STATE OF NEW JERSEY v. WESLEY SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4213-07T44213-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WESLEY SMITH,

Defendant-Appellant.

 
 

Submitted June 9, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-02-0479A.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Wesley Smith appeals from an order entered by the Law Division denying his motion to suppress evidence, together with the denial of his subsequent informal application to withdraw his guilty plea at sentencing. We affirm.

After unsuccessfully seeking the suppression of certain evidence, defendant entered a conditional plea of guilty to second-degree possession of a firearm while committing a drug crime, N.J.S.A. 2C:39-4.1(a) and third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1). The plea agreement provided for other related charges to be dismissed. Notwithstanding having provided a factual basis to support his plea, defendant later requested permission to withdraw the guilty plea, which was denied by the sentencing judge. Defendant was thereafter sentenced in accordance with the plea agreement to an aggregate term of six years' imprisonment, with two years of parole ineligibility, and monetary penalties as required by statute.

The charges against defendant arose from his apprehension by police along with a co-defendant, John Broomhead while they were seated in Broomhead's grey Dodge Intrepid, improperly parked against the flow of traffic on Adams Avenue in Pleasantville. According to her testimony from the evidentiary hearing, Sergeant Allison Carmen of the Pleasantville Police Department observed the vehicle while she was on a routine street patrol. As she pulled her police car alongside Broomhead's car, she observed defendant and Broomhead "slumped down in the front compartment of the vehicle." When Sergeant Carmen approached the vehicle and asked Broomhead, located in the driver's seat, to lower his window and produce his driving credentials, she "detected a strong odor of raw marijuana emitting from . . . the front compartment of the vehicle." Looking down to the floor of the vehicle, the officer plainly "could see a large, clear plastic freezer bag. Inside the bag was a green vegetation, which [Sergeant Carmen] suspected to be marijuana."

An ensuing search of Broomhead's vehicle yielded a cache of drugs, amounting to one pound of marijuana. The occupants of the vehicle were immediately arrested and removed from the scene. A search of defendant incident to his arrest revealed about $1,400 on his person. On appeal, defendant does not seriously challenge the warrantless search of Broomhead's vehicle, the warrantless search of his person, or the seizure of either the marijuana or the cash. Instead, he is aggrieved about what happened next.

As part of the police investigation being conducted by detectives not on the scene at Adams Avenue, it was learned that a red Ford Explorer parked directly behind Broomhead's vehicle

was owned by defendant. Drug-detecting canines were brought to Adams Avenue where they sniffed around the Explorer and then positively reacted to the presence of controlled dangerous substances inside the vehicle. Meanwhile, Broomhead was giving a brief tape-recorded statement while under oath at police headquarters to Detective Charles Michael Oglesby, Sr. of the Pleasantville Police Department. While the Explorer was being detained and monitored by police, Detective Steven V. Sample executed an affidavit in support of a request for a search warrant to permit the inspection of the Explorer. The affidavit recited many relevant facts, but of critical importance to this appeal is its inclusion of the following statement of Detective Sample, who allegedly received information from someone presumably Detective Oglesby about Broomhead's version of events:

When Broomhead arrived, [defendant] was already there sitting in his red Ford Explorer. [Defendant] got out of the vehicle and got into Broomhead's car, lifted up his shirt and pulled out the bag of marijuana from his waistband. [Defendant] advised [Broomhead] that he had more in his truck after paying him $1,400. The truck being the red Ford Explorer that was parked behind the Gray Dodge Intrepid at the time of the stop.

The tape-recorded statement of Broomhead differed from Sample's affidavit in that the recording did not contain a recitation of where defendant was coming from before he entered Broomhead's Intrepid, and also did not mention that defendant had another supply of marijuana in the Explorer. Detective Sample's affidavit did not bring up the existence of Broomhead's tape-recorded statement, did not refer to Detective Oglesby by name, and was silent about a supposedly contradictory written statement taken from Broomhead at police headquarters under Oglesby's supervision.

A search warrant for the Explorer was ultimately issued in reliance upon Detective Sample's affidavit. A search of that vehicle revealed cocaine, cash, and a firearm. Additional marijuana was not recovered from the vehicle.

