STATE OF NEW JERSEY v. DANIELLE C. CONNOR

NOT FOR PUBLICATION WITHOUT THE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.

DANIELLE C. CONNOR a/k/a

DANIELLE CATHLEEN CONNOR,

Defendant-Appellant.

________________________________________

August 3, 2016

Submitted March 14, 2016 Decided

Before Judges Accurso and Suter.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

Nos. 12-09-1308 and 12-09-1309.

Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Danielle Connor appeals the denial of her motion to suppress evidence arising from the warrantless search of her residence. We affirm.

I.

In April 2012, the Edison police received a tip from a "concerned citizen" who reported defendant was "selling drugs out of her house" and had seen heroin "bundles" in defendant's purse in her bedroom. The informant advised defendant recently had been released from prison, a fact the police subsequently confirmed.

Familiar with defendant from a prior drug arrest, the police set up surveillance near her home. On May 1, 2012, defendant walked out of her house and up to the driver's side window of a vehicle parked nearby where she appeared to exchange objects with the driver. The police followed the driver who then was arrested and found to be in possession of heroin. The driver told the police about two brothers who "also were customers of [defendant]" and that they drove a black SUV.

The police received an anonymous letter on May 8, 2012 advising that defendant was selling drugs at a bar near her home. On May 9, 2012, a confidential informant the police had used in the past and considered reliable, even though his information had not led to arrests, told them defendant would be selling drugs that day "somewhere on the street outside around her house" because she had a "brick" of heroin.1 The informant confirmed the information about the two brothers driving a black SUV. The police set up surveillance. At about 3:00 p.m., the police saw one of the brothers exit the black SUV that was parked on defendant's street and meet with defendant who had walked toward the vehicle from her home. He handed defendant a small object, suspected to be money, and she handed him an object wrapped in magazine paper that was the approximate size and shape of a brick of heroin. When the police made their presence known, the brother threw the package in the SUV as it sped away without him and he was arrested.

The police also arrested defendant who had $250 in her pocket, but no identification. She claimed her identification was at home along with her bed-ridden elderly mother and teenaged niece. When officers knocked on the door of the residence, defendant's thirteen-year old niece answered and the officers claimed to smell marijuana. They asked the teenager to step out. One officer was dispatched to return to the station to draft and obtain a search warrant for the premises.

The stories differed at this point. According to the officers, defendant was detained outside her residence while they regularly checked on her mother who reportedly was sitting on the couch watching television. Defendant's sister arrived and remained outside. According to the officers, a detective provided Miranda2 warnings, advising defendant of the ongoing narcotics investigation against her, and requested consent to search the residence. She gave immediate consent to search, both orally and in writing. Defendant led the officers to a brick of heroin located in the laundry basket in her bedroom and a small amount in a cosmetics case. Once defendant consented to the search, the officer who had been tasked with obtaining the search warrant stopped what he was doing and returned to the scene.

According to defendant, the officer told her she would remain handcuffed outside the house for as long as it took her to consent to the search. Although she declined on more than one occasion to consent, she also became increasingly worried about her elderly mother. After more than ninety minutes in handcuffs, defendant's sister arrived at about 5:00 p.m. She understood the police were in the process of obtaining and waiting for a search warrant, and suggested to defendant that she cooperate with the police to avoid the police "tear[ing] the whole house apart." Defendant signed the consent to search form around 5:30 p.m. and lead the officers to the heroin. She contended taking her statement at 6:55 p.m. and booking her at 7:38 p.m. substantiated her version of events, although she admitted she was under the influence of heroin when she was arrested.

Following the denial of her suppression motion, defendant pled guilty to third-degree conspiracy, N.J.S.A. 2C:5-2 and third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1). She was sentenced in June 2014, to four-years imprisonment with eighteen-months parole ineligibility for the distribution charge and four years on the conspiracy charge to run concurrently.

In his written opinion, Judge Paone found that defendant did not voluntarily consent to the search of her residence. Defendant was handcuffed, under arrest and declined to consent multiple times prior to her giving consent. Noting that the testimony of the officers and that of the defendant and her sister were "directly at odds," the judge found that there was "no basis in the testimony to doubt the credibility of any of the witnesses." As such, the testimony was in "equipoise" which did not meet the State's burden of proof by a preponderance of the evidence. The State did not appeal this finding.

The judge denied the suppression motion under the inevitable discovery doctrine. He found the police would have continued to pursue the search warrant absent the defendant's involuntary consent, that probable cause existed to support the search warrant and the warrant would have been granted, resulting in the inevitable discovery of the evidence.

Defendant raises only a single issue on appeal.

POINT I THE DRUGS SEIZED IN THE WARRANTLESS SEARCH OF DEFENDANT'S HOUSE SHOULD HAVE BEEN SURPRESSED.

II.

Judge Paone declined to suppress the evidence from this warrantless search based on the doctrine of inevitable discovery. Under this doctrine, unlawfully obtained evidence is admissible, if it "would inevitably have been discovered without reference to the police error or misconduct, [because] there is no nexus sufficient to provide a taint[.]" Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 2511, 81 L. Ed. 2d 377, 390 (1984). See State v. Sugar, 100 N.J. 214, 237 (1985) (Sugar II).

To apply the doctrine, the State must show, by clear and convincing evidence, that "(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means." Id., supra, 100 N.J. at 238. It is not necessary to prove "'under what precise circumstances the [evidence] would have been inevitably discovered,'" State v. Smith, 212 N.J. 365, 392 (2012) (quoting State v. Sugar, 108 N.J. 151, 158 (1987), (Sugar III), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013)), as long as the evidence cumulatively shows "that the evidence would be inevitably discovered." Sugar III, supra, 108 N.J. at 159.

The first part of the test is satisfied here because there was no contradiction by defendant that an officer had been dispatched to the station to begin the process of requesting a search warrant and had commenced drafting the required affidavit. With respect to the remaining two elements, defendant has provided us no reason to second guess the judge's determination that a search warrant would have been issued here and the drugs would have been found.

The police had the concerned citizen's tip in April 2012; the hand-to-hand exchanges observed on May 1 and 9, 2012; the co-defendant's statements; the anonymous letter on May 4, 2012; the confidential informant's tip on May 9, 2012; the money found on defendant when arrested; and defendant's criminal history.

The concerned citizen was not anonymous to the detective who spoke to him directly. There was a strong basis of knowledge because the citizen witnessed firsthand defendant engaging in unlawful conduct in her home.

The detectives were familiar with the confidential informant who had provided reliable information in the past that here was confirmed by surveillance. Additional evidence in support of the probable cause determination included statements by the co-defendant arrested on May 1, corroboration of the tips by external circumstances, and defendant's criminal history for a prior drug related offense. We agree with the judge that when considered in the totality of the circumstances, probable cause was shown and "the search warrant would have been issued." Also, when executed, the drugs would have been found in a routine search especially since the officers had information that the drugs were in the bedroom. As such, the judge correctly found the second and third prongs of the inevitable discovery doctrine test were met.

Affirmed.

1 A brick is fifty bags.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).