STATE OF NEW JERSEY v. ANTHONY S. BRAILSFORD

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2340-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANTHONY S. BRAILSFORD,
a/k/a ANTONY S. DRAILSFORD,

     Defendant-Appellant.
_____________________________

                   Submitted January 16, 2019 – Decided February 7, 2019

                   Before Judges Koblitz and Currier.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 17-03-0177.

                   Cynthia H. Hardaway, attorney for appellant.

                   Michael A. Monahan, Acting Prosecutor of Union
                   County, attorney for respondent (James C. Brady,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Anthony S. Brailsford appeals from an October 25, 2017

conviction, seeking reversal of the June 30, 2017 pretrial decision denying his

motion to suppress the results of a court-ordered DNA test. He subsequently

pled guilty to second-degree robbery,  N.J.S.A. 2C:15-1(a)(1) and the numerous

remaining counts of the indictment were dismissed pursuant to a plea agreement.

Defendant was sentenced to eight years in prison, subject to an 85% parole

disqualification, pursuant to the No Early Release Act,  N.J.S.A. 2C:43-7.2.

After reviewing the record in light of the contentions advanced on appeal, we

affirm.

      The facts alleged by the State in Union County Prosecutor's Office

Detective Ted Merced's affidavit in support of its request to detain defendant to

obtain a DNA test were not contested at the pre-trial suppression motion.

Merced stated that on April 18, 2014, Elizabeth Police Officers responded to a

scrap yard where the owner reported that she, her husband, employees and

customers had been held hostage, beaten and robbed by five men with guns.

Four of the assailants drove off in a U-Haul truck, while the remaining

perpetrator took a 2001 black Ford pickup truck, which was eventually found

abandoned. Later, the police chased the U-Haul, which crashed into a police

car. The police and suspects exchanged gunfire. One suspect was apprehended


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in the rear compartment of the U-Haul, three suspects fled from the U-Haul, but

were caught immediately, and the fifth suspect eluded capture. The police found

guns and other items connected to the robbery in the U-Haul. DNA analysis

revealed that many of the items were connected to the captured individuals. A

"black gaiter mask," which covers the neck and lower face, contained the DNA

of an unknown male. In the same area of the crash, a wallet was found two

months later, in June 2014, containing defendant's identification cards.

        Almost two years later, in May 2016, an anonymous caller told the owner

of the scrap yard that the fifth suspect was defendant. The caller provided

defendant's name and other identifying information, repeated specific

information about the robbery, and stated that defendant was about to leave the

area.

        Two months later, in July, an anonymous caller told an Acting Assistant

Prosecutor/Special Deputy Attorney General the same information, indicating

defendant was planning on leaving the State in the next few weeks.

Additionally, one of the men caught had stated that the fifth suspect went by the

nickname "AB," defendant's initials. Defendant had no prior criminal record.

        Merced prepared an affidavit describing the evidence and sought an order

allowing law enforcement to detain defendant for no more than four hours to


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obtain a buccal swab. The results of the DNA test led to the indictment against

defendant.

         The motion judge found, under the totality of the circumstances, sufficient

evidence supported the brief detention for the purpose of obtaining the buccal

swab sample.

         Defendant argues on appeal:

               POINT I: DEFENDANT'S DNA SHOULD HAVE
               BEEN SUPPRESSED.

         Rule 3:5A-4 lists the requirements for obtaining an investigation detention

order:

               An order for investigative detention shall be issued only
               if the judge concludes from the application that:

               (a) a crime has been committed and is under active
               investigation, and

               (b) there is a reasonable and well-grounded basis from
               which to believe that the person sought may have
               committed the crime, and

               (c) the results of the physical characteristics obtained
               during the detention will significantly advance the
               investigation and determine whether or not the
               individual probably committed the crime, and

               (d) the physical characteristics sought cannot otherwise
               practicably be obtained.



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      This test strikes "a fine balance between the State's interests in pursuing

criminal investigations and the constitutionally protected privacy, liberty and

personal integrity interests of all citizens upon whom criminal investigations

might focus." State v. Rolle,  265 N.J. Super. 482, 486 (App. Div. 1993).

Defendant contests (b), the "reasonable and well-grounded basis" to believe he

"may have committed the crime." See R. 3:5A-4(b).

      At the suppression hearing, the motion judge carefully reviewed the

affidavit, finding the judge who entered the order allowing the detention to

obtain the buccal swab based the order on the totality of the circumstances. A

detention order "must be considered as 'the functional equivalent of an

application for[] issuance . . . of a search warrant.'" State v. Hall,  93 N.J. 552,

557-58 (1983) (alteration in original) (quoting In re Fingerprinting of M.B.,  125 N.J. Super. 115, 122 (App. Div. 1973)). "A search warrant is presumed to be

valid, and [the] defendant bears the burden of demonstrating that the warrant

was issued without probable cause or that the search was otherwise

unreasonable." State v. Evers,  175 N.J. 355, 381 (2003). Similarly here, where

a judge issued a detention order, the burden is on defendant to demonstrate its

lack of validity to the second judge.




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      An investigative detention such as occurred here is considered less

intrusive than a search requiring a warrant.     "[N]o probable cause in the

traditional sense is necessary to obtain court authorization where the proposed

investigative detention does not entail significant intrusion upon indivi dual

privacy or freedom and can be effected without abuse, coercion or intimidation."

In re Alleged Aggravated Sexual Assault of A.S.,  366 N.J. Super. 402, 407 (App.

Div. 2004). The two calls were anonymous and delayed, but they revealed inside

information about the incident. While the affidavit contained hearsay, the many

elements of the information in the affidavit taken together provided sufficient

basis to believe defendant "may have committed the crime" and justify the

investigative detention.   The DNA evidence obtained was properly ruled

admissible.

      Affirmed.




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