Defendant moved to suppress the evidence recovered from his Explorer. First, he argued that the search warrant affidavit was contaminated by false and misleading information supplied by Detective Oglesby regarding where defendant was coming from before he entered Broomhead's vehicle. Second, defendant contended that the reaction of the supposed drug-detecting dogs was unreliable and constituted incompetent evidence because there was no proof that these canines were, in fact, trained drug-detection animals. Lastly, he contended that a de facto unconstitutional seizure of the Explorer took place more than six hours before the search warrant was obtained, rendering the prolonged detention of the vehicle unreasonable, independently warranting the suppression of evidence seized during the subsequent actual search.

The Law Division judge held an evidentiary hearing on defendant's suppression motion. Two witnesses testified: Sergeant Carmen and Aja Canty, defendant's girlfriend. After assuming that there were inconsistencies between aspects of Detective Sample's affidavit and some of the additional information that the police actually collected, the court disregarded all of the suspect information, without the benefit of even hearing from Detective Oglesby, the supposed source of the inconsistencies. Rather, the court canvassed the affidavit, reading it as if the allegedly offending material was omitted. The judge concluded that the reconfigured affidavit provided the following summary:

So what we have left then is the fact of the pound of marijuana being recovered from the Broomhead vehicle. We have an admission from Broomhead that he had just purchased the marijuana from the defendant. We have corroboration of that in that there was $1,400 recovered from the defendant. We have information that parked right behind the Broomhead vehicle is the defendant's vehicle. And, of course, then we have the dogs being called on the scene and them giving an indication that there were narcotics in the vehicle.

Based upon this core factual scenario, the judge concluded that there was ample probable cause for the issuance of the search warrant.

The court further held that the evidence was sufficient to validate the use of the canines, as well as their reaction to the Explorer, even in the absence of explicit proof of their drug-detecting training. Finally, the court held that by not removing the Explorer from the scene while awaiting the search warrant, it was "simply secured by police presence pending further investigation," and thus, "securing of the defendant's vehicle for the time involved was minimally invasive and did not amount to a seizure." Accordingly, the motion to suppress was denied.

At the March 7, 2008, sentencing hearing for the first time defendant raised the specter of wanting "to back out of the [p]lea [a]greement." After learning of a newspaper article reporting that Detective Oglesby was the target of a criminal investigation by the Atlantic County Prosecutor's Office, defendant informally sought to implement the plea withdrawal mechanism of Rule 3:21-1, but was denied this request by the sentencing judge. According to the State's supplemental brief, Detective Oglesby was subsequently indicted on official misconduct charges in July 2008, and entered a plea of guilty to unspecified charges in April 2010.

On appeal, defendant raises the following arguments for our

consideration:

POINT I

THE WARRANT WAS INVALID AND THE EVIDENCE SEIZED PURSUANT TO IT SHOULD HAVE BEEN SUPPRESSED.

A.

EVEN IF DETECTIVE OGLESBY'S ACCOUNT OF BROOMHEAD'S STATEMENT WAS NOT FALSE, THE FAILURE TO MENTION THE CONTRADICTORY EVIDENCE IN BROOMHEAD'S STATEMENT COMPELS A DETERMINATION THAT OGLESBY'S CONTRIBUTION TO THE AFFIDAVIT BE EXCISED.

B.

THE AFFIDAVIT DID NOT RECITE THE QUALIFICATIONS OF THE DOGS SUMMONED TO THE SCENE AND WAS THEREFORE INSUFFICIENT TO DEMONSTRATE PROBABLE CAUSE.

C.

THE JUDGE'S DETERMINATION THAT THE DRUGS "CAME FROM SOMEWHERE" DOES NOT INFORM THE ANALYSIS OF PROBABLE CAUSE TO SEARCH THE TRUCK.

POINT II

THE SIX-HOUR DETENTION OF DEFENDANT'S TRUCK WAS A SEIZURE NOT SUPPORTED BY PROBABLE CAUSE AND, AS SUCH, THE MATERIAL RECOVERED FROM THE TRUCK AFTER THE ISSUANCE OF A WARRANT MUST BE SUPPRESSED.

