STATE OF NEW JERSEY v. RAMON DE LEON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2308-05T42308-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMON DE LEON,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 14, 2006 - Decided December 21, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-05-1881.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Ramon DeLeon, pled guilty on November 15, 2004, pursuant to a plea agreement, to count seven, of a fifteen count indictment, charging him with first-degree distribution of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-5b(1). On November 3, 2005, the court denied defendant's motion to withdraw his guilty plea. Defendant was sentenced on November 3, 2005 in accordance with the plea agreement recommendation, to fifteen years of imprisonment with a five-year parole disqualifier, concurrent to any sentence imposed by a federal court for violation of parole. The remaining eights counts of the indictment against him were dismissed. Defendant appeals from the Law Division's November 4, 2005 judgment of conviction. We affirm.

Defendant presents the following arguments for our consideration:

POINT I.

THE WARRANTLESS ENTRY INTO DEFENDANT'S HOME CANNOT BE JUSTIFIED AS INCIDENT TO A "PROTECTIVE SWEEP;"

POINT II.

THE DENIAL OF DEFENDANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION; AND

POINT III.

THE SENTENCE IMPOSED UPON DEFENDANT IS MANIFESTLY EXCESSIVE.

On November 4, 2004, the court heard argument on defendant's motion to suppress evidence based on the following stipulation of facts:

During the week of March 1st, 2003, Detective Richard Dayton, a member of the HIDA task force, spoke with a confidential informant [CI] who was providing the task force with information regarding illegal distribution of narcotics in the City of Camden.

The [CI] told Detective Dayton that he had made several purchases of cocaine from [defendant] in the past and was willing to introduce the undercover officer to [defendant].

The [CI] further informed Detective Dayton that since the arrest of a high level drug dealer in Camden, defendant had been bragging that he had become the largest supplier of cocaine in and around Camden City.

The defendant was well known to law enforcement officers as a large scale distributor of [cocaine].

On April 3, 2003, the [CI], along with the undercover officer, met with the defendant for the purpose of procuring four and a half ounces of cocaine. At approximately 7:00 p.m., after speaking with the defendant via cellular phone, the [CI], along with the [detective], went to the defendant's home at 33 Moore Street in Camden. The undercover officer was equipped with a body microphone transmitter which Detective Dayton monitored.

As the pair approached 33 Moore Street, the undercover officer was introduced to the defendant and engaged in a drug related conversation. During the conversation, Detective Dayton heard - defendant's boastful manner that he was about to receive 10 kilograms of cocaine in the next 45 minutes. The defendant then told the undercover officer to call him in 45 minutes in order to arrange their drug transaction. Accordingly, the undercover officer, along with the [CI], left 33 Moore Street.

Once the undercover officer left the area, back up officers continued surveillance of 33 Moore Street. As the surveillance officers looked on, they observed a white vehicle occupied by two individuals pull in front of 33 Moore Street. The officers recognized the driver of the vehicle as a well known Camden drug dealer.

The defendant approached the vehicle, engaged the occupants in brief conversation and retrieved a bag from the trunk. The trio then quickly entered 33 Moore Street. Shortly thereafter, the group exited the residence and entered a gray vehicle which was parked near 33 Moore Street.

A short time later, the driver and the other occupant exited the gray vehicle, reentered their vehicle and drove away. After the defendant exited the gray vehicle, he proceeded to the front steps of his residence.

Surveillance units then observed a silver vehicle arrive at 33 Moore Street. The driver exited and approached the defendant. The pair then entered the residence. Approximately a minute later the driver of the silver vehicle exited 33 Moore Street, reentered his vehicle and drove away.

Again, the defendant exited his residence and stood on the front steps. At this time, a red pick up arrived in the area and parked in front of the corner of Morris and Berrick Street. The driver, the co-defendant Derrick Copes, exited the vehicle and approached the defendant. The pair then entered 33 Moore Street. After about one minute, Copes exited the residence carrying a red, white and blue plastic shopping bag and quickly returned to his truck. Copes then fled the area. At this point, based upon their training and experience and the information provided to them and their direct observations, the officers believed that the defendant was engaging in distribution of illegal narcotics.

