STATE OF NEW JERSEY v. ZACHARY HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2396-05T42396-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZACHARY HILL,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 10, 2007 - Decided September 24, 2007

Before Judges Weissbard and Baxter.

On appeal from the Superior Court of New Jersey, Middlesex County, Law Division, Indictment No. 01-08-910.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Zachary Hill appeals from the trial court's denial of his petition for post-conviction relief (PCR). Following a jury trial, defendant was convicted of two counts of third degree possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10(a)(1); two counts of third degree distribution of CDS, in violation of N.J.S.A. 2C:35-5(a)(1), 5(b)(3); and two counts of distribution of a controlled dangerous substance within 1000 feet of a school, in violation of N.J.S.A. 2C:35-7. On July 8, 2002, he was sentenced to an aggregate term of imprisonment of eight years with a four-year period of parole ineligibility. This court affirmed the conviction on direct appeal. State v. Hill, Docket No. A-2048-02T4 (App. Div. November 12, 2003). The Supreme Court denied defendant's petition for certification on February 3, 2004.

Defendant filed a timely PCR petition, in which he asserted that he was entitled to post-conviction relief because his trial counsel was ineffective and the representation his counsel provided fell below applicable professional standards. In support of that claim, defendant argued that trial counsel failed to file a motion to suppress evidence which, had it been filed, should have been granted; and improperly failed to convey to defendant a revised plea offer from the State on the morning of trial that defendant would allegedly have accepted had trial counsel conveyed that offer to him.

The PCR judge, who also presided at trial, conducted an evidentiary hearing on the petition because the trial record did not contain sufficient evidence to enable the judge to determine whether she would have granted the motion to suppress had such motion been filed. At the hearing, the State presented the testimony of Lieutenant Paul Schuster, who was the arresting officer. Detective Samuel Hillyer, the detective who found the CDS in the vehicle defendant was driving on the day of his arrest, was on extended medical leave at the time the PCR petition was heard, and with the agreement of both parties, the court relied on Hillyer's trial testimony rather than adjourn the hearing pending Detective Hillyer's return from medical leave. Defendant testified at the PCR hearing, as did his trial counsel.

After hearing the testimony presented at the PCR hearing, the trial judge denied defendant relief, finding that had a motion to suppress the CDS been filed, such motion would have been denied because the search of the vehicle in question was supported by probable cause and exigent circumstances.

On appeal, defendant argues:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY THE U.S. CONST., AMENDS. VI, XIV,; N.J. CONST. ART. I, PAR. 10.

We agree with defendant's contention that there was merit to his claim that the search of his vehicle was not supported by probable cause, and that trial counsel did not act reasonably in failing to file a motion to suppress. Under those circumstances, but for counsel's errors, the result of the proceedings would have been different. Accordingly, the denial of defendant's petition for post-conviction relief was error. We reverse and remand for further proceedings not inconsistent with this opinion.

I.

At the PCR hearing, Lieutenant Schuster testified that he arrested defendant on July 5, 2001 on the charges that led to the trial in question. For several weeks prior to that date, Schuster had been receiving information from confidential informants (informants) and from residents in the area about narcotics activity in the area of George and Hassart Streets in New Brunswick. The information from those informants led Schuster to focus on defendant and his girlfriend, Zona Bass.

Schuster testified that the informants had provided information to narcotics investigators in the past that had resulted in arrests and convictions for drug violations. In the weeks prior to July 5, 2001, the informants advised Schuster that defendant and Bass were selling heroin to lower-level drug dealers who then sold heroin on street corners. The tip from the informants came "[f]rom being around the area, personal observations . . . and overheard conversations." Schuster explained that the informants "may have seen the street dealer meeting with Mr. Hill or Ms. Bass," but the information provided by the informants was "mostly from word of mouth." The information Schuster received from the informants concerning the location of the drugs "was very vague;" therefore, Schuster tried to determine where the drugs "were being held," but "the best [he] could find out was that on some occasions drugs would be kept in a couple of cars parked in the back parking lot behind the apartment [where defendant lived]." One car was a red Firebird and the other was a small white car.

