August 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKY O. LEBEGA.*FN1 DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 5, 2008
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 SEIZURE OF MR. LEBEGA AND HIS APARTMENT MUST BE SUPPRESSED.
II. THE POLICE WERE NOT JUSTIFIED IN THEIR WARRANTLESS SEARCH AND SEIZURE BASED UPON MR. LEBEGA'S FLIGHT.
III. THE SEARCH AND SEIZURE OF MR. LEBEGA MUST BE SUPPRESSED SINCE IT AROSE FROM AN ILLEGAL AND UNLAWFUL ENTRANCE INTO THE HOME WHICH CANNOT BE SUPPORTED BY THE EXIGENCY EXCEPTION.
In the concluding paragraph of his brief before the Law Division, defendant argued, "the totality of the circumstances in the instant matter does not justify an exception to the warrant requirement. Police forced their way into the defendant's apartment without cause and without a warrant and for those reasons, the defendant submits that the court should suppress all evidence seized illegally by police in the above-captioned matter." Nothing in defendant's brief challenged the lawfulness of the search conducted pursuant to the warrant. Instead, defendant confined his arguments in the Law Division entirely to the warrantless search.
On July 24, 2006, the Law Division conducted a hearing on defendant's motion to suppress. At the conclusion of the testimony, the judge gave each side the opportunity to present oral argument. After directing defense counsel to start with the "warranted search," the judge asked defense counsel the following: was defendant "really challenging whether the police had sufficient information to obtain [the] warrant and to act on that search warrant and go into the home and secure the drugs that were found in the safe and the money?" Defense counsel unequivocally replied, "no," and added, "The actual search warrant was not . . . my strongest point. We concede that."
Even though defendant informed the judge that he was not challenging the issuance of the search warrant, the judge nonetheless made findings concerning it:
[THE COURT]: It's clear to this Court that there was sufficient corroboration of this CI, even if it was a first time CI, having their own detective speak with Mr. Lebega, have a telephone confirmation call, have information with regard to the purchase of a kilo, talk about money and location--verify the address, verify the--the search warrant was appropriate.
Giving all deference to the court that issued the search warrant, there is no way in this court's mind that there could be any question raised with regard to the items seized under the warrant.
Defense counsel agreed with the judge's findings about the validity of the search warrant when he stated "Right." He then reiterated that defendant only challenged the warrantless search:
[DEFENSE ATTORNEY]: We are not challenging the search warrant.
[THE COURT]: Okay, I thought the motion was for both.
[DEFENSE ATTORNEY]: No, judge, my strongest point is the warrantless search the gain--
[THE COURT]: What you're seeking now is whether this court should suppress the gun, which was obtained during the warrantless entry.
[DEFENSE ATTORNEY]: That's correct.
[THE COURT]: Okay. I will hear you on that issue.
After that discussion concluded, the court heard extensive oral argument on the warrantless entry into defendant's apartment. After considering the arguments from both sides, Judge Cantor concluded that the warrantless entry into defendant's apartment was not supported by exigent circumstances or any other exception to the warrant requirement. Accordingly, the judge granted defendant's motion to suppress the gun that was seized during the warrantless entry. The judge emphasized that the items seized during the search with a warrant would not be suppressed. The next day, defendant entered a negotiated guilty plea to the second-degree charge we have described. A different judge accepted the terms of the proposed plea agreement and sentenced defendant accordingly on September 25, 2006.
On appeal, defendant argues:
I. THE SEARCH OF MR. LABEGA'S APARTMENT VIOLATED HIS RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION BECAUSE THE INFORMATION PROVIDED BY THE CONFIDENTIAL INFORMANT DID NOT PROVIDE A SUFFICIENT BASIS FOR THE COURT'S FINDING OF PROBABLE CAUSE.
II. THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE APPLICATION FOR THE WARRANT MISLED THE COURT IN THAT IT FAILED TO DISCLOSE THAT MR. LABEGA WAS OBSERVED OUTSIDE OF THE APARTMENT BUILDING DURING THE TIME DETECTIVE TIEDGEN ALLEGEDLY BELIEVED THAT HE WAS IN THE APARTMENT DESTROYING NARCOTICS AND THAT NO NARCOTICS WERE OBSERVED ON THE KITCHEN TABLE.