As a result, back up teams then pursued the red pick up truck and attempted to conduct a motor vehicle stop. As a marked vehicle unit activated his lights and sirens, Copes accelerated away and fled. At the point - at that point, Copes discarded a red, white and blue plastic bag out the passenger window. Inside the bags, the officer located four smaller plastic sandwich bags that contained multiple chunks of suspected cocaine. The recovered CDS weighed approximately 18 ounces.

Copes was eventually recovered in front of Homes Lounge Restaurant and Bar. Several patrons of the bar exited to watch the police activity. The officers overheard patrons state, "that's task force, they got Rudy." The officers noticed that some of the individuals from the bar left the area in their vehicles. This caused the officers concern that the defendant would be informed of Copes' arrest and destroy or move the CDS in his possession. According to the officers, they then decided to call the defendant's cellular phone to conduct the CDS transaction that they attempted to engage in earlier that day.

As the [CI] contacted the defendant, officers were able to overhear the defendant indicate that the shipment of cocaine had arrived and that he should come to 33 Moore Street to purchase it. The officers then believed the defendant was in possession of a substantial amount of cocaine. Fearing that the defendant would be notified of Copes' arrest and destroy or move the CDS, the officers decided to secure the residence of 33 Moore Street in order to obtain a warrant.

Upon arrival at 33 Moore Street, the officers observed the defendant standing in front of the doorway holding a handgun in his hand. As the officers approached, the defendant turned his body away from the officers and attempted to enter the residence. The defendant, however, was taken into custody in the doorway of his home and the arresting officers recovered the gun he possessed.

The officers subsequently entered the residence in an attempt to secure the scene. While doing so, the officers observed a plastic sandwich bag of suspected cocaine, two bags of suspected marijuana and $12,000 in plain view in the living room. In an upstairs bedroom, the officer located Adalada Vega. A search warrant was obtained after the residence was secured. When the warrant was executed the officers obtained a digital scale and CDS packing material.

The defendant was indicted under this indictment charging him with possession with intent to distribute CDS, first-degree pursuant to 2C:35-B1, possession with intent to distribute within 500 feet of public housing, second-degree pursuant to 2C:35-7.1, possession with intent to distribute CDS within 1,000 feet of a school, third-degree, pursuant to 2C:35-7, possession of CDS, third degree, [pursuant to] 2C:35-10a. Defendant was also charged with possession of a weapon while committing a CDS offense, a second degree crime pursuant to 2C:39-4.1.

Based upon these facts, defendant conceded that probable cause existed for his arrest and for the issuance of the search warrant. However, defendant argued that once he was under arrest, there was no exigency and, therefore, the police were required to obtain a search warrant before entering his home. Judge Natal rejected this argument and denied defendant's motion to suppress in a comprehensive and well-reasoned oral opinion, consisting of twenty-one transcribed pages. The judge found that the "officers [reasonably] felt that the defendant could learn of Copes' arrest and as a result destroy certain evidence." The judge stated:

In this case, the officers observed the defendant engaging in what they believed to be CDS transactions. They also, when they arrived at the scene saw the defendant with a handgun in his hand. Knowing that knowledge, that would be prima facie probable cause to arrest him for the second degree crime of possession of a weapon during drug transactions. The officers had, therefore, specific knowledge that he was armed and there was danger to them, demonstrating that they had to safeguard the area. Not knowing who else was or was not in the home, it is very reasonable for the officers to make a sweep of the home to make sure no one else was present and no one else could destroy any evidence.

The judge also found that the officers made plain view observations while they were legitimately in the house. They saw the "CDS and the money in his living room." The court determined that "even if the court is wrong in its determination of exigent circumstances, clearly, the warrant application . . . would have given probable cause for the search of the house and I find that the drugs and the money would have been inevitably discovered."

I.

Defendant contends that the evidence seized, during the warrantless entry, should have been suppressed as the officer's entry into his residence and the search were not a "protective sweep." Therefore, defendant's Fourth Amendment right to be free from illegal searches and seizures was violated.

