January 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WASIU ONIGBANJO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Carchman and Ashrafi.
Following an unsuccessful motion to suppress and thereafter, a jury trial, defendant Wasiu Onigbanjo was convicted of third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); third- degree possession of cocaine, N.J.S.A. 2C:35-10a(1); and two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35- 5a(1) and 2C:35-5b(3). With the trial judge sitting as a municipal court judge, defendant was also convicted of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2.
At sentencing, the State moved for an extended term relying on defendant's prior criminal convictions, N.J.S.A. 2C:43-6f. Specifically, defendant had previously been convicted of three indictable offenses in Essex and Union Counties, including charges for possession and distribution of CDS. Defendant did not oppose the state's motion but urged that he was "someone with a very serious drug problem who [was] selling drugs out of a dingy motel, making a few bucks here and there to support his own habit" and suggested an appropriate sentence for the distribution offenses would be "somewhere in that second-degree range, the extended term range of five to seven years...." He also requested that the sentences for distribution be run concurrently.
In sentencing defendant, the trial judge noted:
[o]n the aggravating factors, risk of further offense, prior history, need to deter. I really don't see any mitigating factors. Possibly that your being a drug addict explains your conduct. That is about it.
With regard to sentence I will merge count five, which is the possession, into count four, which is the intent to distribute, [and] grant the extended term under [N.J.S.A. 2C:43-6f.] On the distribution, count six, it's going to be the extended term will be imposed on that at a seven year term, three years without parole. Count seven, which is a separate distribution, it will be a five year term, two and a half without parole, but consecutive. Count four, which is the ["]with intent to distribute,["] five years, two and a half without parole, concurrent to count six. And the disorderly, six months concurrent also to count six.
The judge sentenced to an aggregate of twelve years incarceration with a five and one-half year parole ineligibility period. We affirm the conviction but remand for resentencing. These are the relevant facts adduced from the record. In February 2007, officers of the Middlesex County Prosecutor's Office Narcotics Task Force received information defendant was selling narcotics in Piscataway. Further investigation suggested defendant had moved his operation to the Ivory Tower Motel in Green Brook Township, Somerset County. On February 6, an undercover officer of the Task Force attempted an undercover purchase from defendant. Back-up officers identified defendant exiting room 211 of the motel for the sale and returning to that room after completion of the transaction.
The sale took place in the undercover officer's car, and after completion of the sale, the officer was provided defendant's cell phone number for future transactions. The transaction was observed by other officers providing backup.
Another transaction was arranged for February 7. The officer called defendant on the phone number provided to her the evening before and stated she was interested in purchasing more crack cocaine. Defendant stated he could "help [her] out" and asked her to return to the motel. Police again observed defendant leaving room 211 to meet with the officer in the parking lot. On this occasion and consistent with the prior transaction, defendant received one-hundred dollars in exchange for two plastic baggies, containing what was later found to be crack cocaine.
Based on the two undercover buys, the police obtained a search warrant on February 8. The warrant covered defendant's person and room 211 of the Ivory Tower Motel. Within hours of obtaining the warrant, police observed defendant and another man, later identified as co-defendant Michael Emmanuel, exit room 211 "carrying a couple bags" and enter room 224, a few doors away. A few minutes later, a motel cleaning crew entered room 211.
The supervising officer on scene spoke with the motel manager and was informed that "the gentleman who was in 211 had a problem with [his] toilet," necessitating the move. The officer then informed the manager "we had a warrant to execute at room 224" and asked "if [the manager] could go in and knock on the door and then when the individual opened the door to just step aside." The manager agreed to co-operate. According to the officer, events then unfolded quickly:
Q:... Once you went up to the room with the manager and the other officers, what did the manager do?
A: Knocked on the door. Something I have to speak to you, something to that effect, something short. The door opens up, the manager stepped aside. Mr. Onigbanjo had answered the door, standing in the threshold of the door and my guys grabbed him and fell inside the room.
