June 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEJANDRO BURGOS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-07-01605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2012
Before Judges Ashrafi and Fasciale.
Defendant Alejandro Burgos pleaded guilty and was sentenced to thirteen years in prison for drug and weapons offenses. Pursuant to Rule 3:5-7(d), he appeals the trial court's denial of his motion to suppress the drugs, guns, and other evidence seized when he was arrested, and he also challenges the length of his sentence. We affirm.
In July 2008, defendant and ten other persons were charged in a fifty-one count indictment returned by a Monmouth County grand jury. Defendant was named in eleven of the counts with the following offenses: (count one) first-degree engaging in a racketeering enterprise and conspiracy to engage in racketeering, N.J.S.A. 2C:5-2, 2C:41-2d; (count two) second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5b(1); (count thirty-seven) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (count thirty-eight) first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(1); (counts thirty-nine and forty) second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1a; (count forty-one) fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3f; (count forty-two) second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b(1); (count forty-nine) third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); (count fifty) first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(1); and (count fifty-one) first-degree distribution of cocaine, N.J.S.A. 2C:35-5b(1).
The trial court held a suppression hearing over four days. Several narcotics detectives testified about a long-term investigation in Monmouth County, which included wiretap and surveillance evidence of drug dealing activities. The police witnesses testified that on September 27, 2007, they obtained a number of arrest warrants based on information gathered in their investigation. The warrant for defendant designated his residence at an address on Pavilion Avenue in Long Branch.
Early the following morning, police officers and detectives assembled to execute the arrest warrants. Because the police knew defendant possessed firearms and kept two pit bull dogs in his house, they believed the safest manner of arresting him was to apprehend him alone and on a public road. Detectives had determined through several weeks of surveillance that defendant routinely left the Pavilion Avenue residence early in the morning to exercise at a gym. Before dawn on September 28, 2007, they took positions near the residence and awaited defendant's appearance outside. As the hour approached 10:00 a.m., however, defendant had not emerged, although his car was still parked at that location. The detectives then devised an alternative plan to determine by means of a ruse whether defendant was in fact inside the home.
A uniformed police detective knocked on the door, and defendant's girlfriend, Alexandra Houlton, opened the door. The detective said that the police had received a 9-1-1 call and were investigating whether anyone at the residence needed aid. Houlton responded that there was no emergency. The detective then asked who else was present inside the home. Houlton answered that defendant was in a bedroom, and their children, both less than two years old, were also in the house as well as her adult brother. The detective said he needed to speak to defendant and the brother, and Houlton allowed him and other investigators inside.
At the bedroom door, the investigators announced their presence, and defendant voluntarily and peacefully emerged, at which time he was arrested. The police investigators then requested consent from defendant and Houlton to conduct a search of the residence. Houlton signed a consent form with a time designation of 10:15 a.m., and defendant also signed such a form with a time designation of 10:25 a.m.
The police searched the house. In the bedroom from which defendant had emerged, the police found defendant's clothing and personal effects. They also found two guns in dresser drawers, as well as ammunition magazines and $4,280 in cash. Under the bed, they found two bullet-proof vests and a shoebox, which contained a quantity of cocaine, two scales, and other paraphernalia and material used for packaging of illegal drugs. Nineteen additional "ties" of cocaine were found in a plastic bag under a pillow on the bed.
At the suppression hearing, Houlton testified as a defense witness and denied that defendant lived at the Pavilion Avenue residence with her and their children. She testified that the police had pushed their way into the home without her permission, and they had arrested defendant with weapons drawn. She testified that the police searched the house before they obtained her signature on the consent form, and that she signed the form at about 1:30 p.m. without reading it or having it read to her and only because the detectives threatened she would be arrested and her children removed by State authorities if she did not sign the document. On cross-examination, the prosecutor developed testimony from Houlton that defendant was the father of her two young children and she relied on financial support from him, that on a previous occasion an automobile she owned had been forfeited to the State because of its use for drug distribution activity, and that another automobile she owned was forfeited as a result of defendant's arrest on this occasion.
The trial judge placed an oral decision on the record after hearing all the testimony. He found that defendant was residing at the Pavilion Avenue address, although his driver's license showed a different address and he did not own or have other legal right to the Pavilion Avenue property.*fn1 The judge also found that the police acted reasonably in devising a ruse to determine if defendant was present in the home and in entering on a pretense to make the arrest. Because defendant was known to possess firearms and also kept two pit bull dogs at the residence, the police reasonably took precautions to execute the arrest warrant safely. The judge also found that the police read the contents of the consent form to Houlton before she signed it at the time indicated on the form. Concluding that the police had not violated defendant's constitutional rights, the judge denied defendant's motion to suppress evidence.
Subsequently, defendant entered into a plea agreement with the State and pleaded guilty to four counts of the indictment, which charged drug distribution and firearms offenses. The sentencing judge noted defendant's prior record of drug and weapons offenses and sentenced him to concurrent terms of imprisonment as follows: (count two) second-degree conspiracy to distribute cocaine, ten years in prison with five years of parole ineligibility; (count thirty-eight) first-degree possession of more than five ounces of cocaine with intent to distribute, thirteen years in prison with six-and-a-half years of parole ineligibility; (count forty-two) second-degree possession of a firearm by a convicted person, ten years in prison with five years of parole ineligibility; and (count fifty-one) first-degree distribution of more than five ounces of cocaine, thirteen years in prison with six-and-a-half years of parole ineligibility.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S SUPPRESSION MOTION AS THE ILLEGAL SEARCH AND SEIZURE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART.
