November 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE T. GREEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 07-12-0663.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2011
Before Judges Parrillo and Grall.
Following denial of his motion to suppress evidence of drugs and weapons uncovered as a result of a search pursuant to a warrant, defendant Dwayne T. Green pled guilty to three counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(3); three counts of third-degree possession of CDS with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7; second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(2); three counts of second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1a; and two fourth-degree weapons offenses, N.J.S.A. 2C:39-7a and N.J.S.A. 2C:39-3d. Defendant was sentenced to an aggregate term of ten years with a fifty-percent parole disqualifier. Defendant appeals from the orders of the Law Division denying his motion to suppress and imposing sentence. We affirm the judgment of conviction but remand for consideration of merger of certain offenses.
The search warrant that issued on June 8, 2007, was based on an affidavit executed the same day by Sergeant Brian Facemyer, a twelve-year veteran of the Salem County Prosecutor's Office Narcotics Division, detailing the results of a one-andone-half year police investigation into defendant's narcotics operation conducted out of his residence at 4 Union Street in Salem City, a four-story, multi-family apartment building. According to the affidavit, the investigation commenced on December 18, 2005, when a confidential informant (CI) - CI 215 - who had provided police with reliable information in the past leading to the arrest and conviction of "many other narcotics violators" and whose reliability "has been independently corroborated by other sources and law enforcement officers," reported that defendant "a.k.a. 'Ni-Rock' had been selling quantities of heroin and cocaine from 4F Union Street[,]" and that CI 215 agreed to make a controlled purchase of heroin or cocaine from defendant. As a result, CI 215 was checked by members of the Narcotics Division for money and contraband prior to the purchase, supplied with money for the buy, and then monitored from the meet point to defendant's apartment. Upon returning, CI 215 presented the Narcotics Division personnel with suspected heroin.
Approximately one month later, during the week of January 15, 2006, CI 215 engaged in another controlled buy, utilizing the same procedure, and procured suspected cocaine from defendant at his apartment, this time noting that defendant possessed a black revolver-type handgun. CI 215 turned the substance over to Investigators Saunders and Donelson, who performed a field test on the substance, which tested positive for cocaine. On January 22, 2006, CI 215 again participated in a controlled buy for the Narcotics Division and obtained cocaine from defendant at his apartment. Months later, in September 2006, Investigator Saunders received information from a "concerned citizen," who reported that defendant was distributing quantities of heroin from 4F Union Street and that he was traveling to Camden on a weekly basis aboard a New Jersey Transit bus to replenish his supply.
A second confidential informant proven reliable and trustworthy in the past, CI 138, reported during the week of October 16, 2006 that defendant was continuing to distribute quantities of heroin from 4F Union Street, where, about two weeks before, CI 138 personally witnessed defendant in possession of over 100 light blue wax packets of heroin and a handgun. CI 138 was also present on at least one occasion when defendant obtained heroin in Camden and transported the CDS to 4F Union Street. During the week of October 16, 2006, CI 138 again personally observed from inside defendant's residence numerous packets of heroin and a 9 mm handgun that defendant was attempting to sell to CI 138.
A third confidential informant of proven reliability, CI 099, indicated during the week of May 28, 2007 that defendant was still distributing quantities of heroin, cocaine and marijuana from his apartment. As a result, members of the Narcotics Division conducted a surveillance of defendant's apartment complex and at that time observed a man, later identified as Michael Caraballo, enter the complex and then leave approximately one minute later. When confronted, Caraballo had marijuana on his person and informed the officers that he had just purchased the CDS from "Ni-Rock." Over the course of the next few weeks, members of the Narcotics Division continued their surveillance of defendant's apartment, and witnessed approximately twenty individuals enter defendant's apartment complex and quickly depart. On June 6, 2007, one of these individuals was found in possession of marijuana after his brief visit to defendant's building. Sergeant Facemyer also noted that defendant had a metal security gate affixed to his front door, through which he passed CDS to his buyers.
Two days later, as noted, Sergeant Facemyer prepared an affidavit requesting a search warrant for defendant's person and apartment. In addition to listing the aforementioned details of the investigation, the affidavit also referenced defendant's extensive criminal history including a prior conviction for drug distribution. The search warrant was issued the same day, June 8, 2007, and executed the next.
On June 9, 2007, police officers staked out defendant's apartment and approached him with the warrant as he entered the building. After an unsuccessful attempt to flee, defendant was searched and then his home, where police uncovered quantities of heroin, cocaine and marijuana; more than $3,000 in cash; and one black Smith/Wesson .38 revolver handgun fully loaded with four hollow point bullets and two ball ammunition.
As noted, charged with twenty-three counts of drug and weapons offenses, defendant pled guilty to twelve such counts after his suppression motion was denied, and was sentenced to an aggregate ten-year term with a five-year parole disqualifier. On appeal, he raises the following issues:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ISSUANCE OF A SEARCH WARRANT WITHOUT PROBABLE CAUSE.
