April 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AARON LARAMORE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-08-00134-S ASG and 06-04-00977-I ACP.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2008
Before Judges Wefing, Parker and R. B. Coleman.
After denial of his motion to suppress, defendant pled guilty to two indictments pursuant to a plea agreement. On Indictment 04-08-00134-S ASG, defendant pled guilty to first degree distribution of cocaine, N.J.S.A. 2C:35-5a(1); and second degree possession with intent to distribute, N.J.S.A. 2C:35-5. He was sentenced on those charges to an aggregate term of twenty-three years subject to eight years parole ineligibility.
On Indictment 06-04-00977-I ACP, defendant pled guilty to second degree distribution of cocaine, N.J.S.A. 2C:35-5a(1), and was sentenced to a term of seven and one-half years subject to three years, nine months parole ineligibility, to be served concurrently with the twenty-three year aggregate term imposed on the prior indictment.
These charges arose out of a large-scale investigation of a drug distribution ring by a joint task force of law enforcement personnel from the Division of Criminal Justice (DCJ), the Atlantic County Prosecutor's Office (ACPO) and the Atlantic City Police Department (ACPD). Twenty-two defendants were charged with racketeering conspiracy, drug possession and distribution, money laundering, weapons offenses and maintaining a controlled dangerous substance (CDS) facility.
The following facts are relevant to defendant's appeal. The State's investigation, dubbed "Lord Stanley," began in the Fall of 2003 and focused on the Stanley Homes Village, a public housing project in Atlantic City. Wiretaps were authorized for a number of individuals targeted in the investigation, including defendant. The original target of the investigation was Adam Bishop, for whom the first wiretap warrant was issued on November 17, 2003. That wiretap led investigators to Eddie Davis, for whom a wiretap warrant was issued on February 11, 2004. Information gathered from the Davis wiretap led the task force to Michael Wiggins, identified as Davis's drug supplier.
After a series of telephone calls between Bishop and an individual named "Rod" were intercepted pursuant to a wiretap warrant, a 1994 Ford Econoline van (Ford van) belonging to Bishop was found illegally parked in Atlantic City on January 31, 2004. After towing the Ford van from the intersection of Lexington and Connecticut Avenues, the task force made an application for a search warrant based upon the affidavit of Detective Christopher Barber.
Barber was the monitor for the Bishop wiretap. He attested that on January 31, 2004, he intercepted a call between Bishop and Rod:
During the conversation, "Rod" told Bishop that the police "came to the crib" complaining about a van. Bishop told "Rod" that he was going to have to move the van. They discussed whether the police were "regular cops." "Rod" told Bishop that he guessed that "they [were] on it." Bishop then called Joseph Frisby utilizing the same wireless telephone. During this conversation, Bishop told Frisby that the police were going to tow the van. Frisby responded that "we better move it then." Frisby asks Bishop whether he (Bishop) wants him (Frisby) to move the "joint." Bishop responds, "Yeah, we have to be careful when you move though."
Forty minutes later, another call from Bishop to Frisby was intercepted by Barber, during which "Frisby told Bishop that he and Sommad, believed to be Marcus Barnes, had moved the [Ford] van." Bishop asked where the van was moved and Frisby told him it was around the corner. Barber explained further that a "concerned citizen" filed a report on October 24, 2003 with Detective Mark Benjamin, stating:
Adam Bishop and Marcus Barnes . . . were in possession of a large quantity of CDS, specifically cocaine. The citizen stated that he/she was in the presence of Bishop and Barnes just moments prior to contacting Detective Benjamin. Furthermore, the citizen related that Marcus Barnes was also in possession of a silver handgun believed to be a .9mm handgun. The citizen stated that the CDS was being kept in a white Ford work van with ladder racks on the top. The description of this van matches the description of the subject white 1994 Ford Econoline van . . . in that this white van also has ladder racks on top.
Barber explained that surveillance personnel later discovered the Ford van parked illegally -- impeding the view of a stop sign -- on Lexington Avenue, Atlantic City, and that a summons for a parking violation was issued. The Ford van was then towed to the ACPD lot. On February 1, 2004, Barber brought his narcotics-detecting police dog (Gus) to the lot and began a sniff test of the exterior of the vehicle. Gus indicated the presence of narcotics. The sniff test was conducted a second time with the same result. On this evidence, the trial judge issued a search warrant for the Ford van, and the subsequent search led to the seizure of a large amount of crack and cocaine, as well as drug paraphernalia.
