September 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PATRICK MALONE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-06-1264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Skillman and Collester.
Defendant was indicted together with co-defendants Phillip Pauls and Stuart Burstein for possession of marijuana, in violation of N.J.S.A. 2C:35-10a(3); first-degree possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(10)(a); second-degree conspiracy to possess marijuana with the intent to distribute, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(10)(a); and the first-degree offense of being a leader of a narcotics trafficking network, in violation of N.J.S.A. 2C:35-3.
Co-defendant Burstein filed a motion, in which defendant joined, to suppress the evidence against them. After a three-day evidentiary hearing, the trial court denied the motion.
Defendant then entered into a plea agreement under which he agreed to plead guilty to the first-degree possession of marijuana with the intent to distribute charge, conditioned on his right to appeal the denial of the motion to suppress, and the State agreed to dismiss the other charges and to waive the applicable mandatory extended term sentence and period of parole ineligibility. The trial court sentenced defendant in accordance with the plea agreement to a twenty-year term of imprisonment and dismissed the other charges.
Defendant appeals from the denial of the motion to suppress and his sentence.
The evidence upon which defendant's conviction rests emanates from a telephone call received by the Neptune Police Department on January 14, 2004 from Detective Joe Cargel of Chula Vista, California. Cargel informed Sergeant Burst of the Neptune Police Department that he had been told by Peggy Pauls, the wife of a burglary suspect, Phillip Pauls, that her husband had been paid $5,000 to drive cross-country in a white van, and that she believed "he may have been involved in illegal activity," specifically the transportation of drugs. Cargel also stated that Mrs. Pauls told him her husband was currently staying in room 202 in the Days Inn in Neptune.
Based on this information, Sergeant Burst sent two officers, Patrolman Brock and another officer, to the Days Inn to determine whether Pauls was in room 202 and whether there was a white van with California license plates in the parking lot. The officers confirmed by checking with the room clerk that Pauls was registered in room 202 and had indicated on his room card that he was driving a Dodge van with California license plates. The officers then located a van in the parking lot with California plates, although the van was silver rather than white.
After receiving this information, Sergeant Burst instructed Patrolman Brock to go with another officer, Scott Cox, to Pauls' room to speak with him concerning the information received from Detective Cargel. The officers knocked on the door, and when a man fitting Pauls' description opened the door, the officers informed him they were looking for a Phillip Pauls. The man responded that he was Phillip Pauls. The officers told Pauls they had received information "he was involved in possibly transporting a controlled dangerous substance from California to the east coast." Pauls then asked the officers to come into the room and talk to him. Pauls "sat on the bed, . . . kind of sighed a little bit, dropped his head," and asked whether he could smoke a cigarette. The officers responded affirmatively and then administered Miranda warnings.
Pauls agreed to talk to the officers and told them that he was in Neptune "to follow a subject by the name of Woody who would be transporting at least 50 pounds of marijuana to the Pennsylvania border." Pauls also told the officers that Woody and another person, who was identified to Pauls as "Stuart Whitman," had been in his room earlier that day in possession of two bags of marijuana. Pauls added that the person called "Woody" was driving a late model red vehicle with California license plates and was also staying at the Days Inn.
Officer Brock then returned to the motel office, where he located a registration card for defendant that indicated he was driving a red Ford Tempo with California license plates. After locating the red Ford in the motel parking lot, Brock reported this information to his supervisor, who dispatched additional officers to the motel. The officers maintained surveillance of defendant's room while other officers conducted criminal history checks on defendant and Pauls.
At this point, Pauls was transported to police headquarters, where he was questioned further. In a written statement given in the early morning hours of January 15, 2004, Pauls indicated that a person he knew as Stuart had asked him if he wanted to make some money by driving from California to New Jersey. Pauls agreed, and Stuart sent him a $800 money order "for travel expenses." On the way from California, Stuart instructed defendant to check into the Days Inn in Neptune. After he arrived there, Stuart and defendant came to his room with two bags of marijuana and told him they would pay him $1,500 to follow defendant, who did not have a valid vehicle registration, to Pennsylvania.
In a second written statement given that evening, Pauls admitted transporting marijuana from California to New Jersey in a secret compartment of the van. He also admitted receiving a total of $2,800 for this activity before arriving in New Jersey. Stuart paid him an additional $1,000 while in the motel room and told him he would have to travel to Harrisburg, Pennsylvania to obtain $3,500 more from defendant. Pauls also identified a photograph of co-defendant Burstein as the person he knew as Stuart Whitman.