According to the information the informants provided, defendant and Bass were secretive about where they kept their drugs. Schuster had observed defendant driving the Firebird on several occasions, but had never seen defendant engaged in narcotics activity, despite conducting several surveillances in that general area.

On July 3, 2001, after Schuster had terminated his surveillance, one of the informants contacted him, stating that after Schuster had "broken off" his surveillance, the informant saw defendant provide Darryl Johnson with a supply of heroin. Schuster was unable to verify that information but "filed [it] away" for future reference as part of the background information he was developing about defendant.

Schuster's information about defendant's activities remained inconclusive until July 5, 2001, when a uniformed police officer told Schuster that a few days earlier he had observed defendant in front of 226 George Street. According to the unnamed officer, as soon as defendant observed the patrol car approaching, defendant "bolted inside the house," causing the officer to conclude that defendant was either in possession of drugs or had outstanding warrants. As a result of the information he received from the patrol officer, Schuster ran a warrant check and learned that defendant was wanted on an outstanding parole warrant from New York State, as well as a fugitive warrant from Passaic County and a local warrant from New Brunswick. Schuster testified that after receiving the information about the outstanding warrants, his plan was "to try and arrest him for drugs, if I could, since I had all this information he was allegedly selling heroin."

At 11:00 in the morning on July 5, 2001, Schuster was contacted by one of the informants, who stated that he had been in the area of George and Hassart Streets trying to buy heroin, and had spoken to a person who the informant knew worked for defendant and Bass. The informant explained to Schuster that the street level dealer said "there was no heroin available, but that . . . [defendant] was supposedly coming back with a supply of heroin." The informant did not provide any information about whether defendant would be driving the small white car, the red Firebird or some other vehicle. At 12:15, an officer from one of the backup units radioed Schuster notifying him that defendant had just arrived at his apartment building at 226 George Street and had entered the building. Fifteen minutes later, defendant came back out, entered the red Firebird and began driving up Hassart Street. When defendant observed Schuster approaching in an unmarked vehicle, he exited his vehicle and began walking toward the back of his apartment building. Schuster and the backup officer told him to stop, ordered him to put his hands on top of his vehicle and advised him that he was under arrest.

An unidentified male standing in the area had observed the arrest, ran inside the apartment building and told Bass what he had seen. Bass immediately came outside and demanded to know what was happening. When Schuster told her that defendant was under arrest due to outstanding warrants, she asked for the car. Schuster told her to "back off" until he had completed his investigation, and assured her that he would give her the keys at that time. Although Bass backed up, she kept approaching the vehicle, and Schuster was forced to repeatedly instruct her to step away. During the search of the vehicle, Schuster unlocked the hatchback because one of the informants had told him that "on some occasions" defendant kept drugs in the back of the red Firebird. When he opened the hatchback, Schuster observed a small compartment, but could not remember whether that small compartment was locked or unlocked. Upon opening it, he found narcotics. As soon as he completed the search of the vehicle, Schuster gave the car and the keys to Bass.

Trial counsel also testified at the PCR hearing. He asserted that he did not file a motion to suppress the evidence of CDS because he "couldn't win it and . . . pursuing it would . . . tip [his] hand." He explained that in his opinion there was enough evidence to establish probable cause, and that filing a motion to suppress would have been pointless. When asked to describe his trial strategy, he answered "defendant was not in possession of the drugs and . . . didn't know anything about it."

Trial counsel was also asked whether a revised plea offer of five years imprisonment was extended by the assistant prosecutor on the first day of trial. Defense counsel answered in the affirmative, insisting that he "strongly recommended" to defendant that he accept the revised plea offer, but defendant chose to reject it.

Defendant testified at the PCR hearing, asserting that trial counsel never conveyed the revised plea offer of five years imprisonment with no period of parole ineligibility, and that he would gladly have accepted that offer had his attorney told him it was available.