Q:... Now, once the other officers grabbed Mr. Onigbanjo and fall into the room, what do they do with Mr. Onigbanjo at that point?
A: They pick him up. Immediately there is what appears to be a quantity of [a controlled dangerous substance (CDS)] observed on a bed. Mr. Onigbanjo was arrested, placed under arrest and so was Mr. Emmanuel.
A: I then asked for consent from both individuals to search the room. They both declined. I informed my... men to secure the room and I was going to have to try and get a warrant for that room.
After instructing his officers not to search the room, Sergeant Muntone contacted his legal advisor and was advised that the officers would attempt to secure a phone warrant. In a three-way phone conversation between two officers and the judge, the officers explained to the judge the whole situation of what had transpired with room 211 being vacated and then going into room 224, and I explained that along with what I had observed in plain view.
I very well could have said, your Honor, that warrant you signed for 211, we were going to execute, but here's what happened and then went from there.
In response to this information, the judge granted the telephonic warrant, and the police conducted a thorough search of room 224. The search formally uncovered:
[On a bed,] one dark colored sock[,] [which] contained a plastic bag with suspected cocaine in it and a copper color scrub ball... used to put into pipes and... to smoke cocaine with.
[On the same bed,] [o]ne clear knotted plastic bag containing more suspected cocaine, one glass pipe with foil wrapped around it, which is usually used to smoke cocaine once again, and just assorted small clear plastic bags.
[On a second bed,] [a] small Jack Daniels bottle also used as a pipe, a black duffel bag containing small sandwich bags, one brown paper bag with a small piece of the  copper scrub,... [t]wo Tax Pro income tax paper envelopes with [defendant's] name written on them, a box of Irish Spring soap, two red bricks, one black ash try, and two glass ash trays.
One red and blue... backpack containing a small black pouch with three small glass pipes with residue on them. One clear baggie. One needle nose pliers. One scissors and one silver wine bottle opener.
On top of the dresser there was a CD case with about fifteen little pieces of a white rock-like substance suspected to be cocaine on it with a razor blade, little baby pin, and that was what was found on top of the dresser.
Inside the dresser, investigators found a plastic little Seagram's bottle... and it actually had a hole in it so it was used to smoke crack with. There was a... glass... pickle jar with clear liquid with some type of white powder in it. There was a plastic soda bottle also used as a pipe, and one silver colored pot was found in the bottom of the dresser drawer.
No money or CDS was found on defendant's person. As noted, based on the two undercover transactions and evidence found in the motel room, defendant and Emmanuel were arrested.
During discovery, the parties learned that the judge who granted the telephonic search warrant did not take contemporaneous notes or set forth his recollection of the officer's testimony for six weeks, sending out a memorandum on March 22, 2007. In fact, the version of events described in the judge's memorandum differs in important respects from the testimony of the officers at trial. The most critical conflict was the location of defendant at the time the officers confronted him at room 224. According to the officers, defendant was inside the door jamb and "fell inside the room[;]" the judge recorded that defendant was arrested outside the room.*fn1
Both defendant and co-defendant Emmanuel moved to suppress all evidence seized during the search. Defendant conceded that the motion would not affect the charges relating to the undercover purchases that took place on February 6 and 7. At the hearing on the motion to suppress, the State acknowledged the invalidity of the telephonic warrant. The State focused instead on the valid warrant to search defendant's person, which was then located in room 224. Specifically, the prosecutor noted that they had the right to go in there and arrest him, and upon opening that door, as you can plainly see from the testimony, there was [sic] narcotics on the desk area that was to the right....
There was [sic] narcotics on the bed, a clear room from those photographs, once you're in that doorway you could see those two beds clearly. There was no wall, nothing dividing it....
The whole question is did they have the right to be in there, because they had the right to arrest this person. I suggest to the Court that when they were effectuating that, and the doorway of that thing and they fell in, they had the right to be there.
