August 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL E. MCALLISTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-12-0778.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 12, 2008
Before Judges Cuff and Simonelli.
A grand jury indicted defendant Daniel E. McAllister for first degree maintaining or operating a premises, place or facility used for manufacturing a controlled dangerous substance (CDS) (marijuana), contrary to N.J.S.A. 2C:35-4 (count one), and first degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count two).
Defendant filed a motion to compel the State to disclose the identity of a confidential citizen informant who had provided information the police relied upon to obtain a search warrant for defendant's home, where 293 marijuana plants were found; and to compel the State to provide two audiotapes of the informant's calls to the police on October 8, 2002. Judge Paul Armstrong entered an order on February 19, 2004, denying the motion. On May 6, 2004, we denied defendant's motion for leave to appeal.
Defendant also filed a motion for a Franks*fn1 hearing and to bar admission of evidence obtained during the search. Judge Armstrong entered an order on May 24, 2004, denying the motion.
Defendant then pled guilty to both counts in the indictment. Judge Gasiorowski imposed concurrent ten-year terms of imprisonment with a three year, three month period of parole ineligibility. The judge also imposed the appropriate fine, assessment, fee, and penalty, and suspended defendant's driver's license for two years.
Defendant appeals from the February 19, 2004 and May 24, 2004 orders.*fn2 On appeal, defendant raises the following arguments:
IN REVIEWING A LAW DIVISION DECISION OF MOTIONS TO SUPPRESS EVIDENCE AND TO DISCLOSE THE IDENTITY OF AN INFORMANT, THE APPELLATE DIVISION AFFORDS NO DEFERENCE TO LEGAL CONCLUSIONS MADE BY THE LAW DIVISION.
NEW JERSEY RULE OF EVIDENCE 516 REQUIRED DISCLOSURE OF THE IDENTITY OF THE CITIZEN INFORMANT UTILIZED BY THE STATE.
A. The Telephone Calls Represent the Most Important Piece of Evidence In Support of the State's Application for the Search Warrant.
B. The Evidence Obtained By the "Citizen" Informant Was Probably Obtained As a Result of an Illegal Entry Into the Defendant's House.
C. The Trial Court's Decision Represents Plain and Reversible Error.
i. The Trial Court Erred By Treating As Relevant the Degree of the Informant's Involvement in the Underlying Alleged Criminal Act.
ii. The Trial Court Erred By Requiring An Impossible Burden of Proof Respecting the Defendant's Claim That the Informant Was an Agent of the Police.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING PURSUANT TO [FRANKS V. DELAWARE].
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S REQUEST TO PRESENT TESTIMONY AT THE SUPPRESSION HEARING.
THE EVIDENCE SEIZED BY THE POLICE AT THE DEFENDANT'S HOME SHOULD HAVE BEEN SUPPRESSED AS EVIDENCE BECAUSE THE SEARCH WARRANT EXECUTED BY THE POLICE LACKED PROBABLE CAUSE.
A. The Evidence That One Side of the Defendant's House Was Covered With Opaque Material Cannot Be Used to Support the Probable Cause Requirement.
B. Even If the Court Considers the Opaque Windows Evidence As Legally Sufficient, Such Evidence, Combined With High Electricity Usage, Does Not Support an Inference of Illegal Activity.
C. The Information Allegedly Provided by the Informant Was Stale, and Legally Insufficient.
We reject these arguments and affirm.
The following facts are summarized from the record. On October 8, 2002, Detective Theodore Lewis*fn3 of the Hillsborough Police Department (HPD), Detective William Federico*fn4 of the Somerset County Prosecutor's Office, and Assistant Somerset County Prosecutor W. Brian Stack testified before Judge Rosemary Williams in connection with their application for a warrant to search defendant's home. Lewis testified that in May 2002, his office received a phone call from "a person who claimed to be a Frances McAllister," who left a voicemail message stating that the person residing at 134 Hillsborough Road, Belle Mead (the home) was growing marijuana in the basement. The caller also stated that "[the person residing in the home] might be home now, but the only time [that person] gets there is in the afternoon after 3:00 p.m." The caller never called back, and the police were unable to verify the caller's identity.
Subsequent observations by the police revealed a dark Toyota Tundra, registered to defendant, parked at the home; the home's "basement windows were covered by some type of opaque material so that one could not see through the basement windows . . ."; and the electrical meter readings for the home, when compared to meter readings for three similar homes, showed a consistently greater amount of electricity use. Federico testified that, based on his experience and training regarding indoor marijuana growth, the increased electricity use and coverage of the windows were behaviors indicating indoor marijuana growth. However, because the police could not verify the caller's identity, they decided not to apply for a search warrant.
