STATE OF NEW JERSEY v. HECTOR FELICIANOAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STATE OF NEW JERSEY,
HECTOR FELICIANO, a/k/a,
Before Judges Sapp-Peterson, Maven and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2098.
Elizabeth C. Jarit, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Jarit, of counsel and on the brief).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
In this appeal, defendant Hector Feliciano appeals from the Law Division's denial of his motion to suppress evidence obtained from wiretapping his various cell phones after his arrest on multiple drug trafficking charges; in doing so, he challenges the constitutionality of N.J.S.A. 2A:156-9(g), the provision within the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156-1 to -37, which permits roving surveillance wiretaps. Defendant asserts N.J.S.A. 2A:156-9(g) is overly broad and unconstitutionally empowers law enforcement officers to make probable cause determinations without the particularity requirements mandated by our State and federal constitutions. Defendant also appeals from the denial of his motion to dismiss the charge of first-degree leader of a narcotics trafficking network. N.J.S.A. 2C:35-3.
We turn our attention to the primary issue on appeal, namely the constitutionality of the Wiretap Act. New Jersey courts have not yet ruled on the constitutionality of roving surveillance wiretaps; nor has the United States Supreme Court ruled on the constitutionality of the parallel federal provision upon which the New Jersey provision is based. However, several circuit courts have upheld the provision in the face of similar challenges. Using the federal courts as guidance and in the wake of our Supreme Court's decision in State v. Ates, ___ N.J. ___ (2014), we reject defendant's constitutional claim, finding the provision constitutional under both our State and federal constitutions. We therefore affirm the trial court's denial of defendant's motion to suppress. We additionally affirm the denial of defendant's motion to dismiss the "kingpin" charge.
We derive the following facts from the motion court record. In November 2007, Investigator Jeffrey Dunlap of the Camden County Prosecutor's office, along with members of the Philadelphia/Camden High Intensity Drug Trafficking Area (HIDTA) Task Force, initiated an extensive investigation of a large-scale heroin trafficking operation in Camden. Initially, co-defendant Jesse Morales was the target of the investigation based on information provided by a known confidential informant.1
On December 18, 2007, following two controlled buys in which an undercover officer acquired heroin from Morales, who made representations he could provide plenty of additional drugs, the police sought a wiretapping order to install a pen register2 for Morales's cell phone number (856) 366-6148 ("6148") and an another number, (856) 827-2421 ("2421"). On that date, Judge Samuel D. Natal reviewed the application, determined probable cause supported the issuance of the warrant, and signed an order permitting a communications data warrant (CDW) to authorize a pen register.
After the police began wiretapping the authorized phone numbers, on January 31, 2008, Morales instructed an undercover officer to contact him on a different cell number: (168)-655-5491. This was the first of many times Morales and co-defendants stopped using one number and began using another.
By the expiration of the initial warrant, the police were able to determine Morales was conducting a large-scale narcotics trafficking operation and compiled a list of potential suspects. In order to determine the scope of this enterprise, on February 11, 2008, the police sought additional CDWs for the original two numbers, 6148 and 2421, SDN-CAM-5WT-08 ("5WT") and SDN-CAM-6WT-08 ("6WT"). The application additionally requested,
[i]n the event that the target (Jessie Morales) uses another phone to conduct his drug trafficking business in addition to the target telephones [6148 and 2421] and that number is unknown to investigators, we request the authority to employ an electronic device . . . to intercept the originating radio signal of a telephone and, with the information thus obtained, and with the assistance of the wire or electronic service provider, will enable investigators to obtain the telephone number of the target's new telephone.
Judge Natal granted the application and included the authority to intercept calls "twenty-four (24) hours a day, Sunday through Saturday, seven (7) days a week" at the police's request. The order further necessitated the interception to "terminate as soon as practicable and be conducted in such a manner to minimize or eliminate the interception of communications not otherwise subject to interception under the Act by making reasonable efforts . . . to reduce the number of hours of interception . . . ." The order further stated: "In the event that the assigned telephone number is changed for this facility, and the phone continues to be utilized by Jessie S. Morales, the Order shall remain in effect and continue for its authorized duration . . . ."
On February 19, 2008, the police sought to amend the wiretap 6WT when activity on Morales's 2421 number from the initial warrant "abruptly ceased." The police determined Morales had abandoned the 2421 number and began using a new phone number (856) 316-1041 ("1041"). Judge Natal authorized an amendment to wiretap 6WT, to account for this new number.
Based on the information obtained from the wiretaps on Morales's 1041 phone number, the officers believed that Santos Cuevas was involved in CDS activity; they filed an application, which was granted, to wiretap Cuevas on two phones: (856) 206-6123 ("6123") and (856) 236-4828 ("4828"). From intercepting the conversations between Morales and Cuevas, the police were able to ascertain the two were trafficking narcotics across state lines.
Next, through preexisting CDWs, the police had determined defendant was also involved in Morales's and Cuevas's drug trafficking enterprise. The police noted while intercepting Cuevas's 6123 number, 246 phone calls were made to defendant, of which twenty-eight were directly related to the sale of narcotics. For example, on March 6, 2008, the two discussed a purchase of heroin at eighty dollars per gram; later that same day, defendant discussed lowering the price of the heroin from eighty to seventy dollars per gram because Cuevas intended to buy more drugs than previously ordered. Cuevas also told defendant he needed seventy grams of heroin and defendant told him he was willing and capable of providing what Cuevas needed.
The police were able to identify defendant as Cuevas's supplier during a March 11, 2008 intercepted conversation, which caused the police to believe Cuevas had experienced an influx of buyers and needed additional heroin to meet the demand. At that time, defendant agreed to provide Cuevas with twenty-five grams of heroin until he could acquire more. Similar calls occurred on other occasions.
On March 19, 2008, Morales and Cuevas spotted an undercover police officer while they were distributing narcotics. This led to a phone conversation between Cuevas and defendant, where Cuevas urged defendant to "put some minutes on that phone[.]" Obviously fearing police detection, Cuevas sought to establish a new phone number and told defendant and an unidentified female where he could be reached.
