STATE OF NEW JERSEY v. JULIO DELACRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6335-06T46335-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO DELACRUZ,

Defendant-Appellant.

____________________________

 

Argued May 19, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-02-0226.

Brian O'Reilly, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. O'Reilly, of counsel and on the brief).

Teresa A. Blair argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Julio DelaCruz appeals from a judgment of conviction entered on March 7, 2007, wherein he was sentenced to a term of five years subject to a parole ineligibility period of eighteen months based upon his guilty plea to one count of third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and -7. Defendant entered his guilty plea after the trial judge denied his motion to suppress evidence. Defendant challenges that ruling on appeal; he also contends that his sentence was excessive. For the reasons that follow, we reverse the denial of defendant's motion to suppress. We need not address defendant's sentencing argument, however, as he was released from custody during the pendency of this appeal.

The pertinent factual background may summarized as follows. The only witness to testify on behalf of the State at the suppression hearing was Lieutenant Thomas DePascale of the Hudson County Prosecutor's Office's Municipal Task Force (Task Force). DePascale described the Task Force as "made up of two squads or two units each commanded by a sergeant, each holding between five and six detectives assigned from specific municipalities and [the prosecutor's] office." DePascale described events that ensued after a confidential informant gave certain information to Task Force member John Stahl, an officer with the North Bergen Police Department.

DePascale testified that sometime in late October 2005, Stahl received information from a first-time informant "pertaining to the illegal sale of narcotics within the Hudson County area." Specifically, the informant stated that "a person known to him . . . as Julio DelaCruz aka `J[.]D[.]' was actively engaged in the illegal sale of narcotics, specifically marijuana, within the Hudson County area." The informant described J.D. "as a Hispanic male with a shaved head approximately 5'8" in height, weighing approximately 180 lbs." The informant gave J.D.'s address as 304 71st Street, apartment 7 in Guttenberg, and stated that J.D. "store[d] the bulk of his marijuana" in that apartment.

The informant further stated that J.D. drove a tan Mazda bearing license plate 8415LE. When Stahl ran a check on the license plate, it came back registered to defendant, but at the address of 235 73rd Street in North Bergen.

During the week of November 22, 2005, Stahl and another police officer met with the informant. At that time, the informant stated that "a person known to him . . . as `Jose,' who operates a black Nissan Pathfinder, drives `J[.]D[.]' around since `J[.]D[.]' has a suspended [d]river's [l]icense."

On November 28, 2005, DePascale supervised a Task Force surveillance in the area of 304 71st Street in Guttenberg; Stahl also participated in this surveillance. At approximately 12:20 p.m., Stahl observed an individual identified as defendant leave the building at 304 71st Street and enter a tan Mazda bearing the license plate 8415LE. DePascale and other Task Force members conducted mobile surveillance of the Mazda; DePascale observed defendant "talking on his cellular phone[]" while driving.

The Mazda traveled to "the area of 121 41st St[reet], Union City," where a Hispanic male was observed exiting the building at that address and entering the Mazda. After approximately three minutes, this Hispanic male exited the Mazda and appeared to be "placing something in his jacket pocket." DePascale testified that, based on his training and experience, he "believed that . . . a narcotics transaction . . . occurred between [defendant] and the [Hispanic] individual . . . ."

Mobile surveillance then followed defendant's vehicle "to the area of 11th St[reet] and Summit Avenue" in Union City. After visiting two stores, defendant re-entered his vehicle and mobile surveillance followed him "to the area of 310 12th Street[,] where he pulled over." Defendant thereupon exited his vehicle and "began walking up and down the street while talking on his cellular telephone." A short time later "a black Nissan Pathfinder . . . arrived in the area of 310 12th Street and parked." Two individuals later identified as Jose Santos and Leslie Palacios exited the Nissan Pathfinder and entered the Mazda. The three men then drove onto Palisade Avenue and pulled over between 15th and 16th Streets. At this point, DePascale was several blocks behind defendant's vehicle. After "about thirty, forty seconds or so[,]" DePascale "rolled" his vehicle past the Mazda "just to get a look into the car to see what was going on." As he looked to the right, DePascale saw defendant with "what appeared to be a very large amount of money." He thereupon "picked up [his] radio and . . . told everybody [to] get ready, we're going to take this car right now."

DePascale pulled to the front of the Mazda and exited his vehicle with his badge showing. He went to the passenger side of the car where defendant was seated. DePascale opened the door and told defendant "to get out of the car right away . . . ." The rest of the surveillance team arrived at that point and detained the other two occupants of the car.