At the conclusion of the PCR hearing, the trial judge held that the search of the hatchback of defendant's vehicle was supported by probable cause, and that had a motion to suppress been filed, she would have denied it. In particular, she held that the information provided by one of the confidential informants on the morning of July 5, 2001 that defendant was going to be returning to the area with narcotics in his possession when combined with information that the red Firebird was used in the past to transport narcotics, provided probable cause to believe that narcotics could be found in the vehicle that day. The judge reasoned that "both of those statements put together created an exigency of circumstances and provides the probable cause which would support this search at that time. And even if I didn't find that, which I do, . . . under the valid warrant to arrest [defendant], the State could have seized the vehicle and done an inventory search pending the release of the vehicle."

II.

We begin our analysis by considering the judge's conclusion that even if there was not probable cause to search the vehicle's trunk, the narcotics would inevitably have been discovered during an inventory search of the vehicle. We agree with defendant that because Schuster never intended to impound the vehicle and always intended to return the vehicle to Bass once the search was completed, the vehicle would not have been impounded and no inventory search would have been conducted. Therefore, the inevitable discovery exception to the warrant requirement was not applicable.

The State argues in the alternative that because Bass could have removed the vehicle from the scene by using a spare set of keys, the doctrine of exigent circumstances justified the warrantless search. In support of that argument, the State relies upon State v. Dunlap, 185 N.J. 543 (2006). Dunlap had not been decided at the time a suppression motion would have been decided, and accordingly we instead rely upon State v. Cooke, 163 N.J. 657, 672-74 (2000) (holding that where there were "confederates waiting to move the evidence," and police would need a "special police detail to guard the immobilized automobile," exigent circumstances justified a warrantless search of the automobile provided there was probable cause).

Here, Bass's presence at the scene, Schuster's information that she and defendant were jointly involved in narcotics distribution, and the possibility that she had another set of car keys enabling her to drive the car away from the scene, are likely sufficient to demonstrate exigent circumstances; however, we need not squarely decide that issue because we conclude that the search was not supported by probable cause. Even when exigent circumstances are present, a warrantless search of an automobile is unconstitutional unless the search is also supported by probable cause. Id. at 670.

In order to determine whether probable cause existed, we turn to an analysis of whether the information provided by the confidential informants provided a "well-grounded suspicion that a crime has been or is being committed." Id. at 671. In Cooke, the police received information from a reliable informant that defendant was selling drugs and storing them in an automobile. That information, provided by the confidential informant, was confirmed by the police officer's first-hand observation of defendant engaged in selling CDS. Ibid. The officer had witnessed the exchange of money and the placing of a plastic bag in the defendant's car. Ibid. Based on those facts, the Court concluded that the officers had probable cause to believe that defendant's vehicle contained narcotics. Ibid.

Here, in contrast, neither Lieutenant Schuster nor Detective Hillyer had observed defendant in either a hand-to-hand, or any other type of, drug transaction. Instead, at the time Schuster and Hillyer searched defendant's vehicle, their only information about defendant consisted of defendant's past use of the Firebird to transport narcotics, combined with the tip specifying that at some time after 11:00 on the morning of July 5, 2001, defendant would be returning to the area with a fresh supply of heroin. We emphasize that the informant was unable to say, and provided no specific information, as to whether any such fresh supply of heroin was to be transported in the Firebird, the small white car or by some other unspecified method. Thus, the information from the reliable confidential informant here was far less than the factors presented in Cooke. In determining whether an informant's tip is sufficiently reliable under the totality of the circumstances to establish probable cause, an informant's "veracity" and "basis of knowledge" are "two highly relevant factors." State v. Zutic, 155 N.J. 103, 110 (1998). Here, as the Court observed in Zutic, the informant's past reliability contributed to his or her "veracity." Id. at 111.

As to the informant's "basis of knowledge," hearsay may constitute "probative evidence of probable cause so long as a substantial basis for crediting the hearsay is presented." Id. at 110 (quoting State v. Novembrino, 105 N.J. 95, 111 (1987)). Here, the informant's tip that defendant would soon be returning to the area with a fresh supply of heroin was based on hearsay information the informant received from a street-level drug dealer. The informant failed to provide a physical description of the street-level dealer or the dealer's name. Accordingly, the information that Schuster accepted and acted upon as the probable cause supporting the search of defendant's vehicle was double hearsay from an unknown informant of unproven reliability. There was thus no "substantial basis for crediting the [unknown dealer's] hearsay." Zutic, supra, 155 N.J. at 110.