To ascertain the scope of defendant's involvement, on March 28, 2008, the officers filed an application requesting two additional wiretaps, SDN-CAM-10WT-08 ("10WT") and SDN-CAM-11WT-08 ("11WT"), which targeted defendant's calls on two new cell phone numbers: (856) 316-5769 ("5769") and (856) 283-5337 ("5337"). Within the application, the police included pages of transcripts from conversations between Cuevas and defendant indicating defendant's involvement in the CDS trafficking. The application specified relevant calls between defendant and others generally occurred between 8:45 a.m. and 11:00 p.m., but requested authorization to intercept calls twenty-four hours a day, seven days a week.3 The application also contained information defendant was using other phones in addition to the numbers identified in the application, and Cuevas had previously changed telephone numbers after noticing police surveillance. According to the police, "the changing of facilities, along with allowing a particular facility to remain for some period of time and then be reused, is consistent with attempts to thwart law enforcement discovery of criminal activity." Thus, the application requested a roving warrant, giving the police the authority to wiretap the number specified in the application as well as "other yet unidentified cellular telephones being used by [defendant]."
On the same day the applications were filed, Judge Natal granted the applications authorizing wiretaps 10WT and 11WT and allowing twenty-four/seven electronic surveillance for the listed numbers. The orders also found defendant "has previously acted to change communications facilities for the purpose of thwarting law enforcement" and therefore, permitted the interception of calls from "any other cellular telephone facility utilized by [defendant]." Judge Natal later explained during the suppression hearing, he granted the applications because the investigators had provided sufficient evidence defendant was involved with Morales and Cuevas in this "large narcotics trafficking enterprise."
On April 2, 2008, the officers concluded defendant had stopped using his cell phone with the number 5769 and began using a cell phone with number (856) 528-7585 ("7585"). As a result, they terminated the wiretap on 5769 and initiated electronic surveillance on 7585, in accordance with the order issued for roving wiretap 10WT.
On April 3, 2008, the officers filed another application for a wiretap on cell phone (267) 202-2228 and any other cellular telephone facility used by Cuevas. Judge Natal granted the application on April 3, 2008, authorizing wiretap SDN-CAM-12WT-08 (12WT). The order also granted a roving wiretap to intercept calls from the specified phone number as well as other unidentified numbers used by Cuevas; it also permitted twenty-four/seven surveillance.
Between March 30 and April 4, 2008, defendant made multiple calls, using the 7585 number to an unidentified male, who the police believed was defendant's heroin supplier. During these phone conversations, defendant indicated his plan to go to New York City and pick up the drugs. Defendant also called Faylene Carmichael on April 8, 2008, and told her to rent a car they could take to New York City to pick up a bulk supply of heroin. He stated "they should take the baby because it's safer due to the fact they look like a family."
On April 12, 2008, defendant placed a phone call to (856) 383-0435, which was later identified as the phone number of defendant's brother, Erasmo Feliciano. In this conversation, the police believed Erasmo was asking defendant for 100 pills of ecstasy from a shipment of 1000 pills defendant had received the day before. Additionally, using the number 5337, defendant called an individual and told this person that he was somewhere in Camden and was "in charge" of resupplying one of his associates with CDS.
Based upon updated information, on April 28, 2008 Judge Natal issued new wiretap orders SDN-CAM-13WT-08 ("13WT"), SDN-CAM-14WT-09 ("14WT"), and SDN-CAM-15WT-08 ("15WT") for the numbers (856) 528-7585 ("7585"), (856) 282-5337 ("5337"), and (856) 330-4339 ("4339"), as well as any other unidentified phones. Then, on May 1, 2008, at about 1:32 p.m., defendant placed a phone call from his 7585 number to a number belonging to Ricardo Cordera, an individual police believed was running narcotics to defendant's drug "sets"4 on the street. In this conversation, defendant directed Cordera to meet him at a grocery store to resupply him with drugs.
Throughout May 2008, the police intercepted numerous phone calls between defendant and other co-defendants during which they discussed picking up the proceeds from CDS sales, buying and selling CDS, and the quality of the CDS. During many of these conversations, defendant and co-defendants used slang terms, which the police later confirmed were for buying and selling the CDS. From these conversations, the police applied to extend the wiretapping for numbers 5337 and 7585, which was used regularly in furtherance of the alleged conspiracy to distribute CDS. On May 27, 2008, Judge Natal granted the application to extend the wiretaps for both numbers.
On June 28, 2008, at approximately 11:00 p.m., a search warrant was executed for a rental vehicle when the members of the HIDTA Task Force, New Jersey State Police, and the Drug Enforcement Administration, stopped the vehicle, driven by Carmichael, on Route 90 in Pennsauken, New Jersey. Police found 205 grams of heroin and $609 on defendant. Three cell phones were discovered inside the vehicle, two of which belonged to defendant, and the third belonged to Carmichael.
Later, at the police station, after receiving Miranda5 warnings, defendant provided a recorded statement, explaining he went to New York City to purchase heroin, and the drugs found on him were acquired from that transaction. Subsequently, the police executed several arrest and search warrants and arrested the ten other co-defendants.
On June 4, 2009, Investigator Dunlap testified as the sole witness before a Camden County grand jury. He explained the long-term investigation of heroin distribution in Camden began in November 2007 and lasted until June 2008. The investigation began with a series of undercover buys made by an undercover officer from Morales and continued with physical and electronic surveillance. Investigator Dunlap testified that from the surveillance, the police believed that Morales and Cuevas, along with others, were involved in a drug trafficking operation.
Investigator Dunlap testified that on March 6, 2008, the police intercepted a call between Cuevas and defendant indicating defendant was supplying heroin to Cuevas. He stated from March through June 2008, the police intercepted several calls in which defendant arranged to buy drugs from a supplier in New York City and negotiated the price and quantity of drugs with the people he was supplying; he further arranged to distribute the drugs to individual buyers and groups of street-level dealers. Defendant would then deliver the CDS to his buyers, who would pay him from the profits obtained through the drug sales.
Investigator Dunlap testified that as part of his operation to supply and distribute drugs, defendant worked with several other individuals. Specifically, defendant had Carmichael rent cars for defendant to go to New York to meet with his supplier. Co-defendant, Victor Gonzalez gave defendant rides so he could pick up the drugs from his supplier. In addition, defendant, in an attempt to expand his customer base, sought to identify the customers of a recently arrested drug dealer.
Further, although defendant typically picked up and delivered the drugs himself, Investigator Dunlap testified that on a few occasions he asked his friends and neighbors to help. For example, while defendant was on vacation, he had his neighbors, deliver drugs to his buyers. Defendant also had his girlfriend pick up money from a buyer in one instance.
Investigator Dunlap stated the wiretaps clearly demonstrated defendant supplied drugs to several groups of dealers, or "sets," in Camden. From intercepting conversations, the police heard defendant and his brother discuss what would happen to the drugs he had supplied to a set after one of its members had been arrested; they also discussed getting bail money for the individual who was arrested. In addition, defendant discussed with co-defendants about bringing people out to one of the sets defendant supplied, and collecting money from a member of that set.
