On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-05-01765-I.
Before Judges Skillman, Wells and C.S. Fisher.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This search and seizure appeal presents questions concerning the evidence required to establish probable cause to search a suspected thief's residence and the application of the plain view doctrine when a suspect voluntarily admits investigators into his residence.
Defendant, a sheriff's officer, was observed on a videotape, recorded by means of a hidden surveillance camera, entering the storage room in the Essex County Trial Court Administrator's office at 1:54 a.m. on October 29, 2001, and taking what appeared to be a black case. A subsequent examination of the storage room revealed that a Dell laptop computer was missing. This was the last of a series of thefts of computers and other related items kept in the storage room that had occurred over the course of a year.
Based on this evidence, investigators from the Essex County Prosecutor's office and the internal affairs unit of the Sheriff's Office obtained a warrant to search defendant's apartment, motor vehicles and locker, and also a warrant for his arrest. The application for the warrant was supported by an affidavit of one of the investigators which stated that, based on his viewing of the surveillance videotape and his training and experience, he had probable cause to believe that the stolen items may be located in defendant's apartment.
On November 5, 2001, the investigators went to defendant's apartment to execute the search warrant. The investigators rang the doorbell, and defendant admitted them into the apartment.
The investigators did not notify defendant of the warrants at that time. Instead, they told him that they had come to his house"because there was a problem at work." Immediately after entering the apartment, an investigator saw a computer table holding a computer monitor and processor, two Dell laptop computers, several chargers and a"Palm Pilot" that matched items stolen from the Trial Court Administrator's office. When defendant led the investigators into his living room, they immediately saw another Dell laptop computer sitting on top of a cat playhouse.
At this point, the investigators told defendant that a surveillance camera had recorded his removal of a laptop computer from the Trial Court Administrator's storage room and that they had a warrant to search his apartment. Defendant responded:"You don't have to look any further. There it is[,]" pointing to the computer on top of the cat playhouse. The investigators then arrested defendant and subsequently confirmed that the serial numbers on the computers and other related equipment in the apartment matched the numbers on the list of stolen items.
Defendant was subsequently indicted for two counts of official misconduct, in violation of N.J.S.A. 2C:30-2; burglary, in violation of N.J.S.A. 2C:18-2; theft, in violation of N.J.S.A. 2C:20-3; and five counts of receiving stolen property, in violation of N.J.S.A. 2C:20-7.
Defendant moved to suppress the evidence of the stolen items found in his apartment. The trial court concluded in an oral opinion that the warrant to search defendant's apartment was valid. The court also concluded that even if the warrant had been invalid, the seizure of the items found in the apartment would have been valid because the investigators observed the items in plain view after defendant voluntarily admitted them into the apartment.
After denial of his motion to suppress, defendant pled guilty to one count of official misconduct pursuant to a plea agreement under which the State agreed to recommend that the offense be treated as a third-degree offense for sentencing purposes and that defendant be sentenced to a three-year term of imprisonment. The plea agreement also provided for defendant's forfeiture of his position as a Sheriff's Officer and disqualification from holding any public office or employment. The trial court sentenced defendant in accordance with the plea agreement to three years imprisonment.
On appeal, defendant argues that the trial court erred in denying his motion to suppress. Defendant also argues that the court erred in denying his motion for enforcement of a pre- indictment plea offer that defense counsel claimed was not properly communicated to his client. We reject both arguments and affirm defendant's conviction and sentence."A search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause...." State v. Evers, 175 N.J. 355, 381 (2003)."Therefore, substantial deference must be paid by a reviewing court to the determination of the judge who has made a finding of probable cause to issue a search warrant." Ibid."Probable cause is a flexible, non-technical concept." State v. Kasabucki, 52 N.J. 110, 116 (1968). It involves a"conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy." Ibid. Consequently, a judge considering an application for a search warrant must make"a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him,... there ...