STATE OF NEW JERSEY v. THERESA GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1997-07T41997-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THERESA GARCIA,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 11, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-05-0861.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel P. McNerney, Assistant Deputy Public Defender, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Leslie-Ann M. Justus, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Theresa Garcia, appeals from her October 19, 2007 conviction for the third-degree crime of conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2/2C:35-5a. On appeal, she challenges the denial of her motion to suppress the CDS found on her person. After her motion to suppress was denied, defendant entered a negotiated guilty plea. The judge sentenced her to forty-nine days in the county jail. We affirm.

I.

On October 21, 2005, Michael Heale, an investigator with the Ocean County Prosecutor's Office, prepared an affidavit in support of his request for a warrant to search a thirty-two foot boat docked at a marina in South Toms River. Defendant and her husband co-defendant Pedro Garcia lived aboard that boat. The affidavit described a confidential informant's purchase of cocaine from Pedro Garcia on the Garcia's boat during the week of October 9, 2005, and again during the week of October 16, 2005.

Heale also certified that he conducted undercover surveillance of the boat on October 2, 2005 and observed seven vehicles arrive within a four-hour period, with the occupant of the vehicles entering the boat and a short time later exiting and leaving the area. During the week of October 9, 2005, Heale certified that the same pattern was repeated with nine vehicles within a five-hour period. Heale certified that based upon his experience and training, such conduct "is indicative of drug trafficking."

On October 21, 2005, Judge Grasso issued a warrant to search the boat "along with any and all persons present, as well as arriving at, departing from and located therein reasonably believed to be associated with this investigation." The warrant was issued as a no-knock warrant to protect the safety of officers executing the warrant. Heale's affidavit explained that co-defendant Pedro Garcia had served a twenty-year prison sentence for manslaughter and that Garcia's willingness to engage in violent behavior, when combined with the extremely tight quarters in the cabin of the thirty-two foot boat, would endanger the safety of the officers if they were required to knock and announce their presence. Heale certified that the "element of surprise" inherent in a no-knock warrant was necessary for officer safety. Based upon those facts, Judge Grasso issued the requested no-knock warrant.

Approximately four hours after the judge issued the search warrant, investigators from the Ocean County Prosecutor's Office established undercover surveillance at the marina. Slightly more than one hour later, they observed Pedro Garcia and a female, later identified as defendant, enter a 1997 Acura automobile and turn onto Crabby Road and then proceed north on Route 166. By radio, Heale requested police from the South Toms River police department to intercept the Acura; this was accomplished approximately two-tenths of a mile from where the boat was docked. Heale never lost sight of the Acura from the time defendant and Pedro Garcia entered the car until it was stopped two-tenths of a mile later. Police officers directed Pedro Garcia to exit the vehicle, and showed him a copy of the search warrant for his boat.

Next, three officers approached the passenger side of the vehicle and directed defendant to exit. While Heale presented the search warrant and explained defendant's Miranda rights to her, the officers directed her to remove her hands from inside her sweatshirt several times. Each time, she would momentarily comply and then put her hands back into her pocket. Heale testified he was concerned that defendant was concealing a weapon such as a knife. He therefore patted down the outside of her clothing and felt a golf ball-sized object in her pocket, which he believed was contraband related to the drug investigation because defendant repeatedly stated "[i]t's not mine."

After she made that statement, an officer reached into her pocket and seized a ball consisting of what was later determined to be 27.4 grams of cocaine. Defendant and Pedro Garcia were arrested and taken to police headquarters. Once the two were in custody, other investigators executed the search warrant on the boat and found CDS packaging materials and a scale underneath the kitchen sink.

Both defendants filed motions to suppress. Judge Daniels found Heale to be a credible witness and concluded that the search of defendant fell within the parameters of the search warrant because 1) the search warrant was presumed valid and was based on probable cause; 2) it authorized a search of the boat as well as "'any and all persons from and located therein, reasonably believed to be associated with this investigation'"; 3) the language of the warrant did not preclude the search of any person reasonably believed to be involved with the activity on the boat after such person left the confines of the boat; 4) the stop of defendant and Pedro Garcia within two-tenths of a mile from the boat "was within the parameters of the search warrant"; and 5) the search of defendant was proper even though Heale was not familiar with her, because he knew she and Pedro Garcia both occupied the boat. Specifically, the judge found that "the female occupant of the motor vehicle which Pedro Garcia was driving had a sufficient nexus to the subject investigation which justified . . . search[ing] her pursuant to the search warrant."

