July 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER J. ROGERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-01-0076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2009
Before Judges Sapp-Peterson and Alvarez.
Defendant, Peter J. Rogers, appeals from his conviction following the entry of a guilty plea to Count Fourteen, as amended, conspiracy to possess a controlled dangerous substance with intent to distribute, a second-degree crime. N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and 2C:35-5(b)(2). In exchange for the guilty plea, the State recommended a seven-year custodial term and the dismissal of the remaining counts of the indictment. On appeal, defendant contends "the municipal court erred in its determination of probable cause; [and] the warrant was therefore invalid and the seizure of the contraband was unconstitutional." We disagree and affirm.
The controlled dangerous substances at issue were seized from defendant's residence following the execution of a search warrant issued by a Lakewood Municipal Court judge on December 2, 2004. At that time, Investigator Michael Korpon of the Ocean County Narcotic Strike Force (OCNSF) sought the issuance of a search warrant from the municipal judge for a residence located at 213 Lakewood Court, Little Egg Harbor, and a vehicle, specifically, a 1989 silver Honda Accord with a vehicle registration number of RVF-11Y.
In support of the application, Korpon submitted an affidavit in which he set forth the basis for the search warrant. Of significance to this opinion are the statements by the affiant relative to a confidential informant (CI). According to Korpon, the CI was personally familiar with an individual named Pete, who police later identified as defendant. According to the CI, Pete was distributing cocaine in the Little Egg Harbor Township area. The CI had Pete's cellular phone number and, at the behest of the police, contacted Pete to arrange the purchase of cocaine. Police searched the CI and his vehicle before the CI met with Pete and found no contraband or money. The CI was given previously recorded OCNSF Confidential Funds and then placed under surveillance as he traveled directly to Pete's residence. The CI entered the residence and exited a few minutes later. He then entered his vehicle and returned, still while under surveillance, to a prearranged location where he turned over to police a white powdery substance which was believed to be cocaine. The CI made one additional purchase from Pete at the same location during the week of November 14. Police followed the same search procedures before the CI entered the residence. Once the CI exited the premises, he was again surveilled as he drove directly to a prearranged location to meet police. Once again, he handed police a white powdery substance suspected to be cocaine.
The affiant stated further that during the week of November 28, the C.I., at the request of OCNSF, contacted Pete to arrange to purchase cocaine. This time, however, the purchase was to be made at a mutually agreeable location. Before traveling to the location, police searched the CI and his vehicle and, once sure that there were no drugs or money on the C.I. or in his vehicle, they provided him with an amount of money from the previously recorded OCNSF Confidential Funds. Police maintained surveillance of the entire incident and observed Pete arrive at the location in a silver Honda bearing registration number RVF-11Y. Pete stopped his vehicle alongside the C.I.'s vehicle. He exited the Honda and walked over to the C.I., who was still seated in his vehicle, at which time the police observed a hand-to-hand exchange take place. Once the transaction was completed, the C.I. returned to a location previously arranged by police where he turned over a white powdery substance of suspected cocaine.
The court issued a search warrant for the premises, with a no-knock provision. The court also issued a search warrant for the silver Honda. On December 7, police executed the search warrant at the 213 Lakewood Court residence from which suspected cocaine and narcotics paraphernalia were seized. Defendant was present at the time of the search and was arrested at that time. There were seven juveniles present at the residence at the time of the execution of the search warrant, and they were also taken into custody.
At the suppression hearing, defendant's trial counsel argued: (1) the affidavit lacked probable cause on its face; (2) a Franks*fn1 hearing was required; and (3) there was no basis for the no-knock provision contained in the warrant. The court rejected all of defendant's arguments. Specifically, as to the reliability of the confidential informant, the court stated:
In the affidavits in support of the warrant there are, as [the assistant prosecutor] points out, not one controlled buy, not two controlled buys, but three controlled buys through a confidential informant.
While it is argued that the CI in this case is unsubstantiated and uncorroborated, even if that were true, that this was a brand-new CI and that had never been used or relied upon in the past or proven to be a reliable confidential informant in the past, the fact is that in this case there were three controlled purchases by this confidential informant in a two-week period of time.
Likewise, with respect to defendant's contention that the search warrant was stale, the court found:
And [defense counsel] argues that - -one of the arguments he makes is that the execution - - the information in the search warrant was stale because the warrant was executed on December 2nd, and [this] confidential informant or these CI purchases were back in the week of November 14th.
