STATE OF NEW JERSEY v. PEDRO H. GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5442-07T45442-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PEDRO H. GARCIA,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 11, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-05-0861.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Leslie-Ann M. Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Pedro H. Garcia, appeals from his October 19, 2007 conviction for the second-degree crime of possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a (count one); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two). After defendant's motion to suppress was denied, he entered a non-negotiated plea of guilty, which resulted in the imposition of an eight-year term of imprisonment with a four-year period of parole ineligibility on count one, concurrent to a four-year term of imprisonment on count two. We reject defendant's claim that the suppression motion was wrongly denied and that the sentence imposed was excessive. We affirm.

I.

On October 21, 2005, Michael Heale, an investigator with the Ocean County Prosecutor's Office, prepared an affidavit in support of his request for a warrant to search a thirty-two foot boat docked at a marina in South Toms River. Defendant and his wife, co-defendant Theresa Garcia, lived aboard that boat. The affidavit described a confidential informant's purchase of cocaine from defendant on the Garcia's boat during the week of October 9, 2005, and again during the week of October 16, 2005.

Heale also certified that he conducted undercover surveillance of the boat on October 2, 2005 and observed seven vehicles arrive within a four-hour period, with the occupant of the vehicles entering the boat and a short time later exiting and leaving the area. During the week of October 9, 2005, the same pattern was repeated with nine vehicles within a five-hour period. Heale certified that based upon his experience and training, such conduct "is indicative of drug trafficking."

On October 21, 2005, Judge Grasso issued a warrant to search the boat "along with any and all persons present, as well as arriving at, departing from and located therein reasonably believed to be associated with this investigation." The warrant was issued as a no-knock warrant to protect the safety of officers executing the warrant. Heale's affidavit explained that defendant had served a twenty-year prison sentence for manslaughter and that defendant's willingness to engage in violent behavior, when combined with the extremely tight quarters in the cabin of the thirty-two foot boat, would endanger the safety of the officers if they were required to knock and announce their presence. Heale certified that the "element of surprise" inherent in a no-knock warrant was necessary for officer safety. Based upon those facts, Judge Grasso issued the requested no-knock warrant.

Approximately four hours after the judge issued the search warrant, investigators from the Ocean County Prosecutor's Office established undercover surveillance at the marina. Slightly more than one hour later, they observed defendant and a female, later identified as Theresa Garcia, enter a 1997 Acura automobile and turn onto Crabby Road and then proceed north on Route 166. By radio, Heale requested police from the South Toms River police department to intercept the Acura; this was accomplished approximately two-tenths of a mile from where the boat was docked. Heale never lost sight of the Acura from the time defendant and Theresa Garcia entered the car until it was stopped two-tenths of a mile later. Police officers directed defendant to exit the vehicle, and showed him a copy of the search warrant for his boat.

Next, three officers approached the passenger side of the vehicle and directed co-defendant Theresa Garcia to exit. While Heale presented the search warrant and explained Theresa Garcia's Miranda rights to her, the officers directed her to remove her hands from inside her sweatshirt several times. Each time, she would momentarily comply and then put her hands back into her pocket. Heale testified he was concerned that Theresa Garcia was concealing a weapon such as a knife. He therefore patted down the outside of her clothing and felt a golf ball-sized object in her pocket, which he believed was contraband related to the drug investigation because she repeatedly stated "[i]t's not mine."

After she made that statement, an officer reached into her pocket and seized a ball consisting of what was later determined to be 27.4 grams of cocaine. Defendant and Theresa Garcia were arrested and taken to police headquarters. Once the two were in custody, other investigators executed the search warrant on the boat and found CDS packaging materials and a scale underneath the kitchen sink.

Both defendants filed motions to suppress. Judge Daniels found Heale to be a credible witness and concluded that the search of Theresa Garcia fell within the parameters of the search warrant because 1) the search warrant was presumed valid and was based on probable cause; 2) it authorized a search of the boat as well as "'any and all persons from and located therein, reasonably believed to be associated with this investigation'"; 3) the language of the warrant did not preclude the search of any person reasonably believed to be involved with the activity on the boat after such person left the confines of the boat; 4) the stop of defendant and Theresa Garcia within two-tenths of a mile from the boat "was within the parameters of the search warrant"; and 5) the search of Theresa Garcia was proper even though Heale was not familiar with her, because he knew she and defendant both occupied the boat. Specifically, the judge found that "the female occupant of the motor vehicle which Pedro Garcia was driving had a sufficient nexus to the subject investigation which justified . . . search[ing] her pursuant to the search warrant."

On appeal, defendant contends:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE.

A. The search of Theresa Garcia was a warrantless search and was without probable cause.

II. THE DEFENDANT SHOULD BE ALLOWED TO WITHDRAW HIS PLEA SHOULD HE PREVAIL IN THIS APPEAL (Not Raised Below).

III. THE SENTENCE WAS EXCESSIVE.

II.

