STATE OF NEW JERSEY v. DENNIS E. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2321-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS E. WILLIAMS,

Defendant-Appellant.

_________________________________________________

September 9, 2011

Submitted August 30, 2011 Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

08-07-0967 and Accusation No. 09-05-0971.

Joseph E. Krakora, Public Defender, attorney

for appellant (Jack L. Weinberg, Designated

Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for

respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress evidence, defendant, Dennis E. Williams, pled guilty to count two of Indictment No. 08-07-0967charging second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, and to count one of Accusation No. 09-05-0971 charging the same type of crime occurring somewhat less than one year later. He was sentenced to concurrent terms of eight years in prison with five years of parole ineligibility. Defendant has appealed, raising the following issues for our consideration:

POINT I: THE MOTION COURT ERRED WHEN IT FAILED TO SUPPRESS THE EVIDENCE SEIZED IN THE DEFENDANT'S HOME AS IT CONSTITUTED AN UNREASONABLE WARRANTLESS SEARCH OF HIS BEDROOM.

A - The Search Exceeded the Scope of A Protective Sweep.

B - No Exigent Circumstances Existed.

C - The federal agents were acting as State law enforcement officers.

POINT II: THE COURT IMPOSED A SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

We affirm.

I.

A suppression hearing was held in this matter, at which testimony was offered by Detective Scott Conover of the Jackson Township Police Department. He testified that, in March 2008, he was ordered by his superior, Lieutenant John Seidler, to assist Federal Bureau of Investigation (FBI) Special Agent James Granozio in executing a federal search warrant authorizing the search of an entire residence located in Jackson Township for electronic and other evidence of child pornography. As Conover described his role, he "was merely to assist the Federal Bureau of Investigation in any way they needed," acting as "a liaison between . . . the federal agency and the Jackson police."

In that capacity, Conover checked his department records to determine whether the police had a history of incidents at the residence, and learned by that means that, in 1994, there was a domestic incident involving defendant, at which time he was arrested for discharging an AK-47 at the house. Additionally, a large number of weapons, a large amount of ammunition and some explosive devices were seized at that time. Conover also checked Department of Motor Vehicle records, determining from them that defendant continued to reside at the location. He relayed this information to Special Agent Granozio who, as a result, delayed execution of the search warrant from March 27, 2008 to April 3 to permit additional agents to participate in the operation.

Conover was present when the search warrant was executed. He testified that entry was initially effected by an FBI S.W.A.T. team, which secured the residence. In the course of doing do, the team found a loaded Mauser nine-millimeter pistol on top of a laundry basket in the kitchen by the back door of the residence, but they did not seize the gun.

During the S.W.A.T. team's activities, Conover remained on the street and assisted defendant's mother, who became agitated, eventually had a cardiac event and was taken to the hospital. Thereafter, Conover "spoke" with Frank Williams, defendant's brother, who was found by the FBI to be in possession of two ounces of marijuana. The drugs were eventually seized by the Jackson Township police. The record does not indicate whether Williams was arrested.

Conover testified that, after the residents of the house had been secured, the FBI brought in an ordinance dog to determine whether there were any bombs, ammunition or guns on site. When the dog indicated "some areas of concern" in a bedroom of the residence, later determined to be defendant's, an FBI bomb technician went in to make sure there were no destructive devices that could cause harm to anybody. He found a large box of ammunition, and also a locked gun cabinet that he could not access. A member of the search team asked Conover, who was then in the living room with the house's residents, to ask defendant for the key to the cabinet, which defendant provided. When the FBI bomb technician opened the cabinet, he discovered six rifles and a handgun inside, as well as considerable ammunition.

On cross-examination, Conover was asked whether, if the dog had not alerted, and if no evidence of computers, software or pornography was in plain view in the bedroom, search of the locked gun cabinet would have occurred. Conover responded:

I wasn't the affiant on this search warrant. But I'm going to tell you that if I was there and I was looking for the items he was looking for, I must assuredly would have checked every locked cabinet in the residence relative to that search warrant.

Wouldn't it be possible that anything could be secreted in that cabinet that might be an image of child pornography?

