STATE OF NEW JERSEY v. MICHAEL J. BEATY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2785-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. BEATY,

Defendant-Appellant.

________________________________

August 23, 2011

Submitted August 10, 2011 Decided

Before Judges J. N. Harris and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-08-1147.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Michael J. Beaty was convicted of one count of second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2), following his post-suppression motion guilty plea. Beaty appeals, claiming that his motion to suppress should have been granted in its entirety. We affirm.

I.

In April 2008, Detective Ronald Altman of the Paterson Police Department received information from a confidential informant about the potential sale of controlled dangerous substances occurring at 366 Fair Street, a multi-family apartment building in Paterson (the building). Specifically, Altman was advised that a third-floor resident of the building, Ali Martin, was selling drugs from a first-floor apartment. Altman also learned that a second individual was involved in the marketing and sale of the contraband along with Martin.

In addition, Altman received corroborating information from Paterson Detective Dimitri Clarke who advised that he had obtained similar reports from his own confidential informant regarding the manner of drug merchandising at the building. Clarke had conducted surveillance along Fair Street and observed numerous persons interacting with Beaty in the courtyard area of the building, and appearing to engage in incipient and completed drug transactions together. Later, Altman, while conducting his own surveillance, observed Beaty and Martin separately engage in similar behavior with several individuals.

On April 25, 2008, Altman received further information from a confidential informant who advised that Martin had just transported a cache of contraband from his third-floor apartment to the first-floor apartment where it was available for immediate sale. The confidential informant further indicated that Beaty was present in the first-floor apartment. Altman later observed Beaty interact with several individuals, including Martin, in the vicinity of the building. Four individuals who were observed in conversation with either Beaty or Martin, and who entered the building and emerged a few minutes later, were stopped by police a short distance from the building, found in possession of either heroin or cocaine, and arrested.

On April 28, 2008, Altman obtained a search warrant for the first-floor apartment at the building. During police surveillance before executing the warrant, Beaty was seen handing an individual a small item and in exchange, was handed what appeared to be paper money. The individual was stopped by police and found to be in possession of a glassine envelope containing what appeared to be heroin. Beaty was arrested shortly thereafter.

Within minutes of Beaty's apprehension and arrest, the search warrant was executed at apartment 19 in the building. While that search was underway, Martin was apprehended a short distance away and arrested. Martin indicated that he resided in apartment 32 on the third floor of the building. The police investigation revealed that the principal resident at that dwelling unit was Martin's sister, who consented to a search of the apartment. Inside, the police recovered heroin, cash, mail addressed to Martin at that address, and packaging materials used to sell cocaine and heroin.

After being indicted, along with several others, Beaty moved to suppress the evidence seized in apartments 19 and 32. The Law Division denied the motion, concluding that (1) there was sufficient probable cause to support the arrests of the four individuals, (2) the warrant to search apartment 19 was valid, and (3) the search of apartment 32 did not impermissibly stray beyond the scope of the given consent. On appeal, Beaty argues the following points:

POINT I

DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE FOUND IN APARTMENT # 19 OF 366 FAIR STREET SHOULD HAVE BEEN GRANTED BECAUSE THERE WAS NO PROBABLE CAUSE VALIDATING THE ARRESTS OF CO-DEFENDANTS WHICH WERE THEN USED TO SUPPORT A WARRANT TO SEARCH THE APARTMENT.

A. DEFENDANT BEATY HAS STANDING TO CHALLENGE THE IMPROPERLY OBTAINED EVIDENCE.

B. THE ILLEGAL ARRESTS OF BEATY'S CO-DEFENDANTS CANNOT SUPPORT THE WARRANT.

C. THE EVIDENCE SEIZED UNDER THE SEARCH WARRANT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE AFFIDAVIT SUPPORTING THE WARRANT DID NOT ESTABLISH PROBABLE CAUSE.

POINT II

DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE FOUND IN APARTMENT # 32 OF 366 FAIR STREET SHOULD HAVE BEEN GRANTED BECAUSE THE SEARCH OF THAT APARTMENT WENT BEYOND THE PERMISSIBLE SCOPE OF THE GIVEN CONSENT.

We do not find these arguments persuasive, and affirm.

II.

Our standard of review is well established. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the motion court's decision as long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). A motion court's findings of fact should be disturbed only when "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders, supra, 192 N.J. at 244)), aff'd, 201 N.J. 100 (2010); see also State v. Locurto, 157 N.J. 463, 471 (1999).

"[A] search executed pursuant to a warrant is presumed

valid." State v. Marshall, 199 N.J. 602, 612 (2009) (citing State v. Jones, 179 N.J. 377, 388 (2004)). However, a defendant may challenge the facts underlying a finding of probable cause for the issuance of a search warrant. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978); State v. Howery, 80 N.J. 563, 566, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

"The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." State v. Valencia, 93 N.J. 126, 133 (1983) (citing State v. Kasabucki, 52 N.J. 110 (1968)). It is a core constitutional principle that "'no warrant shall issue except upon probable cause, supported by oath or affirmation.'" Marshall, supra, 199 N.J. at 610 (quoting N.J. Const. art. I, 7). "Probable cause 'eludes precise definition.'" State v. Sullivan, 169 N.J. 204, 210 (2001) (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000)). "In general terms, it 'means less than legal evidence necessary to convict though more than mere naked suspicion[.]'" Id. at 210-11 (quoting State v. Mark, 46 N.J. 262, 271 (1966)). "Probable cause exists if at the time of the police action there is 'a well grounded suspicion that a crime has been or is being committed.'" Id. at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

Beaty argues that State v. Pineiro, 181 N.J. 13 (2004), controls the outcome of the question of whether there was probable cause to arrest the four individuals observed interacting with Beaty and Martin shortly before the warrant issued. We find that the vague and unsubstantiated information that was unsuccessfully used to validate probable cause in Pineiro was wholly unlike the detailed, corroborated, and specific information available to the police in this case at the time they began the series of four arrests prior to obtaining the search warrant.

We find no error in the motion court's conclusion that the police observations, the accuracy of the confidential informants' reports, and the totality of the circumstances combined to validate the stop and arrests of those interacting with Beaty or Martin at the building. Accordingly, the intelligence gathered from those arrests, which further confirmed the validity of the confidential informants' information as well as the experienced detectives' well-grounded suspicions, justified its inclusion in the search warrant. Moreover, the warrant's specific reference to apartment 19 is supported by a reliable confidential informant's observations and reports to the police.

Beaty further argues that the sequential search of apartment 32 went beyond the contours of the consent that was given by the dwelling's principal occupant. He relies upon State v. Pante, 325 N.J. Super. 336 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000), claiming that by hiding his contraband in a secret area of the bed provided by his sister, he enjoyed a reasonable expectation of privacy in that property. We find this argument to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we briefly note the following.

The motion court found that the evidence was found in "a bed for which [Martin] did not have an expectation of privacy, despite the hidden compartment." Martin indeed lived in the apartment, but "[t]here was no segregated room that was set aside for [Martin]" and "this bed where [Martin] slept was in a living room, a common room to this apartment." Therefore, the seizure of the evidence was validly encompassed by the given consent to search the dwelling. We find no error in the factual and legal conclusions of the motion court in this regard.

Affirmed.