When, as here, the informant's hearsay cannot be credited, a reliable "basis of knowledge may nonetheless be inferred from the level of detail and amount of hard-to-know information disclosed in the tip." Id. at 111. Thus, in order for the informant's "basis of knowledge" to constitute probable cause, we must determine whether the "level of detail" and "amount of hard to know information disclosed in the tip" is sufficient. Ibid. Additionally, independent corroboration of hard-to-know detail in the informant's tip may also greatly bolster the tip's reliability. Ibid. If the tip contains information that would be hard-to-know without a reliable source of information, the court may infer a reliable basis of knowledge. Ibid.

In Zutic, the informant knew that "a party" not otherwise identified was making a roundtrip to New York from Wayne and that the party was buying drugs. Ibid. The Court held that the informant's knowledge of the suspect's travel plans demonstrated a "possible reliable basis of knowledge." Ibid. The Court, however, concluded that the information was not enough to establish probable cause, even though the police corroborated it, because the informant did not predict the defendant's travel plans with a sufficient degree of detail. Id. at 111-12.

In so holding, the Court in Zutic focused on the degree to which the detail provided by an informant is the type of innocent or innocuous information that any observer would know, or whether instead it is the "kind of intimate, hard-to-know detail" that would constitute probable cause. Id. at 112. Here, as in Zutic, the police corroboration was limited to purely innocent detail: police observation of defendant's arrival in the area driving the red Firebird corroborated the informant's tip that defendant would shortly be arriving in the area. At the time Schuster and Hillyer conducted the search of defendant's vehicle, all that they had been able to corroborate was that defendant was indeed driving the red Firebird. Significantly, the information provided by the informant that when defendant returned to the area, he would be in possession of narcotics had not been corroborated by police. The corroboration was therefore limited to the mere fact that defendant was driving the red Firebird. The fact that defendant did return to the area is the type of purely non-suspicious detail that fails to support an inference that defendant was engaged in criminal activity. Because of the innocuous nature of the prediction that defendant would soon be returning to the area, and because there was no police corroboration of the information that defendant was transporting a fresh supply of CDS, police lacked probable cause to conclude that a search of defendant's vehicle would yield CDS.

For that reason, we conclude that if defendant's counsel had filed a motion to suppress and the trial judge had denied such pretrial motion, a reviewing court would have reversed that determination.

III.

In order to be entitled to post-conviction relief, a defendant must demonstrate that counsel's performance was deficient, and that such deficiency materially contributed to his conviction. State v. Fritz, 105 N.J. 42, 58 (1987). We first determine whether counsel's performance was deficient. We have already concluded that the search lacked probable cause, and therefore defense counsel was required to have filed a motion to suppress. In order for legal representation to be considered effective assistance, an attorney must perform at a level of "reasonable competence." Id. at 60. Counsel's explanation, that he did not file a suppression motion because he did not want to tip his hand, is not persuasive. We so conclude because the defense to the charges, that defendant was not in possession of narcotics, would not have been weakened had counsel challenged the validity of the search, nor would filing the motion have provided the State with any strategic advantage. Under the facts presented here, the failure to file a suppression motion falls below accepted standards for attorney performance.

In order to be entitled to post-conviction relief, a defendant must also demonstrate that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 60-61. We have determined that applicable caselaw would have required the granting of such motion had it been filed. We therefore conclude that the second prong of the Fritz test has also been satisfied because the failure to file the motion subjected defendant to the very conviction that would have been avoided had a suppression motion been filed. Unquestionably, counsel's deficient performance "materially contributed to defendant's conviction." Id. at 58.

Accordingly, the trial judge's denial of post-conviction relief was error. In light of our disposition, we need not determine whether the other ground raised by defendant, counsel's alleged failure to convey the revised plea offer, constituted ineffective assistance of counsel.

Reversed and remanded for proceedings not inconsistent with this opinion.

 

See State v. Harris, 298 N.J. Super. 478, 486 (App. Div.), certif. denied, 151 N.J. 74 (1997).

We note that Dunlap does not support the position the State asserts here.

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A-2396-05T4

September 24, 2007