Upon discovery of the weapons, the FBI requested Conover's assistance. Conover, who knew that defendant was a convicted felon, contacted his sergeant and requested that an evidence technician come to document and photograph the weapons and ammunition in the bedroom and laundry basket and then seize them. Detective Hobson reported to the residence, and while he was carrying the weapons out, Conover inventoried them.

In the meantime, the FBI searched the remainder of the bedroom, finding in the night stand next to defendant's bed twenty-five empty wax envelopes, two of which contained heroin residue, and six hypodermic syringes. That contraband was also seized by the Jackson Township police.

At the conclusion on the hearing, the judge ordered briefing on the issue of law enforcement's authority to search the locked gun cabinet without obtaining an additional warrant. Upon receipt of that briefing and further argument, the judge denied defendant's suppression motion. In doing so, he rejected defendant's arguments that the search warrant was defective and not supported by probable cause; that the State used the federal investigation as a pretext to conduct an investigation for which no probable cause existed; and the search exceeded the scope of the warrant in terms of the locations to be searched, things to be seized, and the use of the ordinance dog.

The judge found that the information contained in the affidavit supporting the issuance of the search warrant had been properly obtained through wiretap orders and subpoenas, and that the content of the affidavit met probable cause standards, detailing the paths taken to establish that defendant's brother, Frank Williams, was a probable recipient of child pornography. That such materials would be found in the Williams' residence, the judge found, was established on the basis of Special Agent Granozio's training and experience by his statement that collectors of child pornography retain the child pornography and related materials in safe and secure locations such as their homes.

The judge next addressed defendant's argument that the State had used the federal warrant as a pretext to search defendant's room for weapons and drugs. He commenced by reciting Judge Pressler's fourth note to Rule 3:5-3, which cited State v. Minter, 116 N.J. 269 (1989), and stated: "Evidence obtained by federal officers in accordance with federal law, but contrary to State law, may be admissible in a State proceeding if the action of the federal officers was not intended to assist State authorities by circumventing State law." The judge then found that no evidence of pretext existed in connection with the FBI's investigation of child pornography and that the agency "in no way intended to aid local authorities in circumventing the law or with a purpose to proceed with a state prosecution." Thus, the federal agents were not acting under color of State law under standards expressed in Minter, State v. Mollica, 114 N.J. 329 (1989) and State v. Knight, 283 N.J. Super. 98 (App. Div. 1995), aff'd, 145 N.J. 233 (1996).

The judge further found that Conover had credibly established that Jackson Township's "only purpose for being present at the execution of the warrant was to aid and assist the federal authorities." The judge continued:

[A]s testified to by Detective Conover, prior to the execution of the warrant, his role was limited to one of providing information to the FBI as to the subject premises. Detective Conover indicated that he did not conduct the initial search and only entered the premises after his assistance was requested by the federal authorities to aid in the search and to recover weapons.

This court further finds that it was reasonable for the federal authorities to contact the local police department for information as to the subject premises and to have them stand by during the execution. It is also not unusual, as in this case, that the federal authorities maintain a narrow focus in their investigations and request state authorities to prosecute any remaining charges which are not part of that narrow focus. Moreover, a prerequisite to the suppression of evidence in the instant case would be a violation of New Jersey constitutional principles which this court finds is not present.

The judge also rejected the argument that the scope of the warrant was exceeded by the search of the locked gun cabinet and the seizure of drugs, paraphernalia and weapons that were not listed in the warrant. Quoting United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 2170-71, 72 L. Ed. 2d 572, 591 (1982), a weapons case, the judge stated: "A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers and containers in which the weapons might be found." The judge also cited in this regard State v. Jackson, 268 N.J. Super. 194 (Law Div. 1993), a case that held that the existence of a search warrant authorizing the search of an attic storage closet permitted the seizure and search of a safe within that closet and the consequent discovery of drugs for which defendant was prosecuted. The judge observed:

In the instant case, the authorities opened a locked cabinet in defendant's bedroom. The warrant authorized the search of the premises in order to locate items such as a computer storage device, books, magazines and a myriad of other specifically-listed items which was exhaustively listed and described in the warrant.