On June 11, 2009, the grand jury returned Indictment No. 09-06-2098 against defendant and the ten other individuals charging them with various CDS related offenses. Defendant was specifically charged with first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count seven); first degree possession of controlled dangerous substances, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:35-5(b)(10) (count eight); first-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:35-5(b)(10) (count nine); and second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:35-5(b)(10). Defendant entered a not guilty plea to all charges on August 10, 2009.
On January 4, 2010, defendant filed a motion to suppress the evidence obtained from the wiretaps. Defense counsel argued the orders were "overly broad" and the court improperly permitted the police to intercept calls from facilities not specified in the applications or orders authorizing the wiretaps. The motion hearing occurred on June 18, 2010, and after reviewing the controlling law and statutory requirements under the Wiretap Act, Judge Natal ruled each application was supported by probable cause based on the totality of the circumstances. Judge Natal stated:
The officers specified with pinpoint accuracy who the application targeted, what activities or targets were allegedly engaged in and what they expected to find from the wiretap interceptions and from search warrants and documented with great specificity what actions the police have taken to suspect the targets of operating a narcotics enterprise.
The judge concluded the wiretap applications were "well grounded in specific, articulable facts and the issuance of the warrants was in full compliance with the law." He also found defendant "failed to make any substantial preliminary showing" of any "false statements made knowingly or intentionally or [with] reckless disregard for the truth" by the affiants.
Judge Natal also rejected defendant's argument the police were improperly authorized to intercept any telephone facility without a "judicial check." The judge found the applications submitted met the requirements set forth in N.J.S.A. 2A:156A-9(g), i.e. the applicants demonstrated a purpose on the part of Morales, Cuevas, and defendant to thwart interception by changing cell phones on a regular basis.
Regarding the "roving wiretaps," which provided that in the event the assigned phone number changed, the order would remain in effect and continue for the authorized duration of the warrant, Judge Natal specifically found:
In each individual order, the [c]ourt clearly stated the target has previously acted to change communication facilities for the purpose of thwarting law enforcement. That purpose has been adequately shown. Moreover, it's been adequately shown that it is likely that they will continue to do so. It is to be expected that the target will change numbers shortly after each order.
Judge Natal further rejected defendant's argument the order permitting 24/7 interception was too broad and unnecessary, noting due to the scope of this large-scale narcotics operation, the drug transactions could occur at "random times at diverse hours of the day and night[;]" this made it "difficult for police to gauge when conversations would occur" and thus, they "had to monitor all facilities for an uninterrupted period of time." Judge Natal further pointed out that the
[p]olice use[d] minimization techniques by disregarding those calls once concluding that the relevance of the investigation was de minimis. Regardless of how many relevant interceptions the officers made at times outside the initial window for interception, it was necessary to have them place a 24-7 option based on the nature of the defendant's operation.
Judge Natal concluded the ordered wiretaps "were necessary to determine the scale and scope of the criminal activity taking place and to trace the distribution of narcotics up and down the line to the various other participants in the alleged conspiracy." He also found the police sufficiently demonstrated the "extraordinary need" for the use of wiretaps in this case, and thus, upheld their use.
Defendant thereafter filed a motion to dismiss count seven of the indictment, the leader of a narcotics trafficking network charge. He argued the State failed to present evidence establishing first, defendant financed, organized, supervised, or managed at least one other person, and second, defendant occupied a high level position in the conspiracy. Judge Natal denied this motion finding there was "ample evidence" presented during the grand jury proceeding that defendant conspired with two or more people, and that he was indeed a financier of the drug operation, because he was "purchasing the drugs up front[,] then delivering the product to be sold in order for him to receive payments[,]" which made the drugs equivalent to loans.
The judge also identified the following facts supporting this charge: Carmichael rented cars for defendant; defendant directed staffing and discussed bail for a member of a set; defendant directed the source of the drugs for various sets to be supplied with narcotics; defendant and Gonzalez discussed bringing people out to a set and collecting money; defendant directed Gonzalez to deliver and sell narcotics; defendant told people to find buyers of a dealer who had been arrested; and defendant individually supplied drugs to several sets in Camden "evidencing a high level of control over distribution." The court therefore denied defendant's motion to dismiss.
On October 28, 2011, defendant appeared before Judge Natal and pled guilty to first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3, pursuant to a plea agreement which called for the dismissal of all other charges and preserved defendant's right to appeal the motions to suppress and dismiss. The negotiated agreement provided for a recommended sentence of thirty years imprisonment with fifteen years of parole ineligibility, to run concurrently with a sentence he was currently serving, in addition to forfeiting money seized upon his arrest and penalties. After finding defendant's guilty plea was knowingly and voluntarily entered, and a factual basis was established, the judge accepted the plea. On January 13, 2012, defendant was sentenced in accordance with the plea agreement. This appeal followed, with defendant raising the following arguments for our consideration:
THE TRIAL COURT ERRONEOUSLY DENIED FELICIANO'S MOTION TO SUPPRESS BECAUSE THE ROVING WARRANT PROVISIONS OF N.J.S.A. 2A:156A-9(G) VIOLATES THE PARTICULARITY REQUIREMENT OF N.J. CONST. ART. 1, 7, AND U.S. CONST. AMEND. IV, AND BECAUSE THE WARRANTS ISSUED IMPROPERLY PERMITTED 24/7 SURVEILLANCE, VIOLATING N.J.S.A. 2A:125A-12.
A. THE ROVING WARRANT PROVISION OF N.J.S.A. 2A:156A-9(G) IS UNCONSTITUTIONAL BECAUSE IT DOES NOT SATISFY THE PARTICULARITY REQUIREMENTS OF N.J. CONST. ART. 1, 7, AND U.S. CONST. AMEND. IV.
1. The Particularity Requirement Of N.J. Const. Art. 1, 7, And U.S Const. Amend. IV Requires Specificity Of The Place To Be Searched.
2. The Roving Surveillance Provisions Of Title III And The Wiretapping Act Authorize Searches Of Phones Not Identified In The Warrant.
3. Roving Warrants Authorized By N.J.S.A. 2A:156A-9(G) Violates The Particularity Requirement Of N.J. Const. Art. 1, 7, And U.S. Const. Amend. IV.
4. Circuit Courts Have Upheld The Roving Provision Of Title III Based On A Flexible Reading Of The Particularity Requirement.
5. New Jersey's Heightened Protections Governing Searches Require An Exacting Interpretation Of The Particularity Requirement For Warrants Authorizing Electronic Surveillance.