On March 3, 2004, the task force intercepted a call in which Davis contacted his supplier, Wiggins, to complain about the quality of one-and-a-half kilos of cocaine he had purchased. Eight seconds after the first telephone call, Wiggins called his supplier, Nelson Lantigua, a/k/a Carlos Lopez, relaying the complaint about the cocaine. During the phone call, Wiggins said that he had two kilos of poor quality cocaine from the last delivery. Lantigua told Wiggins that he would contact his source, but that it would take a while because the source was on vacation.
On March 5, 2004, the task force intercepted a call between Wiggins and Antoine Loper indicating that the "bad" cocaine was being gathered and would be given to Wiggins to exchange for a "good" product.
On March 7, 2004, the task force intercepted calls regarding collection of the "bad" cocaine. Talking in code, Wiggins told defendant to pick up the "bad" cocaine from Davis in a supermarket parking lot in Absecon. Wiggins then told defendant to transfer the "bad" cocaine to Frankie Watson. The task force observed Davis giving the "bad" cocaine to defendant in the parking lot. The task force believed that defendant was Wiggins' closest and most trusted associate. Wiggins ultimately instructed defendant to meet with Lantigua to swap the "bad" cocaine for the "good" product.
On March 8, 2004, Lantigua called Wiggins to let him know that his source had not yet gotten back to him. Lantigua told Wiggins that as soon as he received the "good" cocaine, he would exchange it for the "bad" product. The task force then placed surveillance teams at the homes of Wiggins and Davis and places that Watson frequented, including the home of a female companion in Mays Landing.
Periodic surveillance of the Mays Landing home was conducted on March 9, 2004 by Investigator Keith Carmack. This surveillance included observation of parking space 831, which was assigned to the house. That same day, Carmack observed a white Dodge in space 831, which he recognized as a vehicle previously used by Watson.
An "ending sweep" was planned by the task force on March 10, 2004 to include executions of multiple search and arrest warrants. Vehicle seizure orders were prepared in the event illicit activity took place beforehand.
A global search and arrest warrant application and an application for seizure of motor vehicles was made to the trial court on March 9. The application included fourteen search warrants and five vehicle seizures, but did not include an arrest warrant for Lantigua or warrants for search or seizure of his vehicle.
In a call intercepted at 1:13 p.m. on March 9, Wiggins told Watson that Lantigua was on his way to make the delivery. At 1:54 p.m., defendant called Wiggins who told defendant that Lantigua and Watson were waiting for defendant to bring the "bad" cocaine to a certain location for exchange. Defendant informed Wiggins that he would not be able to make the exchange until 4:30 p.m., after he finished work. Investigators believed that defendant had the "bad" cocaine in his possession at the time of the call because he said he would not go home after work but would go directly to the exchange location. At this point, the task force did not know the location of the exchange point.
At 2:14 p.m., Watson called Wiggins to inform him that Lantigua was at the meeting location, which was still unknown to the task force. At that time, the task force was also unaware of Lantigua's physical appearance or mode of transportation.
At 2:18 p.m., Watson called Wiggins and told him that defendant had the "bad" cocaine in a "stash" near Watson's house. Wiggins asked Watson to keep Lantigua at the location until the exchange took place.
At 3:05 p.m., Watson told Wiggins that he had been stopped for speeding by the State Police on the Atlantic City Expressway. Watson was alone and driving a black Lexus at the time of the stop.
At 3:32 p.m., Wiggins called Watson to confirm that Lantigua was still at the meeting location. Watson replied that he would keep Lantigua there.
At 5:44 p.m., defendant called Wiggins and Wiggins told defendant to take the "bad" cocaine to Watson and make the exchange.
At 5:46 p.m., Wiggins called Watson to say that defendant was on his way to the meeting location. Watson replied that Lantigua had left but was still in the general area, and that Watson had the "good" cocaine.
At 6:15 p.m., Wiggins spoke with defendant who indicated that he had exchanged the "bad" cocaine for the "good" cocaine and was waiting for further instructions from Wiggins.
At 6:21 p.m., Wiggins spoke with Lantigua who informed him that defendant had made the switch and that Lantigua now had the "bad" cocaine. Lantigua complained that it seemed like the package contained less than he originally expected. Wiggins told Lantigua to weigh the package, and Lantigua indicated that he was at Watson's house. At the time of this call, the surveillance team confirmed that a mini van with New York license plates -- believed to be Lantigua's and not to be confused with the Ford van -- was parked at Watson's house.