Following Pauls' initial written statement, a member of the Neptune Police Department prepared an application for a warrant to search defendant's motel room and both defendant's and Pauls' vehicles. Before the search warrant was issued, defendant left his room around 10:30 a.m. on January 15, 2004. As defendant approached the red Ford, he was intercepted by two Neptune police officers and placed under arrest. The warrant for the search of defendant's room was obtained approximately a half hour later. The search revealed a black equipment bag containing twenty-five bags of marijuana and a blue and a green bag containing two bags of marijuana.
On appeal, defendant presents the following arguments:
POINT I: THE UNIFORMED AND ARMED POLICE OFFICERS' ENTRY INTO PHILIP PAULS' MOTEL ROOM TO OBTAIN A STATEMENT FROM HIM CONSTITUTED AN INVESTIGATORY DETENTION WITHOUT A REASONABLE ARTICULABLE SUSPICION THAT MR. PAULS WAS ENGAGED IN NARCOTICS ACTIVITY, WHICH VIOLATED MR. PAULS' CONSTITUTIONAL RIGHTS AND REQUIRES THAT HIS STATEMENTS AND ALL SUBSEQUENT EVIDENCE OBTAINED AS A RESULT BE SUPPRESSED.
A. Officers Brock and Cox Conducted an Investigatory Detention of Mr. Pauls by Entering his Motel Room and Accusing him of Participating in the Transportation of Narcotics.
B. The Police Lacked a Reasonable, Particularized Suspicion that Mr. Pauls was Engaged in Criminal Activity.
POINT II: THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. PAUL'S STATEMENT TO THE OFFICERS IN HIS MOTEL ROOM WAS VOLULNTARY.
A. The State Failed to Prove Beyond a Reasonable Doubt that Mr. Pauls was Read his Miranda Warnings Before Making His Statement to the Officers in Room 202.
B. Even Assuming for Purposes of Argument that the Police Informed Mr. Pauls of His Miranda Rights, His Fourth Amendment Rights Nevertheless were Violated.
POINT III: DEFENDANT'S TESTIMONY CREATED A FAIR INFERENCE THAT ROOM 308 WAS SEARCHED BY POLICE BEFORE THE SEARCH WARRANTS WERE SIGNED AUTHORIZING A SEARCH OF THE ROOM. THE STATE FAILED TO CALL ANY WITNESSES TO REBUT THAT INFERENCE. ACCORDINGLY, ALL EVIDENCE SEIZED DURING THAT SEARCH SHOULD HAVE BEEN SUPPRESSED.
POINT IV: THE GROSS DISPARITY BETWEEN THE 20-YEAR TERM OF DEFENDANT'S SENTENCE AND THE 5-YEAR TERM IMPOSED ON HIS EQUALLY-CULPABLE CO-DEFENDANT AROSE FROM THE COURT'S FAILURE TO IMPOSE JUST AND UNIFORM SENTENCES FOR THE SAME OFFENSES, AND REQUIRES A REMAND FOR RECONSIDERATION OF SENTENCE.*fn1
We reject these arguments and affirm the denial of the motion to suppress and sentence imposed upon defendant.
We affirm the denial of defendant's motion to suppress substantially for the reasons set forth in Judge Chaiet's January 20, 2006 oral opinion. Judge Chaiet's findings of fact regarding the administration of Miranda warnings to Paul, Paul's waiver of his rights to counsel and to remain silent, and the police search of defendant's motel room only after a warrant was obtained, must be sustained because they are supported by substantial, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 470-71 (1999). The arguments presented under Points II and III of defendant's brief do not have sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2). The only arguments relating to the denial of the motion to suppress that warrant some supplemental discussion are the ones presented under Point I of defendant's brief.
Defendant argues that the police entry into Pauls' motel room, which resulted in his incriminating statements, constituted an unlawful investigative detention, and therefore, those statements and the other incriminating evidence the State gathered based on those statements must be suppressed.
A police officer may knock on the door of a residence and ask the occupant non-accusatory questions without reasonable suspicion of criminal activity. See State v. Domicz, 188 N.J. 285, 302-03 (2006). However, if police questioning would lead an objectively reasonable person to believe that his or her freedom of movement has been restricted, such questioning constitutes an investigative detention (sometimes referred to as a Terry stop), which requires "reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002).
Even assuming Officers Brock's and Cox's initial action in knocking on the door to Pauls' motel room and indicating that they were looking for a Phillip Pauls was only a field inquiry that could have been conducted without reasonable suspicion of criminal activity, the officers' encounter with Pauls was transformed into an investigative detention when they informed him they had information he was involved in possibly transporting drugs from California and administered Miranda warnings to him. At that point, a reasonable person in Pauls' position would not have believed he was free to break off the encounter with the officers and tell them to leave his motel room. Therefore, the question is whether Officers Brock and Cox had "reasonable suspicion" that Pauls was engaged in criminal activity "based on 'specific and articulable facts . . ., taken together with rational inferences from those facts.'" Ibid. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)).
