March 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BYRON KENNETH JONES, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-05-0512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 12, 2011 -
Before Judges Baxter and Nugent.
Following his unsuccessful attempt to suppress evidence, defendant Byron Jones proceeded to trial and a jury convicted him of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); and second-degree possession of a CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two). At sentencing, the court merged count one into count two, granted the State's motion to sentence defendant to an extended term, and sentenced defendant to a prison term of thirteen years with six-and-one-half years of parole ineligibility pursuant to N.J.S.A. 2C:43-6(f). The court also imposed appropriate fines and penalties. Defendant raises the following points for our consideration on appeal:
I. THE SEARCH OF JONES'S GARBAGE WAS UNCONSTITUTIONAL BECAUSE LAW ENFORCEMENT PERSONNEL LACKED REASONABLE SUSPICION TO CONDUCT A CANINE SNIFF.
II. THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT DEFENDANT'S TWELVE-YEAR-OLD CONVICTION WOULD BE ADMISSIBLE AT TRIAL IF DEFENDANT ELECTED TO TESTIFY.
III. THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER EVIDENCE OF HARDSHIP AND FAILED TO FIND MITIGATING FACTOR ELEVEN RESULTING IN AN EXCESSIVE SENTENCE.
We conclude the canine sniff of defendant's garbage bags was supported by the investigating detective's reasonable suspicion that the garbage contained evidence of narcotics offenses. We also conclude that the trial court did not abuse its discretion when it admitted defendant's prior conviction and when it imposed sentence. Accordingly, we affirm.
On January 31, 2007, Gloucester County Prosecutor's Office Narcotics Strike Force Detective Peter J. Ferris prepared an affidavit for a warrant to search two garbage bags he had seized from the curbside of a residence in Gibbstown, New Jersey (the residence). The following facts are derived from the affidavit.
Ferris had received information "[o]ver the past several months . . . from several law enforcement agencies" that a "black male identified as Byron J. Jones, Jr." was staying at the residence and "distributing marijuana and cocaine throughout the Gloucester County area." On several occasions, Ferris had personally observed defendant exiting the residence.
Ferris conducted an inquiry through the Pennsylvania Bureau of Motor Vehicles and learned defendant had a Pennsylvania driver's license with a Philadelphia address. Ferris also ran a Pennsylvania and New Jersey "Criminal History Check" which revealed, among other things, that defendant had four arrests in Pennsylvania involving CDS in 1988, 1994, and 2005; and one CDS-related arrest in New Jersey in 2003. Two of the Pennsylvania arrests resulted in convictions for which defendant received probationary sentences. Following the 1994 Pennsylvania arrest for possession with intent to distribute a CDS, defendant pled guilty and the judge sentenced him to a prison term of six to ten years. The Pennsylvania records did not include a disposition for the 2005 arrest. Although defendant was arrested in New Jersey in 2003 and charged with, among other things, possession of a CDS, he was convicted only of violating a municipal ordinance and the remaining charges were dismissed.
On January 7, 2007, Ferris and another detective removed two medium-size white plastic garbage bags and one medium-size black plastic garbage bag from the curb in front of the residence and stored them in the Gloucester County Prosecutor's Office. Two days later, a "narcotic detection K-9" sniffed the three garbage bags and reacted positively to one white garbage bag and to the black garbage bag. The dog's trainer confirmed that the dog's positive reaction indicated the presence of "narcotic odors from within the two . . . plastic garbage bags." The dog displayed no interest in the third garbage bag.
After detailing his background in narcotics, Ferris averred that based on his knowledge, training, and experience, he knew that persons involved in the illegal possession and distribution of a CDS often disposed of small amounts of CDS and paraphernalia, such as packaging materials, records of transactions, documents, photos depicting CDS use or possession or currency involved in CDS transactions, rolling papers, partially burnt hand-rolled cigarettes, razor blades, plastic bags, plastic straws, and pipes. Ferris further averred that such "items are disposed of by placing same in household garbage, which is then placed out at the curbside for removal."
