On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-08-00134 and 04-08-00135.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Baxter and King.
Defendant, Michael J. Wiggins, appeals from his August 10, 2007 conviction for the first-degree crime of leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. On appeal, he challenges the denial of his motion to suppress the fruits of three motor vehicles searches, two of which were conducted on March 10, 2004 and the other on February 1, 2004. After defendant's motion to suppress was denied, he entered a negotiated guilty plea.*fn1 The judge sentenced defendant to a twenty-six year term of imprisonment, subject to a ten-year parole ineligibility term, and a five-year period of parole supervision upon release. Defendant asserts this sentence is excessive. We affirm the conviction and sentence.
In the fall of 2003, a joint task force of law enforcement personnel opened a wide-scale investigation of a narcotics distribution ring operating in Atlantic County. Task force participants included the Division of Criminal Justice, the Atlantic County Prosecutor's Office, and the Atlantic City Police Department. Of the fifty law enforcement personnel who were actively involved in the investigation, twenty-five to thirty were assigned to obtain court approval for wiretaps and communication data warrants, and then conducting the ensuing investigations. The communication data warrants and wiretap authorizations enabled law enforcement to obtain telephone billing records, customer records, and "dialed call" records affecting five telephone numbers. Although the original target of the investigation was co-defendant Adam Bishop, the investigation widened to include co-defendants Eddie Davis, Carlos Lopez, Frank Watson, Aaron Laramore and sixteen others.
A. Search of Lopez's Gray Toyota Van on March 10, 2004
On March 3, 2004, police overheard a conversation between Davis and defendant, during which Davis complained that the supply of cocaine defendant had recently received from a person known only as "Carlos Lopez" was "bad." By contacting Lopez at a cell phone number Lopez had previously provided, defendant asked Lopez to switch the poor-quality cocaine for a better quality. A check of the subscriber information for that cell phone yielded negative results, causing investigators to believe that the name was a false identity.
Law enforcement kept careful track of the pending exchange. In fact, at 5:00 p.m. on March 7, 2004, police overheard defendant tell Davis that Lopez would be traveling to Atlantic City the next day and that the exchange was imminent.
On March 9, 2004, police learned from their electronic surveillance that Lopez had arrived at co-defendant Watson's residence in Atlantic City and was waiting to make the exchange with Laramore at Watson's apartment, known to investigators as 4877 Hawthorne Lane, Mays Landing.
As a result of the information police overheard, Investigator Keith Carmack was positioned outside Watson's apartment, where he observed a gray Toyota van bearing New York license plate CHW-2699 parked in Watson's parking space. Carmack notified Investigator Michael Emmer of what he had just seen. Although Carmack offered to remain there and keep the van under surveillance, after twenty minutes Carmack was dispatched elsewhere.
When a subsequent intercepted telephone conversation suggested that Lopez might already have left Watson's apartment and was headed back to New York City, Carmack immediately returned to Watson's residence at 7:24 p.m. to investigate. The gray van was gone. Realizing that Lopez was about to slip through their fingers, State Police issued an alert advising road troopers to be on the lookout for a Toyota van whose driver was suspected of carrying a large amount of cash and narcotics. The alert also instructed troopers to arrest the driver and seize the vehicle.
Shortly thereafter, Trooper Brian Flaherty saw a Toyota van that matched the description heading north. He effectuated a motor vehicle stop after the vehicle exited the Garden State Parkway, and was about to enter Exit 11 of the New Jersey Turnpike, and placed the driver, later identified as Nelson Lantigua, under arrest. Lantigua was not able to produce a driver's license but was in possession of a New York identification card bearing the name Carlos Lopez.*fn2 Flaherty arranged for the van to be towed to State Police Barracks in Holmdel, where it was impounded. On the morning of March 10, 2004, a search warrant was obtained for the van. During the ensuing search, investigators seized approximately four pounds of cocaine, along with a duffle bag containing $138,930 in cash.
At the same time as Lopez/Lantigua was traveling to Atlantic City, the investigative team was finishing its preparation of a ninety-page affidavit in support of its request for fourteen search warrants, twelve arrest warrants and five vehicle seizure orders. Police filed that application with Judge Garofolo in the early afternoon of March 9, 2004, and the judge issued the warrants the next morning.
Detective DiGiovanni, the individual in charge of the investigation, testified at the suppression hearing that neither a search nor arrest warrant was requested for Lopez/Lantigua because much of the information about him was still not known. In particular, police did not know his true identity, from where he was coming, how he would be traveling to Atlantic City, or where and when the drug exchange would take place. In the past, Lopez/Lantigua had traveled by cab and police had overheard discussion earlier in the investigation about the exchange possibly taking place in a rest area on the Garden State Parkway.
In a comprehensive written opinion of April 5, 2006, Judge Garofolo rejected defendant's argument that police were required to obtain a telephonic or anticipatory warrant before Flaherty stopped Lopez/Lantigua's vehicle on the Turnpike. Defendant conceded in the Law Division that police had probable cause to stop the vehicle. Consequently, defendant's claim of a Fourth Amendment violation rested solely on law enforcement's failure to obtain an anticipatory or telephonic warrant. In rejecting that argument, Judge Garofolo reasoned that because the ultimate search was conducted with a warrant ...