6. Because Roving Provisions Of N.J.S.A. 2A:156A-9(G) Is Unconstitutional, Any Evidence Seized Resulting From This Provision Should Have Been Suppressed By The Trial Court.
B. The Wiretap Orders Violated N.J.S.A. 2A:125A-12 Because They Authorized A Time Period Of Intercepting Calls In Excess Of That Necessary Under The Circumstances.
BECAUSE THE STATE FAILED TO PUT FORTH ANY EVIDENCE BEFORE THE GRAND JURY THAT FELICIANO HELD A HIGH-LEVEL POSITION IN THE CONSPIRACY AND THAT HE CONSPIRED WITH TWO OR MORE PERSONS, THE TRIAL COURT ERRED BY DENYING FELICIANO'S MOTION TO DISMISS COUNT SEVEN OF THE INDICTMENT.
Defendant argues the provision of the Wiretap Act authorizing roving surveillance wiretaps is unconstitutional because it sanctions the issuance of a warrant that delegates a finding of probable cause to the police and lacks the particularity required by the State and the federal constitutions. More specifically, defendant contends that because a warrant may only be issued if based on probable cause and "particularly describing the place to be searched" and the papers, persons or things to be seized, N.J.S.A. 2A:156A-9(g) violates the particularity requirement in the Fourth Amendment of the United States Constitution and Article One, Paragraph Seven of the New Jersey Constitution. See U.S. Const. amend. IV: N.J. Const. art. 1, 7.
As applied to this case, defendant asserts the electronic surveillance authorized by the warrants violated the particularity requirements of both constitutions. Defendant recognizes the decisions of the federal courts to uphold the constitutionality of such "roving surveillance," but relies upon New Jersey's heightened protection under the Fourth Amendment.
In opposition, the State maintains "roving wiretaps" pursuant to N.J.S.A. 2A:156A-9(g) are constitutional citing to the protections that still require particularity and the four federal circuit court decisions upholding the constitutionality of the federal roving wiretapping provision.
We begin with defendant's claim N.J.S.A. 2A:156-9(g) is unconstitutional because it fails to provide the particularity required by both the State and federal constitutions. We find no support for defendant's arguments and uphold the constitutionality of this provision.
Both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. 1, 7. Specifically, our constitution provides that "no warrant shall [be] issue[d] except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized." N.J. Const. art. 1, 7. This particularity requirement is generally "uncomplicated" and "mandates that 'the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.'" State v. Marshall, 199 N.J. 602, 611 (2009) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)). The purpose behind this particularity requirement is to prevent general searches; "[b]y limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications[.]'" Ibid. (quoting Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1016, 94 L. Ed. 2d 72, 80 (1987)).
In 1967, the United States Supreme Court issued two landmark opinions addressing electronic surveillance of phone conversations and established a person has an expectation of privacy in their telephone calls Accordingly, electronic surveillance constitutes a search fully protected by the safeguards of the Fourth Amendment. Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In response to these two decisions, in 1968, Congress codified the requirements set forth in those cases in the Omnibus Crime Control and Safe Streets Act ("Title III"), 18 U.S.C.A. 2510-2520. United States v. Petti, 973 F.2d 1441, 1444 (9th Cir. 1992), cert. denied, 507 U.S. 1035, 113 S. Ct. 1859, 123 L. Ed. 2d 480 (1993).
Title III "established minimum standards for federal and state law enforcement officials to following when seeking to intercept wire, oral, and electronic communications," Ates, supra, slip op. at 25, and provided "law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy." Scott v. United States, 436 U.S. 128, 130, 98 S. Ct. 1717, 1719, 56 L. Ed. 2d 168, 173 (1978). Indeed, "[t]he major purpose of Title III [was] to combat organized crime[,]" but it also "limits the scope of electronic surveillance by (l) requiring probable cause as to person, crime, conversation, and place or facility of communication . . . and (2) limiting the duration of surveillance to thirty days." United States v. Bianco, 998 F.2d 1112, 1121 (2nd Cir. 1993) (alteration in original) (citation and internal quotation marks omitted), cert. denied, 511 U.S. 1069, 114 S. Ct. 1644, 128 L. Ed. 2d 364 (1994).
Soon thereafter, the New Jersey Legislature enacted the Wiretapping Act, N.J.S.A. 2A:156A-1 to -26, modeled after Title III. In re Wire Commc'n, 76 N.J. 255, 262 (1978); State v. Diaz, 308 N.J. Super. 504, 509-10 (App. Div. 1998). Following this enactment, our Supreme Court did note "[e]lectronic surveillance represents a greater threat to individual privacy than do traditional searches and seizures." State v. Catania, 85 N.J. 418, 440 (1981). Our Court further established that "[i]ncreased protection for the privacy of those using the telephone is particularly necessary in New Jersey, with its heavy emphasis on wiretapping as a tool of law enforcement." Ibid.
Then in 1986, Title III was amended, 18 U.S.C.A. 2510-2521. The controversial change relevant to this case is the addition of a provision permitting wiretap interception of an identified suspect's conversations over telephone facilities that are not and cannot be identified by address in the warrant, Petti, supra, 973 F.2d at 1444. Section 2518(11) authorizes "roving" electronic surveillance. Bianco, supra, 998 F.2d at 1121. Subsection (a) relates to the interception of an oral communication, and subsection (b) applies to the interception of a wire or electronic communication. Ibid. In essence this provision
permits an oral-interception order without specifying the place of surveillance and without a showing of probable cause for belief that the place will be used in connection with an offense if: (l) the application is by a federal officer and is approved by a high federal official; (2) the application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and (3) the judge finds that specification is not practical. 18 U.S.C. 2518(ll)(a)(i)-(iii). Moreover, interceptions may not begin "until the . . . place where, the communication is to be intercepted is ascertained by the person implementing the interception order." 18 U.S.C. 2518(12).
Following the federal amendment, in 1993, the New Jersey Legislature amended the Wiretap Act to also authorize roving surveillance in that language that closely tracked the language of federal Title III amendment. L. 1993, c. 29. Following this amendment, N.J.S.A. 2A:156A-9, which laid out the required elements for proper interception for telephone calls, now included subsection (g), that provides case:
Each application for an order of authorization to intercept a wire, electronic or oral communication shall be made in writing upon oath or affirmation and shall state:
. . . .
c. A particular statement of the facts relied upon by the applicant, including: (1) The identity of the particular person, if known, committing the offense and whose communications are to be intercepted; (2) The details as to the particular offense that has been, is being, or is about to be committed; (3) The particular type of communication to be intercepted; and a showing that there is probable cause to believe that such communication will be communicated on the wire or electronic communication facilities involved or at the particular place where the oral communication is to be intercepted; (4) Except as provided in subsection g. of this section, the character and location of the particular wire or electronic communication facilities involved or the particular place where the oral communication is to be intercepted;
. . . .
g. An application need not meet the requirements of paragraph (4) of subsection c. of this section if:
. . . .
