STATE OF NEW JERSEY v. JOVAN LINDSEY

NOT FOR PUBLICATION WITHOUT THE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.

JOVAN LINDSEY,

Defendant-Appellant.

________________________________

October 30, 2015

Submitted March 2, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 11-06-1013 and 11-10-1579.

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

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

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Jovan Lindsey appeals his June 21, 2013 judgment of conviction, claiming that there was not sufficient probable cause for the issuance of two search warrants, that an evidentiary hearing was required, and that his sentence was excessive. We affirm.

I.

On January 20, 2011, New Brunswick Police Sergeant John Quick applied for and obtained a warrant to search defendant's vehicle and residence, based on defendant's suspected involvement in narcotics trafficking. Quick averred the following in his affidavit in support of the search warrant.

Quick received information from a reliable confidential informant (CI) that a man known as "Ace" (later identified as defendant) was selling cocaine using his green Cadillac. Quick arranged to have the CI conduct a "controlled buy" from defendant. Prior to purchasing the cocaine, the CI was searched for contraband to ensure the cocaine received was purchased from defendant. Quick was on the scene and "conducted a surveillance of the area" while the CI purchased the cocaine from defendant. Immediately following the purchase, the CI surrendered the cocaine to Quick, whose field test of the substance was positive for cocaine.

During the next four months, Quick and the CI arranged five additional controlled buys from defendant. Quick surveilled the area surrounding these controlled buys with assistance from Detective Joshua Alexander. In each controlled buy, the CI gave defendant money in exchange for cocaine, which was immediately surrendered to Quick and field tested. Each time, the substances purchased tested positive for cocaine.

In November 2010, the CI advised Quick that defendant had moved to a new residence at an address on Redmond Street (the "Redmond House"). The CI also advised Quick that the CI had bought cocaine from defendant on the first floor of the Redmond House. Sergeant Quick arranged for surveillance of the Redmond House, and defendant was observed leaving for brief periods of time and returning. Defendant was also observed entering suspected buyers' cars, driving around the block, and then exiting the vehicles. Quick averred such behavior was indicative of narcotics distribution.

Based on the foregoing, the Law Division issued a warrant to search defendant, his Cadillac, and the Redmond House. On January 21, 2011, members of the New Brunswick Police Department executed the search warrant. They recovered twenty-eight small bags of cocaine, one large bag of cocaine, and one bag of marijuana from the Cadillac; a scale and drug packaging materials from the Redmond House; and $1274 from defendant. Defendant admitted that he possessed the cocaine to sell it. Defendant was arrested and released on bail.

On June 29, 2011, a Middlesex County Grand Jury issued Indictment No. 11-06-01013 charging defendant with third-degree conspiracy to possess cocaine, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree possession of cocaine with intent to distribute on or near school property, N.J.S.A. 2C:35-5(a) and -7; and second-degree possession of cocaine with intent to distribute on or near public property, N.J.S.A. 2C:35-5(a) and -7.1.

Meanwhile, on June 9, 2011, Detective Alexander applied for and obtained a warrant to search defendant's person and an address located on Somerset Street (the "Somerset House"), New Brunswick. Alexander averred the following in his affidavit in support of this search warrant.

Three weeks prior to the application for the search warrant, the New Brunswick Anti-Crime Unit received information from a CI1 who stated that the CI witnessed several drug users purchase cocaine from a man known as "Ace." Because of Detective Alexander's participation in the previous investigation, he knew "Ace" to be defendant's nickname. The CI told Alexander that defendant had been selling quantities of cocaine at or near the Somerset House.

As a result, Alexander and the New Brunswick police department arranged for the CI to participate in three controlled buys of cocaine. Alexander averred that in each controlled buy, the following occurred: the CI was searched for contraband, given a quantity of money, followed to the location by Anti-Crime Unit detectives (or Alexander) who "never let [the informant] out of their sight," purchased a quantity of cocaine from defendant, and then relinquished the cocaine to the authorities. After each controlled buy, the purchased substance field-tested positive for cocaine.