DePascale stated that as soon as he opened the door of the Mazda, he could "smell the marijuana coming out of the car." After defendant was removed from the car, DePascale "put [his] head in the car and . . . he smell[ed] it . . . . [I]t [was] coming right from the glove compartment."

DePascale "told one of the detectives to open up the glove compartment[,]" which was locked. DePascale could not recall if the detective forced it open or used a key. Four sandwich bags containing suspected marijuana were retrieved from the glove compartment. All three individuals were "placed under arrest based on everything that had happened so far." DePascale "believe[d] that [he] had witnessed . . . a drug transaction . . . and they were being arrested for conspiracy to distribute narcotics."

Based upon these events, as well as the information provided by the confidential informant, Stahl completed an affidavit in support of a warrant to search apartment # 7 at 304 71st Street in Guttenberg; the affidavit included a request to search defendant's cellular phone as well as his vehicle, even though that vehicle had already been searched. Stahl swore out his affidavit at 4:35 p.m.

In his affidavit, Stahl stated:

Based on the facts and information contained hereinabove from the [informant] and from the independent investigation conducted by the Affiant and other members of the Hudson County Prosecutor's Office Municipal Task Force, inclusive of the observations made by the Task Force and items seized, it is the Affiant's opinion that there is probable cause to believe that [defendant] is regularly storing marijuana at and distributing it from the premises of 304 71st St., Apt. #7, Guttenberg, N.J. . . . In order to conduct this type of business as [defendant] is conducting it, he must necessarily keep in his possession and close at hand in the subject apartment and vehicle not only the drugs he is selling but also the paraphernalia and material routinely used to prepare, process, package and store those drugs. The items which the Affiant has probable cause to believe will be found in and about the subject premises and vehicle include controlled dangerous substances, specifically marijuana, and adulterating and packaging material and equipment, storage containers, safes, scales, measuring devices, telephone numbers, cellular telephones, lists, books and records of drug transactions and contraband money from drug transactions.

At 5:05 p.m. on November 28, 2005, Stahl and other members of the Task Force knocked on the door of apartment #7 at 304 71st Street and announced their presence. Receiving no response, the officers used keys recovered from defendant during his arrest and opened the locked door. They entered and conducted a "systematic search of the apartment," recovering numerous items including two clear bags containing "suspected marijuana[,]" three bags containing "suspected cocaine," $17,900 in cash, two handguns and ammunition, a safe, a scale and a court notice addressed to defendant at 235 73rd Street in North Bergen.

The trial judge issued a written decision on November 2, 2006. The judge stated that he found DePascale "credible in all respects . . . ." The judge found, however, that "[t]he information provided by the confidential informant did not in and of itself provide probable cause for an arrest or for a search warrant." Nonetheless, the judge added, "[t]he observations by Lt. DePascale once the surveillance began did . . . contribute to the quantum of probable cause." The judge added that "the smelling of the marijuana in the glove compartment certainly established probable cause to believe that there was marijuana inside the glove compartment."

The judge suppressed the evidence seized from defendant's vehicle, however, because he found "nothing to indicate that exigent circumstances [were] contained within the record." Noting that "it is not a `given' that just because there is probable cause there [are], automatically[,] exigent circumstances as well[,]" the judge ruled that "the marijuana found in the glove compartment is suppressed due to the lack of exigent circumstances having been established."

The judge upheld the search of apartment #7 at 304 71st Street in Guttenberg, however, for the following reasons:

The affidavit . . . does clearly contain sufficient probable cause for its issuance. The court additionally finds by clear and convincing evidence that the police would have sought a warrant without the tainted marijuana [found in the glove compartment of defendant's car] having been viewed. There is no question that the police wanted to get a search warrant for the car and the house (particularly the safe) and it is obvious that they would have done that had they not seized the marijuana in the glove compartment. Also, the court clearly and convincingly finds that the seizure of the marijuana from the glove compartment based on the smell was certainly not the product of flagrant police misconduct. Thus . . . the motion to suppress the evidence obtained . . . in the house or safe as a result of the search pursuant to the search warrant is DENIED.

We note at the outset that ordinarily we will "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice . . . .'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). We will, however, conduct a de novo review of a trial judge's interpretation of the law because "we owe no special deference to the trial court's analysis and ultimate legal conclusions." Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 657 (App. Div.), certif. denied, 187 N.J. 82 (2006).

Applying these standards to the ruling challenged here, we are satisfied that the trial judge erred in concluding that Stahl's affidavit "clearly contain[ed] sufficient probable cause for its issuance[]" with respect to apartment #7 at 304 71st Street in Guttenberg.