II. THE SENTENCE IS EXCESSIVE.
A. TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
Defendant contends the affidavit in support of the search warrant is defective because it is based on "stale" information and its conclusions lack a factual basis. We disagree.
"A search based on a properly obtained warrant is presumed valid." State v. Sullivan, 169 N.J. 204, 211 (2001) (citing State v. Valencia, 93 N.J. 126, 133 (1983)). Of course, a search warrant may only issue "upon a finding of probable cause by a neutral and detached magistrate." State v. Marshall, 398 N.J. Super. 92, 97 (App. Div. 2008), aff'd, 199 N.J. 602 (2009). Probable cause is characterized "as a common-sense, practical standard for determining the validity of a search warrant[,]" State v. Novembrino, 105 N.J. 95, 120 (1987), requiring "'less than the legal evidence necessary to convict though more than mere naked suspicion.'" State v. Evers, 175 N.J. 355, 381 (2003) (quoting State v. Mark, 46 N.J. 262, 271 (1966)).
On this score, warrant applications "'should be read sensibly rather than hypercritically and should be deemed legally sufficient so long as they contain factual assertions which would lead a prudent [person] to believe that a crime [has] been committed and that evidence . . . of the crime [is] at the place sought to be searched.'" Sullivan, supra, 169 N.J. at 217 (quoting State v. Laws, 50 N.J. 159, 173 (1967)). We accord "substantial deference" to the magistrate's decision to grant a search warrant. Sullivan, supra, 169 N.J. at 211; see also State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
Contrary to defendant's contention, the affidavit contained fresh evidence of defendant's continuing and recent involvement in his on-going drug operation. The essential question when "staleness" is raised to attack a search warrant is "do all the circumstances exhibited . . . reasonably conduce to a belief that the law was being violated at the time the warrant issued?" State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div. 1976); see also State v. Sager, 169 N.J. Super. 38, 44-45 (Law Div. 1979). In other words, the proof supplied "must speak as of the time of the issue of [the search] warrant." Sgro v. United States, 287 U.S. 206, 211, 53 S. Ct. 138, 140, 77 L. Ed. 260, 263 (1932).
Granted, in this case, Facemyer's supporting affidavit catalogs a course of drug activity occurring over a one-and-one-half year period of time. Yet, "where the affidavit properly recites facts indicating a continuous course of criminal conduct, the passage of time becomes less significant." State v. Altenburg, 223 N.J. Super. 289, 295 (App. Div.), aff'd o.b., 113 N.J. 508 (1988) (citing United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)). Moreover, the earlier information in Facemeyer's affidavit was refreshed with much more recent information that clearly and plainly related back to the continuous and protracted narcotics activity in which defendant was engaged. For example, CI 099 related that defendant was continuing to distribute narcotics from his apartment as recent as late May 2007. In fact, just days before the search warrant issued, police officers recovered marijuana from two individuals who had just left defendant's apartment complex, one of whom identified defendant as the dealer.
Not only was the information contained in the warrant "fresh," it was also sufficiently reliable, factual and detailed to support a finding of probable cause. Three confidential informants of proven reliability gave specific information about defendant's ongoing narcotics operation, independently corroborated by three controlled buys from defendant. Field tests were conducted on two occasions, and both times the substances obtained from defendant tested positive for cocaine. Moreover, the informants' tips were quite detailed, in one instance describing defendant's weekly trips on a New Jersey Transit bus to Camden to purchase heroin, and at other times, relating the specific quantity as well as distinctive packaging of the drugs at his apartment. Furthermore, on two separate occasions, officers discovered marijuana on two men who entered defendant's apartment complex and departed approximately one minute later, one of whom verified that he bought the CDS from defendant.
Thus, both the nature and details disclosed in the informants' tips reveal the basis of their knowledge that an illegal drug operation was being run out of defendant's apartment and therefore support the affiant's similar conclusion. See State v. Smith, 155 N.J. 83, 94, cert. denied, New Jersey v. Smith, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998); Novembrino, supra, 105 N.J. at 120-24. Together with the informants' past reliability and present corroboration of the information provided, Facemyer's affidavit established the requisite probable cause to support issuance of the search warrant at issue here.
Defendant's next claim of an excessive sentence is without merit. Defendant entered into an open plea in exchange for the State agreeing to forego a mandatory extended term for which defendant otherwise qualified and dismissing the remaining eleven charges. Given defendant's extensive juvenile and adult criminal history, and the fact that the present offenses involved three different types of narcotics and a firearm, the sentencing judge properly found aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1a(3), (6) and (9), and that they clearly and convincingly outweighed the non-existent mitigating factors.
We, therefore, find no warrant to interfere with the sentence imposed, as it does not shock our conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
That said, we are constrained to remand for consideration of the merger of certain drug offenses with others. Even though three separate drugs - heroin, cocaine and marijuana - were involved, all ten of the CDS convictions are based on the possession of these drugs on the same date - June 9, 2007*fn1 - a circumstance that implicates the doctrine of merger of offenses for sentencing purposes.
The judgment of conviction is affirmed. The matter is remanded for consideration of merger of certain offenses.