Moreover, surveillance by Detective Alexander and the Anti-Crime Unit showed defendant would meet suspected drug users outside the Somerset House and exchange money for drugs. Defendant would also get into cars outside the Somerset House and drive off only to return in less than two minutes, which Alexander believed to be drug sales within the vehicle based on his training and experience.

The Law Division issued a warrant to search defendant's person and the Somerset House. On June 16, 2011, the New Brunswick police department executed the search warrant, and recovered cocaine, drug packaging materials, $662 from the Somerset House, and additional cash from defendant.

On October 19, 2011, a Middlesex County Grand Jury issued Indictment No. 11-10-01579, charging defendant with third-degree conspiracy to possess cocaine and conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-10(a)(1), N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3).

Defendant filed a motion to suppress the evidence seized as a result of both search warrants. After hearing argument, the trial court denied defendant's motion to suppress the evidence.

Defendant pled guilty, pursuant to a negotiated plea agreement, to possession of cocaine with intent to distribute on or near school property on Indictment No. 11-06-01013, and possession of cocaine with intent to distribute on Indictment No. 11-10-01579. In exchange for his guilty plea, the State agreed to dismiss the remaining charges in both Indictments, and to recommend a sentence of seven years with three-and-a-half years of parole ineligibility on Indictment No. 11-06-01013, and the same sentence to be imposed consecutively on Indictment No. 11-10-01579.

On Indictment No. 11-06-01013, the court sentenced defendant to six years in prison with three years of parole ineligibility. On Indictment No. 11-10-01579, the court sentenced defendant to a consecutive term of six years in prison with three years of parole ineligibility.

Defendant now appeals, raising the following arguments

POINT I The trial court erred by failing to conduct a hearing on the veracity of the allegations in the search warrant affidavits and by failing to conduct an incamerareview of the evidence regarding the controlled drug buys. in any event, the affidavits failed to provide probable cause to search defendant's home, automobile, and person.

POINT II The sentence imposed was excessive, unduly punitive, and must therefore be reduced.

II.

"It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2003) (citation omitted). "Accordingly, courts 'accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005) (citation omitted; alteration in original).

"[A]n appellate court's role is not to determine anew whether there was probable cause for the issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). "Doubt as to the validity of the warrant 'should ordinarily be resolved by sustaining the search.'" Keyes, supra, 184 N.J. at 554 (citation omitted). We must hew to this standard of review.

"Probable cause for the issuance of a search warrant requires 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" Chippero, supra, 201 N.J. at 28 (citation omitted). To determine whether there was probable cause, we look only at the information within "'the four corners of the supporting affidavit.'" Id. at 26 (citation omitted).

Defendant claims there was not sufficient probable cause for the trial courts to issue the search warrants, because the affidavits were based primarily on information provided by CI(s). "Information that police receive from confidential informants may serve as a valid basis for a court to find probable cause and issue a search warrant." Keyes, supra, 184 N.J. at 555. The issuing court must consider the informant's veracity, which "may be satisfied by demonstrating that the informant has proven reliable in the past, such as providing dependable information in previous police investigations." Ibid.

Here, Sergeant Quick averred that his CI had been reliable in past investigations and that the CI's "information has resulted in numerous arrests and convictions for violations of the New Jersey narcotics laws." Detective Alexander alleged that the "information the [CI] has provided in the past has resulted in numerous arrests, convictions, and seizures of quantities of narcotics." Defendant nonetheless argues that the affidavits of both Sergeant Quick and Detective Alexander failed to reveal how the informant had proven to be reliable in the past. However, defendant cites no authority requiring such additional detail.

In any event, "even if the informant's tip fails to demonstrate sufficient veracity or basis of knowledge, a search warrant issued on the basis of the tip may still pass muster if other facts included in a supporting [police] affidavit justify a finding of probable cause," including "independent police corroboration." Id. at 556 (internal quotation marks omitted). Such "relevant corroborating facts may include a controlled drug buy performed on the basis of the tip, positive test results of the drugs obtained," and police surveillance confirming the suspect engaged in the type of activities the CI reported. Ibid.