The rights guaranteed in the Fourth Amendment are "to be regarded as of the very essence of constitutional liberty." Gouled v. U.S., 255 U.S. 298, 304, 41 S. Ct. 261, 263, 65 L. Ed. 647, 650 (1921). However, "the Fourth Amendment does not forbid all searches and seizures but only such as are unreasonable." U.S. v. Rubin, 474 F.2d 262, 268 (3d. Cir.), cert. denied, Agran v. U.S., 414 U.S. 833, 94 S. Ct. 173, 38 L. Ed. 2d 68 (1973).

Generally, a warrant is required for making a search reasonable. State v. DeLorenzo, 166 N.J. Super. 483, 487 (App. Div. 1979). Exigent circumstances may excuse the search warrant requirement where "probable cause exists therefor and exigent circumstances are present which, as a practical matter, preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974).

This court has established nine variables to be considered when determining the necessity of exigency. Courts should consider:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry.

[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).]

Applying these factors to the facts of this case demonstrates the existence of exigent circumstances. First, the arrest took place during the evening, and it would have taken several hours for the officers to obtain a search warrant. Second, there was urgency. The police had a reasonable belief that defendant would be notified that police were in the area and that he would dispose of the contraband because the police saw many people leave the bar after recognizing the task force team. Third, the danger to officers surrounding the house was high, because defendant was seen carrying a firearm. Fourth, the fact that the officers had arrested an associate of defendant outside a bar led them to believe defendant would think the officers were on his trail. Fifth, the contraband was drugs and could have been disposed of easily. Sixth, the gravity of the offense involved was high, as defendant had bragged about his expectation of having over ten kilograms of cocaine delivered. Seventh, the possibility that defendant was armed was evident, as defendant had a firearm in his hand on the steps of his residence. Eighth, the strength of the facts establishing probable cause was quite high as the undercover officer and CI were informed that they could buy drugs from defendant, and the surveillance officers observed people enter defendant's residence with nothing in their hand, and exit with a bag that probably had drugs in it. Ninth, the time of entry was at night. The courts were closed and the time necessary to obtain a search warrant was increased. All of these factors weighed heavily in favor of the reasonableness of the officers' belief that exigent circumstances existed. The officers believed that defendant's possession of a gun created a danger to them, and they reasonably believed that if defendant had been tipped off, he would dispose of the contraband. Smith, supra, 129 N.J. Super. at 435.

Defendant contends, however, that the exigency was police created, thereby invalidating the search. State v. Henry, 255 N.J. Super. 593 (App. Div. 1992), rev'd on other grounds 133 N.J. 104, cert. denied, Henry v. N.J., 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). However, police created exigencies are those which the police create to purposely evade the warrant requirement. In Henry, police officers bought drugs from the defendant giving rise to probable cause. Id at 598. This court, after analyzing the Alvarez factors determined:

The buy was made in Newark early on a Wednesday afternoon, when a warrant could readily have been obtained. There was no indication that the contraband was about to be removed or exhausted in sales or use. The record does not suggest that the police could not have set up surveillance to prevent flight from the building. Nor is there any indication that the police would be in danger if they guarded the site while a warrant was sought, or that the occupants of the apartment were aware that the police were on their trail, or that they were armed or that they were planning to depart. And there is no indication that the drug operation was of great magnitude.
 
[Ibid.]

After making the above analysis, this court determined that there were no exigent circumstances. Id. at 604. This case, however, differs significantly from Henry. Here, an analysis of the Alvarez factors supports the existence of exigent circumstances.

In Rubin, supra, 474 F.2d 262, a suspect in a drug dealing business eluded police until he pulled into a gasoline station blocks from the searched premises, where it appeared he was known to some of the patrons. Id. at 264. When he was arrested, he yelled, "call my brother." Ibid. The Third Circuit found that the operation, the fact that the contraband was drugs, and the situation at the gas station created an uncertainty to the officers such that "they could not be certain of how quickly the contraband could be destroyed or what surreptitious means might be available for its removal." Id. at 269. The case at hand is similar in that both this case and Rubin involved an arrest in the neighborhood of the defendant; both involved a drug operation; both involved people at the scene of the arrest taking actions that made the police officers believe that the defendant would be notified; and both involved the possibility of the destruction of the drugs.

Despite the similarity to Rubin, defendant urges that Segura v. U.S., 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) applies to invalidate the search. However, in Sequra, the Supreme Court held:

Specifically, we hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures.