Testimony also revealed that on October 8, 2002, at approximately 10:46 a.m., the HPD received a telephone call from an anonymous caller who provided defendant's address and described defendant's home. The caller also reported that he or she had been inside the home within the past week; had observed approximately fifty marijuana plants in the basement, some of which were five feet in height; and had observed "six or seven large lamps in the basement," and marijuana "throughout the house[.]" The caller also reported that defendant resided at the home with two dogs and that "there was a water supply for the plant[s]." Lewis testified that the caller provided a name and personal information, but stated that he or she wanted his or her identity to remain confidential. The HPD verified the caller's identity.
A second call that day by the same caller at approximately 3:26 p.m. revealed the following:
[The caller] observed a marijuana smoking bong, expensive equipment, and a scale located in the kitchen. [The caller] related in the basement [he or she] observed a garbage can filled with water. [The caller] related [defendant] uses a hose and pump to pump the water out to his marijuana plants, which are located in one of the rooms in the basement. [The caller] also observed in that same basement room, 6 to 7 large lamps wired to circuit breakers, with timers, to help the marijuana plants grow. [The caller] related [he or she] [had] seen large piles of dirt behind the garage, which [defendant] places there after using that dirt for his marijuana plants. [The caller] also related [he or she] did not observe marijuana in the house drying, or packaged for sale. [The caller] further related [defendant] is the only person living at 134 Hillsborough Rd.
Lewis testified that he conducted a follow-up investigation the same day, personally drove by defendant's home, and corroborated the following: defendant lived at the home; "the basement windows were dark from where [Lewis] could see"; and defendant owned two dogs which were licensed with Hillsborough Township.
Based on the officers' testimony, Judge Williams found probable cause to issue a search warrant for the home and a barn and shed located on the property. Police executed the warrant on October 8, 2002, at approximately 8:20 p.m. In the basement they found 293 marijuana plants; several heating lamps; a timer; temperature gauges; and "a large amount of potting soil, empty planting pots, and several windows in the basement . . . covered [with] black plastic bags." On the first floor the police found a scale; "greenish-brown vegetative matter, believed to be marijuana," lying on defendant's living room coffee table; and a large plastic bag containing the same vegetative matter underneath the couch where defendant was sleeping.
We begin by rejecting the State's contention that defendant's guilty plea procedurally bars the issues raised on this appeal. "'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). Three exceptions exist: (1) appealing the denial of a Fourth Amendment-based*fn5 motion to suppress evidence after a conviction whether based on a guilty plea or a conviction pursuant to Rule 3:5-7(d) and Rule 7:5-2(c)(2); (2) appealing "the denial of admission into a pretrial intervention program" pursuant to Rule 3:28(g); and (3) pursuant to Rule 3:9-3(f), defendant can "'enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion.'" Id. at 471 (quoting R. 3:9-3(f)).
Because defendant challenges the denial of his motion to suppress physical evidence obtained from his home, and because all other issues raised here, including disclosure of the caller's identity, are so closely intertwined with the issues raised in the motion, we conclude that defendant satisfies the first exception and, pursuant to Rule 3:5-7(d), did not waive his right to make the arguments he now makes, despite pleading guilty. Accordingly, we address the merits of this appeal.
Defendant first contends Judge Armstrong improperly denied his motion to disclose the identity of the confidential informant and his motion for a Franks hearing. Defendant's motions were grounded on his claim that the home was burglarized on October 8, 2002, the day the police received the two anonymous calls; that Vincent Rocco was the burglar and the caller; that Rocco burglarized the home at the direction of the police and called them from inside the home; that Rocco had been inside the home in June 2001;*fn6 and that Rocco was a police informant who agreed to provide information in exchange for leniency regarding his cocaine abuse. Defendant argues that disclosure of the informant's identity was necessary to challenge the probable cause for issuing the search warrant, and that he provided sufficient evidence of the informant's suspicious activity and police misconduct to justify disclosure and a hearing.