In addition, defendant has filed a supplemental pro se

brief in which he raises the following arguments, some of which are identical to points raised by the public defender:

POINT I

THE POLICE DID NOT HAVE EXIGENT CIRCUMSTANCES TO JUSTIFY A WARRANTLESS SEARCH OF BROOMHEAD'S VEHICLE UNDER THE AUTOMOBILE EXCEPTION. ACCORDING TO OFFICER CARMEN'S TESTIMONY THERE WAS NO EXIGENT CIRCUMSTANCES TO JUSTIFY THE ILLEGAL SEARCH OF BROOMHEAD'S CAR AND ACCORDINGLY THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE WARRANT WAS INVALID AND INSUFFICIENT AND THE EVIDENCE SEIZED PURSUANT TO IT SHOULD HAVE BEEN SUPPRESSED.

A.

THE WARRANT ITSELF WAS INSUFFICIENT; THE MUNICIPAL JUDGE DID NOT STATE ENOUGH REASON HE BELIEVED THAT THE POLICE HAD PROBABLE CAUSE TO SEARCH THE TRUCK. THE JUDGE NEVER EVALUATED THE RELIABILITY OF THE INFORMATION GIVEN TO HIM IN THE AFFIDAVIT TO SUPPORT SUCH A WARRANT.

B.

EVEN IF DETECTIVE OGLESBY'S ACCOUNT OF BROOMHEAD'S STATEMENT WAS NOT FALSE, THE FAILURE TO MENTION THE CONTRADICTORY EVIDENCE IN BROOMHEAD'S STATEMENT COMPELS A DETERMINATION THAT OGLESBY'S CONTRIBUTION TO THE AFFIDAVIT BE EXCISED. ALSO THE WARRANT WAS ISSUED ON PERJURED TESTIMONY BY DETECTIVE OGLESBY, SWORN TO THE MUNICIPAL JUDGE BY DETECTIVE SAMPLE. ACCORDINGLY, ANY SEARCH WARRANT PROCURED BY PERJURY IS A SEARCH WITHOUT A WARRANT AT ALL AND ALL EVIDENCE SEIZED PURSUANT TO THE WARRANT SHOULD HAVE BEEN SUPPRESSED.

C.

THE AFFIDAVIT DID NOT RECITE THE QUALIFICATIONS OF THE DOGS SUMMONED TO THE SCENE AND WAS THEREFORE INSUFFICIENT TO DEMONSTRATE PROBABLE CAUSE. ALSO THE FACT THAT THIS INFORMATION WAS REQUESTED BY DEFENDANT SMITH'S COUNSEL AND NOT PROVIDED BY THE PROSECUTOR'S OFFICE VIOLATED THE BRADY RULE.

D.

THE JUDGE'S DETERMINATION THAT THE DRUGS "CAME FROM SOMEWHERE" DOES NOT INFORM THE ANALYSIS OF PROBABLE CAUSE TO SEARCH THE TRUCK. IN AS MUCH THESE COMMENTS MADE BY THE SUPERIOR COURT JUDGE WAS PREJUDIC[IAL] AND CONTAMINATED THE SUPPRESSION HEARING.

POINT III

THE SIX-HOUR DETENTION OF DEFENDANT'S TRUCK WAS A SEIZURE NOT SUPPORTED BY PROBABLE CAUSE AND, AS SUCH, THE MATERIAL RECOVERED FROM THE TRUCK AFTER THE ISSUANCE OF A WARRANT MUST BE SUPPRESSED.

POINT IV

DEFENDANT['S] REQUEST FOR A WITHDRAWAL OF [THE] PLEA AGREEMENT AND RECONSIDERATION OF SUPPRESSION HEARING FOR GOOD CAUSE SHOULD HAVE BEEN GRANTED BY THE SUPPRESSION OF DETECTIVE OGLESBY INVESTIGATION BY PROSECUTOR'S OFFICE VIOLATED THE RULES OF DISCOVERY AND ALSO THE BRADY RULE.

After a review of the record in light of all of the arguments presented, including the State's supplemental letter brief and appendix, it is apparent that defendant's contentions lack sufficient merit to warrant discussion in a written opinion beyond a brief explanation of our reasons for reaching that conclusion. R. 2:11-3(e)(2)(E).

In our scrutiny of a motion to suppress evidence, we must defer to the Law Division's fact findings and feel of the case and may not substitute our own conclusions regarding the evidence, even in a close case. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007). In the instant matter, those findings of fact are well-supported by the evidential record, and we have no reason to disagree with them or reverse the decision of the Law Division.

