STATE OF NEW JERSEY v. AMI M. TELAJ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMI M. TELAJ,

Defendant-Appellant.

_____________________________________________

June 16, 2014

Submitted February 3, 2014 Decided

Before Judges St. John and Leone.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 10-11-2077; 11-02-0159.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the trial court denied her motion to suppress evidence, defendant Ami M. Telaj pled guilty under Indictment No. 10-11-2077 to second-degree conspiracy to possess cocaine with the intent to distribute, and under Indictment No. 11-02-0159 to second-degree possession of cocaine with intent to distribute. On September 16, 2011, the court sentenced defendant to a concurrent sentence of five years imprisonment on each charge, a six-month driver's license suspension, and fees and penalties. Defendant now appeals from the denial of her suppression motion. We affirm.

I.

On May 18, 2010, the Beachwood Police Department received an anonymous letter reporting that defendant was distributing illegal drugs. After forwarding the letter to the Ocean County Prosecutor's Office, investigators from that office began an inquiry regarding defendant. The letter detailed that defendant "of Beachwood is back dealing drugs again, pot, coke, and pills. . . . She is hiding the drugs in the backyard and attic and has three guns now." The letter further indicated that, "there are scales and pot lying in full view when you walk in." In addition, the letter stated that "there is a stash house . . . in Seaside Park. . . . [Defendant said] when the cops come back again, I'm going to kill the first cop through the door."

Shortly thereafter, the police received a second anonymous letter, apparently from the same party, which the police also forwarded to the prosecutor's office. The letter stated that defendant "is moving to Jackson Township, NJ, and gave a 4,500 cash deposit on the house; drug money. She is making approx. 15,000 per week selling coke, pot, crack, and pills, and she is giving money to her boyfriend several times a week, who is on the run with 150,000 bail on his head." The letter further indicated that, "she is using her mom's rental house [in] Seaside, to hide her money and drugs" and that the bodyguard was seen "with a Tech 9 Machine Gun." In addition, the letter stated that, "[defendant] is carrying a .38 snub nose 'pistol' and that [defendant] was inquiring where to purchase 'cop-killer' bullets to 'kill an Ocean County Prosecutor'."

Upon receiving these letters, the investigators worked with a known and reliable confidential informant (CI) who advised them of drug distribution activity occurring in Ocean County by an individual and then described an individual matching defendant's description. Ultimately, the CI identified defendant from a photograph as the individual the CI had purchased cocaine from on numerous occasions.

During the following week of July 11, 2010, the investigators used the CI to make three separate controlled buys from defendant, who was accompanied on at least one occasion by a man believed to be defendant's "bodyguard". After the CI purchased drugs from defendant under law enforcement surveillance, detectives followed defendant back to her house in Jackson Township. The investigators then applied for and obtained a "no-knock" warrant for defendant's Jackson Township address. Because defendant's appeal is limited to the "no-knock" component of the warrant, we focus on the facts relevant to that claim.

In his affidavit in support of the warrant application, Detective Anthony Sgro, Jr. set forth his general experience concerning the ease with which drug dealers can destroy evidence. He also relied on defendant's criminal record, including an arrest for possession of a controlled dangerous substance (CDS), distribution of cocaine and possession of CDS paraphernalia, the knowledge of the confidential informant, as well as information obtained from the anonymous letters. The affidavit also disclosed that an individual known as defendant's "bodyguard" had a prior arrest for possession of CDS and possession of CDS paraphernalia and had an outstanding warrant for second-degree conspiracy to possess one-half ounce of cocaine or more, and two outstanding warrants from municipal courts.

Sgro further attested that surveillance had been established at the Jackson residence, and defendant and her "bodyguard" had traveled to the residence immediately after the controlled buys. He also explained that there was probable cause to believe that defendant's "bodyguard" would be present at the residence and, that based on the anonymous letters, defendant "and/or her bodyguard are heavily armed and inclined to use force to thwart perceived threats to their drug-dealing enterprise."

Based on this information, Judge Hodgson issued the "no-knock" warrant. On July 22, 2010, the warrant was executed, and the officers seized a quantity of CDS's. No guns were found.

Defendant moved before Judge Den Uyl to suppress the evidence seized with the "no-knock" warrant. The judge concluded that, under all the circumstances, the inclusion of the "no-knock" provision in the warrant was appropriate to prevent defendant from destroying evidence and to ensure the safety of the investigators. Judge Den Uyl stated in his oral opinion:

[T]he affidavit contained specific detailed information that was obtained from these two anonymous letters regarding the type of weapons in possession of the defendant and her bodyguard and a statement allegedly made by the defendant of her intent to use the weapon against law enforcement, in addition to other particular information that lends credibility to these letters and reliability, which would raise a reasonable and justifiable concern of officer safety.

Given the deference due to the issuing judge and under the totality of the circumstances, such information presents a reasonable, particularized suspicion that controlled dangerous substances would be destroyed and officers would be injured during execution of a search warrant at the defendant's residence within the meaning of State v. Johnson, 168 N.J. 608 (2001). Therefore, the defendant's motion to suppress is denied.

On June 20, 2011, the judge entered an order denying defendant's motion to suppress the evidence. It is from that order that defendant appeals.

II.

On appeal, defendant raises the following issue for our consideration:

POINT I

THE NO-KNOCK PROVISION OF THE WARRANT WAS INSUFFICIENTLY SUPPORTED, NECESSITATING SUPPRESSION OF THE RESULTING EVIDENCE. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.