(2) with respect to the application for an interception of a wire or electronic communication:
. . . .
(b) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and
(c) the judge finds that such purpose has been adequately shown.
[N.J.S.A. 2A:156-9 (emphasis added).]
Thus, subsection (g) provides an exception to N.J.S.A. 2A:156-9(c)(4) which generally requires an application for a wiretap warrant to include "the character and location of the particular wire or electronic communication facilities involved." The plain language of the "roving surveillance wiretap" provision provides a warrant application need not specify the location of the particular wire or electronic communication facilities if the application identifies the person believed to be committing the offence and there is a showing of a purpose on the part of that person to thwart interception by changing facilities. N.J.S.A. 2A:156-9(c), (g).
"The Wiretap Act must be strictly construed to safeguard an individual's right to privacy." Ates, supra, slip op. at 29 (citing State v. Worthy, 141 N.J. 368, 379-80 (1995); Catania, supra, 85 N.J. at 437; State v. Cerbo, 78 N.J. 595, 604 (1979); Wire Commc'n, supra, 76 N.J. at 260). Additionally, "[a]s with any statute, though, we presume the law is constitutional." Ibid. (citing State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998); State v. Muhammad, 145 N.J. 23, 41 (1996)). Defendant bears the burden to overcome this strong presumption. Ibid.; see Honda Accord, supra, 154 N.J. at 377 (citation omitted).
Our Court in Ates recently upheld the constitutionality of New Jersey's Wiretap Act generally under both our State and federal constitutions. That case focused on the State's ability to execute a wiretap order at any point of interception, which is the site where the officer is located when the interception occurs; this, in effect, authorizes investigators to intercept out-of-state calls at a listening post in New Jersey. Ates, supra, slip op. at 38. The Court interpreted the plain language of the statute and, "[b]ecause the Wiretap Act is closely modeled after Title III, [the Court gave] careful consideration to federal decisions interpreting the federal statute." Id. at 31. Therefore, we follow suit and do the same.
Though the United States Supreme Court has not addressed the constitutionality of the roving surveillance provision in Title III or any analogous provision in a state statute, federal circuit courts have consistently upheld roving wiretaps; no circuit court has found Title III unconstitutional on that ground.
The Ninth Circuit first addressed the issue in United States v. Petti, supra, 973 F.2d at 1444. In that case, government agents suspecting defendant and others of a fraudulent scheme to gain control of a gambling enterprise, applied for and were granted wiretap surveillance. Id. at 1442-43. The defendant maintained the "absence of a description of the specific telephone facilities from which the suspect's conversations were to be intercepted violated the Fourth Amendment requirement that no warrant shall issue except one 'particularly describing the place to be searched.'" Id. at 1444. Accordingly, the court focused on the provision upon which the government relied in "permitting wiretap interception of an identified suspect's conversations over telephone facilities that are not and cannot be identified by address in the warrant[,]" pursuant to 18 U.S.C.A. 2518(11). Id. at 1443-44.
The court in Petti first considered the history of Title III and its 1986 amendments and stated the appropriate test for determining the sufficiency of the warrant description is "whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched." Id. at 1444 (citation and internal quotation marks omitted). The court then explained
[t]o satisfy the particularity requirement, then, the description of the place to be searched must not be so broad as to allow the search of places for which probable cause to search has not been demonstrated, or so vague that an executing officer might mistakenly search a place for which authorization was not granted.
So long as the description of the place to be searched is not overly broad or vague, it may still "comply with the particularity requirement even though it does not specify the physical location of the place to be surveilled." Ibid. The court analogized the particularity requirement in roving wiretaps to the decision in United States v. Karo, 468 U.S. 705, 82 L. Ed. 2d 530, 104 S. Ct. 3296 (1984), which held police officers may satisfy the purpose of the particularity requirement in cases where the "place" to be searched is precisely what is sought to be discovered if there is sufficient additional information. Ibid. Specifically in the context of roving wiretaps, the Ninth Circuit ruled
[t]he conditions imposed on "roving" wiretap surveillance by 18 U.S.C. 2518(11)(b)(ii) satisfy the purposes of the particularity requirement. The statute does not permit a "wide-ranging exploratory search" and there is virtually no possibility of abuse or mistake: Only telephone facilities actually used by an identified speaker may be subjected to surveillance, and the government must use standard minimization procedures to ensure that only conversations relating to a crime in which the speaker is a suspected participant are intercepted. See 18 U.S.C. 2518(5). Further, the statute excuses failure to identify the particular telephone facilities to be surveilled only if the government establishes to the court's satisfaction that it is impossible to specify the facilities because it is the suspect's purpose to thwart interception by changing them. See 18 U.S.C. 2518(11)(b)(ii).
Accordingly, the court upheld the constitutionality of Title III's roving wiretap provision because the particularity requirement is met by ensuring the identification of the targeted person is specified as well as a showing that it is impossible to specify the facility to search. Ibid.
The Second Circuit in Bianco also upheld roving surveillance because the provision, "examined in light of the other limitations imposed under Title III, permits 'no greater invasion of privacy than is necessary.'" Id. at 1124 (citations omitted). The court noted the United States Supreme Court has refused to apply the Fourth Amendment literally, which would forbid a warrant that does not specify a particular place for the search and leaves the location to be determined at a later time, but instead adopts a more "flexible approach designed to keep pace with a technologically advancing society." Id. at 1123 (citing United States v. Silberman, 732 F. Supp. 1057, 1061 (S.D. Cal 1990)). In short, the Fourth Amendment's "'prohibition against unreasonable searches and seizures must be interpreted in light of contemporary norms and conditions.'" Ibid. (quoting Steagald v. United States, 451 U.S. 204, 217, n.10, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981)) (internal quotation marks omitted).