At 6:57 p.m., Lantigua called Wiggins to tell him that the scale at Watson's house was not large enough to weigh the cocaine. At about 7:25 p.m., the task force realized that it no longer had the mini van under surveillance and attempted to find Lantigua, who was known to be traveling back to New York City in the mini van with the "bad" cocaine.*fn1 A description of the mini van, along with its New York license plate number, was broadcast to state and local police with orders to stop and arrest the occupants.
At 7:40 p.m., State Trooper Brian Flaherty was on patrol on the Garden State Parkway when he received the BOLO -- "Be On Look Out" -- notice for a Hispanic male driving a grey Toyota Sienna mini van with a New York license plate and the plate number. The BOLO indicated that the mini van was traveling north toward New York City, that it contained CDS and currency and that the driver was possibly armed and dangerous. Twenty to twenty-five minutes later, Flaherty observed a van fitting the BOLO description and followed it as it exited the Parkway onto the Turnpike.
Flaherty pulled the mini van over, ordered Lantigua to get out, handcuffed him and placed him under arrest. When Flaherty patted Lantigua down, he felt a large bulge in Lantigua's pocket which turned out to be a cell phone. Flaherty found a small bulge in another pocket which turned out to be marijuana, which Lantigua indicated was "just for personal use." Lantigua was also in possession of an identification card in the name of "Carlos Lopez" with a New York address. Flaherty testified that the only reason he stopped the mini van was because of the BOLO.
Lantigua's mini van was impounded and transported to the State Police Barracks in Holmdel. On March 10, 2004, a warrant was obtained and the mini van was searched. Two kilos of cocaine and $138,930 in small bills were found.
On March 10, 2004, Watson was arrested at 5:30 a.m. at the Hawthorne Lane address pursuant to an arrest warrant. Although they did not have a search warrant, the arresting officers requested a consent search of the Hawthorne Lane house and Watson agreed. Watson refused to sign the consent form, however, he initialed a handwritten notation indicating that he gave his verbal consent to search. During the search, the task force recovered $3,600 from a bedroom nightstand. A drug-detecting dog conducted another search of the house and indicated the nightstand had a scent of narcotics. A Cadillac and a 2002 Lexus known to be used by Watson were located in the parking lot of the townhouse complex. A drug-detecting dog indicated the presence of narcotics in the Lexus. The Lexus was secured until a search warrant was obtained. Watson denied driving the Lexus or knowing who owned it.
On March 10, 2004, at 9:00 a.m., as the Lexus was being secured for towing, Pierre Chaney arrived and told police officers that the Lexus was his and asked why it was being towed. Chaney stated that he had loaned the Lexus to Watson the previous day and that the Dodge Stratus Chaney was driving belonged to Watson. Chaney gave investigators the keys to both the Lexus and the Stratus and agreed to answer questions. Both cars were taken to a secure lot. At the Prosecutor's Office, Chaney signed a consent form for search of the Lexus, during which the task force recovered $26,000 in cash in the center arm rest of the vehicle.
Defendant was arrested in the sweep on March 10, 2004. He moved to suppress the fruits of the February 1, 2004 search of the Ford van, the March 9, 2004 stop and arrest of Lantigua and the March 10, 2004 search of the mini van. After hearing four days of testimony, the trial court denied the suppression motion and defendant entered his plea.