Here, "the totality of circumstances, . . . including all relevant police corroboration," confirmed the CI(s)' veracity and established probable cause. Id. at 557. The CI(s)' information was proven reliable based on the supervision and surveillance of the controlled buys by Sergeant Quick, Detective Alexander, and the New Brunswick Anti-Crime Unit, and by their own independent observations of defendant's narcotics trafficking.

In their affidavits in support of the applications for the search warrants, Sergeant Quick and Detective Alexander detailed their similar practices in conducting controlled buys. For each controlled buy, the CI was searched for contraband before engaging defendant, the officer surveilled the CI as the CI approached the defendant and exchanged money for cocaine, and the CI was observed returning to the officer with a quantity of cocaine consistent with the amount of money paid. In addition, the affidavits averred that the cocaine always field-tested positive. These observations by the officers, on their own, were sufficient to establish probable cause for the issuance of the search warrants.

Each officer's observations during the controlled buys also corroborated the information previously provided by the CI(s). The CI's information to Sergeant Quick that defendant trafficked in drugs using the Redmond House and a "green Cadillac," with a specified New Jersey registration number, was corroborated when Quick observed defendant using this green Cadillac to meet the CI and conduct a cocaine transaction. Likewise, Detective Alexander's affidavit averred that the CI's information that defendant was selling cocaine at the Somerset House was corroborated by Alexander's observation of defendant conducting the controlled buys with the CI outside the Somerset House.

In addition to the controlled buys, which corroborated the CI(s) and provided probable cause, the independent observations of Sergeant Quick and Detective Alexander corroborated the CI(s). During Sergeant Quick's investigation, he observed defendant leave the Redmond House in his green Cadillac and return after "brief periods of time." He also observed defendant exit the Redmond House, enter a suspected buyer's vehicle, "drive around the block returning after only minutes," and then exit the vehicle. Quick averred that he believed defendant's conduct was consistent with narcotics trafficking, "based upon [his] training and experience."2

Detective Alexander observed defendant "standing on the sidewalk" in front of the Somerset House as suspected drug users and buyers approached and "engag[ed] in short conversations." Alexander then observed defendant and the suspected users walk "about a half a block away" and defendant would "remove the suspected cocaine from his pocket and hand the buyers several bags." The buyers would then "hand [defendant] a quantity of currency" and "immediately leave the area." Alexander also observed defendant leaving the Somerset House, entering a suspected buyer's vehicle, driving around the block, and returning in "less than two minutes." Alexander averred that defendant's conduct was consistent with narcotics trafficking, based upon his training and experience.3

These independent observations of Sergeant Quick and Detective Alexander corroborated the information from the CI(s) that defendant used the Cadillac, the Redmond House, and the Somerset House for drug dealing. The observations also provided an independent basis for probable cause.

III.

Defendant also claims that an evidentiary hearing on his motion to suppress was required because of the State's alleged failure to provide additional information in the search warrant applications. A defendant is entitled to an evidentiary hearing to challenge the veracity of a warrant affidavit (a "Franks hearing"), if the defendant makes "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause[.]" Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978); accord State v. Howery, 80 N.J. 563, 566-68, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

"Material omissions in the affidavit may also invalidate the warrant." State v. Marshall, 148 N.J. 89, 193 (1997). "[T]he defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard for the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant." State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987).

"The requirement of a substantial preliminary showing" is designed "to prevent the misuses of a veracity hearing for purposes of discovery[.]" Franks, supra, 438 U.S. at 170, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681. The defendant's "'attack must be more than conclusory and must be supported by more than a mere desire to cross examine . . . . [The defendant's] allegations must be accompanied by an offer of proof . . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.'" State v. Broom-Smith, 406 N.J. Super. 228, 240-41 (App. Div. 2009), aff'd, 201 N.J. 229 (2010) (quoting Franks, supra, 438 U.S. at 171, 96 S. Ct. at 2684, 57 L. Ed. 2d at 682). Thus, defendant's allegations "should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons." Franks, supra, 438 U.S. at 171, 96 S. Ct. at 2684, 57 L. Ed. 2d at 682.