But that's not what it says. It says between the dates of November 14th and November 28th, which is a two-week period of time. And while it is true that it's not disclosed to [defense counsel] or his client, Mr. Rogers, and it's not disclosed to the Court, as to when those dates were -- and the reason in the law is clear as to why those specific dates are not available, and why we rely on confidential informants and that type of information, is to protect the identity of confidential informants; otherwise, we wouldn't call them confidential informants.
We would just call them by this name and say: On this date this person did X, Y and Z.
So, the difference in time frame is possibly as short as four days or as long as 18 days, but no longer than an 18-day period of time, and possibly as short a period of time as four days between the last confidential informant controlled purchase and the execution of the search warrant.
Clearly, it's not stale. Clearly, there was probable cause. There was field-tested CDS purchased on each and every one of those occasions, through proper surveillance of the confidential informant before and after the checking. The affidavit for the warrant sets it forth.
The court also addressed defense counsel's challenge to the method of identification of defendant:
There's some argument that's made here about the age of the photographs shown. And, quite frankly, if counsel is able to discern somebody's weight and age from viewing a photograph, and common sense would dictate that you can't recognize somebody from their high school photograph now, if that was a high school photograph used, I don't see anything in these papers to suggest that an outdated photograph was used and that there was no positive identification.
In sum, the court found that there was probable cause for the issuance of the search warrant when the facts set forth in the affidavit were viewed under the totality of the circumstances. The court concluded that the evidence of probable cause was "overwhelming."
The court next addressed whether there was a sufficient basis in the record to justify the inclusion of a no-knock provision in the search warrant. The court found that Korpon's affidavit satisfied all of the tenets of State v. Johnson, 168 N.J. 608 (2001):
The qualifications of the investigating officer are remarkable, inasmuch as there's an extensive training and experience by an experienced law enforcement officer who specialized in a large part of his career, up until the issuance of that warrant, in narcotics investigation and was assigned to the Ocean County Narcotics Strike Force, which is renowned in its experience and training of its officers.
The controlled buys themselves, and the set-up of that investigation, leads this Court to the conclusion that the training and experience of the officer alone meets that prong of that portion of the test.
Couple that with the fact that this particular defendant is going to be problematic. He has twelve felony convictions in his jacket already, including resisting arrest, possession of an assault firearm, possession of firearms without a permit, and prior possession-with-intents and distributions of CDS.
This is going to be charges that are going to lead to extended-term-mandatory provisions for possession with intent to distribute. We have three actual distributions that have already taken place, with good evidence against this defendant.
There's a strong likelihood that this defendant would attempt to destroy whatever evidence [is] on the premises, or otherwise effectuate flight or resist with force.
In light of all those facts and circumstances, I believe the criterion of Johnson[, supra,] has been clearly met, and the no-knock provisions of the search warrant were called for and appropriate.
Based upon these findings, the court denied the suppression motion and added that in its view, defendant "failed to carry the day even to establish the necessity of a . . . Franks hearing or plenary hearing[.]"
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, 46 (2004)) (internal quotation marks and citations 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 (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 (citing State v. Contursi, 44 N.J. 422, 431 (1965); State v. Sainz, 210 N.J. Super. 17, 22 (App. Div. 1986), aff'd, 107 N.J. 283 (1987).
When Korpon's affidavit is examined under the totality of the circumstances existing at the time he sought the issuance of the search warrant, we are satisfied there was a fair probability that evidence that defendant was illegally distributing controlled dangerous substances from 213 Lakewood Court would be uncovered at that location. State v. O'Neal, supra, 190 N.J. at 612. Korpon's affidavit disclosed his background in narcotics investigations, which, as the trial court found, was extensive and included serving as the supervisor of the Stafford Township Drug Enforcement Unit, attending numerous seminars related to narcotics activities, and participation in numerous narcotics investigations. The affidavit also disclosed Korpon's familiarity with the location of defendant's illicit activities as a result of the surveillance operations that occurred at the location during the two controlled purchases by the C.I. Additionally, Korpon was familiar with the extensive nature of defendant's prior criminal history. Finally, the information provided by the C.I. related to defendant's narcotics activities was independently corroborated through the surveillance operation. State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998) (stating that "corroboration is an essential part of the determination of probable cause."). Additionally, the reliability and veracity of the information provided by the C.I. was also independently corroborated by the field testing of the suspected narcotics the C.I. turned over to Korpon after each purchase. See Jones, supra, 179 N.J. at 391 (2004).
In summary, we are in complete accord with the trial judge that the affidavit submitted in support of the search warrant application, when viewed under the totality of the circumstances, State v. Keyes, 184 N.J. 541, 555 (2005), established the overall reliability of the information provided by the C.I.