The Second Circuit specifically stated that section 2518(11)(a) addresses the Supreme Court's concerns regarding a warrant's particularity as it requires a full and complete statement as to why a particular description of the location to be monitored is not practical. Id. at 1123; See 18 U.S.C.A. 2518(ll)(a)(ii). Although this court addressed a "roving bug" order under subsection (a), it also analyzed the wire-taped conversations in United States v. Silberman, under 2518(11)(b), which requires "a showing of a purpose on the part of that person to thwart interception by changing facilities." Bianco, supra, 998 F.2d at 1123 (citing Silberman, supra, 732 F. Supp. at 1062). Similar to the case under review, the defendant in Silberman, argued that 2518(11) eliminates the Fourth Amendment particularity requirement altogether. Silberman, supra, 732 F. Supp. at 1062, In opposition, the government stated that the "section merely changes the method of describing the telephones not by their physical location or number, but rather by the person using the facility." Ibid. That court held the provision was "constitutional as applied, and that once a judge determines that the location of a possible search is being purposely changed by suspects in order to evade detection or interception by law enforcement agents, an order expanding the scope of the search is clearly justified to counteract the attempted evasion." Bianco, supra, 998 F.2d at 1123 (citing Silberman, supra, 732 F. Supp. at 1062).
The Second Circuit further noted the provision authorizing "roving" warrants included several protections against arbitrary surveillance, including:
(1) It limited the number of people who may seek a roving oral intercept by requiring advance approval from certain high-ranking federal officials. 18 U.S.C. 2518(11)(a) (i).
(2) It required "a full and complete statement" as to why specification of the place of interception is not practical. 18 U.S.C. 2518(11)(1)(ii).
(3) It required identification of the persons committing the offense and whose conversations are to be intercepted. 18 U.S.C. 2518(11)(a)(ii). In many cases, "such a limitation in fact protects the fourth amendment interests of innocent third-parties to an even greater extent than do the limitations imposed under a standard * * * order." Silberman, [supra,] 732 F. Supp. at 1062.
(4) It permitted actual interception of communications to begin only when the place where the communication is to be intercepted is ascertained by the implementing agent. 18 U.S.C. 2518(12).
(5) It retained all of the requirements of Title III -- including duration, minimization, sealing, custody, exhaustion of other investigative techniques, and identification of the crimes that may be investigated through the use of electronic surveillance.
[Bianco, supra, 998 F.2d at 1124.]
Thus, the court balanced the "grave law-enforcement purposes underlying 2518" with the "constitutional need to protect against arbitrary governmental intrusions into the privacy of individuals" and concluded "the safeguards required by congress provide adequate protection to preserve the constitutionality of interceptions of oral conversations when authorized under 18 U.S.C.A. 2518(ll)(a)." Ibid.
In 1996, the Fifth Circuit in United States v. Gaytan, 74 F.3d 545, 553 (5th Cir.), upheld the roving wiretap provision based on the reasoning in Petti. In 2000, the Seventh Circuit also upheld the roving wiretap provision without discussion, citing Gayton and Petti. United States v. Jackson, 207 F.3d 910, 914 (7th Cir. 2000).
Because none of the federal court holdings support defendant's position on the issue of the constitutionality of New Jersey's Wiretap Act, defendant places principal reliance upon the high level of scrutiny our Supreme Court has employed in deciding certain Fourth Amendment issues.6 Indeed, New Jersey courts "consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures." State v. Valencia, 93 N.J. 126, 135 (1983) (citations omitted). Like Title III, our statute only temporarily authorizes the police to intercept any phone, without first reapplying for a warrant, that was determined to be used by the identified target as a replacement for a previously identified phone facility no longer active.
Notably, defendant fails to demonstrate how N.J.S.A. 2A:156A-9(g) fails to follow the heightened extra protection from searches and seizures afforded to New Jersey citizens. Rather, defendant only asserts the officer's independent determination of which phone will be used by the identified suspect in the illegal enterprise is exactly the type of discretion that is sought to be eliminated by the particularity requirement. Defendant also made no attempt to distinguish the present case from the holdings in the circuit courts.
Furthermore, the federal protections as described in Bianca, are similarly present here. Under N.J.S.A. 2A:156-9(g)(2)(b), the application must identify the "person believed to be committing the offense" and the State must make "a showing of a purpose, on the part of that person, to thwart interception by changing facilities." Additionally, this provision does not discard the particularity requirement because it does not permit a "wide-ranging exploratory search" but rather limits wiretapping to "telephone facilities actually used by an identified speaker" or in cases in which it is impossible to specify the facilities because it is the suspect's purpose to thwart interception by changing them. See Petti, supra, 973 F.2d at 1445.
Therefore, after considering our heightened protection from governmental searches and seizures, and considering the federal circuit court decisions reviewing the federal roving surveillance statute upon which our legislature derived N.J.S.A. 2A:156-9(g), we conclude the "roving surveillance" provision is constitutional under the federal and state constitutions.
We now turn to defendant's alternative argument, the State's applications for the roving surveillance warrants did not comply with the requirements mandated in that provision. When reviewing a motion to suppress, we must "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). More specifically, our review of a warrant-issuing judge's decision is limited because "[a] search warrant is presumed to be valid." State v. Chippero, 201 N.J. 14, 20-21 (2009). It is not our role to determine whether "there was probable cause for issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." Ibid. In reviewing the warrant application, common sense should be used:
[W]arrant applications "should be read sensibly rather than hypercritically and should be deemed legally sufficient so long as they contain factual assertions which would lead a prudent [person] to believe that a crime [has] been committed and that evidence . . . of the crime [is] at the place sought to be searched."
[State v. Sullivan, 169 N.J. 204, 217 (2001) (alteration in original) (quoting State v. Laws, 50 N.J. 159, 173 (1967)).]
Finally, it is the defendant's burden to prove the issued warrant was without probable cause or that the search was otherwise unreasonable. Chippero, supra, 201 N.J. at 26.
We find the investigating officers and Judge Natal fully complied with the statutory requirements set forth in N.J.S.A. 2A:156-9(g) when applying for and granting the application respectively. Wiretap orders need not specify the location of a cellular phone because it does not have a fixed location; all that is required is for the order to include information "to the extent practicable in the circumstances." State v. Tango, 287 N.J. Super. 416, 420-21 (App. Div.), certif. denied, 144 N.J. 585 (1996).
Given the extensive nature of the particular narcotics trafficking investigation, which involved many participants who were constantly changing their phone facilities to thwart police detection, and who could, and did, conduct their drug operations at diverse times on any given day of the week, the police set forth adequate facts in the wiretap applications to support the interception of calls at any time of day and on any day of the week. Moreover, the wiretap orders were conditioned on the interceptions being terminated as soon as practicable, the police making reasonable efforts to reduce their hours of interception whenever possible, and the police meeting their minimization obligations. Furthermore, each order provided the authorization period could not exceed thirty days as permitted under the Wiretap Act. Additionally, Judge Natal routinely reviewed the police affidavits, which were constantly updated detailing the investigatory efforts employed by police and the results of the interceptions, for purposes of applying for extensions and renewals of prior orders and for new wiretap applications.