Judge Coleman*fn2 agreed that the telephonic search warrant was defective but observed that the personal search warrant, issued in response to the two undercover purchases, was of greater importance to this case. Based on his observation of the size of the two officers, Judge Coleman found their testimony as to the interaction with defendant credible, and he concluded that the search was valid under the "plain view" exception to the general warrant requirements. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed. 2d 695 (1984). The judge found the "inadvertent discovery" element of the "plain view" exception satisfied "in the sense that they didn't know if he would or wouldn't [have drugs or paraphernalia], they suspected that he would." He concluded that the police had probable cause to believe the seized items were contraband based solely on the presence of crack cocaine on the bed.
Ultimately the judge concluded:
So, the motion to suppress is denied. I find it to be valid, even though this attempt at a telephonic search failed. I still find the search to be valid based on other circumstances. There was certainly probable cause for the issuance of the original search warrant that is presumptively valid. I've not been given any information to show it's invalid, based on what I heard from Alexander, it's substantial support for that, undercover buys.
They were in a situation, in an appropriate situation to seize the person of Larry, Mr. Onigbanjo, when he came to the door. They seized him, they searched him, and in the process when the door was open, having had the opportunity to look at the photographs... this is typical motel room, you know, old time motel room. This is an old time motel. You open the door and you see the whole room. You have the two beds, you have the dresser and the only thing that isn't perfectly in sight is the back room, which is the bathroom, but isn't directly open to the public. But everything else is open to the public.
The testimony here, although there was reference to one photograph versus another photograph, that limitation would be viewed only if the Officer never moved from the hammer [sic - camera?] position that the person in the photograph assumed. I don't assume that certainly the Officer standing there at the door could look around for whatever they could see, but it's apparent to me that in seizing his person and opening the door to seize his person with these three police, I'm guessing, but I'm guessing that they're fairly sizeable police officers, are seizing the person of Larry that is definitely going to open the door, which is going to reveal everything within the room. There's no indication that the room was dark or dingy. It just appeared to be a normal motel room. And that it was observable on the bed or on the dresser and seen.
And once Larry was seized and searched and the drugs were seized and it's immediately apparent that the drugs were rock cocaine, which was also immediately apparent, because they matched the same type of packaging that Larry was dealing, allegedly, out in the parking lot two days prior, which led to further search of person's seizure for joint possession and control, which led to recovery of further information on Mr. Emmanuell.
So I find that under the circumstances, the value of the circumstances presented, there's probable cause for the actions of the officers and the search and seizure was legitimate, although not based on the telephonic search, not based on that.
The matter then proceeded to trial. At trial, the State presented an expert on the use and sale of narcotics who opined that crack cocaine is formed by heating pure cocaine with baking soda in a liquid solution to separate out the "hydrochloride."
On cross-examination, the expert conceded that no heat source, such as a hot plate, was discovered in the motel room. However, the officers did discover bricks, ash trays and a pot.
At the close of the State's case, both co-defendants moved for acquittal. The judge denied the motions, in part because of [t]he fact that there are two bricks in his duffel bag. Two bricks. People don't normally carry bricks with them. But here we have two bricks in the duffel bag. We have a pot in the drawer. People don't normally keep... a cooking pot in the drawer. We have what appears to be burn marks on the bricks when I saw them. We have ash trays that are also there, and certainly there's sufficient evidence, direct and circumstantial, that the jury could draw the conclusion that these people in that room were cooking up crack cocaine.
The issue of any potential heat source did not arise again until closing argument. Defendant's counsel stated:
[The expert] readily admits... he made mention of a lot of different items like baking soda, a heating implement, a hot plate, stove, can coffee filter, a scale. None of that was in the hotel room.
In response to defense counsel's cross-examination of the expert and closing statement, the prosecutor attempted to re- create a heat source using the bricks, pot and ash trays seized from room 224. At side bar, the following colloquy ensued:
[DEFENDANT'S COUNSEL]: Correct me if I'm wrong, but I don't think we had any testimony from the expert or any of the police officers especially following a demonstration as to how you would use the bricks and a pot and an ash tray to heat anything up. I don't think we had any testimony at all whatsoever.