On appeal, defendant argues:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AS THE WARRANT WAS IMPROPERLY EXECUTED.

Defendant does not challenge the validity of the warrant, nor does she assert that the warrant was not based on probable cause. Instead, she maintains that she was no longer subject to the warrant once she left the boat, and consequently the stop of the car and the search of her person were warrantless seizures not justified by any exception to the Fourth Amendment.

The State disagrees, arguing that the search warrant itself expressly permitted police to search the boat "along with any and all persons present, . . . departing from and located therein reasonably believed to be associated with this investigation." The State argues that because defendant was a person who departed from the premises that were to be searched, police should not be penalized merely because they did not immediately search defendant once she stepped off the boat, but instead chose to wait until she and her co-defendant had driven two-tenths of a mile from the boat. The State also argues that where, as here, the trial judge has made credibility findings and has accepted a police officer's testimony that he reasonably believed defendant was involved in the drug distribution activity on the boat, we should defer to the judge's factfinding. For these reasons, the State maintains that Judge Daniels's denial of defendant's suppression motion was proper because defendant failed to overcome the search warrant's presumption of validity and failed to demonstrate that the stop of the vehicle and search of her person exceeded the parameters of the warrant.

II.

When a trial judge has taken testimony and evaluated the credibility of witnesses, our scope of review of the judge's findings of fact is narrow. State v. Elders, 192 N.J. 224, 243 (2007). So long as such findings are based upon sufficient credible evidence, they are binding upon us. Ibid. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A warrant to search unnamed persons at a specified place is sufficient if there is probable cause to believe that the person present is involved in criminal activity. State v. DeSimone, 60 N.J. 319, 322 (1972) (holding that "[s]o long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment"); State v. Carlino, 373 N.J. Super. 377, 393 (App. Div.), certif. denied, 182 N.J. 430 (2004).

"A warrant should be read in a commonsensical manner to achieve its lawful purposes." State in the Interest of L.Q., 236 N.J. Super. 464, 470 (App. Div. 1989), certif. denied, 122 N.J. 121 (1990). When sufficient grounds are presented to the issuing judge, the warrant should not be read "so begrudgingly as to withhold the authority that was available for the judge to grant." Ibid. Indeed, in Carlino, we approved the search of a person present on the premises in question where the warrant used the identical language that was contained in the warrant here, "any and all persons arriving at, departing from and located therein reasonably believed to be associated with this investigation." Carlino, supra, 373 N.J. Super. at 395.

In State v. Malave, 127 N.J. Super. 151, 154 (App. Div. 1974), we explained that warrants to search both a person and premises "are comparatively rare, probably because most searches of individuals take place as incident to arrest." We observed that "[n]onetheless, it is established that a warrant may issue to search a person as well as a place." Ibid. We held in Malave that such warrants actually "authorize[] two independent searches -- one of a person and the other of a place." Ibid. We concluded that the search of the person did not lose its validity merely because the person was searched a considerable distance from the premises described and there was no reason "why a warrant to search a person must specify the place where he is to be searched." Ibid.

Applying the Malave rationale to the search conducted here, we are satisfied that the warrant, which authorized a search of all persons seen entering or departing the boat, authorized the search of defendant, who was seen doing exactly that, namely exiting the boat. As in Malave, law enforcement officers were entitled to search her and were not obligated to do so merely within the confines of the described premises, the boat. Ibid. In light of our conclusion that the search of defendant's person was authorized by the warrant, we need not consider defendant's additional argument that the pat-down did not satisfy the protective search standard established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Moreover, we accept Judge Daniels's determination that legitimate concerns for officer safety were presented by the combination of co-defendant Garcia's homicide conviction and the confined quarters in the cabin of the boat. We likewise accept the judge's factual finding that a stop of the vehicle and search of defendant, a mere two-tenths of a mile from the boat, was within the parameters of the search warrant. Such findings are entitled to our deference. Elders, supra, 192 N.J. at 243. Affirmed.

 

In accordance with the provisions of Rule 3:5-7(d), defendant is entitled to appeal the denial of her motion to suppress, even after pleading guilty.

The boat was registered to a third-party who was not arrested and apparently had no involvement with the events described in Heale's affidavit.

We have today filed a separate opinion affirming the conviction of co-defendant Pedro Garcia. State v. Garcia, No. A-5442-07.

The combined living quarters and galley area of the cabin cruiser were only fifteen feet in length.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-1997-07T4

August 20, 2009