STATE OF NEW JERSEY v. DAVID DEAN DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2530-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID DEAN DAVIS, a/k/a DAVID GOMEZ, DAVID DAVIES, DAVID WILLIAMS,

Defendant-Appellant.

________________________________

March 9, 2011

Argued: January 10, 2011 Decided:

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-12-1278.

Robin Kay Lord argued the cause for appellant (TheLaw Offices of Robin Kay Lord, L.L.C., attorneys; Ms. Lord and Richard W. Berg, of counsel and on the brief).

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

PER CURIAM

Defendant David Davis appeals from his conviction on a conditional plea to second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(2), on which a sentence of a six-year term of imprisonment subject to thirty months of parole ineligibility was imposed together with various fines and penalties. At issue in this case is the propriety of a strip search that produced the cocaine for which defendant was charged in a three-count indictment. We now affirm.

On August 22, 2007, Hamilton Township Police Officer James Bailey executed an affidavit in support of a search warrant. He related that, in the past, a police informant who wished to remain anonymous had provided information, corroborated by other sources, which led to the arrest of two individuals for possession of CDS with intent to distribute. During the week of August 12, 2007, the informant advised Bailey and Detective Richard Braconi that defendant was selling crack cocaine and cocaine. The informant had known defendant for approximately three years and had purchased crack cocaine from him about ten times over the prior two months from a silver Dodge minivan with an identified license plate. Defendant was described as a black male, approximately twenty-nine years of age, five feet nine inches in height, and 185 pounds in weight, with collar-length black braided hair. The officer obtained defendant's photograph from the Picture Link Information System, and the informant confirmed that the photograph depicted the person of whom he spoke.

The officers arranged a controlled buy for the informant to corroborate his statements. The informant was free of CDS immediately prior to the purchase. He approached the driver-side door of the silver Dodge minivan and asked to make a purchase of CDS. Defendant opened up his hand and handed the informant crack cocaine in exchange for money. The informant then proceeded to Bailey's prearranged location and gave him the crack cocaine. The field test was positive, and the narcotics were then secured in an evidence locker.

During the week of August 19, 2007, Bailey and Braconi arranged another controlled buy with the informant. The same procedures were followed, and the informant again made another purchase of crack cocaine from defendant. Again, the substance field tested positive for crack cocaine, which was then secured in an evidence locker.

The police searched motor vehicle records and determined that defendant had a suspended New Jersey driver's license, and the vehicle from which the drug sales were being effected was registered to another person. A criminal record check revealed defendants multiple aliases David D. Davis, David Davies, David Davis, David Gomez, and David Williams. Defendant had two social security numbers, a state identification number, and an FBI identification number. Defendant had seven arrests and five felony convictions. He had been charged twice with tampering with evidence. Bailey requested a warrant to search the person of defendant and a warrant to search the silver Dodge minivan.

On August 22, 2007, a Superior Court judge issued two search warrants. The first was for the Dodge minivan, and the second was for the person of defendant. There were no restrictions placed on the search of defendant, and the warrant authorized the officers to seize any CDS and any associated paraphernalia.

On August 28, 2007, the officers stopped defendant's vehicle on a public street to execute the search warrant. Bailey advised defendant that he had a search warrant for his person and for the vehicle. In response, defendant began to roll up his car window. Officer Kevin Krall reached over to open the door while defendant held onto the steering wheel and shouted, "I didn't do anything wrong. You're not arresting me." Defendant began to kick his legs but was pulled out of his vehicle, placed on the ground, and cuffed behind his back. An officer conducted a pat-down frisk of defendant before placing him into the police vehicle, but no contraband was located. The van was searched at the scene while defendant was transported to the police station. No contraband was found in the minivan.

At headquarters, Sergeant Paul Seitz asked defendant if there would be more trouble if they took his handcuffs off. Defendant replied, "It's going to get ugly in here when these handcuffs come off." When the handcuffs were nonetheless removed, defendant began to reach down into his waistband but lost his balance and fell over. He was then handcuffed again.

The officers decided to conduct a strip search. The sergeant on duty approved the strip search, but Bailey did not seek the approval of Chief Collins, the officer in charge at the time. The officers took defendant to the identification room to conduct the search. The floor in the room was cleaned twice a day, the room was private, had a locking door, and had no windows. The officers searched defendant's pockets and found $540 in currency. The officers removed defendant's socks and shoes and then removed his pants. Finally they removed his underwear, and nine bags of crack cocaine fell to the floor. Bailey conceded that he was unaware of any rules or regulations governing how to conduct strip searches.

Defendant moved to suppress the narcotics evidence. At the suppression hearing on October 10, 2008, Bailey testified to the facts asserted in his search warrant and to the events of August 28, 2007. He described the strip search and the authorization for it by the sergeant on duty. Oral argument was scheduled for a date in the future.

Defendant's counsel argued that the search was unreasonable and that the warrant did not specifically authorize police to conduct a strip search. She urged that case law, statute, and the Attorney General's Strip Search and Body Cavity Search Requirements and Procedures do not permit a strip search absent special circumstances. She further argued that any violation of the Procedures rose to a federal constitutional dimension.

