March 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RUDY TORRES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-12-0178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Before Judges Kestin and Newman.
On December 18, 2007, a State Grand Jury returned Indictment No. 07-12-0178 charging defendant, Rudy Torres, and co-defendants, Joseph Agramonte, Rafael Richiez, Lenin Igor Torres, and Pedro Noel Torres, with second-degree conspiracy to maintain or operate a controlled dangerous substance (CDS) --heroin--production facility, and to manufacture and distribute CDS, N.J.S.A. 2C:35-4, N.J.S.A. 2C:35-5a(1) and b(1), and N.J.S.A. 2C:5-2 (count one); first-degree maintaining or operating a CDS production facility, N.J.S.A. 2C:35-4 and 2C:2-6 (count two); first-degree manufacturing CDS, N.J.S.A. 2C:35-5a(1), 2C:35-5b(1) and 2C:2-6 (count three); first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), 2C:35-5b(1) and 2C:2-6 (count four); and third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5, 2C:35-7 and 2C:2-6 (count five).
Defendant moved to suppress the evidence seized as a result of a search pursuant to a warrant on August 2, 2007. The motion was denied by Judge Kracov in an oral opinion of January 27, 2009.
On February 26, 2009, defendant pleaded guilty to counts one and four of the indictment, preserving his right to appeal the suppression motion denial. On April 9, 2009, Judge Kracov sentenced defendant in accord with the plea agreement to a ten-year prison term with four years of parole ineligibility for the conviction on count four and a concurrent five-year term of imprisonment with two and one-half years of parole ineligibility for the conviction on count one. The trial judge imposed appropriate assessments and penalties and dismissed the remaining counts of the indictment. Defendant appeals the denial of the motion to suppress. We affirm.
The relevant facts may be summarized as follows. Detectives of the New Jersey State Police received a tip from an informant of proven reliability that a man named Tito was transporting drugs between New York and New Jersey in a stolen blue Range Rover from Florida. They located that vehicle outside of 106-5 Clinton Avenue, Jersey City. They found and arrested co-defendant Lenin Torres, defendant's cousin, in the stolen vehicle. He told them that at least three men, maybe more, were packaging heroin in the apartment at that address and would destroy or move those drugs if he did not return soon with breakfast. The operation was described as a heroin mill. Lenin Torres told the officers that the three men were all wearing jeans and white T-shirts. The detectives then saw three more men, one of whom was Joseph Agramonte, known as Tito, leaving the building and arrested them. Only two of the men wore white T-shirts; one wore a green T-shirt.
The officers were uncertain whether anyone else was in the apartment, whether weapons were present, and whether evidence would be destroyed if Lenin Torres did not return in a reasonable time.
Under the circumstances, and given the danger posed by their position on the street below the apartment outside the building, the detectives decided to secure the third floor apartment at 106-5 Clinton Avenue, making sure that no one else was there before leaving the premises to obtain a search warrant. Upon executing the warrant later that day, detectives recovered $10 million worth of heroin, along with other narcotics evidence.
In ruling on the suppression motion, Judge Kracov applied the Alvarez*fn1 factors and found that exigent circumstances in conjunction with probable cause supported both the detectives' initial entry to secure the apartment and the warrant subsequently issued to search the premises. The trial judge found "strong probable cause" based on the information detectives received from the informant and from co-defendant, Lenin Torres. The informant, whose reliable tips on seven prior occasions had resulted in the recovery of large quantities of drugs, told detectives that Tito was using the stolen Range Rover to transport narcotics. The police corroborated that tip.
The trial judge found that Lenin Torres then told detectives that heroin was being processed and packaged by an uncertain number of other possibly armed persons in the apartment at 106-5 Clinton Avenue, which Torres exited just before his arrest for driving the stolen Range Rover. The trial judge found that the police had "abundant probable cause" to support their entry into the apartment.
Lenin Torres testified at the suppression hearing, denying that he told the State Police the details of what type of drug packaging facility was being operated from the third floor apartment at 106-5 Clinton Avenue. He further claimed that a recorded oral statement repeating the details of what he initially told the detectives at the scene after being Mirandized was not true and was a cut and paste job. Lenin Torres also denied he was being truthful when he admitted that he was a participant in packaging the heroin when he entered his guilty plea. Judge Kracov found his testimony to be incredible and rejected it.
The trial court further ruled that exigent circumstances fully justified the detectives' decision to enter the apartment to secure it before obtaining a search warrant. In applying the Alvarez factors, Judge Kracov found that Lenin Torres had advised the detectives that if he did not return soon with breakfast, the drugs would be destroyed or moved. The trial judge found that if the police did not act quickly, the drugs would be lost. The three men who left the building were not all wearing white T-shirts, leading the police to believe others remained on the premises.
The trial court also remarked that Detective Muscianesi began drafting the affidavit in support of the search warrant at about 10:30 a.m. and that the warrant was not issued until approximately 3:10 p.m. The trial court determined that it would not have been reasonable under the circumstances for the detectives to attempt to obtain a telephonic warrant because the amount of information presented for a warrant would have taken at least an hour to communicate by telephone. The trial court considered the amount of time taken to properly prepare the affidavit and present it to obtain the search warrant was reasonable. The factor that a considerable amount of time would have been expended in obtaining a search warrant added additional support to the police effort to secure the premises.
The trial court found that the detectives reasonably believed their safety was at risk given their compromised presence on the street in a dangerous urban area, where drug dealers could believe they were rivals attempting to rob them. Given the exigencies involving a heroin mill and possibly armed suspects still on the premises, the trial judge was satisfied that the detectives properly secured the location before applying for a search warrant.
On appeal, defendant raises the following issue for our consideration:
POINT I BY DISCUSSING THE DETECTIVES' PRIOR WARRANTLESS ENTRY INTO THE APARTMENT WITH THE JUDGE WHO ULTIMATELY ISSUED THE SEARCH WARRANT, DETECTIVE MUSCIANESI IRREPARABLY TAINTED THE WARRANT APPLICATION PROCESS.
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED PURSUANT TO THE TAINTED WARRANT.
Defendant argues that the warrantless entry into 106-5 Clinton Avenue to secure the third floor premises was not supported by exigent circumstances and was in violation of defendant's rights under the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Defendant also contends that discussing the entry with the trial judge who issued the warrant tainted the application process, and should have resulted in granting the suppression motion. We disagree with both contentions and affirm the denial of the suppression motion substantially for the reasons expressed by Judge Kracov in his oral decision of January 27, 2009. We add, however, the following brief comments.
We are not aware of any authority to support the proposition argued here that a legally obtained warrant, fully supported by a showing of probable cause, should be invalidated if the issuing judge knows police already have entered the premises. Here, the fact that the premises had been secured is not relevant to the issuance of the warrant, regardless of whether the court knew or did not know about the entry. Moreover, the affiant officer here was extremely cautious, avoiding any discussion with the issuing judge of the narcotics evidence that the detectives observed in plain view while securing the apartment. Nor did the officer include anything in the affidavit revealing what was observed during the prior entry by the police to secure the premises. We discern no basis to disturb the decision denying defendant's suppression motion.