STATE OF NEW JERSEY v. DEVIN L. DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEVIN L. DAVIS a/k/a DEVON DAVIS,

Defendant-Appellant.

___________________________________

October 11, 2013

Argued September 16, 2013 Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

Indictment No. 11-01-0054.

Ryan J. Clark argued the cause for appellant (Clark & Clark, LLC, attorneys; Mr. Clark, on the brief).

Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. do Outeiro, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress the results of a search conducted pursuant to a warrant, defendant Devin L. Davis pled guilty to third-degree possession of a controlled dangerous substance (CDS) (marijuana) with intent to distribute, N.J.S.A. 2C:35-5b(11), and second-degree possession of a firearm, N.J.S.A. 2C:39-4.1(a). He was sentenced to an aggregate eight-year prison term with a three-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

Defendant appeals, and we affirm.

Defendant resided on West Sunset Avenue in Red Bank, which residence together with 140 Montgomery Terrace was the object of a search conducted on July 15, 2010, pursuant to a warrant, in which various drugs and firearms were seized. The search warrant was based on the July 14, 2010 supporting affidavit of Detective Robert Clayton of the Red Bank Police Department, a nineteen-year police veteran and member of the department's Street Crimes Unit, "whose primary objective involve[d] narcotic[s] investigations." He has participated in "numerous investigations" culminating in arrests for drug-related crimes, and has also received extensive training in narcotics investigations from organizations such as the Drug Enforcement Administration.

Following his indictment on various drug- and weapons-related crimes, defendant moved to suppress the fruits of that search, arguing the supporting affidavit lacked probable cause to justify issuance of the warrant. The motion judge disagreed and denied the application.

On appeal, defendant argues:

THE DENIAL OF [DEFENDANT'S] MOTION TO SUPPRESS SHOULD BE OVERTURNED BECAUSE THE WARRANT AFFIDAVIT [FAILS] TO PROVIDE PARTICULARIZED INFORMATION OF SUBSTANCE THAT IS REQUIRED TO SUPPORT AN OBJECTIVE FINDING OF PROBABLE CAUSE TO SEARCH [HIS RESIDENCE].

We find this contention unpersuasive.

Because defendant questions the sufficiency of the affidavit supporting the challenged search warrant, we derive the following facts exclusively from the four corners thereof. State v. Evers, 175 N.J. 355, 380-81 (2003).

In the months preceding the July 14, 2010 warrant application, the Red Bank Police Department received information from confidential informants (CIs) that Demitrio Merito, a/k/a "Chico," and Vernard Outterbridge, a/k/a "Juicey," were distributing both powder and crack cocaine from 140 Montgomery Terrace in Red Bank. At the same time, Trooper Michael Nelson of the New Jersey State Police was also investigating narcotics distribution at 23 West Sunset Avenue from an individual known as "Chico."

In June 2010, Detective Clayton conducted surveillance of 140 Montgomery Terrace, during which he observed Chico and Juicey "act[] as a team" to distribute drugs from that residence to "known narcotics users." The men would either meet a prospective buyer in front of 140 Montgomery Terrace, enter the residence for a short period of time, and then exit the residence and part ways with the buyer, or the men would direct the buyer to another location in the housing complex and meet the buyer there to complete the drug transaction.

During "several" of these latter-type transactions, Detective Clayton observed Chico enter defendant's residence for a "short period of time" on his way to the location of the drug transaction. During two weeks of surveillance on defendant's residence, Detective Clayton observed "several known narcotic distributors" enter and then quickly leave the residence. Although Detective Clayton never observed a drug sale "be made from within" the residence, based upon the totality of these observations and his training and experience, he believed defendant's residence was "being used as a 'stash house'."

During June and July 2010, Detective Clayton and Trooper Nelson had several CIs make numerous controlled purchases of cocaine from Chico and Juicey at 23 West Sunset Avenue, 140 Montgomery Terrace, and outdoor locations in the residential complex. For instance, during the week of June 8, 2010, Trooper Nelson arranged for his CI to go to 23 West Sunset Avenue to purchase cocaine. After making contact with the resident, the CI received a telephone call from Chico, who discussed the terms of the drug deal. Troopers then observed Chico exit defendant's residence and bicycle over to 23 West Sunset Avenue, where Chico then directed the CI into the backyard to complete the transaction.

A second drug deal involving defendant's residence occurred during the week of July 10, 2010. On that date, Detective Stafyleras of the New Jersey State Police had this same CI contact Chico via telephone to arrange the purchase of marijuana. The purchase was to occur on Shrewsbury Avenue. Thereafter officers observed Chico exit 140 Montgomery Terrace and proceed to defendant's residence. Chico remained inside for only one minute before he proceeded to Shrewsbury Avenue and engaged in a hand-to-hand drug transaction with the CI.

Based on this information, a search warrant was issued and executed on July 15, 2010 for, among other places, defendant's residence, where police encountered defendant inside and removed firearms, ammunition and quantities of marijuana. The motion judge refused to suppress this evidence, finding sufficient probable cause for issuance of the search warrant:

The claim also is that . . . there was no probable cause to also search [defendant's residence].