After suppressing the marijuana seized from the glove compartment of defendant's car, based on the finding that the police had demonstrated no "exigent circumstances" justifying that warrantless search and seizure, the trial judge deleted the reference to the discovery and seizure of that marijuana from Stahl's affidavit. Notwithstanding that redaction, however, the trial judge concluded that the affidavit was sufficient to warrant the search of the Guttenberg apartment. We disagree.

We note that Stahl's affidavit, executed at 4:35 p.m. on November 28, 2005 -- after Task Force members had already conducted a warrantless search of defendant's car -- sought authorization to search that car in addition to the Guttenberg apartment. It thus appears that the judge who issued the search warrant based upon Stahl's affidavit had not been informed that defendant's car had already been searched.

In any event, we are satisfied that the trial judge's denial of the motion in reliance upon the information provided by the confidential informant, which was the only information supporting the search of the apartment, was not based upon "competent, relevant and reasonably credible evidence . . . ." Rova Farms Resort, supra, 65 N.J. at 484. When assessing the reliability of the information furnished by the confidential informant in connection with the search of defendant's vehicle, the trial judge found:

The information provided by the confidential informant did not in and of itself provide probable cause for an arrest or for a search warrant. There was no history of reliability at all and there was a limited "basis of knowledge" given by the informant.

The judge found, however, that notwithstanding the deficiencies in the information provided by the confidential informant, the police had probable cause to search the vehicle based upon other independent factors, albeit the police were ultimately found to lack exigent circumstances.

No such independent factors, however, supported the search of the Guttenberg apartment. The warrant was based exclusively upon the confidential informant's statement that defendant "store[d] the bulk of his marijuana[]" at that apartment. This information, according to Stahl's affidavit, "was obtained as a result of [the confidential informant's] personal knowledge of and contact with the subject this investigation." The affidavit contains no explanation as to how the informant acquired this "personal knowledge." See State v. Jones, 179 N.J. 377, 389 (2004) (information related by informants may constitute a basis for probable cause only when substantial grounds for crediting that information are presented).

Nothing connected defendant to the Guttenberg apartment other than (1) the confidential informant's statement; and (2) the police observation of defendant exiting the building at 304 71st Street in Guttenberg. It is worth recalling that, when Stahl ran a check of defendant's license plate, which was also provided to him by the confidential informant, it came back registered to defendant at a different address in North Bergen.

We concur with defendant's contention that Stahl relied substantially upon the evidence seized from the glove compartment of defendant's car in seeking the warrant. That evidence, however, was suppressed by the trial judge for lack of exigent circumstances justifying the search.

Where, as here, the evidence seized from defendant's apartment was, in significant part, supported by a warrant premised upon illegally obtained evidence, the burden is upon the State to present facts "wholly independent" of that illegally seized evidence to justify the admissibility of such evidence. State v. Holland, 176 N.J. 344, 361 (2003). In "evaluating the independent-source doctrine[,]" id. at 360, the Court imposed the following burdens upon the State:

First, the State must demonstrate that probable cause existed to conduct the challenged search without the unlawfully obtained information. It must make that showing by relying on factors wholly independent from the knowledge, evidence, or other information acquired as a result of the prior illegal search. Second, the State must demonstrate in accordance with an elevated standard of proof, namely, by clear and convincing evidence, that the police would have sought a warrant without the tainted knowledge or evidence that they previously had acquired or viewed. Third, regardless of the strength of their proofs under the first and second prongs, prosecutors must demonstrate by the same enhanced standard that the initial impermissible search was not the product of flagrant police misconduct.

[Id. at 360-61.]

Of particular significance is the Court's admonition that when, as in this case, "the same officer participates in an improper search and in an arguably lawful one occurring only short time later, the State's burden in demonstrating the validity of the second search will be most difficult." Id. at 363.

Stahl participated in the Task Force surveillance activities earlier in the day on November 28, 2005. Within a short time after defendant's arrest following the search of his vehicle, Stahl executed his affidavit in support of the search warrant. It is clear that Stahl "bootstrapped" his proffer of probable cause to search the Guttenberg apartment upon the marijuana found in defendant's car, which evidence was subsequently suppressed.

In sum, we concur with defendant's contention that the independent-source rule "cannot reasonably apply in this case . . . ." Without the evidence of the marijuana seized from defendant's vehicle, the affidavit failed to provide "clear and convincing" evidence that contraband would be found in the Guttenberg apartment. Holland, supra, 176 N.J. at 361. We conclude that the State has failed to meet the rigorous requirements set forth in Holland as it has not established "factors wholly independent from" the illegally seized marijuana, and, therefore, has failed to "demonstrate that probable cause existed to conduct the challenged search without the unlawfully obtained information." Id. at 360, 361.

 
Reversed.

(continued)

(continued)

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A-6335-06T4

August 12, 2009