previously known to be receiving mail at 901 and 906 West End Drive. He also described the contents of documents seized by Detective Hunt from the SUV.

Finally, in subparagraph ten, Tretola described Pierce's statements, given during her interview by the Fort Lee police. At that time, Pierce was reported to have stated that defendant had approached her to become a business partner for a restaurant business known as Bonfire Restaurants. In that connection, Pierce had signed paperwork for the purchase of two motor vehicles and a bank loan. She also stated that defendant had sought a $50,000 loan from PNC Bank in Pierce's name. As was true with other victims, Pierce was unsure what paperwork she had signed for defendant. Upon review of the affidavit, a Superior Court judge authorized a search of the two residences on West End Drive.

II.

On appeal, defendant attacks the affidavit supporting the request for a search warrant, arguing that it failed to state specific dates and times, thereby creating the impression that events were more current than they actually were. Additionally, defendant argues that the affidavit inaccurately conveyed the information provided by Tosti, stating that he had observed a variety of names on correspondence and that the residence at 901 West End Drive was abandoned. Without these "misrepresentations," defendant claims, there was insufficient evidence to provide a foundation for the judge's determination that probable cause for issuance of the search warrants existed. As a consequence, the search of the residences was illegal and the evidence thus revealed should have been suppressed.

"A search based upon a warrant is presumed valid once the State establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants." State v. Valencia, 93 N.J. 126, 133 (1983). The burden of proving the invalidity of the warrant is placed on the defendant, who must demonstrate the absence of probable cause for its issuance. Ibid.

"Probable cause exists if at the time of the police action there is a 'well grounded' suspicion that a crime has been or is being committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The Supreme Court has explained that probable cause requires nothing more than "'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Johnson, 171 N.J. 192, 214-15 (2002) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)).

We reject the argument that the absence of dates within the affidavit made it misleading. As a factual matter, the affidavit makes it clear that Inspector Tretola's investigation commenced in November 1999, almost two years before the affidavit was drafted. The sale of 901 West End Drive by the Abrahams to Cover on May 18, 2000 was noted, as was the date of Tosti's inspection of the Abrahams' residence in January or February 2001. Further, the approximate date of the Abrahams' move to 906 West End Drive appears, and finally, the August 16, 2001 date of the Abrahams' arrests is given. Thus, contrary to defendant's argument, the affidavit does contain a chronological framework.

Moreover, we have recognized that when a supporting affidavit "purports to catalogue a course of conduct occurring over an extended period of time, and that where the affidavit properly recites facts indicating a continuous course of criminal conduct, the passage of time becomes less significant." State v. Altenburg, 223 N.J. Super. 289, 295 (App. Div. 1988), aff'd, 113 N.J. 508 (1988). Viewed in that light, we agree with the trial judge that the investigative narrative was "adequate" to accurately convey the essence of the investigation into the activities of the Abrahams.

When challenging an affidavit containing inaccurate information, the defendant will be successful only if she proves, by a preponderance of the evidence, that the affiant intentionally or with reckless disregard for the truth, included material untrue information or made material omissions. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978); State v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. denied, 130 N.J. 396 (1992). "[A]s a deterrent to egregious police conduct, the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. [S]he must allege 'deliberate falsehood or reckless disregard for the truth,' pointing out with specificity the portions of the warrant that are claimed to be untrue." State v. Howery, 80 N.J. 563, 567 (1979) (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682), cert. denied, sub nom. Howery v. N.J., 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). Also, the misstatements must be material to the extent that "when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Id. at 568.

Our examination of the record in this matter discloses no evidence of intentional misconduct or reckless disregard for the truth on the part of Inspector Tretola. At most, the statement that Tosti had observed, while at 901 West End Drive, correspondence addressed to numerous individuals duplicated information otherwise disclosed in Tretola's investigation as set forth in subparagraph four of his affidavit. There is no suggestion that the content of the statement was inaccurate. The record only supports the conclusion that its source was wrongly attributed. And as our description of Tosti's testimony at the suppression hearing discloses, if the residence were not abandoned, it was close to that condition. The evidence thus suggests that Tretola's statements were inexact, not intentionally misleading or made with reckless disregard for the truth. We therefore reject defendant's argument in this regard.

Moreover, we note that, to successfully challenge Inspector Tretola's affidavit, defendant must demonstrate not only that it contained untrue or misleading information, but also that such information was material. Stelzner, supra, 257 N.J. Super. at 235. As we noted previously, a statement will not be considered "material" if the affidavit will still support probable cause even without that statement. Howery, supra, 80 N.J. at 567. See also State v. Martinez, 387 N.J. Super. 129, 139-41 (App. Div.) (holding that even though the affiant was mistaken as to the identity of a suspect, under the circumstances, the affidavit nevertheless contained sufficient evidence to establish probable cause for issuance of a warrant), certif. denied, 188 N.J. 579 (2006).

Our examination of the statements incorrectly attributed to Officer Tosti satisfies us that those statements were not material, and that ample, unassailable evidence apart from those statements established probable cause for issuance of a warrant. The trial judge observed in this context, "after having had a chance to look carefully at the affidavit here . . . I don't think it [probable cause] is a close call." We agree, finding significant additional evidence of credit card, loan and mortgage fraud.