The prosecutor, on the other hand, argued that the proper inquiry was whether the strip search was conducted in a reasonable manner. He contended that a technical violation of the Procedures was not of constitutional dimension and that the amount of crack cocaine defendant was alleged to have possessed was so small that it could easily fit between his inner clothing and skin. Thus, the scope of the search matched the item being sought. The prosecutor pointed out that the search was conducted substantially in compliance with the Procedures because it was conducted in a private area by officers of the same sex as defendant in a dignified manner. The judge reserved decision.

On January 20, 2009, Judge Mitchel E. Ostrer issued a comprehensive written opinion in which he concluded that there was no basis for suppressing the evidence seized as a result of the strip search. The judge found the facts from the documents and testimony admitted during the suppression hearing. He concluded that the warrant authorized the strip search under the facts of the case. He noted defendant's previous arrests for evidence tampering, the ease with which crack cocaine could be secreted in clothing, defendant's refusal to cooperate with a less intrusive search, and the movements he made toward his waist. He noted that the warrant particularly described the person to be searched, as required by the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution of 1947. He noted that New Jersey has in fact sustained warrants to search persons, citing State v. DeSimone, 60 N.J. 319 (1972), and State v. Malave, 127 N.J. Super. 151, 154 (App. Div. 1974).

The judge also noted that the particularity requirement was directed to the identity of the target of the search, not "'the scope of a lawful search[, which] is defined by the object of the investigation and the places in which there is probable cause to believe it may be found,'" quoting State v. Sheehan, 217 N.J. Super. 20, 28 (App. Div. 1987). He concluded that the intensity of the search authorized by a warrant was determined by the description of the things to be seized, citing 2 W. LaSave, Search and Seizure 4.10(d), at 752 (4th ed. 2004). "In sum, whether a strip search is expressly authorized or not, the reasonableness of a search's scope and intensity is based on a case-sensitive and fact-intensive inquiry." Citing state law from other jurisdictions and federal precedent, the judge concluded "that search-of-the-person warrants should not be read too strictly." Rather, such "warrant[s] must, sensibly, sometimes encompass reasonable searches within, or under clothing, next to the suspect's skin." The judge also noted that, even if specific authority for a strip search would be preferable if one was contemplated, "the reasonableness of the strip search would still need to be evaluated under the particular circumstances of the case."

Applying those principles, the judge concluded that the strip search of defendant was reasonable and within the scope of the search-of-the-person warrant. This was so because "'the showing of probable cause determines the scope of the warrant,'" quoting State v. Sheppard, 46 N.J. 526, 529 (1966). Here, the warrant was directed at the recovery of CDS, which could reasonably be hidden in or under clothing. The affidavit supporting the warrant disclosed multiple past arrests for CDS and two for tampering with evidence. The judge found that the police had a heightened basis to conclude that cocaine would be found on defendant's person when no drugs were found in the van.

Additionally, defendant refused to cooperate with the search of his person and was seen making movements toward his waistband. "Thus, it was reasonable for the police to escalate the scope and intensity of the search to include a strip search of [defendant]." He found that the search was performed with "due respect for [defendant's] personal dignity," and he was not subjected to "unnecessary embarrassment or indignity." Thus, the judge found no violation of defendant's constitutional rights.

The judge also addressed the issue of the Procedures and found that they did not mandate suppression. He determined that the exclusionary rule should not apply to such a regulatory violation. He noted that the statutory prohibition of N.J.S.A. 2A:161A-1 did not apply because the search of the person was authorized by a warrant, an exception recognized by the statute, citing N.J.S.A. 2A:161A-1(a) and -1(b). Nonetheless, the Procedures, promulgated pursuant to that statute, still applied and required a strip search to be "'authorized by [the] officer in charge of the station house,'" citing Procedures, supra, II(A)(1)(a)(2) and II(B)(1)(b).

The judge noted that the officer in charge did not authorize the search, but the sergeant on duty participated in it. He found that was the only deviation from the Procedures. He concluded that there was, at best, a technical violation of the Procedures but found that the oversight was inconsequential. The judge found that "[t]he purpose of the exclusionary rule 'is to deter the police from engaging in constitutional violations by denying the prosecution any profit from illicitly-obtained evidence,'" quoting State v. Williams, 192 N.J. 1, 14 (2007). He noted that "[t]he exclusionary rule does not apply to statutory or regulatory violations," citing State v. Gadsen, 303 N.J. Super. 491, 503 (App. Div.), certif. denied, 152 N.J. 187 (1997). Judge Ostrer concluded, "[T]he fruits of the strip search of [defendant] should not be suppressed, even if the police failed to follow certain technical aspects of the [Procedures]." This appeal followed.

Defendant raises the following issue for our consideration:

POINT I THE STRIP SEARCH WAS UNREASONABLE IN VIOLATION OF THE PROVISIONS OF THE ATTORNEY GENERAL'S STRIP SEARCH [PROCEDURES], AND IT WAS UNAUTHORIZED BY THE LANGUAGE OF THE SEARCH WARRANT. CONSEQUENTLY, THE SEARCH AND SEIZURE OF EVIDENCE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AND EVIDENCE SEIZED FROM DEFENDANT'S PERSON AT THE POLICE STATION HOUSE SHOULD HAVE BEEN SUPPRESSED.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ostrer in his written decision issued on January 20, 2009. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).

A