We agree with Judge Natal that the investigating officers demonstrated in the wiretap applications that Morales, Cuevas, and defendant each used multiple telephone facilities and changed them frequently to conduct their narcotics operations. They would use certain phone numbers for a short period of time before they stopped using them to use a different phone number. As such, this conduct indicated defendant and his co-conspirators were concerned with police surveillance and thus were purposefully thwarting detection by law enforcement by changing facilities as provided in N.J.S.A. 2A:156A-9(g)(2)(b). We find no support in the record for defendant's argument the police and Judge Natal failed to comply with their statutory requirements under the Wiretap Act.
Defendant next argues the police were permitted to conduct searches that were both exceedingly intrusive and overly-broad because the warrants permitted around-the-clock interceptions. Defendant contends N.J.S.A. 2A:156A-12, the provision which requires orders to only permit interception during a timeframe "necessary under the circumstances," was violated because the officers had the ability to identify a window of time during which relevant calls were made.
N.J.S.A. 2A:156A-12(f) provides an order for wiretapping must state "[t]he period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained." Moreover, no order shall
authorize the interception of any wire, electronic or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by said order.
Indeed, these minimization efforts are critical "to safeguard an important constitutional value: the privacy right of those who use the telephone to be secure from indiscriminate wiretapping that intercepts all conversations, no matter how non-relevant or personal, in violation of the Fourth Amendment proscription against unreasonable searches and seizures." Catania, supra, 85 N.J. at 429. However, "there is no express requirement in the [Wiretap Act] that the hours of interception be specified in the order." State v. Dye, 60 N.J. 518, 527 (1972), cert. denied, 409 U.S. 1090 (1972) (citing State v. Christy, 112 N.J. Super. 48, 77-78 (Law Div. 1970)). Instead, the matter rests in the "reasonable discretion" of the issuing judge.7 Ibid. A wiretap order will not be considered a nullity if there is no specific limitation on the hours. Ibid.
We have previously affirmed the validity of wiretap orders that did not specify the hours of interception but limited the period to thirty days. See State v. Sidoti, 120 N.J. Super. 208, 213 (App. Div. 1972). There, we emphasized
[w]hile it is desirable for an order to be more specific as to which person's communications are to be intercepted, what hours of the day and the number of days the tap should last, bookmaking is a continuing operation, carried on with a myriad of persons, thus defying such specificity.
The court came to this conclusion after explaining criminal activity such as bookmaking, and presumably narcotics trafficking, are "operations . . . conducted by shrewd and ingenious individuals who constantly devise new techniques to avoid detection." Id. at 212 (citing State v. Kuznitz, 36 N.J. Super. 521, 530 (App. Div. 1955), certif. denied, 20 N.J. 136 (1955)). As a result, it is realistic to expect persons involved in such criminal activity would "utilize every conceivable ploy to avoid detection by the police whose mode of operation by surveillance, wiretapping and informers are well known to them." Ibid. As such, "absent the ability to be more specific, wiretapping orders which place the burden on police to begin and end the tap as soon as practicable, and to be done in such a way as to minimize or eliminate irrelevant communications, are valid." Id. at 213-14. The court concluded if the police acted in good faith and in compliance with the order, all relevant intercepted communications were admissible. Id. at 214.
In Catania, our Supreme Court again interpreted the minimization requirements set forth in N.J.S.A. 2A:156A-12(f) and held,
the police must make reasonable efforts to minimize both "extrinsically," by attempting to limit their hours of interception, and "intrinsically," by attempting to terminate the interception of non-relevant phone calls on an individual basis within the authorized hours of interception. We further hold that, not only must the actual minimization have been reasonable, but the monitoring agents must also have made a good-faith effort to comply with the minimization requirement during the course of the wiretap.
[Catania, supra, 85 N.J. at 423.]
Thus, the Court ruled "the police must make reasonable efforts to minimize intrinsically as well as extrinsically" and both subjective and objective good faith are required with respect to all minimization efforts. Id. at 434, 436. However, "in assessing the objective reasonableness of the monitors' actions, courts should avoid 'blind reliance' on numbers and percentages alone." Id. at 433.
Our Court evaluated and adopted factors laid out in Scott, in determining whether the monitor's actions to minimize the wiretaps were objectively reasonable. Catania, supra, 85 N.J. at 433 (citing Scott, supra, 436 U.S. at 140, 98 S. Ct. at 1724, 56 L. Ed. 2d at 179). First, the Court considered the nature of the individual phone calls, which may make them difficult to minimize. Such calls, for instance, include calls that are often short, one time calls, or calls that are "ambiguous and guarded, or employ cryptic language, and their full relevance cannot be ascertained until later in the investigation." Ibid. (citing Scott, supra, 436 U.S. at 140, 98 S. Ct. at 1724, 56 L. Ed. 2d at 179).
Second, the purpose of the wiretap must be considered. For instance, when "the police are investigating a conspiracy, more extensive surveillance is justified to determine the full scope of the enterprise. Also, where the telephone is being used to transact illegal business . . . closer surveillance may be called for." Ibid. (citing Scott, supra, 436 U.S. at 140, 98 S. Ct. at 1724, 56 L. Ed. 2d at 179). Finally, the warrant-issuing court must consider "the reasonable expectation of the agents as to what they would overhear based on the information available to them at the time of the wiretap is an important consideration." Id. at 434.
Here, defendant asserts the trial court abused its discretion by failing to limit the number of hours each day interceptions could occur. We disagree and conclude, given the nature of this investigation, Judge Natal acted reasonably when fashioning the surveillance order. Each application stated the CDS trafficking could occur at any time and requested the twenty-four hour surveillance; Judge Natal agreed finding that "[d]ue to the unpredictable nature of the defendant's alleged conspiracy, it was difficult for police to gauge when conversations would occur and they had to monitor all facilities for an uninterrupted period of time." Judge Natal also appropriately conditioned the authorized time frame to intercept telecommunications, as required by N.J.S.A. 2A:156A-12(f), to "begin and terminate as soon as practicable" and that they "be conducted in such a manner as to minimize or eliminate" the interception of non-relevant calls. The police were also directed to make "reasonable efforts, whenever possible, to reduce the hours of interception" as authorized by the order. Each order included the following statement: "Interception shall terminate as soon as practicable and be conducted in such a manner to minimize or eliminate the interception of communications not otherwise subject to interception under the Act by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by this Order."