Here, defendant has not made a substantial preliminary showing that either affidavit contained a "false statement" made "knowingly and intentionally, or with reckless disregard for the truth." Franks, supra, 438 U.S. at 155-56, 96 S. Ct. at 2676, 57 L. Ed. 2d at 672. Defendant fails to point out a specific false statement, or to provide any evidence that any statement is false. Instead, defendant argues the alleged purchases of drugs by the CI(s) were not documented, and that this casts doubt upon the veracity of the statements in the affidavits and upon the veracity of Detectives Quick and Alexander. Defendant's argument fails on several levels.

First, "[t]here is a presumption of validity with respect to the affidavit supporting [a] search warrant." Broom-Smith, supra, 406 N.J. Super. at 240 (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). Second, defendant does not allege that the officers knew material information contravening the controlled buys which they failed to disclose to the issuing judges. Third, the controlled buys by the CI(s) were observed by Sergeant Quick, Detective Alexander, and members of the New Brunswick Anti-Crime Unit, leaving no reason to doubt such purchases occurred. Fourth, both warrant affidavits contained ample corroboration of the information from the CI(s) and independent observations that bolstered the confidential information.

Defendant's quarrel seems to be with police record-keeping. However, Franks refused "to extend the rule of exclusion beyond instances of deliberate misstatements, and those of reckless disregard," and made clear it does not encompass "instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination." Franks, supra, 438 U.S. at 170, 98 S. Ct. at 2683, 57 L. Ed. 2d at 681. "[A] Franks hearing is not directed at picking apart minor technical problems with a warrant application; it is aimed at warrants obtained through intentional wrongdoing by law enforcement agents and requires a substantial preliminary showing." Broom-Smith, supra, 406 N.J. Super. at 240. The trial court properly rejected defendant's attempt to use a Franks hearing as a "fishing expedition." See id. at 232-33, 234 (rejecting a defendant's demand for documentation to support the warrant affidavit's statements regarding the informant and the controlled buys).

Defendant also contends that the warrant affidavits should have provided specific information regarding whether the CI(s) had a criminal record, had a drug addiction, received payment for information, or had other possible biases. Again, defendant cites no authority for this argument. Again, defendant does not claim that the officers knew material information but failed to disclose it. Regardless, such information was not material because the affidavits contained sufficient independent corroboration and observations by the affiants to establish probable cause and vitiate the need for an evidentiary hearing. As a result, defendant's request for an evidentiary hearing was properly denied.

IV.

Defendant asserts his sentence of two consecutive terms of six years in prison with three years of parole ineligibility is excessive. "Appellate courts review sentencing determinations in accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). "A sentence imposed pursuant to a plea agreement is presumed to be reasonable[.]" Id. at 70. Here, defendant received a more lenient sentence than the one he bargained for in the plea agreement.

Under N.J.S.A. 2C:43-6(f), defendant was subject to mandatory extended terms of five to ten years of imprisonment and mandatory minimum sentences of three years for each of his present convictions. Defendant does not challenge the court's decision to make consecutive his sentence for his second offense, which he committed while on bail for the earlier offense. Nonetheless, the sentencing judge sentenced defendant at the low end of the sentencing range.

Defendant complains the trial court found that aggravating factor eleven applied. Aggravating factor eleven provides that "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business[.]" N.J.S.A. 2C:44-1(a)(11). However, "that provision is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Nonetheless, the sentencing judge's application of aggravating factor eleven was harmless error because the judge found other aggravating factors and no mitigating factors. Moreover, as set forth above, the sentence was not excessive.

Affirmed.

1 The affidavits do not indicate whether the confidential informant for both search warrants was the same person.

2 Sergeant Quick averred in his affidavit that he has participated in excess of "3,000 narcotic investigations and participated in a similar number of arrests."

3 Detective Alexander averred that he has participated in "well over 1000 narcotic investigations during [his] career."