In this appeal, defendant argues:
POINT ONE A
THE STATE'S WARRANTLESS SEIZURE OF CO-DEFENDANT, ADAM BISHOP'S, 1994 FORD VAN ON FEBRUARY 1, 2004 VIOLATED ALL OF THE CO-DEFENDANTS' AND APPELLANT'S CONSTITUTIONALLY GUARANTEED U.S. CONSTITUTION FOURTH AMENDMENT AND N.J. CONSTITUTION ARTICLE 1, PARAGRAPH SEVEN RIGHTS (STOP #1)
POINT ONE B
APPELLANT REBUTS THE PRESUMPTIVE VALIDITY OF THE SEARCH WARRANT FOR THE 1994 FORD VAN DUE TO THE ILLEGAL ACTS COMMITTED BY LAW ENFORCEMENT PRIOR TO THE ISSUANCE OF THE WARRANT
THE STATE'S WARRANTLESS STOP, SEARCH, SEIZURE AND ARREST OF CO-DEFENDANT, NELSON LANTIGUA, A/K/A CARLOS LOPEZ, ON OR ABOUT AUGUST 23, 2004 VIOLATED ALL OF THE CO-DEFENDANTS' AND DEFENDANT'S CONSTITUTIONALLY GUARANTEED U.S. CONSTITUTION FOURTH AMENDMENT AND N.J. CONSTITUTION ARTICLE I, PARAGRAPH SEVEN RIGHTS (STOP #2)
A. THE SEARCH OF MARCH 9, 2004 IS INVALID FOR LACK OF A PROPERLY ISSUED SEARCH WARRANT
B. THE STATE VIOLATED CO-DEFENDANT LANTIGUA'S AND APPELLANT'S CONSTITUTIONALLY GUARANTEED U.S. CONSTITUTION FOURTH AMENDMENT AND N.J. CONSTITUTION ARTICLE I, PARAGRAPH SEVEN RIGHTS IN FAILING TO OBTAIN AN ANTICIPATORY WARRANT BEFORE EXECUTING THE STOP OF HIS VEHICLE, HIS ARREST AND SEARCH OF HIS PERSON, AND DETAINMENT OF THE VEHICLE HE WAS DRIVING
C. THE STATE VIOLATED DEFENDANT LANTIGUA'S AND APPELLANT'S CONSTITUTIONALLY GUARANTEED U.S. CONSTITUTION FOURTH AMENDMENT AND N.J. CONSTITUTION ARTICLE I, PARAGRAPH SEVEN RIGHTS IN FAILING TO OBTAIN A TELEPHONIC WARRANT BEFORE EXECUTING THE STOP OF HIS VEHICLE, ARREST AND SEARCH OF HIS PERSON, AND DETAINMENT OF THE VEHICLE HE WAS DRIVING
D. TROOPER FLAHERTY VIOLATED CO-DEFENDANT LANTIGUA'S AND APPELLANT'S CONSTITUTIONALLY GUARANTEED U.S. CONSTITUTION FOURTH AMENDMENT AND N.J. CONSTITUTION ARTICLE I, PARAGRAPH SEVEN RIGHTS BY PLACING CO-DEFENDANT IMMEDIATELY UNDER ARREST WITHOUT PROBABLE CAUSE
E. THE SEARCH OF CO-DEFENDANT LANTIGUA'S PERSON AND SEIZURE OF THE ITEMS IN DEFENDANT'S POCKET VIOLATED DEFENDANT'S DUE PROCESS RIGHTS GUARANTEED UNDER THE FOURTH AMENDMENT AND ARTICLE I, PARAGRAPH VII OF THE NEW JERSEY CONSTITUTION
F. FAILURE TO SECURE ANY TYPE OF SEARCH OR ARREST WARRANT ON MARCH 9, 2004 ON DEFENDANT LANTIGUA TAINTS ALL OF THE EVIDENCE SEIZED
IF THE DENIAL OF THE ABOVE MOTIONS TO SUPPRESS ARE NOT REVERSED, APPELLANT'S SENTENCING SHOULD BE REMANDED BECAUSE OF THE DRACONIAN NATURE OF THE BRIMAGE*fn2 DOCTRINE
In reviewing a trial court's denial of a motion to suppress, we will "determine only whether there was sufficient credible evidence to support the trial court's finding." State v. Elders, 192 N.J. 224, 231 (2007). We will not engage in a de novo review of the evidence or act as a factfinder. Ibid. The purpose of our review is to "determine whether the judge's findings are supported by evidence in the hearing transcript." State v. Alvarez, 238 N.J. Super. 560, 564 (1990). In so doing, we will "give deference to those findings which are substantially influenced by the judge's opportunity to hear and see the witnesses and to have the 'feel' of the case." Ibid. A trial court's findings may not be disturbed unless "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The "trial court's interpretation of the law and the consequences that flow from established fact are not entitled to any specific deference," however. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Defendant contends that the contraband found in Bishop's Ford van and Lantigua's mini van should be suppressed. He also challenges the stop, arrest and search of Lantigua by Trooper Flaherty. The State argues that he lacks standing to contest the evidence seized from the Ford van and the mini van.
A defendant must have standing to challenge the validity of a search and seizure of evidence. State v. Bruns, 172 N.J. 40, 43 (2002). In Bruns, the defendant sought to suppress evidence seized from a vehicle that was subject to a warrantless stop and search. 172 N.J. at 43. The defendant had no connection with the vehicle but the evidence seized from it implicated him in the robbery. Id. at 44-45. The Supreme Court stated:
In order to contest at trial the admission of evidence obtained by a search or seizure, a defendant must first demonstrate that he has standing. Generally speaking, that requires a court to inquire whether defendant has interests that are substantial enough to qualify him as a person aggrieved by the allegedly unlawful search and seizure. [Id. at 46.]