I, PARS. 1, 9, 10.
A. The Consent To Search A Third Party's Home Was Not Voluntary Thus The Matter Should Be Reversed.
B. The Arrest Of The Defendant At A Third Party's Home Was Illegal.
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
We reject these arguments and conclude that the trial court did not err in denying defendant's motion to suppress evidence or in imposing sentence.
The Fourth Amendment to the United States Constitution and article I, paragraph 7 of the New Jersey Constitution prohibit unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498 (1986). A search of a home without a warrant is "presumptively invalid," and the State has the burden of proving one of the "'few specifically established and well-delineated exceptions'" to the warrant requirement. State v. Frankel, 179 N.J. 586, 589 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)), cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004); see also State v. Maryland, 167 N.J. 471, 489 (2001) (requiring the State to prove that the police did not violate defendant's constitutional rights in conducting a search and seizing evidence without a warrant). Here, the trial court found that the police conducted the search with the consent of defendant and Houlton and therefore did not violate defendant's constitutional rights.
Defendant contends that the police had no right to enter the Pavilion Avenue residence to arrest him because he did not live at that location. A valid arrest warrant authorizes the police to enter the residence of the person named in the warrant to make the arrest. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 2459, 153 L. Ed. 2d 599, 602 (2002); Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639, 661 (1980); State v. Jones, 143 N.J. 4, 15 (1995). However, the police may not use an arrest warrant to enter and search the residence of a third party; they must either obtain a search warrant or there must be an exception to the warrant requirement. Steagald v. United States, 451 U.S. 204, 213-14, 101 S. Ct. 1642, 1648, 68 L. Ed. 2d 38, 46 (1981); State v. Miller, 342 N.J. Super. 474, 479-80 (App. Div. 2001).
In Miller, supra, 342 N.J. Super. at 479, we held that "an arrest warrant is not lawfully executed in a dwelling unless the officers executing the warrant have objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time." In this case, the evidence demonstrated both requirements. The police detectives had conducted surveillance of defendant for more than a month and determined that he was spending all his nights at the Pavilion Avenue residence, that his girlfriend and children lived there, that he kept personal belongings at that location, and that he came to that residence as he pleased at any hour. The testimony at the suppression hearing provided substantial evidence from which the trial court could conclude that defendant was living at the Pavilion Avenue residence on September 28, 2007.
Nor was there any violation of defendant's constitutional rights in the police use of deception to confirm that he was actually at that location at the time they executed the arrest warrant. State v. Miller, 47 N.J. 273, 280-81 (1966); State v. Ferrari, 323 N.J. Super. 54, 58-59 (App. Div. 1999). In State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004), we found no constitutional violation where the police deceived the defendant to gain entry to his residence although they had a warrant for his arrest. In this case, the police acted reasonably in feigning investigation of a 9-1-1 call for the purpose of confirming defendant's presence at the residence when he did not follow his morning routine. Because the arrest warrant gave the police the right to enter the residence to find and arrest him, use of the deception only served the legitimate purpose of avoiding unnecessary entry and reducing the risk that officers or other residents might be harmed by the police encounter.
After entering the home and executing the arrest warrant, the police could constitutionally conduct a search without a search warrant because they obtained consent from Houlton, who resided in the home and occupied the bedroom where the evidence was found. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222, 93 S. Ct. 2041, 2043, 2045, 36 L. Ed. 2d 854, 858, 860 (1973).
The State bears the burden of proving that consent to search was given voluntarily. State v. Koedatich, 112 N.J. 225, 262 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000). Under the protections recognized in our State constitution against unreasonable search and seizure, N.J. Const. art. I, ¶ 7, the State must also show that the person who consented to the search knew that consent could be refused. State v. Domicz, 188 N.J. 285, 307 (2006); State v. Johnson, 68 N.J. 349, 353-54 (1975); State v. Todd, 355 N.J. Super. 132, 138-39 (App. Div. 2002).
Here, the State relied on a written consent signed by Houlton, in which she specifically initialed the statement: "I have a right to refuse to allow police to conduct the search." Defendant argues that the trial court erred in crediting the testimony of the police detectives that they read the consent form to Houlton and she signed it voluntarily. On a suppression motion, however, we defer to the findings of fact and credibility determinations of the trial court. State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Johnson, 42 N.J. 146, 161 (1964).
The trial court disbelieved Houlton's testimony that she was coerced to sign the form. The court referred to her motivation to testify falsely to assist defendant, who was her boyfriend and financial support and the father of her children. The court also noted that Houlton had expressly indicated on the consent form that she declined to waive her right to be present during the police search, thus indicating that she was making decisions voluntarily and without coercion.
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.' . . . '[A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." [Robinson, supra, 200 N.J. at 15 (quoting Elders, supra, 192 N.J. at 243-44).]
We find no clear mistake in the trial court's factual findings. In particular, there is no basis on this record for us to reject the trial court's credibility determinations leading to its conclusion that Houlton voluntarily consented to the search. We reject defendant's contention that the police violated his constitutional rights and the evidence they seized should have been suppressed.
Finally, with respect to defendant's appeal of the aggregate thirteen-year sentence, we find insufficient merit to warrant discussion in a written opinion of defendant's argument that he was entitled to consideration of mitigating factor ten, N.J.S.A. 2C:44-1b(10), "[t]he defendant is particularly likely to respond affirmatively to probationary treatment." R. 2:11-3(e)(2).