In Point I, defendant asserts that although police obtained a no-knock warrant, they never intended to avail themselves of its features and indeed never intended to search the cabin of the boat until after both defendants had been removed. Defendant accordingly argues that the issuance of the no-knock warrant was error:

The request for the warrant was actually a pretext used by the police to seize, search and arrest defendants in any manner they chose.

. . . .

Officer Heale testified that it was his intention to enter the boat when he sought the no-knock warrant. However, it appeared that it was the officers' intent to not enter the boat due to the size of the boat which they knew prior to the application for the warrant, stop the defendants as they were departing and take them back to the boat in order to execute the warrant. If that was their plan, they did not need a no-knock warrant[,] should not have applied for one[,] and, were improperly granted the no-knock warrant.

As the State correctly argues, defendant's contentions constitute a challenge to the issuance of the search warrant itself. It is evident from the record of the proceedings in the Law Division that defendant expressly waived any challenge to the validity of the warrant, and instead confined his argument to the claim that the search of Theresa Garcia outside the confines of the boat exceeded the permissible scope of the warrant and thereby rendered the search invalid.

Several factors establish that defendant waived the right to challenge the validity of the warrant. First, defendant's motion was entitled "Notice of Motion to Suppress Evidence (Warrantless Search)." Thus, as the State correctly argues, defendant did not challenge the validity of the no-knock search warrant or the seizure of evidence from defendant's boat, but instead confined his challenge to whether the stop of defendant's car and the search of co-defendant were within the parameters of the search warrant or otherwise justifiable. Second, during the suppression hearing, defendant expressly stated that his challenge to the search was not directed to the truth of the contents of the affidavit, but rather to whether the actual search exceeded the scope of the search warrant. Third, defendant's cross-examination of Investigator Heale was confined to the execution of the warrant when officers stopped the Garcia's car, ordered them out of the vehicle and searched Theresa Garcia. Neither defendant nor his co-defendant elicited any testimony concerning the no-knock aspect of the warrant, nor did either one cross-examine on that subject or present any argument to Judge Daniels that the warrant was defective because the no-knock feature was merely pretextual.

Under those circumstances, we deem the attack on the validity of the warrant waived and we will not consider it. State v Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999). In Gibson, the defendant raised a "curtilage" argument even though "there was no such testimony at the motion to suppress and no evidentiary basis for [the] defendant's curtilage contention." Ibid. We "remind[ed] the parties that on appeal 'we may only consider whether the motion to suppress was properly decided based on the evidence presented at that time.'" Ibid. (quoting State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971)).

As the Court recently observed in State v. Robinson, ___ N.J. ___, ___ (2009) (slip op. at 24-25), when an issue on appeal was never presented to the Law Division, and its "factual antecedents never were subjected to the rigors of an adversary hearing, and . . . its legal propriety never was ruled on by the trial court, the issue [is] not properly preserved for appellate review." The Court recognized that while Rule 2:10-2 does permit an appellate court to entertain an argument or claim that was not presented to the trial court, that Rule was "not intended to supplant the obvious need to create a complete record and to preserve issues for appeal." Id. at 27. As in Robinson -- where the defendant also challenged the execution of a search warrant -- we perceive no reason to entertain defendant's claim of pretext without "the benefit of a robust record within which the claim could be considered." Id. at 28. Consequently, because defendant presented no testimony and made no argument before the Law Division concerning the alleged pretextual nature of the no-knock warrant, and presented no arguments respecting the invalidity of the warrant itself, we will not consider such claim .

We note, however, that "there is a presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978). Defendant presented nothing other than sheer conjecture to support his allegation of deliberate falsehood or reckless disregard for the truth in the affidavit Heale submitted to the judge who issued the warrant. Far more is required before a court will entertain a claim of the invalidity of a warrant. State v. Howery, 80 N.J. 563, 567-68, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

III.

Defendant also maintains that the search of co-defendant Theresa Garcia was a warrantless search conducted without probable cause. In particular, he maintains that Theresa Garcia was no longer subject to the warrant once she left the boat, and consequently the stop of the car and the search of her person were warrantless seizures not justified by any exception to the Fourth Amendment.

The State disagrees, arguing that the search warrant itself expressly permitted police to search the boat "along with any and all persons present, . . . departing from and located therein reasonably believed to be associated with this investigation." The State argues that because Theresa Garcia was a person who departed from the premises that were to be searched, police should not be penalized merely because they did not immediately search defendant once she stepped off the boat, but instead chose to wait until she and defendant had driven two-tenths of a mile from the boat. The State also argues that where, as here, the trial judge has made credibility findings and has accepted a police officer's testimony that he reasonably believed defendant was involved in the drug distribution activity on the boat, we should defer to the judge's factfinding. For these reasons, the State maintains that Judge Daniels's denial of defendant's suppression motion was proper because he failed to overcome the search warrant's presumption of validity and failed to demonstrate that the stop of the vehicle and search of Theresa Garcia exceeded the parameters of the warrant.

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 such findings 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).

A warrant to search unnamed persons at a specified place is sufficient if there is probable cause to believe that the person present is involved in criminal activity. State v. DeSimone, 60 N.J. 319, 322 (1972) (holding that "[s]o long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment"); State v. Carlino, 373 N.J. Super. 377, 393 (App. Div.), certif. denied, 182 N.J. 430 (2004).

