STATE OF NEW JERSEY v. MICHAEL J. WIGGINS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0405-07T40405-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. WIGGINS,

Defendant-Appellant.

________________________________________________________________

 

Argued March 18, 2009 - Decided

Before Judges Cuff, Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-08-00134 and 04-08-00135.

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Mary Frances Palisano, on the brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Henderson of counsel and on the brief).

PER CURIAM

Defendant, Michael J. Wiggins, appeals from his August 10, 2007 conviction for the first-degree crime of leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. On appeal, he challenges the denial of his motion to suppress the fruits of three motor vehicles searches, two of which were conducted on March 10, 2004 and the other on February 1, 2004. After defendant's motion to suppress was denied, he entered a negotiated guilty plea. The judge sentenced defendant to a twenty-six year term of imprisonment, subject to a ten-year parole ineligibility term, and a five-year period of parole supervision upon release. Defendant asserts this sentence is excessive. We affirm the conviction and sentence.

I.

In the fall of 2003, a joint task force of law enforcement personnel opened a wide-scale investigation of a narcotics distribution ring operating in Atlantic County. Task force participants included the Division of Criminal Justice, the Atlantic County Prosecutor's Office, and the Atlantic City Police Department. Of the fifty law enforcement personnel who were actively involved in the investigation, twenty-five to thirty were assigned to obtain court approval for wiretaps and communication data warrants, and then conducting the ensuing investigations. The communication data warrants and wiretap authorizations enabled law enforcement to obtain telephone billing records, customer records, and "dialed call" records affecting five telephone numbers. Although the original target of the investigation was co-defendant Adam Bishop, the investigation widened to include co-defendants Eddie Davis, Carlos Lopez, Frank Watson, Aaron Laramore and sixteen others.

A. Search of Lopez's gray Toyota van on March 10, 2004

On March 3, 2004, police overheard a conversation between Davis and defendant, during which Davis complained that the supply of cocaine defendant had recently received from a person known only as "Carlos Lopez" was "bad." By contacting Lopez at a cell phone number Lopez had previously provided, defendant asked Lopez to switch the poor-quality cocaine for a better quality. A check of the subscriber information for that cell phone yielded negative results, causing investigators to believe that the name was a false identity.

Law enforcement kept careful track of the pending exchange. In fact, at 5:00 p.m. on March 7, 2004, police overheard defendant tell Davis that Lopez would be traveling to Atlantic City the next day and that the exchange was imminent.

On March 9, 2004, police learned from their electronic surveillance that Lopez had arrived at co-defendant Watson's residence in Atlantic City and was waiting to make the exchange with Laramore at Watson's apartment, known to investigators as 4877 Hawthorne Lane, Mays Landing.

As a result of the information police overheard, Investigator Keith Carmack was positioned outside Watson's apartment, where he observed a gray Toyota van bearing New York license plate CHW-2699 parked in Watson's parking space. Carmack notified Investigator Michael Emmer of what he had just seen. Although Carmack offered to remain there and keep the van under surveillance, after twenty minutes Carmack was dispatched elsewhere.

When a subsequent intercepted telephone conversation suggested that Lopez might already have left Watson's apartment and was headed back to New York City, Carmack immediately returned to Watson's residence at 7:24 p.m. to investigate. The gray van was gone. Realizing that Lopez was about to slip through their fingers, State Police issued an alert advising road troopers to be on the lookout for a Toyota van whose driver was suspected of carrying a large amount of cash and narcotics. The alert also instructed troopers to arrest the driver and seize the vehicle.

Shortly thereafter, Trooper Brian Flaherty saw a Toyota van that matched the description heading north. He effectuated a motor vehicle stop after the vehicle exited the Garden State Parkway, and was about to enter Exit 11 of the New Jersey Turnpike, and placed the driver, later identified as Nelson Lantigua, under arrest. Lantigua was not able to produce a driver's license but was in possession of a New York identification card bearing the name Carlos Lopez. Flaherty arranged for the van to be towed to State Police Barracks in Holmdel, where it was impounded. On the morning of March 10, 2004, a search warrant was obtained for the van. During the ensuing search, investigators seized approximately four pounds of cocaine, along with a duffle bag containing $138,930 in cash.

