On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-09-1158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Baxter.
Defendant Ricky Lebega appeals from his September 25, 2006 conviction of second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1). He was sentenced to a seven-year term of imprisonment, of which thirty-six months were ordered to be served without eligibility for parole. Appropriate fines and penalties were imposed.
On appeal, defendant raises a single issue, which he frames as the improper denial of his motion to suppress evidence that was seized during a search conducted pursuant to a search warrant. We conclude that because defendant never filed a motion to suppress the evidence seized during that search, and instead confined his suppression motion to an earlier warrantless search, he is barred from challenging on appeal the search conducted with a warrant. Accordingly, we affirm the judgment of conviction.
We will discuss the facts concerning the search and seizure only briefly and will instead focus our attention on the facts relating to defendant's waiver of the right to challenge the search conducted with a warrant.
These are the principal facts concerning the search and seizure. On April 30, 2002, Detective Keith Hahn of the Edison police department received information from a confidential informant (CI) advising him that an individual known to the CI as "Wise" had offered to sell the CI a kilogram of cocaine for $29,000. Detective Hahn had never before worked with that particular CI. Hahn directed the CI to notify "Wise" that the CI would be working with a friend who, unbeknownst to "Wise", was Detective Hahn. Because the agreed-upon meeting place was located at a gas station*fn2 in Perth Amboy, rather than in Edison, Hahn notified Detective William Tiedgen of the Perth Amboy police department. Tiedgen knew "Wise" as defendant Ricky Lebega.
While defendant was at the gas station meeting with the CI, Hahn, posing as a friend of the CI, placed a telephone call to defendant to discuss where the CI would pick up the cocaine later that day. From his vantage point, Tiedgen was able to recognize Lebega and observe him begin and end a cell phone conversation at the identical time that Hahn initiated and ended the same call.
During that telephone conversation, defendant instructed Hahn to send the CI to defendant's third-floor apartment at 212 Hall Avenue in Perth Amboy where the CI would be permitted to view the kilogram of cocaine. Afterward, according to defendant's instructions to Hahn over the telephone, the CI would leave and tell his associate, who was Hahn, that the cocaine was there. The CI would then return with $29,000 and defendant would give the cocaine to the CI. In accordance with defendant's instructions, Hahn sent the CI up to defendant's apartment. When the CI exited the apartment, he advised Hahn and Tiedgen that defendant showed him a large quantity of cocaine on the kitchen table.
Immediately after Hahn's conversation with Lebega concluded, police established surveillance outside defendant's apartment building. During their surveillance, certain events transpired that caused police to believe defendant had been tipped off to the police surveillance. Believing that there was a significant risk that the CDS would be destroyed if police waited much longer, police forcefully entered defendant's apartment and were confronted with defendant holding a loaded firearm. After a chase down the stairwell of the apartment building, police recovered the gun, which was loaded with hollow-point bullets, and arrested defendant.
After securing the premises, Hahn and Tiedgen contacted a municipal court judge to seek a search warrant. Before issuing the warrant, the judge placed Tiedgen and Hahn under oath and questioned them about the CI's conversations with defendant and their own conversations with and observations of defendant that day. A transcript was prepared of the municipal court judge's colloquy with the two detectives.
Immediately after the detectives obtained the search warrant, they returned to defendant's apartment and conducted a search. In a safe in defendant's apartment, they located a large quantity of cocaine, several boxes of bullets, a digital scale and $3,721.
We turn now to the facts concerning the filing of defendant's motion to suppress. On May 12, 2006, defendant filed a motion to suppress "any and all evidence obtained by the State as the result of an illegal warrantless search, lacking the requisite probable cause, of the defendant by the Perth Amboy Police Department."*fn3 As is evident, nothing in defendant's notice of motion referred to the search conducted with a warrant. Instead, defendant confined his motion to the warrantless search. Defendant filed a brief in support of his motion to suppress, which was entitled "Brief in Support of Ricky Lebega's Notice of Motion to Suppress Evidence Arising from an Illegal and Warrantless Search and Seizure" (emphasis added). Moreover, as the cover indicated, none of the arguments presented in the brief addressed the search with a warrant. All three points in defendant's Law Division brief concerned the warrantless search:
I. THE POLICE LACKED PROBABLE CAUSE TO ENTER MR. LEBEGA'S APARTMENT SINCE THE CI'S VERACITY COULD NOT BE CORROBORATED AND BECAUSE THE CI HAD NO INDEPENDENT BASIS FOR HIS KNOWLEDGE; THEREFORE, THE WARRANTLESS SEARCH AND ...