Pursuant to Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85, 57 L. Ed. 2d 667, 682 (1978), and its progeny, a challenge to a search warrant on the grounds of warrant contamination requires that a defendant must make a "substantial preliminary showing" that the law enforcement officer seeking the search warrant made misleading or false statements in the supporting affidavit. State v. Marshall, 123 N.J. 1, 72 (1991). A "'defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard of the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant.'" State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006) (quoting State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987)), aff'd in part and modified in part, 189 N.J. 108 (2007); see also Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672 (holding that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, . . . a hearing [should] be held at the defendant's request.").

However, if probable cause exists despite the errant information, the search warrant remains valid and no hearing need be conducted. State v. Howery, 80 N.J. 563, 568, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). Additionally, statements in the affidavit alleged to be false "must be material to the extent that when they are excised,

. . . that document no longer contains facts sufficient to establish probable cause." Ibid.

Viewed in this light, defendant's arguments that he was entitled to an evidentiary hearing or that the search warrant was defective are unpersuasive. The universe of information available to the judge who granted the search warrant was broad enough to embrace probable cause even if the Oglesby components are removed. Furthermore, Broomhead's tape-recorded statement is not at odds with Detective Sample's affidavit because the statement is silent regarding where defendant was coming from just before he entered Broomhead's Intrepid. We are in accord with the Law Division judge who parsed the limited information that the redacted affidavit supplied. That is, defendant's Explorer was parked directly adjacent to the location where a significant distribution of marijuana had just occurred, the buyer implicated the owner of the Explorer in the criminal activity, and drug-detecting dogs confirmed the likelihood of contraband in the Explorer.

Although we do not believe that the drug-detecting canines were the linchpin in the calculus of probable cause for the search warrant, we likewise do not believe that defendant has eroded the reliability of the canines' conduct by merely arguing the absence of specific proof of their training as part of Detective Sample's affidavit. Defendant invites us to speculate that there was something amiss in the utilization of the canines for purposes of issuing the search warrant, but does not ground his argument on our jurisprudence. His claim that a search warrant that relies upon drug-detection activities of animals requires evidence of the qualifications of the species lacks provenance in our law.

In considering the adequacy of probable cause contained in an affidavit in support of a search warrant, "courts must consider the totality of the circumstances, and they must deal with probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001). "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.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The Supreme Court has explained that probable cause requires nothing more than "'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Demeter, 124 N.J. 374, 380-81 (1991)). Under this lens, we find that there was ample probable cause even without the questionable Oglesby material to support the issuance of a search warrant. The subsequent search and seizure of the inculpatory evidence was thus unexceptionable.

We also do not share defendant's view that there was an improper delay in obtaining the search warrant for the Explorer, sufficient to undo the search and resultant seizure of evidence. At all relevant times, defendant was under arrest; he suffered no intrusion to his liberty or property rights by having the Explorer made unavailable to him while the police were obtaining the search warrant. Since he was not free to use the car, and it was not actually entered into or examined inside until the warrant was obtained, his rights were not disserved. State v. Dickey, 152 N.J. 468 (1998).

Defendant's supplemental brief argues that because of the newly-discovered criminal allegations concerning Detective Oglesby learned on the day of defendant's sentencing, he should have been permitted to withdraw his plea. A motion whether formal or informal to withdraw a guilty plea is committed to the judge's sound discretion. State v. Slater, 198 N.J. 145, 156 (2009); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally by the court only where the motion is made before sentencing. Slater, supra, 198 N.J. at 156 (internal citations omitted). "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).

Defendant bears the burden to demonstrate that fairness requires withdrawal of his plea and to make that showing upon a balance of all competing factors. State v. Russo, 262 N.J. Super. 367, 372-73 (App. Div. 1993). Specifically, those factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (internal citation omitted).

We fail to see how defendant has satisfied any of the first three factors, particularly without engaging in rank speculation about Oglesby's conduct in this case beyond what the suppression motion judge had already countenanced and remedied. Under the totality of the circumstances, we are convinced that defendant has not demonstrated an entitlement to a plea withdrawal even when exposed to the more indulgent standard that now exists pursuant to Slater.

 
Affirmed.

See http://www.pressofatlanticcity.com/news/press/atlantic/

article_4e257d94-516b-11df-a38c-001cc4c002e0.html (last viewed on June 21, 2010).

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A-4213-07T4

July 9, 2010