[PROSECUTOR]: I didn't say that and my point was going to be the expert did say you could cook it and you need a heat source, a pot and something to put it in. So I'm going to ask [the jury] to make the reasonable inference. I'm commenting on the evidence, I'm not saying [the expert] said they used bricks.
[DEFENDANT'S COUNSEL]: Never putting together those bricks with an ash tray and the pot on direct of the expert. No testimony at all about what the bricks were used for in terms of heating up the pot. Not at all.
[CO-DEFENDANT'S COUNSEL]: Now we are going to have a demonstration. Now we are going to have a demonstration.
[PROSECUTOR]: I don't think they have to. They can draw a reasonable inference that they were told they can cook cocaine and make it crack cocaine. They were told you need a pot and some kind of heat source. I think I can ask them to draw an inference....
THE COURT: I think he is perfectly entitled to make this argument to the jury.... It's not required that the expert say this is what that was used for. It's evidence in the case and he's making a reasonable argument based on what he has.
[DEFENDANT'S COUNSEL]: By... essentially creating, demonstrating and creating a heating implement.
THE COURT: He is drawing a reasonable conclusion based on evidence that he has to work with.
[DEFENDANT'S COUNSEL]: This is something that was not gotten into at all on direct with the expert. I can't confront this.
Judge, this is a little bit... different than taking bullets and seeing if they fit into a gun. This is basically... playing with a building set and saying this must be the way it was used to heat it. I think they should have gone through [it] on direct.
THE COURT:... [the expert] was asked the question, well, how do you convert from powder coke to crack? And he explained the process how you cook it basically. And this is a reasonable deduction based on the evidence that is available. They can accept it. They can reject it. But it is certainly a reasonable argument to be made.
The judge overruled defendants' objection.
On appeal, defendant asserts:
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
THE FAILURE OF THE COURT ISSUING THE TELEPHONIC WARRANT TO RECORD THE TESTIMONY OF SERGEANT M[U]NTONE OR TO TAKE CONTEMPORANEOUS NOTES VIOLATED DEFENDANT'S RIGHT TO CONFRONT THE WITNESS AGAINST HIM AND EFFECTIVELY CONTEST THE SEARCH WARRANT.
DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED BY FAILING TO PROVIDE A CURATIVE INSTRUCTION TO REMOVE THE TAINT ON THE JURY FROM THE PROSECUTOR'S UNDULY PREJUDICIAL CONDUCT DURING SUMMATION WHERE THE PROSECUTOR ASSEMBLED CERTAIN EXHIBITS ADMITTED INTO EVIDENCE INTO A MAKESHIFT HEATING APPLIANCE NECESSARY TO MAKE CRACK COCAINE.
THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR POSSESSION OF CDS, POSSESSION OF CDS WITH INTENT TO DISTRIBUTE AND DISTRIBUTION OF CDS WERE MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.
We have carefully reviewed the record and conclude that as to Point II, the trial judge here did not consider the telephonic warrant so that we need not address that issue. We likewise conclude that as to Point III, the trial judge did not abuse his discretion in allowing the prosecutor to assemble the exhibits. We conclude that defendant's arguments in this regard are without merit, R. 2:11-3(e)(2), and require no further discussion.
We now address Points I and IV.
