July 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW L. BRICE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-08-1116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2011
Before Judges Fuentes, Ashrafi and Newman.
Following a guilty plea, defendant Matthew Brice appeals the denial of his motion to suppress evidence. We affirm.
On April 8, 2008, the FBI executed a federal search warrant issued by a United States Magistrate Judge for defendant's home in Brick, New Jersey. They were seeking evidence of computer downloading or possession of child pornography. Brick Township police officers accompanied FBI agents during the execution of the search warrant. The FBI found no evidence of child pornography but unexpectedly found a marijuana growing operation in defendant's basement. The local police then obtained a State search warrant the same day and seized ten or more marijuana plants and other evidence.
Defendant was arrested, and a nine-count indictment was later returned against him by a State grand jury. He moved to suppress the marijuana evidence as the product of an unlawful search and seizure by State law enforcement officials. The trial court reviewed the documentary evidence and denied defendant's motion without holding an evidentiary hearing. Subsequently, defendant entered into a plea agreement and pleaded guilty to one second-degree count of manufacturing a controlled dangerous substance in violation of N.J.S.A. 2C:35-5a(1). He was sentenced in March 2010 to five years' imprisonment.
Defendant appeals denial of his suppression motion in accordance with Rule 3:5-7(d), making the following arguments:
THE MOTION JUDGE MISCONSTRUED THE ISSUES RAISED BY THE MOTION TO SUPPRESS AND IN SO DOING DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
The Trial Court Applied the Wrong (Federal) Standard The Mishandling of the Motion Reversed the Burden of Proof This is Not a Franks Case
THERE WAS NO PROBABLE CAUSE FOR THE FEDERAL WARRANT.
The Motion Judge Erred in Finding Child Pornography Had Been "Ordered" From the IP Address Traced to Defendant's Address
THE "PLAIN VIEW" EXCEPTION CANNOT BE INVOKED TO JUSTIFY THE STATE SEARCH WARRANT BECAUSE DET. SHEPHERD WAS NOT LAWFULLY PRESENT IN THE PLACE WHERE HE VIEWED THE MARIJUANA PLANTS.
We find no merit in any of these arguments, some of which were not presented or argued in the trial court.
Defendant did not directly challenge the State warrant authorizing seizure of the marijuana. He attacked the sufficiency of probable cause for the initial federal search warrant seeking evidence of child pornography. In the trial court, he argued that the FBI agent's affidavit in support of the federal warrant did not adequately identify the computer from which child pornography had allegedly been ordered and did not pinpoint the location of that computer at defendant's home. He also argued that the affidavit did not demonstrate that someone at defendant's home had actually ordered child pornography for delivery. The trial court correctly rejected these arguments, finding that the federal warrant had been issued on a sufficient showing of probable cause.
The FBI agent's affidavit set forth in detail an investigation of several months leading to discovery of a website offering child pornography for sale. It averred that a computer registered by its Internet Protocol (IP) address to defendant's home had been used to request child pornography from that website. We find no error under the Fourth Amendment of the federal constitution in the United States Magistrate Judge's issuance of the federal warrant. See U.S. v. Vosburgh, 602 F.3d 512 (3d Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1783, 179 L. Ed. 2d 656 (2011).
We also reject defendant's argument that the trial court erroneously placed the burden upon him to prove that the search and seizure violated his constitutional rights. For the first time on appeal, defendant argues that the federal warrant did not meet standards applicable under article I, paragraph 7, of the New Jersey Constitution for issuance of a search warrant and, as a result, Brick Township police officers unlawfully participated in the initial search. From this contention, defendant asserts that because State law enforcement officers were not lawfully inside defendant's home pursuant to a valid warrant, the marijuana they saw in plain view in the basement could not form the basis for issuance of the subsequent State search warrant. He extrapolates from these arguments that State officials seized the marijuana by means of a warrantless search of his home, and therefore, the State should have borne the burden of proving that the search did not violate his State constitutional rights.
There is no viable dispute, however, that law enforcement officials entered and searched defendant's home pursuant to search warrants, the first issued by a federal magistrate judge and the second by a State judge. They did not conduct a warrantless search of defendant's home. Where a search is conducted pursuant to a warrant, the defendant bears the burden of proving the warrant was not lawfully obtained, or that the police conduct was otherwise an unreasonable search that violated his federal or State constitutional rights. See State v. Chippero, 201 N.J. 14, 26 (2009); State v. Evers, 175 N.J. 355, 381 (2003).
The trial court concluded correctly that defendant had not made a preliminary showing of an alleged defect or falsehood in the FBI agent's affidavit to require a hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and State v. Howery, 80 N.J. 563, 567, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L.Ed. 2d 424 (1979). See State v. Robinson, 200 N.J. 1, 7 (2009). The court also did not err procedurally in relying on the contents of the FBI agent's affidavit to decide the issue of probable cause for the warrant, and in placing the burden of proof on defendant. An evidentiary hearing was not necessary and would not have been helpful.
Since the FBI agents were lawfully inside defendant's home pursuant to the federal search warrant, the marijuana plants were lawfully seen in plain view and could have been seized then and there without further judicial action. See State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Nothing in the federal or State constitutions prohibited the FBI from seizing the marijuana and handing it to State law enforcement officials, or simply conveying information about the marijuana to local authorities, so that they could prosecute defendant. In State v. Mollica, 114 N.J. 329, 347-55 (1989), the Court explained the so-called "silver platter doctrine" by which evidence seized lawfully by federal agents under federal law may be transferred to State authorities for use in a State prosecution. The fact that Brick Township police officers were already on the scene and saw the marijuana for themselves does not change the scope of defendant's constitutional rights.
Defendant argues that limitations our Supreme Court has placed on the "silver platter doctrine," see id. at 345-55, made it unlawful for the State to use evidence discovered through a federal search that would not have satisfied State constitutional requirements. The fruits of a federal investigation may be suppressed despite the "silver platter doctrine" where State officials work in conjunction with federal authorities and less restrictive federal requirements are used to circumvent State constitutional protections. See id. at 355. State officials may not engage federal authorities as their agents to conduct a search under less stringent restrictions and then use that evidence in a State prosecution. See id. at 349; State v. Knight, 145 N.J. 233, 259 (1996).
Here, Brick Township police did not participate in the initial FBI search as part of a State or joint law enforcement investigation. The factual record showed no "antecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers . . . [to] establish agency and serve to bring the conduct of the federal agents under the color of state law." Mollica, supra, 114 N.J. at 356.
The fact that local police were present when the federal search warrant was being executed did not make them participants in the federal investigation of child pornography, or the FBI the agent of State authorities for a State investigation of marijuana offenses. In fact, there was no State investigation until the marijuana was inadvertently discovered. Cf. Knight, supra, 145 N.J. at 240-42, 261 (FBI agent in California was acting on behalf of New Jersey prosecutor's office in murder investigation when he arrested and questioned the defendant).
Having observed the marijuana plants in plain view once they were lawfully inside defendant's home, State law enforcement officials did not violate defendant's constitutional rights by seizing the marijuana and using it as evidence to prosecute him.
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