I find that it is reasonable for the officers to enter and search the locked cabinet as it would be reasonable to assume, and as Detective Conover testified, that one might keep such items associated with child pornography in a locked cabinet in one's bedroom.

As a final matter, the judge concluded that no violation of the Fourth Amendment occurred as the result of the seizure of the weapons, drugs and paraphernalia, determining, in accordance with State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), that as the result of the warrant permitting a search of the entire house, those objects were observed from a permissible vantage point, their discovery was inadvertent and not pre-planned, and the police had probable cause to believe that they were associated with criminal activity. Thus, the plain view doctrine was applicable. An order denying defendant's motion to suppress the evidence was therefore entered.

II.

On appeal, defendant makes arguments that are substantially similar to those addressed by the motion judge. Following our consideration of those arguments and the State's response in light of the record established at the suppression hearing, we conclude that the motion judge's findings of fact were amply supported by substantial credible evidence in the record, State v. Johnson, 42 N.J. 146, 162 (1964), and that his conclusions of law were well-founded. We consequently affirm the denial of defendant's motion seeking suppression of evidence, substantially on the basis of the thorough and well-supported opinion of Judge Francis Hodgson, Jr.

We add only that we are satisfied that even if the FBI opened the gun cabinet to determine whether it contained weapons, items that were not included within those that were the subject of the search warrant, clear and convincing evidence established that the discovery of those weapons would have been inevitable under standards established in State v. Sugar, 100 N.J. 214, 238-40 (1985).1 In this regard, we first note that 18 U.S.C.A. 2252 and 2252A make it a federal crime for any person to knowingly possess and/or receive child pornography, and that these statutory provisions constituted the basis for the FBI's investigation. We find it reasonable to infer that a person who was in receipt of and possessed child pornography would seek to secure evidence of that activity in a fashion that would avoid detection by law enforcement or members of the public who did not share the possessor's prurient interests. Such security would be provided by a locked container, and thus it would be reasonable for law enforcement to search such locked containers when executing a search warrant the object of which was the discovery of evidence related to child pornography.

Our inferences in this regard are supported by the testimony of Detective Conover, a police officer with thirteen years of experience, who stated that, if he had been conducting the search for pornography that was conducted by the FBI, he would have checked every locked cabinet in the Williams' residence. We also find it reasonable to infer that Special Agent Granozio and his FBI colleagues would have behaved similarly. That inference is supported by the agent's recognition, as set forth in his affidavit in support of the warrant that:

c. Collectors of child pornography almost always possess and maintain their "hard copies" of child pornographic material, that is, their pictures, films, video tapes, magazines, negatives, photographs, correspondence, mailing lists, books, tape recordings, etc., in the privacy and security of their home or some other secure location. Child pornography collectors typically retain pictures, films, photographs, negatives, magazines, correspondence, books, tape recordings, mailing lists, child erotica, and videotapes for many years.

d. Likewise, collectors of child pornography often maintain their collections that are in a digital or electronic format in a safe, secure and private environment, such as a computer and surrounding area. These collections are often maintained for several years and are kept close by, usually at the collector's residence, to enable the collector to view the collection, which is valued highly.

(Emphasis supplied.)

Given this background, it is inconceivable to us that, as a matter of normal investigatory procedure, the FBI would have neglected to search the locked gun cabinet to determine whether it contained unlawful pornographic evidence, thereby inevitably discovering the guns. Id. at 238. Thus we find the doctrine of inevitable discovery to be applicable, rendering admissible the results of the FBI's search.

III.