At the same time as Lopez/Lantigua was traveling to Atlantic City, the investigative team was finishing its preparation of a ninety-page affidavit in support of its request for fourteen search warrants, twelve arrest warrants and five vehicle seizure orders. Police filed that application with Judge Garofolo in the early afternoon of March 9, 2004, and the judge issued the warrants the next morning.

Detective DiGiovanni, the individual in charge of the investigation, testified at the suppression hearing that neither a search nor arrest warrant was requested for Lopez/Lantigua because much of the information about him was still not known. In particular, police did not know his true identity, from where he was coming, how he would be traveling to Atlantic City, or where and when the drug exchange would take place. In the past, Lopez/Lantigua had traveled by cab and police had overheard discussion earlier in the investigation about the exchange possibly taking place in a rest area on the Garden State Parkway.

In a comprehensive written opinion of April 5, 2006, Judge Garofolo rejected defendant's argument that police were required to obtain a telephonic or anticipatory warrant before Flaherty stopped Lopez/Lantigua's vehicle on the Turnpike. Defendant conceded in the Law Division that police had probable cause to stop the vehicle. Consequently, defendant's claim of a Fourth Amendment violation rested solely on law enforcement's failure to obtain an anticipatory or telephonic warrant. In rejecting that argument, Judge Garofolo reasoned that because the ultimate search was conducted with a warrant after the vehicle had been impounded, the only question presented was whether, as defendant claimed, a telephonic or anticipatory warrant was required.

In rejecting that claim, the judge observed that in the day or two preceding Lopez/Lantigua's arrival at Watson's apartment, police did not know the type or make of vehicle he would be driving, nor did police have any description of him. The judge concluded that it was unlikely that the "anticipated precipitating event [could] be described specifically enough . . . to [avoid being] deemed overly broad, yet be sufficiently broad . . . to include the occurrence of a range of possible events." The judge ultimately concluded that an anticipatory warrant likely could not have been obtained, and was not required, because the stop of the vehicle was conducted based upon probable cause and the later search was conducted pursuant to a warrant.

B. Search of Lexus automobile owned by Pierre Chainey on March 10, 2004

On March 10, 2004, at 5:30 a.m., police arrested co-defendant Watson pursuant to an arrest warrant. A task force investigator learned from a police officer, who lived at the same townhouse complex, that Watson had been seen driving a 2002 Lexus and a Cadillac. Both vehicles were in the parking lot of the townhouse complex at the time Officer Prendergast arrested Watson. Prendergast requested a drug-sniffing dog. Upon its arrival, the dog "alerted" positively to the vehicle, signifying the presence of narcotics inside. Police planned to tow the car to an impound lot and secure it until a search warrant could be obtained.

However, while the Lexus was being secured for towing, Pierre Chainey arrived in a different vehicle and asked why his car was being towed. When informed that the Lexus was being towed as part of an ongoing narcotics investigation, Chainey gave the keys to investigators and provided written consent to the search of his vehicle. The ensuing search revealed $26,000 concealed in the center armrest. No narcotics were found.

The judge concluded that the dog's positive reaction to the Lexus afforded probable cause to seize and impound the vehicle, after which police validly searched the vehicle pursuant to the written consent of its owner. Consequently, Judge Garofolo denied defendant's motion to suppress evidence of the $26,000 found in the Lexus.

C. February 1, 2004 search of Bishop's 1994 white Ford Econoline van

In the course of their ongoing investigation, police learned that a 1994 white Ford Econoline van, which was illegally parked, was likely being used to store cocaine. Because the van was illegally parked, police made the decision to tow it to the Atlantic City impound lot. Sergeant Rodney Ruark testified that the nine-foot high "construction van" was "parked right on top of the stop sign" so that the "stop sign was within the front fender of the truck." Because the van "was impeding the view of the stop sign" for anyone traveling down Lexington Avenue toward Connecticut Avenue, Ruark viewed it as a "dangerous situation," and issued a citation for a violation of N.J.S.A. 39:4-138h, which prohibits parking a vehicle within fifty feet of a stop sign.

Ruark testified that he made the decision to tow the van under authority of Atlantic City General Order No. Four (2003) (General Order) of the Atlantic City Police Department, which authorizes the towing of any vehicle that "may impede traffic or create a hazard," or that is parked illegally.