III.

Defendant argues additionally that because information contained in the affidavit was procured through illegal searches conducted by Tosti and Hunt, that information constituted fruit of the poisonous tree that legally could not be considered in gauging whether facts set forth in the affidavit provided probable cause for issuance of the warrants. See State v. Johnson, 118 N.J. 639, 651-52 (1990).

We do not, however, agree with defendant that the searches at issue were illegal. When Tosti entered 901 West End Avenue, suspecting a burglary in progress, he was performing a community caretaking function that permitted his warrantless entry into the residence. State v. Boud, 240 N.J. Super. 171 (App. Div. 1999). As we recognized there, "[t]he police have always been able to enter a dwelling without a warrant to render assistance in times of emergency." Id. at 180. See also State v. Garbin, 325 N.J. Super. 521 (App. Div. 1999) (permitting police entry into garage following a report of a possible fire and the observation of smoke), certif. denied, 164 N.J. 560 (2000). In the present matter, Tosti was objectively justified in entering the Abrahams' home after receiving a neighbor's report of a suspicious person on the property and observing the door of the house to be ajar at a time when there were no cars in the driveway and no other evidence of the Abrahams' presence at the residence.

We also regard Detective Hunt's warrantless seizure of papers from the black SUV driven by defendant's husband, Terrance Abraham, to have been legally justified under the plain view doctrine. That doctrine requires the seizing officer to have a legitimate reason for being in the viewing area, the discovery to have been inadvertent, and the illegal nature of the items to have been immediately apparent. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

We regard Bruzzese's conditions to have been met in this case. The SUV was parked in a public lot adjoining the bank. Immediately before spying the documents, Detective Hunt had directed Officer Provenzano, who was standing with Terrance Abraham next to the vehicle, to arrest him. Thus, Hunt had a reason for being in the viewing area. And, any passerby, standing where Hunt was located, could have seen the papers inside the vehicle by casually looking through the window. State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984). It is also apparent that the evidence was inadvertently discovered, since nothing suggests that Hunt knew that the vehicle would contain relevant documents. Bruzzese, supra, 94 N.J. at 236.

As a final matter, we are satisfied that the potentially criminal nature of the documents was immediately apparent to a detective such as Hunt, who was experienced in the detection of white-collar crime. When reviewing an officer's determination that an item is of a criminal nature, the Court has held that "consideration must be given 'to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" Johnson, supra, 171 N.J. at 215 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968)). Also, we have held that an officer does not need to "know" that certain items are contraband or evidence of a crime; it is sufficient if the officer, from a permissible vantage point, has probable cause to believe that the item observed is contraband or evidence. State v. Pineiro, 369 N.J. Super. 65, 74 (App. Div.), certif. denied, 181 N.J. 285 (2004).

In this case, Detective Hunt testified that based on his years of experience in investigating white collar crime, he believed the documents that he observed in the SUV were "potential evidence." The trial judge found that the criminality of the documents was readily apparent because "this was not a casual observation, but an informed one. Everything was coming and culminating to a head at that time. And so, the appearance in that place of those business documents in the vehicle had a special significance to the Fort Lee detectives . . . ." We agree, and determine that as a result of the recently uncovered evidence of attempted fraud, the level of Detective Hunt's experience, Johnson, supra, 171 N.J. at 215, and the nature of the crime for which defendant had just been arrested, it was proper for the trial court to hold that the evidentiary nature of the documents was readily apparent under Bruzzese.

Moreover, even if we were to find the evidence seized from the SUV and the observations of Officer Tosti to have been the fruit of the poisonous tree and thus not cognizable in determining whether probable cause for issuance of a warrant existed, there was ample other evidence in the affidavit to support such a finding. See State v. Holland, 176 N.J. 344, 354=61 (2003) (recognizing independent source rule). In that decision, the Court held that, when illegally obtained evidence is utilized to support a search warrant, in order for the warrant to be valid, the State must demonstrate probable cause to conduct the search without relying on the tainted evidence and must show, by clear and convincing evidence, that the police would have sought a warrant without consideration of the wrongfully-obtained information or evidence and that the initial illegal searches were not the product of flagrant police misconduct. Id. at 360-61.

In our view, Holland's requirements have been met here. Clearly, the arrest of defendant and her husband, together with the untainted evidence of credit card, loan and mortgage fraud set forth in Inspector Tretola's affidavit strongly supported the judge's conclusion that probable cause for issuance of a search warrant existed. Sullivan, supra, 169 N.J. at 211.

Additionally, having just arrested the Abrahams following a nearly two-year, productive investigation, it is evident that the police would have sought the warrant even without the allegedly tainted information obtained from the searches at issue. And finally, there is nothing that would suggest flagrant misconduct on the part of Officer Tosti or Detective Hunt in conducting their searches, which, after all, we have deemed legal. We conclude that this simply is not an occasion where the police abused their positions, thereby precluding reliance on the independent source rule.

For the reasons that we have set forth, the order denying defendant's suppression motion is affirmed.

Affirmed.

 

The residence is variously described as being located in Newton and in Stillwater Township.

Although Tosti testified that people in town often left their doors unlocked, he stated that "they're not usually opened."

(continued)

(continued)

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A-3228-06T4

December 1, 2008