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State, Dep't of Environmental Protection, Division of Fish and Wildlife v. Bennett

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 8, 2008

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE, PLAINTIFF-RESPONDENT,
v.
MARYBETH BENNETT, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 54-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant, Marybeth Bennett, appeals from the judgment of the Egg Harbor Municipal Court and, upon de novo review, the judgment of the Law Division finding that she illegally possessed regulated non-game, endangered and wild bird species. She was ordered to pay $5,248 in fines and court costs, which was stayed pending appeal. We affirm.

The charges against defendant arose out of an investigation initiated by the New Jersey Division of Fish and Wildlife (DFW) on the basis of a tip it received on October 14, 2004, that defendant was illegally housing certain bird species at 1560 Somers Point/Mays Landing Road in Egg Harbor (1560 Somers Point Road). The source of the information was James Bealle (Bealle), who claimed that he was a former tenant at 1560 Somers Point Road. Bealle told DFW Conservation Officer Michael Massey (Massey) that he met Bennett when she obtained permission from Jack Snyder, the owner of 1560 Somers Point Road, to construct an aviary on the property. Bealle stated that he built the aviary at the rear of the property away from the house. He explained to Massey that the aviary was not visible from the house but could be accessed from a road that ran to the left of the driveway leading to the house. Bealle also told Massey that he had assisted Bennett in caring for the birds until he became concerned that he might get into trouble. After telling Bennett that he did not want the hawks kept at the premises and arguing with her, he was told that he had to move. Bealle did not believe anyone occupied the premises after he left. Based on this information, Massey, who knew of Bennett from a previous investigation, drove to the location on October 20, 2004.

When he arrived at 1560 Somers Point Road, he observed overgrown grass and a cluttered appearance, which he believed to be indicative of an unoccupied residence. Adjacent to the driveway of the residence was a dirt road. Massey walked up the dirt road, approximately 250 feet beyond the residence, and observed an aviary. It was surrounded by woods on three sides and a dirt road on the other side. He conducted no further investigation at that time. Massey returned to the location the next day, at which time he approached the residence and knocked on the door. When he received no response, he drove his vehicle along the dirt road to the aviary. On October 22, 2004, Massey made another visit to the location and remained there for two hours. He observed no activity. He walked through the woods to the aviary where he saw the captive birds. He left the premises and appeared before a Superior Court judge requesting a search warrant for the aviary.

In the affidavit submitted in support of the search warrant application, Massey recounted the information Bealle provided, including that Bennett was housing raptors in the aviary that Bealle had built and that Bealle used to care for the birds until he became fearful of getting into trouble. Massey also advised the judge that Bealle stated that he did not believe the residence was being occupied at that time. Massey's affidavit disclosed his three visits to the location, the fact that the residence appeared to be unoccupied, that there were several cars parked in the back yard surrounded by overgrown weeds, and his observation of the aviary and birds. Additionally, Massey's affidavit stated that he knew Bennett based upon an investigation he conducted into her alleged bird rehabilitation program in 2001 that resulted in a denial of certifications to her to conduct wildlife rehabilitation. The Superior Court judge issued the search warrant. As a result of Massey's search of the aviary, sixteen wild birds were seized, including four red-tailed hawks, one shouldered hawk, one turkey vulture, one common crackle, five mourning doves, and four common crows. Massey issued summonses to Bennett and also to Snyder, as the property owner. Massey charged Bennett with illegally possessing regulated non-game, endangered and wild bird species.

Bennett and Snyder moved to suppress the evidence seized, arguing that the warrant was issued based upon illegal information that was provided to the court. The motion was heard in Superior Court pursuant to Rule 7:5-2(a). The State urged that the aviary was located in an "open field" for which there was no reasonable expectation of privacy. The State also argued that there was probable cause for the issuance of the warrant based upon Bealle's tip, Massey's personal knowledge of defendant's prior history of caring for wildlife, and Massey's follow-up investigation.

The motion judge denied the motion, finding that the aviary was "not located within the immediate perimeter of the residence; rather, it was located some 250 feet away at the end of a dirt road on property characterized as an 'open field.'" The judge also found that the information provided by Bealle possessed the requisite indicia of reliability because Bealle was a former resident of the property, built the aviary, assisted defendant in caring for the wild birds, and admitted his participation in the illegal activity. The judge concluded that "[t]he veracity and reliability of [] Bealle and the information he provided was corroborated by Officer Massey's familiarity with [] Bennett and her past activities involving wild birds, as well as the observations made upon entering the property."

Trial was conducted in the Egg Harbor Municipal Court where Bennett was found guilty of the charges and ordered to pay $7,248 in fines and court costs. Defendant filed a de novo appeal to the Law Division, and following oral argument, the Law Division judge found defendant guilty of the charges but reduced the fines and costs to $5,248. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT II*fn1

PRE-WARRANT SEARCH WAS UNREASONABLE BECAUSE THE AVIARY WAS NOT LOCATED IN AN OPEN FIELD, THERE WAS A REASONABLE EXPECTATION OF PRIVACY IN THE AREA IN WHICH IT WAS LOCATED, AND THERE WERE NO EXIGENT CIRCUMSTANCES TO NEGATE THE WARRANT REQUIREMENTS

POINT III

THE EVIDENCE SHOULD BE SUPPRESSED BECAUSE THERE WAS INSUFFICIENT PROBABLE CAUSE TO ISSUE THE WARRANT

POINT IV

[DEFENDANT]'S POSSESSION OF THE BIRDS SHOULD NOT BE HELD TO BE WITHIN THE PURVIEW OF THE LEGISLATIVE INTENT OF THE ENDANGERED AND NONGAME SPECIES ACT

