July 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIEL LEMAR VALENTINE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-05-450 and 04-05-451.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges A.A. Rodríguez and Kestin.
Defendant, Jamiel Lemar Valentine, was charged in Indictment No. 04-05-450 (450), with the commission of seven crimes. Two of the crimes charged were of the second degree:
Count Three charged a violation of N.J.S.A. 2C:35-7.1, possession of a controlled dangerous substance (CDS) with intent to distribute within 500 feet of a public park; and Count Five charged a violation of N.J.S.A. 2C:39-4.1, possession of a firearm in the course of committing certain CDS crimes. The remaining five crimes charged in Indictment No. 450 were of the third degree: Count One charged a violation of N.J.S.A. 2C:35-10a(1), unlawful possession of CDS; Count Two charged a violation of N.J.S.A. 2C:35-5a(1) and b(3), possession of CDS with intent to distribute; Count Four charged a violation of N.J.S.A. 2C:29-2a, resisting arrest; Count Six charged a violation of N.J.S.A. 2C:39-3f, possession of a prohibited device (hollow-nose bullets); and Count Seven charged a violation of N.J.S.A. 2C:39-5b, unlawful possession of a handgun. Indictment No. 04-05-451 (451) charged defendant with an additional crime of the second degree, a violation of N.J.S.A. 2C:39-7b, possession of a weapon by certain persons prohibited to possess same.
Following the denial of defendant's motion to suppress evidence, he and the State entered into a plea agreement. Pursuant to that agreement, defendant pled guilty--conditionally in respect of his right to appeal the ruling on the motion to suppress--to the third-degree crime charged in Count Two of Indictment No. 450, and to the second-degree crime charged in Indictment No. 451; and the State agreed to recommend a sentence not to exceed five years of imprisonment with a five-year period of parole ineligibility, and to move to dismiss the remaining counts of Indictment No. 450. The terms of the plea agreement were effected with the plea; dismissal by the court, on the State's motion, of the remaining charges; and the imposition of a prison sentence of five years with sixty months of parole ineligibility on the second-degree conviction, along with a concurrent four-year term on the third-degree conviction.
Defendant now appeals from the orders denying his motion to suppress. He raises, through counsel, the following arguments:
THE SEARCH OF THE BASEMENT LOCATED AT 424 JACKSON AVENUE, AS WELL AS THE SEIZURE OF DEFENDANT, EXCEEDED THE SCOPE OF AUTHORITY GRANTED BY THE WARRANT. ACCORDINGLY, THE FRUITS OF THE SEARCH MUST BE SUPPRESSED.
SINCE THE SEARCH WARRANT DID NOT AUTHORIZE THE SEIZURE OF DEFENDANT, THE POLICE OFFICERS HAD NO AUTHORITY TO SEIZE DEFENDANT AS HE WAS LEAVING 424 JACKSON AVENUE IN THE ABSENCE OF PROBABLE CAUSE TO BELIEVE HE HAD OR WAS ABOUT TO COMMIT A CRIME. FURTHERMORE, DEFENDANT'S FAILURE TO HEED THE OFFICER'S ORDER TO STOP DID NOT CONSTITUTE THE CRIME OF OBSTRUCTION IN THE ABSENCE OF AN OBJECTIVE GOOD-FAITH BELIEF ON THE PART OF THE POLICE THAT DEFENDANT HAD OR WAS ABOUT TO COMMIT A CRIME. THE TRIAL COURT THUS ERRED IN FAILING TO GRANT DEFENDANT'S MOTION TO SUPPRESS ALL EVIDENCE SEIZED AS FRUIT OF THE DEFENDANT'S ILLEGAL SEIZURE.
In an additional pro-se brief, defendant raises the following arguments:
THE AFFIDAVIT IN THIS CASE DID NOT ADEQUATELY SUPPORT THE MAGISTRATE FINDINGS OF PROBABLE CAUSE OF ISSUANCE FOR SEARCH WARRANT NOR ARREST WARRANT. IT DEPENDED ON INFORMATION FROM TWO UNNAMED INFORMANTS AND PROVIDED NO INDICATION OF SOURCE-B INFORMANT'S TRUTHFULNESS OR RELIABILITY. DETECTIVE L. SMITH INCLUDED CONCLUSORY DESCRIPTIONS APPARENTLY DESIGNED TO ESTABLISHED THE INFORMANTS TRUSTWORTHINESS INSTITUTING UNLAWFUL CONDUCT. ABSENCE ARREST WARRANT FOR DEFENDANT, PROBABLE CAUSE, ILLEGAL ARREST AND DETENTION VIOLATES DEFENDANT'S 4TH, 5TH, 6TH, 8TH 14TH, AMENDMENT CONST RIGHT. DEFENDANT'S CONVICTION IS VOID. [SIC]
THE TRIAL JUDGE DENIED DEFENDANT'S SUPPRESSION MOTION BASED ON DETECTIVES CREDIBILITY, OBJECTIVE REASONABLE, DEFENDANT'S PRIOR CONVICTION FOR POSSESSION OF A FIREARM WAS PLAIN ERROR. ABSENCE PROBABLE CAUSE, ARREST WARRANT, SEARCH INCIDENT ARREST, KNOCK AND ANNOUNCE PRINCIPLE VIOLATED DEFENDANT'S 4TH, 5TH, 6TH. 8TH, 14TH, AMENDMENT CONST. RIGHT. [SIC]
DEFENDANT GUILTY PLEA IS INVALID, BECAUSE HE WAS COERCED, THREATEN AND INADEQUATE REPRESENTATION BY COUNSEL WARRANTS A WITHDRAWAL OF HIS PLEA AND THE SUPPRESSION OF HIS ALLEGED STATEMENT/CONFESSION GIVEN TO DETECTIVE PRIOR TO MIRANDA WARNING VIOLATION (NOT RAISED BELOW). [SIC]
The knock-and-announce warrant at issue authorized the search of the first-floor-right apartment at a specified address in Elizabeth, as well as common areas associated with that apartment. It also authorized the search of an unidentified male of a given description. The affidavit supporting the warrant application asserted that a reliable confidential informant had made two controlled CDS purchases from the described male at the stated premises. The warrant also authorized the seizure of CDS including, but not limited to, cocaine, drug-related paraphernalia, and the records and proceeds of drug sales.