Based on the affidavit, a judge signed a search warrant for the garbage bags. On February 1, 2007, Ferris and two other officers searched the bags and found documents containing defendant's name; a clear gallon size bag containing green vegetation suspected to be marijuana; and a clear plastic bag and shoe box containing a white, powdery residue suspected to be cocaine. Armed with that evidence, Ferris and other officers obtained search warrants for the residence and vehicles parked at the residence.
When the police searched the residence the next day, defendant and a woman were present. The police seized from the residence one hundred small Ziploc bags each bearing the logo of either a mouth with the tongue sticking out, a black scorpion, an apple, or lips. The police also seized a black composition book with names, phone numbers, dates, and dollar amounts next to each name; Superior B, vitamin B and vitamin B6 powder; Superior Inositol C6, H12, and O6 dietary supplement powder; a digital pocket scale with a white residue on it; two security cameras; a shoe box with $7000 in cash; and a razor blade with white residue. The police also found a lease between the owner as landlord and defendant as tenant.
The officers next searched several cars registered to defendant and seized a digital scale with white residue, and a yellow Shoprite bag with a spoon and four plastic baggies each containing a white rock-like or powder-like substance identified at trial as crack cocaine. Based on the evidence they seized from the garbage bags, residence, and vehicles, the police arrested defendant.
A Gloucester County grand jury indicted defendant and charged him with third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of a CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); and third-degree maintaining or operating a CDS facility, N.J.S.A. 2C:35-4 (count three). Defendant subsequently filed a suppression motion that the court denied in an oral opinion on May 30, 2008. Following two days of trial on December 9 and 10, 2009, a jury convicted defendant on the first two counts and acquitted him on the third count. Defendant was sentenced and thereafter filed this appeal.
Defendant contends in Point I that because law enforcement officials lacked reasonable suspicion to conduct a canine sniff of the three garbage bags, the search warrant, which was based in part on the "sniff," was unconstitutional.
In New Jersey, "[t]he test of a justifiable use of a drug-sniffing dog is reasonable suspicion - the same test applicable to justify a request for consent to search." State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006), aff'd in part and rev'd in part, 192 N.J. 224 (2007); State v. Cancel, 256 N.J. Super. 430, 435 (App. Div. 1992) (explaining that evidence that flights from Texas and Arizona were being used increasingly to transport marijuana into New Jersey was sufficient to satisfy the modest level of reasonable suspicion needed to justify the unintrusive use of canines to sniff all luggage on such flights for narcotics), certif. denied, 134 N.J. 484 (1993). Our Supreme Court has not ruled on the issue. However, in Illinois v. Caballes, the United States Supreme Court held that police generally do not require a reasonable, articulable suspicion to justify using a drug-detection canine to sniff a vehicle during a legitimate traffic stop. 543 U.S. 405, 409, 125 S. Ct. 834, 838, 160 L. Ed. 2d 842, 847 (2005).
Defendant argues that the police did not have a reasonable, articulable suspicion to suspect that the garbage bags seized from the residence contained evidence of narcotics. Defendant also argues that the trial court did not make any inquiry to determine whether the canine sniff was supported by reasonable suspicion. Challenging the vagueness of the information the Gloucester County detectives received from other law enforcement agencies, defendant argues there is nothing in Ferris's affidavit explaining where the information came from, whether it was first-hand, or whether it was based on hearsay. Finally, defendant argues that because the warrants for the residence and vehicle searches were based on the evidence discovered during the unconstitutional search of the garbage bags, the evidence seized from the residence and cars was tainted and should be suppressed.
The State counters that the references in Elders and Cancel to the need for a reasonable, articulable suspicion for a canine-sniff are dicta. The State asserts that, consistent with Caballes, individuals have no reasonable expectation of privacy in contraband. From that premise, the State reasons that because drug-sniffing canines only react positively to contraband, the police do not violate a suspect's federal or state constitutional rights by using drug-sniffing canines to sniff a container that has not been unlawfully seized.