The focal point of dispute is the execution of the search warrant for defendant's person and the search of the premises that followed. The State asserts that, despite the invalidity of the telephonically authorized warrant, evidence seized from room 224 is otherwise admissible under the "plain view" exception to general warrant requirements. The State correctly notes that in Bruzzese, supra, the New Jersey Supreme Court adopted the standards for "plain view" seizures set forth by the United States Supreme Court in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed. 2d 502 (1983). 94 N.J. at 236-38. The Bruzzese approach constitutes a three-part test: the seizing officers must be lawfully in the place of discovery, come across the seized items inadvertently and have probable cause to believe the items are contraband. Ibid. While the United States Supreme Court has eliminated the "inadvertent discovery" requirement, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed. 2d 112 (1990), it retains force in New Jersey, State v. Lane, 393 N.J. Super. 132, 144, 146-49 (App. Div.), certif. denied, 192 N.J. 600 (2007). New Jersey courts have, however, construed that prong narrowly; a showing that police had generalized expectations of an item's recovery will not serve to defeat an otherwise valid seizure. Bruzzese, supra, 94 N.J. at 238 (citing United States v. Johnson, 707 F.2d 317, 321 (8th Cir. 1983)).
Here, the police had a valid warrant to search defendant's person and arrest him for the two CDS sales to an undercover officer. Defendant's move from room 211 to room 224 had no effect on the ability of police to detain him. When defendant opened the door of room 224, police were lawfully present at a location where they could see clearly into the room. Likewise, any evidence seen by police - either from the doorway or just inside the room when they secured defendant - was discovered inadvertently.
Upon apprehending defendant, the police observed what was obviously contraband in plain view - the evidence observed on the bed. The inquiry required by Bruzzese is whether the seizing officer believes there is "[a] practical, non-technical probability that incriminating evidence is involved....
[T]he court looks to what the police officer reasonably knew at the time of the seizure." Id. at 237 (internal quotation omitted). These were experienced officers and narcotics investigators viewing rock crack cocaine and related materials.
The judge's conclusion that the evidence was in plain view and was seized pursuant to a constitutional warrantless search is well-supported by the record. Id. at 239. We find no basis for our intervention.
As to the issue of sentencing, we reach a different result.
At sentencing, the judge imposed consecutive sentences for the two separate drug transactions. The first sentence was a seven year extended term with a three-year period of parole ineligibility and the second was a consecutive sentence of five years with parole ineligibility of two-and-one-half years, amounting to an aggregate sentence of twelve years with a five- and-one-half year period of parole ineligibility.
We have no issue with the application of the aggravating, N.J.S.A. 2C:44-1a(3), (6) and (9), and non-existing mitigating factors, nor do we question the extended term. We do not find anything in the record, however, to support the imposition of consecutive sentences.
When a defendant receives multiple sentences of imprisonment for more than one offense, "such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence...." N.J.S.A. 2C:44-5a. The Supreme Court has provided "specific criteria to guide sentencing courts in deciding whether to impose consecutive or concurrent sentences." State v. Miller, 108 N.J. 112, 121 (1987) (citing State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1988)). It is not necessary to iterate all the Yarbough criteria at this juncture, but a sentencing court must expressly provide the reasons for imposing consecutive sentences; failure to do so may compel a remand for resentencing. State v. Carey, 168 N.J. 413, 424 (2001) (citing State v. Miller, 108 N.J. 112, 122 (1987)); State v. Mosch, 214 N.J. Super. 457, 465 (App. Div. 1986) (noting that "the court must clearly state its reasoning for imposing a consecutive sentence"). This court, however, has "the discretion to affirm a consecutive sentence without the reasons having been expressly stated where 'the facts and circumstances leave little doubt as to the propriety of the sentences,' and the sentences are not shown to be 'clearly mistaken.'" State v. Soto, 385 N.J. Super. 247, 257 (App. Div. 2006) (quoting State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003)).
No such findings were made here, and we do not conclude the facts leave "little doubt" as to the propriety of the sentence imposed. See Ibid. (finding that the imposition of consecutive sentencing was "self evident" when the defendant committed separate crimes on separate occasions and entered into a plea agreement, which called for consecutive sentences). We remand to the trial judge for reconsideration of the sentence and a statement of reasons if consecutive sentences are imposed again. In all other respects, the judgment is affirmed.
We do not retain jurisdiction.