Following the denial of his motion to suppress, defendant pled guilty to two charges of second-degree possession of a weapon by a convicted felon pursuant to a plea agreement that offered sentences of eight years in custody, subject to five years of parole ineligibility pursuant to N.J.S.A. 2C:39-7b, leaving it to the judge's discretion whether to impose the sentences concurrently or consecutively. At sentencing, defense counsel urged the judge to find mitigating factors 1 (defendant's conduct neither caused nor threatened serious harm) and 2 (defendant did not contemplate that his conduct would cause or threaten serious harm). N.J.S.A. 2C:44-1b(1) and (2). Counsel argued, "Mr. Williams doesn't like to shoot at people; he just likes guns." The judge rejected these factors, determining that there was an "inherent danger or risk" involved in weapons possession. Finding aggravating factors 3 (the risk of reoffense), which the judge related to defendant's history of substance abuse, 6 (the extent of defendant's prior record), particularly with respect to weapons offenses, and 9(the need for deterrence), N.J.S.A. 2C:44-1a(3), (6) and (9), to be applicable, the judge sentenced defendant in accordance with the plea agreement, imposing the sentences concurrently.

Defendant has appealed, arguing that the sentence that was imposed was excessive and that, by rejecting mitigating factors 1 and 2, the judge engaged in impermissible double counting of the elements of the crimes. Defendant argues additionally that the record does not support the judge's reliance on aggravating factor 3, because although there was evidence of drug use in defendant's bedroom, there was no evidence that it was related to defendant's weapons possession, which was not a product of addiction, but rather, a fascination with guns. He argues additionally that aggravating factors 6 and 9 should be given minimal weight.

We reject defendant's arguments, determining that Judge Hodgson adhered to the sentencing principles set forth in the Code of Criminal Justice, and that our interference with his sentencing discretion is not factually or legally warranted. State v. Bieniek, 200 N.J. 601, 607-08 (2010).

In reaching this conclusion, we reject defendant's argument regarding the applicability of mitigating factors 1 and 2. Although there was no proof in this case of defendant's use of the weapons in question or of his intent to use them, we note that considerable ammunition was found in addition to the guns. Unless defendant was a target shooter, his possession of the ammunition suggests his gun possession was not for purposes as peaceful as his counsel proposed. We also recognize that in 1994, defendant was found guilty of possession of a weapon for an unlawful purpose after a domestic dispute with his brother during which shots were fired. As a result of that weapons use, we are unwilling to accept defense counsel's statement that defendant's interest in guns was limited to their possession.

We acknowledge that the 1994 conviction formed the basis for the charges of possession of a weapon by a convicted felon to which defendant pled guilty, and to that extent, the former crime was an element of the latter. However, we find no basis to conclude that taking into consideration the circumstances of the prior felony in rejecting a mitigating factor, as opposed to recognizing an aggravating factor, in any fashion unfairly skewed defendant's sentence, and have been offered no precedent that suggests that the judge's reasoning was improper.

In connection with the judge's choice of aggravating factors, we note that the sentence imposed by the judge was in accordance with the plea agreement, and thus presumptively reasonable. State v. Pillot, 115 N.J. 558, 566 (1989); State v. Sainz, 107 N.J. 283, 294 (1987). Moreover, we find the factors cited by the judge to have had a proper factual basis. Although the gun offenses for which he was sentenced in the indictment and accusation at issue in this case did not involve substance abuse, evidence of drug use was found in the drawer of defendant's bedside table; the presentence report indicates that he admitted to being under the influence of ten bags of heroin at the time of the present offense; and that report discloses defendant's extensive history of drug and alcohol use, including the admission that defendant drank a gallon of vodka per day. We do not find it unreasonable in these circumstances for the judge to have concluded that defendant's substance abuse was likely to result in further criminal conduct. Bieniek, supra, 200 N.J. at 606. That defendant was likely to reoffend was further demonstrated in this case by the fact that he did so, acquiring an additional weapon while under indictment for the April 3 crime. The need for deterrence was thus evident. State v. McBride, 211 N.J. Super. 699, 704-05 (App. Div. 1986).

In the circumstances presented, we are satisfied that the judge's imposition of concurrent sentences at about the middle of the second-degree range was not manifestly excessive or unduly punitive and did not constitute an abuse of his judicial discretion. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984). Defendant's sentence is therefore affirmed.

1 If the gun cabinet was glass-fronted, as many are, the guns would have been in plain view initially. Unfortunately, the record does not establish the nature of the cabinet. However, it is clear that the nine-millimeter Mauser, a gun that defendant admitted was his, was in plain view.