We need not re-evaluate Elders and Cancel in light of Caballes because we conclude that the police had a reasonable, articulable suspicion to justify the limited intrusion that occurred when the police canine sniffed the garbage bags.
Whether a reasonable and articulable suspicion exists depends upon the totality of the circumstances. State v. Pineiro, 181 N.J. 13, 22 (2004). In determining the issue, a court must consider whether the "'historical facts, viewed from the standpoint of an objectively reasonable police officer,'" amount to reasonable suspicion. State v. Stovall, 170 N.J. 346, 357 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911, 918 (1996)). A court may also consider an officer's experience and knowledge in applying the totality of the circumstances test. Id. at 361. "[D]ue weight [is] given . . . to the specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience." Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968); see Stovall, supra, 170 N.J. at 363.
We must uphold the factual findings made by a trial court at a suppression hearing if they are "supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (internal quotation marks and citations omitted). However, our review of a judge's legal conclusions -- the application of the law to facts that are essentially undisputed -- is plenary. Id. at 45; see also Elders, supra, 386 N.J. Super. at 228.
In the case before us, there is no dispute about the facts that served as a basis for the warrant to search the garbage bags; those facts are recited in the warrant and defendant offered no testimony at the suppression hearing to dispute them. Consequently, we reject defendant's alternative argument that this matter should be remanded so that the trial court can determine whether Ferris had a reasonable suspicion to conduct the canine sniff of the garbage bags.*fn1
Here, Ferris received information from several law enforcement agencies that defendant was selling drugs in the Gloucester County area. The detective ran a records check that demonstrated defendant had a history of narcotics-related arrests, and had received a significant sentence for CDS distribution. Ferris continued his investigation and personally observed defendant leaving the residence. Ferris also had considerable experience in drug enforcement and had developed considerable knowledge about drug dealers, including their propensity to discard drug paraphernalia and distribution-related items with household garbage. Viewed from the standpoint of an objectively reasonable police officer, those facts, considered collectively, establish a reasonable suspicion justifying the limited intrusion of a police canine sniff of the garbage bags.
In his argument, defendant parses each fact that Ferris relied upon and contends each individual fact is either innocuous or devoid of any indicia of criminality. For example, defendant maintains that the information Ferris received from other law enforcement sources was too vague to be reliable and likely constituted double hearsay. However, [i]nformation coming from law enforcement colleagues should be entitled to greater credence than knowledge supplied by an informer who lurks in or near the underworld. The courts have sensibly agreed that where information is so imparted by another law enforcement officer, it is to be received with benevolent assumptions not appropriate to information offered by a typical informer, generally of the criminal class, who has reward in mind. [State v. Gillman, 113 N.J. Super. 302, 305 (App. Div.), certif. denied, 58 N.J. 340 (1971).]
Although the information received from other law enforcement sources about defendant distributing drugs in Gloucester County may have been insufficient in and of itself to establish reasonable suspicion for the canine sniff, that evidence, in light of Ferris's extensive experience and the other information at his disposal, established a reasonable suspicion. See State v. Moore, 181 N.J. 40, 46 (2004) (noting that several factors may, when considered cumulatively, establish probable cause though any one considered in isolation would not).
Defendant argues there was no nexus between the alleged drug distribution and the garbage bags that the police seized. The information Ferris received from other law enforcement officers concerning defendant residing in the residence and distributing drugs throughout the county in which the residence was located, Ferris's observations of defendant leaving the residence though maintaining a Pennsylvania driver's license with a Philadelphia address, defendant's criminal record, and Ferris's substantial knowledge of narcotics distribution and activity, provided reasonable suspicion of such a nexus.
Considering the totality of the circumstances known to Detective Ferris, we conclude that the relatively unobtrusive canine sniff of the three garbage bags was supported by the minimal level of reasonable suspicion required for such searches. See Cancel, supra, 256 N.J. Super. at 435.