III. EVEN IF THE SEARCH WARRANT WAS SUPPORTED BY PROBABLE CAUSE, THE SEARCH OF MR. LABEGA'S APARTMENT VIOLATED HIS RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION BECAUSE THE WARRANT WAS BASED IN PART ON INFORMATION OBTAINED AS A RESULT OF THE UNLAWFUL SEARCH AND, THEREFORE, IS FRUIT OF THE POISONOUS TREE.
Pursuant to the Fourth Amendment to the United States Constitution, "no warrants shall issue, but upon probable cause, supported by oath or affirmation." Our own Constitution, in article I, paragraph 7, likewise requires a finding of probable cause as a pre-condition to the issuance of a search warrant. Under both federal and state law, "judicially-authorized search warrants are strongly preferred before law enforcement officers can conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008). Indeed, "because our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 246 (2007)). Therefore, when police conduct a search without a warrant, the State bears the burden of demonstrating that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004). If the State fails to sustain its burden of demonstrating that an exception to the warrant requirement applies, the search is invalid and the evidence seized is suppressed. State v. Alston, 88 N.J. 211, 230 (1981).
In contrast, where a search is conducted with a warrant, the burden is placed upon the defendant to demonstrate the unlawfulness of the search. State v. Sullivan, 169 N.J. 204, 211 (2001). Searches with a warrant are "cloaked with an aura of prima facie legality" because when the State seeks a search warrant, such effort demonstrates that "the officer making the search was conscious of the citizen's Fourth Amendment security, and that out of concern for it, he sought and obtained judicial approval of the propriety of his proposed search." State v. Kasabucki, 52 N.J. 110, 122-23 (1968).
When reviewing a search conducted pursuant to a warrant, a court "should not apply a proof-of-guilt test to affidavits or testimony designed only to reveal probable cause. The quantum of evidence required to show probable cause for a search warrant is less than that necessary for . . . conviction for the crime allegedly involved." Id. at 123. So strong is the prima facie legality of searches conducted with a warrant that in State v. Jones, 308 N.J. Super. 15, 26-32 (App. Div. 1998), we criticized the motion judge for not extending "great deference" to the issuing magistrate's determination of probable cause in issuing the warrant.
Indeed, not until the United States Supreme Court decided Franks v. Delaware, 438 U.S. 154, 178, 98 S.Ct. 2674, 2684, 57 L.Ed. 2d 667, 682 (1978), did the courts of this State permit a defendant to challenge searches conducted with a warrant. See State v. Petillo, 61 N.J. 165, 174-78 (1972). After Franks was decided, the Court held that in order to even be entitled to a hearing, a defendant must make a "substantial preliminary showing" that the officer seeking the warrant made misleading or false statements in the supporting affidavit. State v. Marshall, 123 N.J. 1, 72 (1991). If a defendant fails to make that "substantial preliminary showing," he is not entitled to a hearing on the validity of the search warrant. Ibid.
Moreover, if a defendant seeks to challenge a search that was conducted with or without a warrant, he must do so in the trial court before entering a plea of guilty or before beginning trial. R. 3:5-7(a). If a defendant fails to so move, such failure is treated as a waiver of any objection to the admission at trial of any evidence seized during the search. R. 3:5-7(f). "If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence on the ground that such evidence was unlawfully obtained." Ibid. "Suppression motions are required to be made and determined before trial, otherwise they are deemed waived." State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971). Moreover, by entering a guilty plea, a defendant waives the right to argue on appeal that there were constitutional defects surrounding the investigation leading to the charges. State v. Smith, 307 N.J. Super. 1, 7-8 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). While we recognize that Rule 3:5-7(d) affords a defendant an automatic right to appeal the denial of a motion to suppress physical evidence, notwithstanding his plea of guilty to the charge in question, that Rule presupposes that a defendant made such a motion and that the trial court denied it after a hearing.
Here, we conclude for several reasons that defendant waived his right to challenge on appeal the issuance of the search warrant: 1) his notice of motion sought to suppress only the warrantless search; 2) the brief he filed in support of that motion was confined solely to the warrantless search and made no arguments respecting the search warrant; 3) when defendant's attorney was asked by the motion judge whether defendant was challenging the issuance of the search warrant, counsel unequivocally answered "no"; and 4) by failing to move before the trial court for suppression of the evidence seized pursuant to the search warrant as required by Rule 3:5-7(a), he is barred by Rule 3:5-7(f) from raising this issue on appeal. Accordingly, we agree with the State's contention that defendant is barred from challenging on appeal the issuance of the search warrant and from arguing for suppression of the evidence seized pursuant thereto.