"The 'reasonable suspicion' necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest." Id. at 127 (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). In determining whether police suspicion of criminal activity is reasonable, a court must consider the "totality of [the] circumstances." State v. Davis, 104 N.J. 490, 504 (1986).
In cases where an investigative detention is based on information about alleged criminal activity provided by an informant, a court must consider the informant's "'veracity,' 'reliability' and 'basis of knowledge[.]'" Alabama v. White, 496 U.S. 325, 328, 100 S.Ct. 2412, 2415, 110 L.Ed. 2d 301, 308 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed. 2d 527, 543 (1983)). In considering these factors, a distinction is drawn between cases where the informant is anonymous and cases where the informant is a known, reliable source. See Davis, supra, 104 N.J. at 505-06; State v. Lakomy, 126 N.J. Super. 430, 434-36 (App. Div. 1974). A lesser degree of corroboration is required for information about criminal activity provided by a known reliable source than where the source is anonymous. Davis, supra, 104 N.J. at 506.
In addition, in evaluating an informant's "basis of knowledge," the court "must consider whether 'the information was obtained in a reliable way.'" Stovall, supra, 170 N.J. at 362 (quoting State v. Smith, 155 N.J. 83, 94, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1988)). "In making this determination, courts look to the tip itself, as 'the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source.'" Ibid. (quoting Smith, supra, 155 N.J. at 94).
In this case, the source of information that Pauls might be engaged in the transportation of drugs from California to New Jersey was Pauls' wife. Moreover, the information was very specific. Mrs. Pauls told Officer Cargel that her husband had been paid $5,000 to drive a car from California to New Jersey. She also told Cargel the type of car her husband was driving and that he was currently staying in a specific room in the Days Inn in Neptune, New Jersey. The Neptune police could reasonably infer that the source of Mrs. Pauls' information, particularly regarding Pauls' presence in the Days Inn in Neptune, was Pauls himself, since Mrs. Pauls was in California. Furthermore, the Neptune police corroborated the information provided by Mrs. Pauls regarding her husband's presence in Neptune and the car he was driving (except for the color) before knocking on the door to his motel room. Based on this information, the Neptune police had an objectively reasonable suspicion that Pauls was engaged in transporting drugs from California to New Jersey before they entered his motel room.
This reasonable suspicion was reinforced by Pauls' response to the officers' initial statements that they had information he was involved in possibly transporting drugs. Instead of denying this accusation, Pauls sat on the bed, sighed, hung his head and asked whether he could smoke a cigarette.
Therefore, the trial court properly denied defendant's motion to suppress the statement Pauls gave to the police in the motel room and the other evidence the police gathered based on that statement.
We now turn to the argument presented under Point IV of defendant's brief that his sentence must be vacated because of the disparity between the five-year sentence imposed upon Burstein and the twenty-year sentence imposed upon him.
The search of defendant's motel room following his arrest revealed bags containing approximately twenty-eight and a half pounds of marijuana. Thus, the State had direct evidence of defendant's guilt of first-degree possession of marijuana with the intent to distribute. See N.J.S.A. 2C:35-5(b)(10)(a) (providing that possession of more than twenty-five pounds of marijuana with the intent to distribute is a first-degree offense). At the time of this offense, defendant had three prior convictions for possession of drugs with the intent to distribute. Consequently, defendant was subject to a mandatory extended term sentence under N.J.S.A. 2C:43-6(f). That mandatory extended term would have been from twenty years to life, N.J.S.A. 2C:43-7(a)(2), with a parole ineligibility term of fifteen years. N.J.S.A. 2C:43-7(d). Therefore, the State's agreement to waive the mandatory extended term sentence and period of parole ineligibility, as well as to dismiss the other charges against defendant, provided him with a substantial benefit, and defendant does not argue that this sentence, considered independently of the sentence imposed upon Berstein, was excessive.
The State's plea agreement with Burstein did not involve a plea to a first-degree offense but rather to the second-degree offense of possession of marijuana with the intent to distribute. The prosecutor explained to the trial court at the time of defendant's sentencing that he agreed to accept Burstein's plea to a lesser degree offense than the offense to which defendant had pled because Burstein was not found in possession of any marijuana at the time of his arrest, which would have made it difficult to prove the first-degree offense against him. The trial court accepted this explanation in imposing sentence upon defendant, stating: "Is it fair that Mr. Burstein only gets five years? Perhaps not. But in order to find that out I guess we would have to go to trial on all three defendants." The court also noted that Burstein was suffering from cancer at the time of his plea and sentence.
We are satisfied that the trial court provided an adequate statement of reasons for accepting the State's plea agreement with Burstein, which resulted in imposition of only a five-year term upon the co-defendant, and that the sentence imposed upon him was reasonable.