On the morning of February 1, 2004, after the vehicle had arrived at the impound lot, investigators brought a drug-sniffing dog to the vehicle. Based upon the dog's positive reaction, police sought and obtained a search warrant. The ensuing search of the van yielded more than four ounces of cocaine.

Judge Garofolo denied the motion to suppress the evidence seized from the Ford van, holding that the removal of the van was authorized both by N.J.S.A. 39:4-138h and the General Order. The judge also held, pursuant to State v. Bruzzese, 94 N.J. 210, 219-20 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), that an officer's subjective intent is irrelevant when the actions taken are objectively reasonable. The judge reasoned that the use of the drug-sniffing dog was justified by a reasonable and articulable suspicion, based on earlier telephone intercepts that the van contained narcotics. He concluded that the search of the van was conducted pursuant to a properly-obtained search warrant and no constitutional violation had occurred.

On appeal, defendant presents the following claims:

I. THE LOWER COURT ERRONEOUSLY DENIED APPELLANT'S MOTIONS TO SUPPRESS EVIDENCE IN THREE SEPARATE SEARCHES AND SEIZURES IN VIOLATION OF APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

A. Law Enforcement Violated Defendant Lantigua/Lopez's Fourth Amendment Rights by Not Obtaining A Warrant Prior to Stopping His Vehicle, Arresting Him and Searching His Person and Detaining the Vehicle He Was Driving.

B. The State's search of the 1994 white Ford van was also unlawful.

C. The Search of Defendant Watson's 2002 Lexus LS430 was unlawful.

II. THE SENTENCE IMPOSED BY THE LOWER COURT VIOLATED APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS AS THE TRIAL COURT FAILED TO PROPERLY WEIGH THE STATUTORY AGGRAVATING AND MITIGATING FACTORS AND IMPOSED AN EXCESSIVE SENTENCE.

II.

When a trial judge has taken testimony and evaluated the credibility of witnesses, our scope of review of the judge's findings of fact is narrow. State v. Elders, 192 N.J. 224, 243 (2007). So long as those findings of fact are based upon sufficient credible evidence, they are binding upon us. Ibid. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence because the State, "in three separate instances, failed to obtain a search warrant, an anticipatory warrant or a telephonic warrant." Defendant maintains that "the State's minute-by-minute monitoring of defendants provided the State with ample time to apply for warrants before engaging in searches and seizures," especially because a judge "was readily available to hear warrant applications" and "intimately familiar with the investigation." As such, defendant argues that the State's failure to apply for a warrant prior to seizing Lopez/Lantigua's, Bishop's, and Chainey's vehicles makes the seizures unreasonable, and required the suppression of the evidence obtained as a result. However, defendant concedes that the State had probable cause to arrest Lopez/Lantigua and also had probable cause to search his van, as well as the parked Ford Econoline van, pursuant to the lawfully-obtained search warrants. Defendant also does not disagree with the judge's conclusion that Chainey's consent to search the Lexus was validly given. Thus, defendant's challenge to the State's conduct is limited to law enforcement's failure to obtain a telephonic or anticipatory warrant prior to the seizure of the three vehicles in question.

III.

We turn first to the arrest of Lopez/Lantigua and the subsequent seizure and impound of his Toyota van, which was followed by a search conducted pursuant to a search warrant. Defendant relies upon a number of decisions that have addressed exigent circumstances in the context of an automobile stop and argues that any exigency here was self-created, and therefore the State should not be permitted to rely on the exigent circumstances exception to the warrant requirement. We decline to consider the exigent circumstances cases upon which defendant relies because they have no bearing on the facts here. As we have repeatedly stated, the search of Lopez/Lantigua's van was not a warrantless search. It was a search conducted with a warrant.

Defendant has not cited the Court's recent opinion in State v. Pe a-Flores, 198 N.J. 6 (2009), which was decided after briefs were submitted. In Pe a-Flores, the Court held that "the warrantless search of an automobile in New Jersey is permissible where: (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28. The Court held that the totality of the circumstances must be considered and no one factor is dispositive, but reiterated that the fundamental inquiry is "how the facts of the case bear on the issues of officer safety and the preservation of evidence[.]" Id at 28-29. However, as we have discussed, we do not consider Pe a-Flores to be dispositive because in that case, the search was conducted without a warrant.