In denying defendant's request for disclosure, Judge Armstrong found that, unlike Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957), the informant here was not defendant's one material witness; "did not help set up the criminal occurrence or play a prominent part in the transaction"; his testimony did not disclose a possible entrapment; "the State [did] not plan to call the informant as a witness"; "and disclosure is not mandated by fundamental principles of fairness." The judge also found this case to be similar to State v. Foreshaw, 245 N.J. Super. 166, 183 (App. Div.), certif. denied, 126 N.J. 327 (1991), where the informant was "not at all involved in the events which took place" and "did not contact defendants, accompany the police, or participate in any meetings, sales, or arrests"; and "only gave a detailed description of defendants and their vehicle to the police[,]" which does not rise to the level of participation. Judge Armstrong reasoned that the informant only provided a description of what he or she saw in the home, "played only a marginal role by informing the police of the contents of defendant's house, aiding in the preliminary stage of the criminal investigation[,]" and had no connection to defendant's criminal activity. Citing State v. Milligan, 71 N.J. 373 (1976), and State v. Williams, 356 N.J. Super. 599 (App. Div. 2003), the judge concluded that "just because the information provided by the informant was an important part of the investigation leading to the defendant's arrest, it does not make the informant's identity essential to a fair determination of the case."
The judge also denied defendant's motion for reconsideration, further finding that defendant's claims were mere speculation unsupported by any evidence; there was no evidence the police significantly encouraged the informer to enter the home and relay information to them; there was no evidence "of illegal phone taps, trespassing police, or post office imposters"; and finally, that defendant's assumption that the caller's details were based on sixteen-month-old stale information was unsubstantiated.
In denying a Franks hearing, the judge found that "defendant's mere assertion that there may have been police misconduct or that the informant provided the police with information after gaining illegal access to his house does not rise to the level of substantial showing [pursuant to Franks]." The judge reasoned that defendant had not provided any information sufficient to prove that there was sufficient State involvement in the calls, and that:
There is no evidence of joint participation between the informant and the police officers. There is no evidence that the State was significantly involved in the search of defendant's home. There is no evidence that the informant's phone call or knowledge of the contents of defendant's house were sufficiently fostered or encouraged by the police. As such, the instant case lead to a plausible conclusion that there was no State involvement.
"Under most circumstances, . . ., an informer's identity will be kept secret and will not be revealed for insignificant or transient reasons." Foreshaw, supra, 245 N.J. Super. at 181 (citations omitted). Disclosure is required "where the defendant can show that the testimony of the informer is essential to preparing his defense or to assuring a fair determination of the issues." Milligan, supra, 71 N.J. at 390. To satisfy this requirement, the defendant must provide "[s]omething more than speculation[,]" and courts "should not honor frivolous demands for information on unsubstantiated allegations of need." Id. at 393.
Disclosure is also required where the identity of the informer has already been otherwise disclosed, N.J.R.E. 516, or "where the informer is an active participant in the crime for which the defendant is prosecuted, . . . where a defense of entrapment seems reasonably plausible, . . . or where disclosure is mandated by fundamental principles of fairness of the accused." Foreshaw, supra, 245 N.J. Super. at 180-81 (citations omitted). However, "'absent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or 'tips' to the police or participating in the preliminary stages of a criminal investigation.'" Id. at 181 (quoting Milligan, supra, 71 N.J. at 387-89 (footnote omitted)).
To obtain a Franks hearing, a defendant must make "a substantial preliminary showing" that the warrant affiant made "a false statement knowingly and intentionally, or with reckless disregard for the truth[.]" Franks, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed. 2d at 672. The defendant must also prove such statements were "necessary to the finding of probable cause[.]" Id. at 156, 98 S.Ct. at 2676, 57 L.Ed. at 672.
Based upon our careful review of the record, we discern no occasion to disturb Judge Armstrong's well-founded decisions. We are satisfied that defendant failed to justify disclosure of the identity of the confidential informant. Defendant's claim that disclosure is essential to assure a fair determination of the issues is grounded on his sheer speculation that Rocco was the informant who burglarized the home at the direction of the police. Further, there is no allegation of entrapment, the informant did not participate in defendant's criminal activity, and the informant did not contact defendant, accompany the police, or participate in the search. The caller merely played a marginal role by providing information about his or her personal observations of defendant's criminal activity. Milligan, supra, 71 N.J. at 386; Foreshaw, supra, 245 N.J. Super. at 180-81 (citations omitted).
We are also satisfied that defendant failed to establish entitlement to a Franks hearing. There is no competent evidence that Rocco burglarized the home; that Rocco or the burglar was the caller; that Rocco was a police informer; that the caller only observed defendant's marijuana plants as a result of the burglary; that the caller acted at the direction of the police; or that the calls were made from inside the home. There also is no competent evidence of police misconduct or that Lewis' or Federico's testimony before Judge Williams was false or made with reckless disregard for the truth.