The Court noted that the standing requirement is broader under the New Jersey Constitution, Article I, § 7, than under the Fourth Amendment of the United States Constitution. Ibid. In New Jersey, standing depends upon "whether that defendant has a proprietary, possessory or participatory interest in the place searched or the items seized." Ibid. The Court explained that "in most cases in which the police seize evidence implicating a defendant in a crime that defendant will be able to establish an interest in the property seized or place searched." Id. at 59. The term "participatory" connotes some involvement in the underlying criminal conduct in which the seized evidence is used by the participants to carry out the unlawful activity . . . . It thus provides standing to a person who, challenging the seizure and prosecutorial use of incriminating evidence, had some culpable role, whether as a principal, conspirator, or accomplice in a criminal activity that itself generated the evidence. [State v. Mollica, 114 N.J. 329, 339-40 (1989).]
In short, if the evidence is to be used against a defendant, the defendant has standing to challenge its admissibility.
Bishop's Ford van was seized after it was found illegally parked. Defendant argues that the impoundment was improper because it was merely a pretext to search the van. State v. Slockbower, 79 N.J. 1 (1979).
Although defendant does not have a "proprietary, possessory or participatory interest" in the Ford van, he is charged with conspiracy to distribute the cocaine that was found in the vehicle. Mollica, supra, 114 N.J. at 339-40. Consequently, he has standing to challenge the admissibility of the cocaine found in it.
With respect to the impoundment of the Ford van, N.J.S.A. 39:4-138(h) prohibits parking within fifty feet of a stop sign. N.J.S.A. 39:4-136 provides that an unoccupied illegally parked vehicle "shall be deemed a nuisance and a menace to the safe and proper regulation of traffic and any peace officer may provide for the removal of such vehicle." ACPD General Order Four (2003) provides that an unoccupied illegally parked vehicle should be ticketed and towed.
The trial court rejected defendant's argument that the impoundment of the Ford van was a pretext on the ground that defendant presented no evidence from which the court could conclude that the towing was pretextual. We agree. The subjective intent of an officer performing a duty is not relevant; the only inquiry is whether the actions were objectively reasonable. State v. Bruzzese, 94 N.J. 210, 219 (1983). Here, the unoccupied, illegally parked Ford van was subject to towing under state law and ACPD procedure.
Defendant next challenges the warrant obtained after the Ford van was impounded on the ground that the impoundment was illegal and consequently the warrant was invalid. As we have indicated, the impoundment was legal. Moreover, probable cause for issuance of the warrant was provided when Detective Barber's drug-detecting dog indicated the presence of CDS in the van. Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed. 2d 842, 847 (2005) (holding that a drug-detecting dog does not implicate legitimate privacy interests; the dog's indication of the presence of CDS constitutes probable cause). Because a "sniff test" does not implicate legitimate privacy interests, only reasonable suspicion is necessary to initiate the test; probable cause is not necessary. State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). Here, the wiretaps provided reasonable suspicion to initiate the "sniff test" on the impounded Ford van and the "sniff test" provided probable cause for issuance of the search warrant.
Defendant next argues that Trooper Flaherty's warrantless stop, arrest and search of Lantigua violated defendant's constitutional rights. Defendant, however, lacks standing to challenge the stop, arrest and search of Lantigua's person because the only evidence found on Lantigua was marijuana. Defendant is not charged with any marijuana offense.
The mini van was properly impounded after Lantigua's arrest and searched after a warrant was obtained on March 10, 2004. State v. Eckel, 185 N.J. 523, 540 (2006) (holding that after an occupant of a vehicle is placed under arrest and secured, the police must obtain a warrant to search the vehicle). Lantigua's possession of marijuana was probable cause for issuance of a search warrant for the vehicle. Ibid. The cocaine and cash seized in that search, pursuant to the validly issued warrant, are admissible against defendant. State v. Bell, 195 N.J. Super. 49, 58 (App. Div. 1984).
Finally, defendant argues that the matter should be remanded for reconsideration of his sentence because of the "draconian nature of the Brimage doctrine." In State v. Thomas, 392 N.J. Super. 169 (2007), we addressed this very issue at length and concluded that plea agreements negotiated pursuant to the Brimage guidelines are constitutional and do not violate the principles articulated in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005), or State v. Natale, 184 N.J. 458 (2005), and their progeny.
The sentence imposed pursuant to a plea agreement negotiated in accordance with the Brimage guidelines is neither manifestly excessive or unduly punitive. Thomas, supra, 392 N.J. Super. at 189; see also State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).