We begin our analysis by reviewing the decision made by law enforcement to arrest Lopez/Lantigua without a warrant. "[A]n otherwise legal warrantless arrest" does not become illegal simply "because a warrant could have been secured." State v. Henry, 133 N.J. 104, 111, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). Police are not required to obtain an anticipatory warrant at the first moment probable cause exists. Ibid. In Henry, the Court dismissed arguments similar to defendant's here, when it held that "[i]t is not a constitutional imperative for police officers to secure arrest warrants when practicable as long as the arrest is supported by probable cause." Ibid. Thus, "the inquiry . . . will not focus on whether an arrest warrant could have been obtained but on whether the arrest and accompanying seizure of evidence were reasonable." Id. at 111-12. Nothing in Pe a-Flores changes that result. Thus, defendant's argument that police were obligated to obtain an anticipatory arrest warrant before arresting Lopez/Lantigua and taking him into custody is meritless.

Once Lopez/Lantigua was arrested, police seized the vehicle and towed it to an impound lot where it was later searched under authority of a search warrant. Defendant does not challenge the validity of that warrant, and concedes that the issuance of the warrant was based upon probable cause. Instead, he confines his argument to the claim that police were required to obtain the search warrant before seizing the vehicle. We disagree. "Different interests are implicated by a seizure than by a search." Segura v. United States, 468 U.S. 796, 806, 104 S. Ct. 3380, 3386, 82 L. Ed. 2d 599, 609 (1984). "A seizure affects only the person's possessory interests; a search affects a per son's privacy interests." Ibid. As a result, "warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant" have been approved. Id. at 806, 104 S. Ct. at 3386, 82 L. Ed. 2d at 610. That is all that occurred here. Thus, we conclude that defendant's Fourth Amendment rights were not violated by the seizure of Lopez/Lantigua's van while police sought a search warrant. We thus reject the argument defendant advances in Point I.A.

IV.

We turn next to defendant's Point I.C, in which he challenges the denial of his motion to suppress the evidence found in the 2002 Lexus that was driven by co-defendant Watson. The vehicle was parked in a parking lot when a drug-detecting dog indicated the presence of narcotics in the vehicle. The dog's positive reaction constitutes probable cause to search the vehicle. Illinois v. Caballes, 543 U.S. 405, 409, 125 S. Ct. 834, 838, 160 L. Ed. 2d 842, 847 (2005). Moreover, the use of drug-detecting dogs does not implicate legitimate privacy interests. State v. Cancel, 256 N.J. Super. 430, 435-37 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). Thus, only reasonable suspicion is necessary to initiate the use of the dog. Ibid. Probable cause is not necessary. Ibid. Here, the information learned from the wiretaps provided reasonable suspicion to initiate the sniff test on the Lexus.

However, as we have discussed, police abandoned their plan to secure a warrant for the search of the Lexus when the vehicle's owner, Chainey, provided consent to its search. Under those circumstances, the search was valid, because a voluntary consent to search -- given after police have developed reasonable suspicion of criminal activity related to the use of the car -- is a recognized exception to the warrant requirement. State v. Carty, 170 N.J. 632, 647 (2002). We therefore affirm Judge Garofolo's denial of defendant's motion to suppress the cash found in Chainey's Lexus, and reject the claim defendant advances in Point I.C.

V.

We turn next to defendant's Point I.B, in which he challenges the search of the Ford Econoline van. That search was conducted pursuant to a warrant police obtained after they had already towed the vehicle to an impound lot. Defendant maintains that the search was unlawful because the towing and impound were pretextual, and because law enforcement failed to obtain a search warrant before seizing the vehicle.

We begin our analysis by addressing defendant's claim that, in light of police suspicion that the Ford van contained narcotics, the towing of the vehicle--because it was blocking the stop sign and impeding the flow of traffic--was merely pretextual. As Judge Garofolo properly found, in Bruzzese, supra, 94 N.J. at 219, the Court rejected the very argument defendant advances here. There, the Court held "that the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent." Ibid. The Court reasoned that if judges were required to adopt "the defendant's subjective rule, practically every search-and-seizure case would require the court to engage in a costly and time-consuming expedition into the state of mind of the searching officer." Id. at 221.