Defendant next contends that Judge Armstrong should have suppressed the evidence seized from the home because the police lacked probable cause. Defendant argues that evidence that the basement windows were covered with opaque material cannot be used to support probable cause because the police trespassed on the property or on property adjacent to the home; that the opaque windows, coupled with high electricity usage, do not support an inference of illegal activity; and that the information provided to the police was stale because it was actually provided in June 2001, when Rocco was in the home.
In denying the motion, the judge found that there was enough proof to counter defendant's claim that the police trespassed on his property and that Judge Williams' finding of probable cause was proper. We agree.
"Probable cause exists where 'the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879, 1890 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925)); accord State v. Waltz, 61 N.J. 83, 87-88 (1972) (citations omitted).
"[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause[.]" Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed. 2d 637, 645 (1969) (citing Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed. 2d 142, 147-48 (1964)), overruled o.g. by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983).
The standard is to be applied flexibly, not technically, such that laypersons will be able to apply the standard to advance the needs of law enforcement while upholding the individual's interest in privacy. Orleans v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 1661-62, 134 L.Ed. 2d 911, 918-19 (1996) (citations omitted). In other words:
[U]sually the affidavits are prepared in the midst and haste of criminal investigations, and by police officers and detectives who are laymen not possessed of the expertise in draftsmanship to be expected of a member of the bar or bench. Consequently a common sense approach must be taken in appraising the sufficiency of the factual allegations of the affidavit on which the request for the warrant is based. If the recitals would provide reasonable support for the belief of a prudent man that the law is being violated at a place reasonably identified, they will be deemed sufficient. Rigid and technical demands for elaborate specificity and precision are neither serviceable nor required in this area of criminal law enforcement. (citations omitted). [State v. Boyd, 44 N.J. 390, 392-93 (1965).]
Probable cause determinations are to be accorded considerable deference and are not to be overturned so long as a substantial basis existed for that finding. State v. Novembrino, 105 N.J. 95, 118 (1987) (citations omitted).
The test is a "totality of the circumstances", in which the judge must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548; accord State v. Keyes, 184 N.J. 541, 554 (2005). "'[I]nformation given by an informant whose inherent reliability has not been shown may nevertheless be used to establish probable cause to obtain a search warrant if the informant's veracity is bolstered by the totality of the circumstances'" and the independent observations of police.
Foreshaw, supra, 245 N.J. Super. at 177 (quoting State v. Probasco, 220 N.J. Super. 355, 358 (App. Div. 1987), certif. denied, 117 N.J. 72 (1989)).
The totality of the circumstances here reveals sufficient facts upon which Judge Williams concluded there was a fair probability defendant was growing marijuana in the home. The October 8, 2002 caller provided factual information about the location of the home, defendant's illegal activities, and details describing the home's interior and exterior. Officers specially trained in narcotics and marijuana growth personally observed the home and verified the details provided by the caller which, based upon their experience and training, indicated illegal drug activity.
Defendant's staleness challenge also fails. The core concern with such a challenge is "'do all the circumstances exhibited . . . reasonably conduce to a belief that the law was being violated at the time the warrant issued?'" State v. Sager, 169 N.J. Super. 38, 44-45 (Law Div. 1979) (quoting State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976)). More specifically, "'where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant'" in determining whether information is stale.
Blaurock, supra, 143 N.J. Super. at 479 (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)).
Here, the October 8, 2002 caller not only stated that he or she was in the home within a week (without any reasonable indication for police to doubt such a statement), but also the police personally observed activity of a protracted and continuous nature, namely the excessive electricity use and the covered windows indicating defendant's attempt to shield his illegal marijuana growing from those outside.
Defendant's contention Judge Armstrong erred in refusing to permit him to present testimony at the suppression hearing is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). However, we add the following comment.
A hearing on a motion to suppress physical evidence shall be held "[i]f material facts are disputed. . . ." R. 3:5-7(c). Absent a demonstration that a Franks hearing was necessary, the probable cause for a search warrant "'must be made based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously.'" State v. Wilson, 178 N.J. 7, 14 (2003) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000)). Defendant was not entitled to a Franks hearing because Judge Armstrong properly found no falsity in the information presented to Judge Williams. Accordingly, there was no material fact in dispute and no need for further testimony.