POINT V

THE PENALTIES IMPOSED WERE EXCESSIVE

A search of premises conducted pursuant to a search warrant is presumed valid. State v. Jones, 179 N.J. 377, 388 (2004). A defendant challenging its validity bears the burden of proving "'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Ibid. (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). The judge to whom an application for a search warrant has been presented "'must be satisfied that there is probable cause to believe that [an offense] has been committed, or is being committed, at a specific location or that evidence of [an offense] is at the place sought to be searched.'" Ibid. (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)). The measure for determining whether probable cause exists turns on the "totality of the circumstances." State v. O'Neal, 190 N.J. 601, 612 (2007). "[T]he court must make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of [an offense] will be found in a particular place." Ibid. (quoting State v. Moore, 181 N.J. 40, 45-46 (2004)) (internal quotation marks omitted).

Further, a reviewing court must "'accord substantial deference to the discretionary determination resulting in the issuance of [the warrant].'" Jones, supra, 179 N.J. at 388 (quoting Sullivan, supra, 169 N.J. at 211). When, after a search has been conducted pursuant to a warrant, a defendant contends that inadequate facts were submitted to justify issuance of the warrant and there is a question as to the adequacy of those facts, "'the doubt should ordinarily be resolved by sustaining the search.'" Id. at 389, 388 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)). Moreover, when reviewing an application it is incumbent upon the judge to consider the "specialized experience and work-a-day knowledge" of the officer making the application. Kasabucki, supra, 52 N.J. at 117; State v. Sainz, 210 N.J. Super. 17, 22 (App. Div. 1986), aff'd, 107 N.J. 283 (1987).

Officer Massey's affidavit, filed in support of the warrant application, disclosed that he holds a Master's Degree in Wildlife Science and, at the time he submitted his affidavit, had been a conservation field officer for the State of New Jersey, Department of Environmental Protection, for eighteen years. He had been trained in wildlife law enforcement and was a graduate of the State Police Academy at Sea Girt. He had also received training in search and seizure from the Gloucester County Police Academy. His previous employment had been with the Tennessee Valley Authority as a wildlife biologist and during that time he assisted in the Murray State University raptor rehabilitation program.

Massey's affidavit also disclosed that he was familiar with Bennett as a result of his investigation into her alleged bird rehabilitation program in 2001. During that investigation, Massey learned that defendant was not a certified rehabilitator but was attempting to become one. An inspection of her home that he personally conducted at that time revealed that defendant "was housing pigeons that she owned with the wild birds in direct violation of the regulations." As a result of this investigation, Bennett was denied certification to rehabilitate wildlife. Massey also stated in the affidavit that there was no record that Bennett possessed any current state or federal certification to rehabilitate birds.

The veracity of the information Massey obtained from Bealle that was included in the affidavit, while hearsay, was, as the motion judge noted, "supported by [Bealle's] admission that he initially participated in the alleged illegal activity." Further, Officer Massey's affidavit did not rely solely upon information supplied by Bealle or his prior knowledge of defendant's activities. When he first went to the premises, he observed property with overgrown grass and a cluttered appearance, a condition consistent with Bealle's belief that the premises were unoccupied. Without entering into the property, he also confirmed the existence of the aviary, which he observed from the road that ran alongside the property. Thus, we are satisfied that the requisite probable cause existed based upon the information Bealle provided to Massey, coupled with Massey's prior knowledge of Bennett's activities with wildlife rehabilitation and his initial observations he made of the property and aviary before he actually entered onto the property. See State v. Chaney, 318 N.J. 217, 225 (App. Div. 1999) (holding that Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed. 2d 472 (1988), did not change the rule that the validity of a search warrant issued on the basis of an affidavit containing unlawfully obtained information turns on whether the other lawfully obtained information set forth in the affidavit establishes the probable cause required to justify the search).

We are satisfied that: (1) the information Massey received from Bealle that there were endangered species on the property; (2) Bealle had built the aviary and participated in caring for the birds; (3) Bealle's belief that the property was currently unoccupied and the fact that the property, when viewed from Somers Point Road, appeared unoccupied; and (4) Massey's personal knowledge of Bennett's prior unauthorized activities in connection with wildlife rehabilitation justified, under the totality of the circumstances, the issuance of the warrant. Thus, the issuance of the warrant enabled Massey to fulfill his statutorily-mandated obligation to enforce the legislative declaration to "accord[] special protection [to endangered species] in order to maintain and to the extent possible enhance their numbers" and to "assist in the protection of species or subspecies of wildlife which are deemed to be endangered elsewhere by regulating the . . . possession . . . within this State of species or subspecies of wildlife including those on any Federal endangered species list." N.J.S.A. 23:2A-2(b); N.J.A.C. 7:25-4.13(b).

Because we are satisfied that there was probable cause for the issuance of the warrant, without consideration of Massey's presence on the property beyond the immediate vicinity of the house at 1560 Somers Point Road, we need not address defendant's contention that the pre-warrant search was illegal because the aviary was not located in an open field.

The remaining arguments advanced by defendant, namely, that her possession of the birds was not activity the Legislature sought to address with its enactment of the Endangered and Non-game Species Conservation Act, N.J.S.A. 23:2A-1 to -15, and that the penalties imposed were excessive, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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