We turn next to Point II in which defendant argues the trial court improperly ruled the State could impeach him with a twelve-year-old, out-of-state narcotics conviction. Defendant argues the conviction was too remote in time to be admissible.
A defendant may be impeached with a prior conviction. N.J.R.E. 609 states: "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." In State v. Sands, 76 N.J. 127, 144 (1978), the Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge," and that such discretion is "broad." The Court explained that "[o]rdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid.
The Supreme Court addressed "remoteness" in Sands:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Id. at 144-45.]
In this case, the prosecutor sought to impeach defendant with two narcotics convictions stemming from arrests in Pennsylvania in 1988 and 1994. The court excluded the conviction resulting from the earlier arrest, but ruled defendant could be impeached with his conviction in 1995 for the charges underlying his 1994 arrest. The court reasoned that defendant had been incarcerated until he was paroled in November 2004 on the 1994 charge, violated his parole, was incarcerated in February 2005, and was paroled again in November 2005. Defendant was arrested in 2007 on the current charges.
Based upon defendant's violation of his probationary sentence on the 1988 arrest, and his lengthy incarceration and parole violation following his 1995 conviction, the court concluded that the 1995 conviction was admissible for the limited purpose of affecting defendant's credibility. The court required that the conviction "be sanitized since it's the same type of crime," and determined that only the "degree [of the crime] and the sentence" would be admissible.
Considering defendant's incarceration between 1995 and 2004, the trial court properly exercised its discretion when it gave little weight to the absence of arrests in that same timeframe; and when it gave greater weight to defendant's criminal history and to his arrest less than three years after his lengthy incarceration for a narcotics conviction. The trial court did not abuse its broad discretion.
Finally, defendant contends that his sentence was excessive. A court has wide discretion when imposing a sentence, but the sentence must not be manifestly excessive or unduly punitive. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393-94 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984). In determining the appropriate sentence to be imposed, the sentencing court must consider and balance statutorily enumerated aggravating and mitigating circumstances, N.J.S.A. 2C:44-1(a) and (b), and explain how the sentence was determined so that a reviewing court will have an adequate record on appeal. State v. Kruse, 105 N.J. 354, 359-60 (1987). When trial courts "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court]," we may not second-guess them. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotation marks and citations omitted); O'Donnell, supra, 117 N.J. at 216.
The court granted the prosecutor's motion to sentence defendant to an extended term, see N.J.S.A. 2C:43-6(f) and 44-3(a), and imposed a prison term of thirteen years with a sixand-one-half-year period of parole ineligibility. Although defendant does not contest that he was subject to an extended term of imprisonment, he argues that the trial court failed to apply mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), and offered no explanation for that decision. Specifically, defendant claims the court failed to consider that his family would suffer a significant hardship due to his incarceration.
Defendant offered no specific evidence at his sentencing hearing to
demonstrate that the hardship to his family occasioned by his
incarceration would be "excessive." His attorney merely pointed out
that defendant's family was in the
courtroom, but his mother was not present because she is "infirm and
unfortunately, she's been too ill to attend . . . ." Counsel noted the
presence of a two-year-old, presumably defendant's child,*fn2
and defendant's aunt. Defense counsel concluded by stating,
"in terms of mitigating circumstances[,
i]t would be [an] undue hardship on him or his family." Defendant
said, "I would like . . . you to consider that I do have family[ a]nd
the way this is being presented, like I'm a terrorist, like I'm
terrorizing, that's not right. That's all I have to say."
Neither defendant nor his attorney offered evidence to show how a hardship occasioned by his imprisonment would impose an "excessive" hardship. N.J.S.A. 2C:44-1(b)(11). Their conclusory statements were inadequate to demonstrate an excessive hardship. See State v. Dalziel, 182 N.J. 494, 505 (2005). The trial court noted the presence of defendant's family, but did not err by finding no mitigating factors.