The officer indicated that several residence[s] were under surveillance throughout this two-week timeframe. All of those are detailed. Essentially what it comes down to, on the way to a buy with a confidential informant that Juan Merito was seen on his way from one point to another stopping for a brief period of time at [defendant's residence] in the Borough of Red Bank, went in, came out, then went on and the drug transaction took place.

I'm satisfied that under those circumstances that where Merito went immediately before the buy occurred is probable cause to search that location, even though it was for a brief time. Obviously even though the people surveilling the location can't see inside what's happening, the before, after indicated that the CI didn't have any drugs and that he gave the judge probable cause to issue the warrant, so the application will be denied.

Defendant contends, as he did below, that Detective Clayton's affidavit lacked "particularized information" of illegality to support probable cause for issuance of the search warrant for his residence. We disagree.

Some well-settled principles govern our review of the issuing judge's determination of probable cause. A search executed pursuant to a warrant is presumed valid. State v. Jones, 179 N.J. 377, 388 (2004); State v. Sullivan, 169 N.J. 204, 211 (2001); State v. Valencia, 93 N.J. 126, 133 (1983). The defendant has the burden of proving the invalidity of the search made pursuant to a warrant "that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." Sullivan, supra, 169 N.J. at 211 (quoting Valencia, supra, 93 N.J. at 133).

The evaluation of probable cause involves consideration of the "totality of the circumstances . . . assessing the reasonable probabilities that flow from the evidence submitted in support of a warrant application." State v. Chippero, 201 N.J. 14, 27 (2009). On this score, "[t]he experience that an officer submitting a supporting affidavit has in investigating and apprehending drug dealers constitutes [a] factor that a court should consider." Jones, supra, 179 N.J. at 390; see also State v. Novembrino, 105 N.J. 95, 126 (1987); State v. Kasabucki, 52 N.J. 110, 117 (1968). Thus, deference is afforded to an experienced law enforcement officer's determination of drug activity. State v. Demeter, 124 N.J. 374, 382-86 (1991).

Lastly, in considering a challenge to the adequacy of the facts offered to show probable cause, "'[w]e accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Sullivan, supra, 169 N.J. at 211 (quoting State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). Even when their adequacy appears marginal, "'the doubt should ordinarily be resolved by sustaining the search.'" Jones, supra, 179 N.J. at 389 (quoting Kasabucki, supra, 52 N.J. at 116).

Governed by these general tenets, we are satisfied the affidavit establishes probable cause sufficient to support issuance of the search warrant for defendant's residence. During a two-month investigation into the drug distribution activities of Chico and Juicey, Detective Clayton observed several known narcotics distributors enter and quickly exit defendant's residence. Based upon his training and experience, Detective Clayton recognized that this behavior by drug dealers probably meant that defendant's residence was linked to drug distribution, serving as a stash house, and, therefore, contained illegal drugs.

Detective Clayton also personally observed Chico use defendant's residence in the same manner, namely stopping there briefly while en route to drug sales. Detective Clayton's general observations of Chico were confirmed during two controlled buys conducted by the State Police. Similar to Detective Clayton's observations, the surveilling troopers observed Chico on two separate occasions very briefly stop at defendant's residence while en route to the location where the prearranged drug sale was to take place. After arranging the drug sale via telephone, Chico proceeded directly to defendant's residence before selling drugs to the CI.

Contrary to defendant's contention, the fact that no drug sales were observed inside or immediately outside of defendant's residence does not defeat the existence of probable cause. That concept does not require certainty but only "a fair probability that contraband or evidence of a crime will be found in a particular place." Chippero, supra, 201 N.J. at 28 (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)); see also State v. Jones, 308 N.J. Super. 15, 28 (App. Div. 1998). For instance, in State v. Myers, 357 N.J. Super. 32, 39-40 (App. Div. 2003), we found that police officers had sufficient probable cause that drug evidence would be found at the defendant's residence because on the same day the officers observed drug transactions at a nearby location, they observed the defendant leaving his residence and giving a brick of suspected heroin to one of the dealers at the nearby location, and police found drugs, a weapon and ammunition at the nearby location.

Here, there were direct observations of Chico and several known drug dealers distributing cocaine outside of 23 West Sunset Avenue and 140 Montgomery Terrace. However, immediately after the planning of these drug deals, but immediately before the drug deals actually occurred, Chico briefly stopped at defendant's residence, similar to the brief visits paid to that location by other known drug dealers.

The fact that there may be an innocent explanation for all this behavior is hardly dispositive. As the Court has noted "[i]t must be rare indeed that an officer observes behavior consistent only with guilt and incapable of innocent interpretation." State v. Arthur, 149 N.J. 1, 11 (1997) (quoting United States v. Viegas, 639 F.2d 42, 45 (1st Cir.), cert. denied, 451 U.S. 970, 101 S. Ct. 2046, 68 L. Ed. 2d 348 (1981)). Although perhaps insignificant when viewed in isolation and in a vacuum, the conduct observed becomes meaningful to an experienced and trained narcotics officer when considered in the entire context of Chico's status as a drug dealer, the timing of his stopovers at defendant's residence to coincide with the middle of the drug deals, the brevity of those visits, and similar visits to that same location by other drug dealers.

Under all these circumstances, the warrant application here was legally sufficient.

Affirmed.