[468 U.S. at 798, 104 S. Ct. at 3382, 82 L. Ed. 2d at 604.]

Defendant argues that here, unlike Segura, supra, the information on which the search warrant was secured was derived from or related to the initial entry by the police. 486 U.S. at 811, 104 S. Ct. at 3388, 82 L. Ed. 2d at 612-13. However, as in Sequra, the facts in this case clearly show that the officers had obtained enough evidence by their surveillance to secure a search warrant without the evidence observed after the initial entry into defendant's residence. Specifically, the officers heard defendant state that he was about to receive ten kilograms of cocaine. The officers observed the co-defendant enter the premises and leave with a red, white, and blue bag that had drugs in it. Additionally, the officers overheard defendant say to the CI that he would sell him the drugs. See also State v. Josey, 290 N.J. Super. 17, 29 (App. Div. 1996) (explaining Sequra).

The trial court also found that the doctrine of inevitable discovery would apply to sustain the search of defendant's residence. We need not discuss this doctrine, as we are satisfied that the existence of probable cause and exigent circumstances validate the search.

After a careful review of the stipulated facts, the applicable law, and the arguments raised, we affirm the Judge Natal's denial of defendant's motion to suppress evidence substantially for the reasons expressed by Judge Natal in his oral opinion of November 4, 2004.

II.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that issues II and III presented by defendant are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add the following:

Defendant argues that he had a right to a trial and that his motion to withdraw his guilty plea should have been granted. However, the withdrawal of a guilty plea is within the broad discretion of the trial court. State v. Smullen, 118 N.J. 408, 416 (1990). "A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges. This principle has particular efficacy where the plea has been entered pursuant to an agreement with the State." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992) (internal citations omitted).

During the plea hearing, Judge Natal asked defendant if: (1) he understood the charges against him; (2) he had enough time to discuss the case with his attorney; (3) his attorney answered all of his questions; (4) he understood the plea forms; (5) he gave truthful answers to questions posed; (6) he understood that he did not have to plead guilty; (7) he understood that he had a right to trial by jury; and (8) he understood that he was giving up his right to a jury trial. Defendant answered affirmatively to all these questions.

However, defendant contends that he was on medication and that his medication affected his decision to plead guilty. Defendant's taking of medication, however, was addressed by the judge during the plea hearing.

The court: Have you taken any medication, any drugs or alcohol or anything that would affect your ability to think clearly here today?

[Defendant's attorney]: Judge, my client indicates that he is on medication but it does not affect his thinking at all.

The court: [Defendant,] I understand you're taking certain medications, but does any of that affect your ability to think clearly?

Defendant: No.

The court: In other words, you understand exactly what you're doing by pleading guilty?

Defendant: Yes I do.

The defendant was then questioned as to the events of April 3, 2003 which led to his arrest. He was able to affirmatively answer all the questions and thus laid a proper factual foundation for the taking of his guilty plea. R. 3:9-2.

The judge, at the motion hearing, asked the defendant if he remembered being asked about the medication during the plea hearing a year earlier. Defendant answered in the negative. The judge then played a videotape of the plea hearing, which refreshed defendant's memory as to his answers at the plea hearing. We are satisfied that Judge Natal properly exercised his discretion in denying defendant's motion to withdraw his guilty plea.

Defendant contends his sentence was excessive. However, defendant's sentence was in accordance with the plea agreement agreed to by him at the plea hearing nearly a year before sentencing. He was sentenced to a term of years that was less than the presumptive term then in effect.

Defendant agreed to plead guilty and be sentenced in accordance with the recommended sentence, which was within the statutory guidelines for the first-degree offense of distribution of cocaine. The trial judge found from the record aggravating factors three, six, and nine applied and that no mitigating factors applied and imposed the sentence set forth in the plea agreement. Defendant's contention that his sentence was excessive is, therefore, clearly without merit.

Affirmed.

 

Although defendant uses the term protective sweep in his argument, he cites to the factors used to determine whether exigent circumstances exist and uses the term exigent circumstances interchangeably with protective sweep. Additionally, the trial court's decision was founded on exigent circumstances. "[T]he police may 'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises." State v. Henry, 133 N.J. 104, 118 (1993).

 
 

(continued)

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A-2308-05T4

December 21, 2006