We further agree with the State that even if this glaring procedural defect were to be overlooked and we were to ignore defendant's waiver of his right to challenge the issuance of the search warrant, we would nonetheless affirm the validity of the warrant. In determining whether there is probable cause to issue a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983). Appellate courts are required to apply a "totality-ofthe-circumstances" test when they analyze the issuing judge's application of the Illinois v. Gates standard. State v. Novembrino, 105 N.J. 95, 122 (1987). Thus, under the totality of the circumstances test, "courts must consider all relevant circumstances to determine the validity of a warrant." State v. Keyes, 184 N.J. 541, 554 (2005).
When a police officer relies upon information provided by a confidential informant, such information is a sufficient basis for a court to find probable cause and issue a search warrant so long as the informant's "veracity" and the "basis of his knowledge" are substantiated by independent police corroboration that ratifies the informant's veracity and validates the truthfulness of the tip. Id. at 556.
When an appellate court reviews a search warrant issued by a local magistrate, "[d]oubt as to the validity of the warrant 'should ordinarily be resolved by sustaining the search.'" Ibid. Reviewing "courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a common sense manner." Gates, supra, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed. 2d at 547. Rather, the warrant should be upheld so long as the magistrate had a "substantial basis for . . . [concluding] that a search would uncover evidence of wrongdoing." Ibid.
Applying that standard here, we are satisfied, based upon the "totality-of-the-circumstances," Novembrino, supra, 105 N.J. at 122, that the issuance of the warrant was supported by probable cause. The information provided by the informant, which was corroborated by Hahn's repeated discussions with defendant during the course of the day, and which was further corroborated by Tiedgen's observations of defendant meeting the CI at the gas station, together provided probable cause to believe that a quantity of cocaine would be found in defendant's apartment. Contrary to defendant's assertions, the record demonstrates that Hahn and Tiedgen actively corroborated the CI's information by repeatedly engaging defendant in telephone conversations concerning the details of the intended transaction and by proceeding to the gas station where they were able to see defendant meet the CI. By so doing, police satisfied the "veracity," "basis of knowledge" and corroboration requirements of Keyes. See Keyes, supra, 184 N.J. at 556. Consequently, the issuance of the search warrant by the magistrate was supported by probable cause.
Next, we consider defendant's argument in Point II that even if we were to conclude the search warrant was supported by probable cause, the evidence should have been suppressed because Detectives Hahn and Tiedgen misled the municipal court judge when they failed to disclose that: (1) defendant was observed outside of the apartment building during the very time Detective Tiedgen allegedly believed defendant was in the apartment destroying narcotics; and (2) when officers broke the door down and entered defendant's apartment, no CDS was found on the kitchen table despite the CI's earlier statement to the contrary.
Because a search conducted pursuant to a warrant is presumed valid, evidence seized during such a search will only be suppressed if the defendant makes a "substantial preliminary showing," accompanied by an offer of proof, that false statements were made in support of the request for a search warrant and that the allegedly false statements were necessary to the finding of probable cause. Franks, supra, 438 U.S. at 171-72, 98 S.Ct. at 2685, 57 L.Ed. 2d at 682. Here, we are amply satisfied that Detective Tiedgen's numerous telephone conversations with defendant involving the sale of a kilogram of narcotics for $29,000, when combined with the officers' observations of defendant when he met the CI at the gas station and defendant's statements that he would show the CI the kilogram of cocaine if the CI came to his apartment, were more than sufficient to establish probable cause even if the information defendant points to had been considered. Stated differently, neither of the two omissions that defendant points to were material to the finding of probable cause. Consequently, this challenge too is meritless.
Finally, we consider defendant's contention in Point III that because some of the information upon which the officers relied in their sworn testimony to the municipal court judge was gained during their illegal warrantless entry into defendant's apartment, the search warrant must be invalidated as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963). In particular, defendant asserts that the issuance of the search warrant depended in part upon the officers' statement that after they forced their way into defendant's apartment during the warrantless search, they observed defendant with a handgun. While the transcript of their sworn statements to Judge Boyd reflects that the detectives did refer to their observation of a handgun during the initial warrantless entry, we are satisfied that the information they provided to Judge Boyd was sufficient to establish probable cause even if the information concerning the handgun had been disregarded. Under those circumstances, inclusion of unlawfully obtained information does not invalidate a search warrant that is otherwise validly issued. See State v. Holland, 176 N.J. 344, 360 (2003).