A. Allegation of Likelihood of Destruction of Evidence.

B. Allegation of Danger to Officers.

Our review of a trial judge's decision on a motion to suppress evidence is limited. State v. Vargas, 213 N.J. 301, 326-27 (2013). In reviewing an order granting or denying a motion to suppress, we must uphold the trial judge's factual findings that are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012). However, we give no deference to a trial judge's interpretation of the law, and review legal issues de novo. Vargas, supra, 213 N.J. at 327; State v. Gandhi, 201 N.J. 161, 176 (2010). The Fourth Amendment to the United States Constitution ensures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provides that no warrant shall issue "but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Article I, paragraph 7 of the New Jersey Constitution similarly shields our State's residents from unreasonable searches and seizures. N.J. Const. art. I, 7. Its reach has been held coextensive to that of the Fourth Amendment regarding the method of executing knock-and-announce search warrants. State v. Rockford, 213 N.J. 424, 441 (2013); Johnson, supra, 168 N.J. at 617; see also State v. Robinson, 200 N.J. 1, 14 (2009); State v. Jones, 179 N.J. 377, 397 (2004). Under the federal and state constitutions, the inquiry into the reasonableness of a residential search entails scrutiny of the steps taken by officers to enter and search a home. Johnson, supra, 168 N.J. at 616 (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 1918, 131 L. Ed. 2d 976, 982 (1995)). If police actions in executing a warrant are objectively reasonable, there is no constitutional violation. Illinois v. Rodriguez, 497 U.S. 177, 185, 188, 110 S. Ct. 2793, 2799, 2801, 111 L. Ed. 2d 148, 159, 161 (1990); State v. Maristany, 133 N.J. 299, 305 (1993). Evaluating the constitutionality of police conduct in executing a warrant, "the basic test under both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution is the same: was the conduct objectively reasonable in light of 'the facts known to the law enforcement officer at the time of the search.'" State v. Handy, 206 N.J. 39, 46-47 (2011) (quoting State v. Bruzzese, 94 N.J. 210, 221 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695-96 (1984)). The terms of the warrant must be strictly respected. In Johnson, supra, 168 N.J. at 619, the Court summarized the following requirements for justification of a "no-knock" warrant in all cases, including those involving drugs:

First, to justify a no knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the officer must articulate the reasons for that suspicion, which may be based on the totality of the circumstances. Third, although the officer's assessment may derive from experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it must be based on more than a mere hunch. In short, there must be a fact specific and fact-sensitive explanation of why an announced entry would measurably hamper the execution of the warrant.

[Id. at 619, 622.]

In order to justify and secure a "no knock" warrant, the police must present specific facts that demonstrate a "reasonable particularized suspicion that a 'no-knock' entry is required to prevent the destruction of evidence, to protect the officers' safety, or to effectuate the arrest or seizure of evidence." Jones, supra, 179 N.J. at 397. The showing required is not high. Id. at 399, 408 (citing Richards v. Wisconsin, 520 U.S. 385, 394-95, 117 S. Ct. 1416, 1422, 137 L. Ed. 2d 615, 622 (1999)). There need only be "some indication in the record that the applying officer articulated his or her reasonable suspicions to justify the no-knock provision before the issuing court can consider and ultimately approve that form of entry." Johnson, supra, 168 N.J. at 623.

"Reasonable suspicion" is judged on the "totality of the circumstances" and is a less demanding standard than probable cause. Jones, supra, 179 N.J. at 398; State v. Stovall, 170 N.J. 346, 370 (2002). "The court must determine whether the officer had a reasonable suspicion to believe that an exception to the rule was justified." State v. Walker, 385 N.J. Super. 388, 400 (App. Div.), certif. denied, 187 N.J. 83 (2006). The Court stated that:

The evaluation of the reasonableness of a no-knock warrant application cannot be made in a theoretical vacuum. The determination is highly fact sensitive and requires a balancing of risks. Among those factors the court must take into account are the practical risks to the officers' lives and safety, which are of especial concern when a warrant is to be executed in a home.

[Jones, supra, 179 N.J. at 406.]

In arguing that the record justified the "no-knock" provision, the State stresses that the controlled buys corroborated much of the information supplied in the two anonymous letters describing defendant's drug dealing activities, her home, the fact that she had moved and her "bodyguard's" criminal history.

Defendant argues, however, that Detective Sgro's affidavit did not provide a sufficient basis for "no-knock" entry of the residence. Defendant submits that, although the affiant purports to establish a likelihood of destruction of evidence, the allegations made by affiant are non-specific to this case. Defendant also argues that the officers' claim of danger to police safety was based entirely on the anonymous letters received by the police and was insufficient to show particularized danger.

As we noted, prior to obtaining the warrant, the police identified defendant's "bodyguard" and determined that he was wanted on multiple outstanding warrants. See Jones, supra, 179 N.J. at 408 (finding no knock entry justified by defendant's seven-year-old "prior arrest for assault on a police officer,

. . . coupled with the ongoing drug activities of multiple individuals facing the potential for enhanced sentences"); see also Simmons v. Loose, 418 N.J. Super. 206, 225-26 (App. Div. 2011) (no knock warrant justified by the criminal history of the person allegedly conducting criminal activity on site, that person's association in the area with persons who had the potential for violence, and the layout of the residence). The controlled buys, surveillance, and the letters' allegations of guns and threats of violence created reasonable suspicion that the safety of the officers executing the warrant would be jeopardized if they were required to knock and announce themselves before entry.

The requirement that police "knock and announce" their intention to enter is not absolute, and may not be necessary when there is a sufficient countervailing interest to law enforcement. Johnson, supra, 168 N.J.at 616-17. Here, Sgro's affidavit justified a "no-knock" provision in the search warrant, in that he articulated a reasonable, particularized suspicion that "no-knock" entry was necessary to protect officer safety, regardless of any need to prevent destruction of evidence.

Affirmed.