"A warrant should be read in a commonsensical manner to achieve its lawful purposes." State in the Interest of L.Q., 236 N.J. Super. 464, 470 (App. Div. 1989), certif. denied, 122 N.J. 121 (1990). When sufficient grounds are presented to the issuing judge, the warrant should not be read "so begrudgingly as to withhold the authority that was available for the judge to grant." Ibid. Indeed, in Carlino, we approved the search of a person present on the premises in question where the warrant used the identical language that was contained in the warrant here, "any and all persons arriving at, departing from and located therein reasonably believed to be associated with this investigation." Carlino, supra, 373 N.J. Super. at 395.

In State v. Malave, 127 N.J. Super. 151, 154 (App. Div. 1974), we explained that warrants to search both a person and premises "are comparatively rare, probably because most searches of individuals take place as incident to arrest." We observed that "[n]onetheless, it is established that a warrant may issue to search a person as well as a place." Ibid. We held in Malave that such warrants actually "authorize[] two independent searches -- one of a person and the other of a place." Ibid. We concluded that the search of the person did not lose its validity merely because the person was searched a considerable distance from the premises described and there was no reason "why a warrant to search a person must specify the place where he is to be searched." Ibid.

Applying the Malave rationale to the search conducted here, we are satisfied that the warrant, which authorized a search of all persons seen entering or departing the boat, authorized the search of co-defendant Theresa Garcia who was seen doing exactly that, namely exiting the boat. As in Malave, law enforcement officers were entitled to search her and were not obligated to do so merely within the confines of the described premises, the boat. Ibid. In light of our conclusion that the search of co-defendant was authorized by the warrant, we need not consider defendant's additional argument that the pat-down did not satisfy the protective search standard established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Moreover, we accept Judge Daniels's factual finding that a stop of the vehicle and search of Theresa Garcia, a mere two-tenths of a mile from the boat, was within the parameters of the search warrant. Such findings are entitled to our deference. Elders, supra, 192 N.J. at 243. Thus, defendant's attack on the search of Theresa Garcia is meritless. We thus affirm the denial of defendant's motion to suppress.

IV.

In light of our determination that the denial of the motion to suppress should be affirmed, we need not consider the claim defendant advances in Point II. We turn next to Point III, in which defendant argues that his sentence was excessive.

Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). 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." State v. Roth, 95 N.J. 334, 364-65 (1984).

Viewed in this light, defendant's attack on the sentence imposed is meritless. We begin by observing that the sentence imposed -- eight years imprisonment, with a four-year period of parole ineligibility -- is the very sentence defense counsel requested as an appropriate sentence in the open-ended plea agreement defendant entered. Where the judge imposes the very sentence the defendant specifies in the plea agreement, such sentence "should be given great respect[.]" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996).

Moreover, the judge carefully followed applicable sentencing guidelines. The judge properly found the existence of aggravating factor three, the risk that defendant will commit another crime, N.J.S.A. 2C:44-1a(3), and aggravating factor nine, the need for deterrence, N.J.S.A. 2C:44-1a(9). Defendant's prior manslaughter conviction amply supported the existence of those two aggravating factors.

Defendant argues that because his use of drugs to "self-medicate" began when he sustained a herniated disc, and he has now overcome his addiction and is gainfully employed, he was entitled to mitigation of his sentence. Judge Daniels did not abuse his discretion by not finding mitigating factor four, "there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1b(4); or mitigating factor eight, "the defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1b(8). The judge was not obliged to find either of the above mitigating factors because they were not clearly supported by the evidence. State v. Dalziel, 182 N.J. 494, 504-05 (2005).

Likewise, we find no fault with the judge's conclusion that he was clearly convinced the aggravating factors substantially outweighed the non-existing mitigating factors, thereby justifying the imposition of a period of parole ineligibility under N.J.S.A. 2C:43-6b. In short, this sentence, which was only one year above the mid-point of the sentencing range for a second-degree crime, does not "shock the judicial conscience," Roth, supra, 95 N.J. at 364-65, in light of defendant's prior conviction for the serious crime of manslaughter.

 
Affirmed.

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

The boat was registered to a third party who was not arrested and apparently had no involvement with the events described in Heale's affidavit.

We have today filed a separate opinion affirming the conviction of co-defendant Theresa Garcia. State v. Garcia, No. A-1997-07.

The living quarters and galley area of the cabin cruiser were only fifteen feet in length.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We note that "[t]he showing required to justify a no-knock entry 'is not high[.]'" State v. Sanchez, 179 N.J. 409, 412 (2004) (quoting State v. Johnson, 168 N.J. 608, 624 (2001)). Among the factors to be considered when evaluating the propriety of a no-knock warrant are the defendant's prior propensity for violence, propensity for violence during the defendant's drug-related activities, and the layout of the premises, all of which could affect the safety of police officers executing the warrant. State v. Jones, 179 N.J. 377, 400-01 (2004).

(continued)

(continued)

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A-5442-07T4

August 20, 2009