After rejecting the defendant's claim that the search should be invalidated because the reasons cited by law enforcement for conducting the search were pretextual, the Court held that so long as the impoundment of the automobile is objectively reasonable, no constitutional violation has occurred. Id. at 225. Explaining what is reasonable, the Court stated that "[i]f police have no realistic need to impound a defendant's car, . . . that impoundment is unreasonable." Ibid.

Our analysis of whether the State demonstrated a "realistic need to impound" the van requires us to assess the State's claims that the vehicle violated a State statute because it was parked within fifty feet of a stop sign, and that it dangerously impeded oncoming drivers' ability to see the stop sign. We begin that analysis by observing that defendant does not challenge the judge's findings concerning the positioning of the vehicle or its capacity to obscure the stop sign from the view of approaching drivers. He merely asserts that law enforcement's rationale was pretextual. We are satisfied, as was Judge Garofolo, that the record amply supports the conclusion that the van was parked within fifty feet of the stop sign. Indeed, the front of the van was adjacent to the stop sign. As such, the van was parked in violation of N.J.S.A. 39:4-138h, which prohibits parking within fifty feet of a stop sign. Moreover, N.J.S.A. 39:4-136 permits police officers to remove any vehicle that is in violation of Chapter 4 of Title 39. Unquestionably, a violation of N.J.S.A. 39:4-138h is a violation of Chapter 4 of Title 39. Thus, it is beyond dispute that a vehicle parked within fifty feet of a stop sign may be removed and towed by police.

Ruark testified that he also made the decision to tow the van under authority of the General Order that we have already discussed. Although we agree with Judge Garofolo's conclusion that the General Order likewise supports the towing of the vehicle, we do not rely upon the General Order because we are satisfied that the violation of N.J.S.A. 39:4-138h, and the danger posed by the positioning of the van, amply support the police decision to tow the vehicle.

Once the vehicle was towed to an impound lot, intercepted phone conversations supplied the State with reasonable suspicion to use a drug-sniffing dog. The dog reacted to the van, which provided police with probable cause to search the vehicle. Caballes, supra, 543 U.S. at 409, 125 S. Ct. at 838, 160 L. Ed. 2d at 847; Cancel, supra, 256 N.J. Super. at 435-37. Police then obtained a warrant, the sufficiency of which defendant does not challenge. Thus, the towing of the van was objectively reasonable in light of the parking violation, there was reasonable suspicion to bring the dog to the impound lot, the dog's reaction provided probable cause to search its contents, and police obtained a search warrant before doing so. Under those circumstances, no constitutional violation occurred. We thus reject the claim defendant advances in Point I.B.

VI.

Last, we address the argument defendant advances in Point II, in which he asserts that the sentence imposed was excessive. We note that although the plea agreement would have permitted the judge to impose a sentence of twenty-six years with a thirteen-year parole ineligibility term, the judge instead imposed a lesser sentence of twenty-six years with a ten-year parole ineligibility term. Upon conviction of the crime of leader of a narcotics trafficking network, a defendant may be sentenced to as much as life imprisonment, subject to a twenty-five year parole ineligibility term. N.J.S.A. 2C:35-3.

 
Our review of sentencing decisions is deferential. State v. Roth, 95 N.J. 334, 364-65 (1984). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so "clearly unreasonable as to shock the judicial conscience." Ibid. After reviewing defendant's arguments in light of the record, we are satisfied that his contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

In accordance with the provisions of Rule 3:5-7(d), defendant is entitled to appeal the denial of his motion to suppress, even after pleading guilty.

We will henceforth identify him as Lopez/Lantigua.

State v. Dunlap, 185 N.J. 543 (2006); State v. Eckel, 185 N.J. 523 (2006); State v. Elders, 192 N.J. 224 (2007); and State v. Marsh, 162 N.J. Super. 290 (Law Div. 1978), aff'd sub. nom. State v. Williams, 168 N.J. Super. 352 (App. Div. 1979).

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A-0405-07T4

April 30, 2009