STATE OF NEW JERSEY v. TOD R. ATKINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3608-07T43608-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOD R. ATKINSON,

Defendant-Appellant.

_____________________________________________________

 

Argued April 20, 2009 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1123-D.

Mario J. Persiano argued the cause for appellant (Portella & Bjorklund, LLC, attorneys; Matthew V. Portella, of counsel and on the brief).

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

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Following the denial of his motion to suppress evidence seized at his home during a search conducted pursuant to a search warrant, defendant Tod R. Atkinson agreed to enter a plea of guilty to the second count of Atlantic County Indictment No. 07-05-1123-D, that charged fourth-degree receiving stolen property, in violation of N.J.S.A. 2C:20-7. Pursuant to the negotiated plea agreement, the first count of that indictment, charging third-degree receiving stolen property and both counts of Atlantic County Indictment No. 07-06-1460, charging third-degree possession of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 2C:35-10(a)(1) and fourth-degree possession of prescription legend drugs over five dosage units, in violation of N.J.S.A. 2C:35-10.5(e)(2), were dismissed. In addition, the State agreed to recommend a non-custodial sentence of probation, which was to be stayed pending the outcome of defendant's appeal from the denial of his motion to suppress. In accordance with the plea agreement, the court sentenced defendant to probation for three years on the conviction of fourth-degree receiving stolen property. The execution of the sentence was stayed pending appeal.

Defendant's motion to suppress challenged the sufficiency of the affidavit of Patrolman Christopher Ricciotti of the Borough of Longport Police Department, which was submitted in support of a no-knock search warrant for premises at East Dawes Avenue in Somers Point known to be owned by defendant. That affidavit related that Patrolman Ricciotti had been investigating multiple burglaries of residences on South Yarmouth Avenue, including one that involved the theft of a Winchester 30-30 range rifle. On April 20, 2007, Ricciotti received a call from a detective of the Ventnor City Police Department concerning that department's execution of a search warrant at the residence of Earl Beiermeister. Numerous items recovered in that search matched the descriptions of items taken from the residences on South Yarmouth Avenue in Longport, which Ricciotti was investigating.

Ricciotti's affidavit relates that during Beiermeister's interview by Ventnor City detectives, Beiermeister admitted that he had committed the burglaries on South Yarmouth Avenue, and that he had removed a Winchester 30-30 rifle from one of those residences. Beiermeister disclosed further that he sold the rifle approximately one week after the burglary to defendant Tod Atkinson. On the basis of Beiermeister's admissions, Ricciotti sought the warrant to search the property owned by defendant at East Dawes Avenue. He asserted that he had probable cause to believe that the stolen firearm would be found at that location.

In his motion to suppress, defendant argued that the admissions by Beiermeister that he had burglarized the South Yarmouth Avenue residences and that he had sold the rifle to defendant were hearsay statements from somebody in the "criminal milieu" that had not been corroborated by the police. He further argued that there had been no corroboration that the defendant actually lived at the East Dawes Avenue address, as opposed to being merely the title owner of that property. Defendant insisted that, except for the fact that the premises were owned by defendant, there was no basis to believe that the gun might be found at that location. Finally, defendant argued the information included in the affidavit was stale because the alleged sale of the stolen firearm from Beiermeister to Atkinson had taken place approximately three weeks before the date of Ricciotti's affidavit in support of the search warrant.

The motion judge rejected defendant's challenges. Regarding defendant's assertion that the judge issuing a warrant is confined to the four corners of the supporting affidavit, the motion judge stated "affidavits for search warrants should be tested and interpreted by the courts in a common sense and realistic fashion." In addition, the judge observed that "[o]nce the judge has made a finding of probable cause on the proofs submitted and issued the search warrant, a reviewing court should pay substantial deference to that determination[.]"

Addressing defendant's claim that information from a member of the criminal milieu is not to be accepted without police corroboration, the court acknowledged that greater scrutiny may be required, but such information is not to be ignored. The judge said:

it can be inferred the [sic] that the Court was implying that the information from somebody involved in criminal activity may be more suspect than somebody of the ordinarily citizen [sic], but then you got to balance that against the kind of information that is given of somebody with intimate, personal knowledge and somebody that was directly involved in the obtaining of the gun that was sold allegedly to the defendant.

Considering the totality of the circumstances, the motion judge found the information upon which the search warrant was issued was reliable and sufficient to establish probable cause to believe the stolen gun would be found on the targeted premises. The judge reasoned:

The issue then becomes whether or not Ricciotti was required or mandated to obtain corroborating information to establish Beiermesiter's veracity because he was involved in the criminal enterprise which I believe that based on the strong information that he was given, based on the fact that fruits of the burglaries were in his house, and based on the fact that he gave a name and a description of a gun that was stolen and he said who he gave it to and when he did it and for how much, took care of that being sufficient. The burglaries to which he confessed were known by the police that they were genuine. Furthermore, the information he gave them was right on the button, and only somebody that was personally involved in that would be able to give such detailed information.

Overall, much of what he told the police, the police knew; therefore they were able to immediately recognize that what he was telling them was in fact corroborated and it was accurate.

Finally, regarding the staleness of the information provided, the court observed that there was no indication that defendant had plans to re-sell the gun or otherwise to dispose of it. It was, therefore, reasonable to assume defendant would still possess it a few weeks after he had purchased it.

On this appeal, defendant reiterates the arguments raised in his motion to suppress evidence. In his appellant's brief, defendant asserts:

POINT I: THE TRIAL COURT IMPROPERLY DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AND ERRED IN CONCLUDING THAT THERE WAS SUFFICIENT EVIDENCE IN THE AFFIDAVIT TO SUPPORT A FINDING OF PROBABLE CAUSE (RAISED BELOW).

POINT II: THE TRIAL COURT ERRED IN ITS ANALYSIS UNDER THE TOTALITY OF THE CIRCUMSTANCES BY PLACING UNDUE EMPHASIS ON THE INFORMANT'S SOURCE OF KNOWLEDGE AND FAILING TO CONSIDER HIS OVERALL VERACITY (RAISED BELOW).

POINT III: THE TRIAL COURT ERRED IN FINDING THAT FURTHER CORROBORATION OF BEIERMEISER'S INFORMATION WAS NOT NECESSARY (RAISED BELOW).

After carefully considering the record and briefs, we are satisfied that defendant's assertions of error lack merit and that the motion judge's denial of defendant's motion to suppress evidence was an appropriate and proper exercise of judicial discretion. As the motion judge recognized:

"[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."

[State v. Smith, 155 N.J. 83, 93 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).]

See also State v. Jones, 179 N.J. 377, 388 (2004) (noting that when a search is executed under a warrant, the search is presumed valid, and a defendant challenging its validity must prove an absence of probable cause supporting the warrant's issuance). Defendant failed to meet that burden. Accordingly, we affirm substantially for the reasons expressed by the motion judge in his oral decision rendered from the bench on December 6, 2007.

Affirmed.

 

No testimony was presented by either party at the December 6, 2007 hearing on the motion to suppress evidence. The issue posed was whether the affidavit that was submitted to the issuing judge contained sufficient facts to establish probable cause for a search warrant.

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A-3608-07T4

February 17, 2010