Moreover, the authorization period for each wiretap order was not more than thirty days and each time the police sought wiretap applications, renewals, or extensions of previously issued wiretaps, Judge Natal had the opportunity to consider any and all information acquired through the use of the roving wiretaps. This ensured the police were properly limiting its use as provided in the wiretap orders providing consistent judicial oversight.
We conclude Judge Natal did not abuse his discretion in applying Catania, factors to the information provided in the wiretap applications. See, Catania, supra, 85 N.J. at 433. Next, the purpose of the wiretap was to investigate a conspiracy and track illegal business that required closer surveillance. See Ibid. Finally, the reasonable expectation of the agents noted many of the calls occurred during a specific period of time, although these calls could occur at any point. See Ibid. Although, the police planned to initially intercept calls between 9:00 a.m. to 1:00 a.m., the nature of the conversations and the illegal activity required flexibility in the order. See Ibid.
Defendant claims there was insufficient evidence presented before the grand jury to support the leader of a narcotics trafficking network charge, N.J.S.A. 2C:35-3, (count seven). Defendants asserts there was no evidence he and two other individuals "acted collectively as a trio" and that he was an "upper-echelon leader of the operation." This argument lacks merit.
A grand jury indictment is presumed valid and should only be disturbed if "manifestly deficient or palpably defective," State v. Hogan, 144 N.J. 216, 229 (1996), and based on the "'clearest and plainest ground[.]'" State v. Perry, 124 N.J. 128, 168 (1991) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)). "[A]n indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635, 772 A.2d 937 (2001).
During a grand jury proceeding, the State's sole evidential obligation is to present evidence "merely sufficient to determine that there is prima facie evidence to establish that a crime has been committed[,]" though the "the evidence need not be sufficient to sustain a conviction[.]" N.J. Trade Waste Ass'n, supra, 96 N.J. at 27. Thereafter, a trial court should not disturb an indictment so long as "there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006). Moreover, the decision to dismiss an indictment lies within the discretion of the trial court. Hogan, supra, 144 N.J. at 229 (1996). We will not disturb this discretion on appeal unless the trial court's decision constitutes an abuse of discretion because "the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." State v. Salter, 425 N.J. Super. 504, 514 (App. Div. 2012) (citation and internal quotation marks omitted). We find defendant failed to demonstrate dismissal of the leader of a narcotics network charge was warranted.
N.J.S.A. 2C:35-3 defines a Leader of Narcotics Trafficking Network as
[a] person [who] . . . conspires with two or more other persons in a scheme or course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this State . . . any controlled substance . . . as a financier, or as an organizer, supervisor or manager of at least one other person.
Therefore, the State was required to present "some evidence" for each of the following elements in order to make out a prima facie case:
(1) that the defendant conspired with at least two others; (2) that the defendant was an organizer, supervisor, financier, or manager; (3) that the defendant engaged in a conspiracy for profit; and (4) that the conspiracy included a scheme or course of conduct unlawfully to manufacture, distribute, dispense, or transport a controlled dangerous substance.
[State v. Afanador II, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 568 (1994)).]
To meet the definition of a "kingpin," "a defendant's position and status must be at a superior level in relation to others in the network and that the defendant has exercised in that capacity supervisory power or control over others engaged in organized drug-trafficking." Id. at 48. In addition, a "drug trafficking conspiracy must involve at least three persons: the kingpin defendant and two others." State v. Afanador I, 134 N.J. 162, 172 (1993).
Judge Natal conducted an exhaustive review of the grand jury proceedings and properly found the State satisfied the standard of producing evidence establishing each element of the crime to make present a prima facie case and therefore, affirm the denial of defendant's motion to dismiss.
First, Investigator Dunlap testified during the grand jury proceeding and presented sufficient evidence to establish a prima facie case defendant conspired with two or more people. Furthermore, Investigator Dunlap had extensive training and experience in narcotics and drug distribution, and oversaw the investigation, which involved undercover buys, physical surveillance, and electronic surveillance. The evidence established defendant had negotiated a price for heroin with co-defendant Cuevas; he arranged to purchase heroin from his supplier in New York City; and conspired with the other co-defendants.
Further, Judge Natal correctly reasoned there was substantial evidence to support the element that the purpose of the conspiracy included a scheme or course of conduct to unlawfully distribute, dispense, or bring into or transport CDS into New Jersey. The grand jury included testimony regarding the distribution of heroin, cocaine, ecstasy pills, marijuana, and the transportation of heroin into New Jersey.
Next, there was sufficient evidence to demonstrate defendant was either a financier, organizer, supervisor, or manager of at least one other person, and that he occupied a high-level position in the conspiracy. Investigator Dunlap testified to the financial arrangement for supplying a drug set: defendant would purchase the drugs up front, deliver the drugs to the drug set, and then other individuals would sell the drugs, the proceeds of which defendant would receive. Investigator Dunlap also testified at the grand jury how defendant resupplied one of the drug sets. Grand jury testimony further revealed defendant managed the supply operations and how other individuals in the conspiracy responded to orders from him.
Therefore, we conclude there was ample evidence presented during the grand jury proceeding to establish defendant was the leader of a narcotics network. Accordingly, we affirm Judge Natal's denial of defendant's motion to dismiss the charge.
1 Defendant was arrested along with Morales and nine other co-defendants for similar Controlled Dangerous Substances (CDS) charges, but they are not parties to this appeal.
2 A "pen register" is a device which, when placed on a phone line, identifies all local and long distance telephone numbers dialed over that line, whether completed or not.
3 The police state they intended to initially intercept calls between 9:00 a.m. and 1:00 a.m.
4 "Sets" is the term used to describe a group of drug dealers.
5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
6 Defendant cites to State v. Pena-Flores, 198 N.J. 6 (2009) (requiring exigent circumstances in addition to probable cause for a warrantless search of a vehicle); State v. Carty, 170 N.J. 632 (2002) (requiring reasonable suspicion before asking for consent to search a vehicle); State v. Mollica, 114 N.J. 329 (1989) (recognizing expectation of privacy in calls made from a hotel room); State v. Novembrino, 105 N.J. 95 (1987) (rejecting good faith exception to exclusionary rule); State v. Alston, 88 N.J. 211 (1981) (articulating broad standing rule).
7 This holding has subsequently been adopted by subsequent Supreme Court decisions. See Dye, supra, 60 N.J. at 525-26.