Police Detective Smith and defendant testified at the evidentiary hearing on the motion to suppress. The judge credited the testimony of Detective Smith, and found that the detective, assisted by ten to twelve police officers, had executed the warrant at the indicated premises at 9:30 p.m. on January 16, 2004. As they approached, the detective saw two individuals in the front window who, upon sighting him, disappeared from view after one of them shouted a warning that police were present. Detective Smith joined two officers who had been stationed at the rear of the building. He heard other officers "take down the front door. There was no knock."
Defendant "shot out" of the door leading to the basement. A physical struggle ensued between defendant and the detective and one of the police officers. The trial court judge, in his oral decision, provided the following description of what then occurred:
As a result of that struggle, all three individuals fell down the steps to the basement area. They landed within a few feet of a tire.
After the defendant was handcuffed and placed into custody, [the police officers] . . . reached inside of that [uninflated tire] and found a plastic bag. Inside of that plastic bag there were some vials of cocaine and some vials apparently unused.
The judge held that the warrant was not overly broad. He determined also that, in the circumstances, the police entry into the apartment without knocking was objectively reasonable under the circumstances. The officers had every reason to believe, based upon what they heard, that there was going to be an attempt to leave the apartment, to secrete evidence, to destroy evidence.
. . . [T]o justify an immediate entry into the apartment all that is necessary is a reasonable articulate[d] suspicion and I think there was more than enough basis for the entry into the apartment as taken down.
The judge continued with his conclusions by recognizing that "when [defendant] burst from the door, [the police] had a right to stop him." As the struggle began and developed, defendant was obstructing their search warrant and they had a right to use reasonable force to bring him under control and to detain him and, in fact, to arrest him for obstructing the administration of law.
During that struggle, they fell within an area of which [sic] the defendant could have obtained a weapon or secreted evidence. . . . [C]ertainly . . . , after they place someone . . . under custody, . . . they're entitled to search an area to protect themselves because part of their search incident to arrest is not just to find evidence, but it's also to make sure that there's nothing that this defendant could reach for and harm them.
On these bases, the judge found the search for and seizure of the narcotics to have been "appropriate under the circumstances." Although the basement had not been specified in the warrant as an area of interest, the facts surrounding the police officers' struggle with defendant, according to the judge, gave them the authority . . . [to] search . . . the basement, even without any search incident to arrest[.]
. . . I also find that it would have been appropriate for the officer to search [the person described in the warrant] in an area within his immediate custody and control because he was the target of the search. * * * So for all of those reasons, the application to suppress the evidence is denied.
In the context of reviewing the convictions that were entered, third-degree possession of CDS with intent to distribute and second-degree unlawful possession of a weapon, we are in substantial agreement with the reasons for decision articulated by the trial judge.
The situation presented by defendant's sudden emergence and flight out of the basement door, and his resistance and struggle with the officers, constituted exigency while the search warrant was being executed and, in the circumstances, furnished a reasonable basis for subduing and detaining defendant, as well as for the ensuing search of the surrounding area, which led to the third-degree drug possession charge. See generally State v. DeLuca, 168 N.J. 626, 632-33 (2001); State v. Lewis, 116 N.J. 477, 485 (1989); State v. Hutchins, 116 N.J. 457, 465-66 (1989); State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990).
We have subscribed to the trial court's rationale regarding the appropriateness of executing the warrant without first knocking. No other evidentiary basis or argument was offered in the trial court challenging the search of the apartment, which led to the second-degree unlawful-possession-of-a-weapon charge. We will not address any challenge to the search of the premises going beyond that raised before the trial court and considered by it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Such issues raised in Point Three of defendant's additional pro se brief as involve questions of inadequate representation by trial counsel cannot be considered on the record before us. Defendant's right to raise those issues is reserved for any post-conviction relief application he may have. See State v. Preciose, 129 N.J. 451, 453-54, 477-78 (1992).
To the extent the foregoing discussion leaves specifically unaddressed other issues raised on appeal, we have determined them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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