October 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VAL CHERESTAL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-04-1165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012 -
Before Judges Reisner and Hayden.
Following the denial of his motion to suppress the heroin, weapons and other evidence seized from his home and to reveal the identity of a confidential informant and surveillance locations, defendant Val Cherestal pled guilty to second-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2, third-degree possession of CDS with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7, and two counts of second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b. He received an aggregate custodial sentence of eight years with a four-year period of parole ineligibility. He appeals from the denial of his motion to suppress and raises the following points for our consideration:
POINT I: BECAUSE HE HAS RAISED AN ISSUE [OF] MATERIAL FACT AND ALSO MADE A SHOWING OF DELIBERATE FALSEHOOD, DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.
POINT II: THE STATE SHOULD BE REQUIRED TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT AND ALSO REVEAL THE SURVEILLANCE LOCATIONS.
For the reasons that follow, we affirm.
The record reveals that during the week of November 1, 2008, a confidential informant (CI) told Detective Brian T. Mooney of the Orange Police Department that two individuals he referred to as "Sha" and "Jean" were distributing large quantities of narcotics out of a grey Cadillac Deville and from a certain Park Avenue address. The CI also provided Mooney with the registration number of the vehicle and a detailed description of both men. The CI had previously assisted the police, and Mooney considered him reliable.
Mooney's subsequent investigation of the registration information revealed that the vehicle was a grey Cadillac Deville registered to defendant, who resided at the Park Avenue address as the CI reported. Mooney also searched defendant's criminal history and found that he had been arrested previously with a man named Jean Pierre, who lived at the same Park Avenue address. The detective acquired photographs of the two men and showed them to the CI, who confirmed they were the individuals selling drugs from the Cadillac.
During the week of November 10, the CI agreed to participate in a controlled heroin buy from defendant at a specified meeting point. The police set up surveillance outside of defendant's apartment and at another location where they could view defendant's car. They dropped the CI off near the meeting point. They observed defendant leave his apartment and walk to his car shortly before the designated meeting time. He drove to the pre-arranged location, and the police watched the CI enter the Cadillac. From the time the police dropped the CI off until the time he returned to the detectives, he was under their observation. Defendant, too, was under constant surveillance, and the detectives watched him leave after the transaction and return to his apartment. After the meeting, the CI turned over the purchased product, which a field test confirmed was heroin. Mooney and the CI arranged another controlled buy for November 16, 2008, which occurred exactly as the previous one had. Again, a field test confirmed the purchased substance was heroin.
On November 20, 2008, a Superior Court judge signed a search warrant based upon "the sworn application"*fn1 of Mooney authorizing police to search defendant's car, apartment and person. During the search the police seized heroin, two handguns, and an assault rifle.
Defendant was charged in a sixteen count indictment with numerous CDS and weapons offenses. On August 17, 2009, defendant filed an omnibus motion to dismiss the indictment, suppress all evidence seized pursuant to the search warrant, and require the State to disclose the identity of the CI and surveillance locations. He also requested an evidentiary hearing to determine the veracity of Mooney's affidavit.
A second judge, who had not sign the warrant, dismissed two counts of the indictment and denied defendant's remaining requests. The judge subsequently denied defendant's motion for reconsideration. Defendant then pled guilty to four counts in the complaint and was sentenced according to the plea agreement.
Defendant asserts that the affidavit on which the warrant was based is constitutionally deficient because there was insufficient collaboration provided by the confidential informant. Additionally, defendant claims that the incident reports and property receipts concerning the two controlled buys lack specificity. Moreover, defendant argues that he was entitled to a plenary hearing on the validity of the search warrant because he alleged he did not sell drugs at all during the time when the two controlled buys were supposedly made, thus proving that there was no CI and that Mooney fabricated the affidavit. He maintains that he has established a material dispute of fact entitling him to a hearing. We find no merit in this argument.
A judge may only issue a search warrant if the warrant is based on probable cause. U.S. Const. amend. IV; N.J. Const. art. I, § 7. A police search conducted pursuant to a valid search warrant is presumed to be valid and the defendant challenging the search bears the burden of proving a constitutional violation. State v. Sullivan, 169 N.J. 204, 211 (2001). In determining whether there is probable cause to issue a search warrant, the court must consider the totality of the circumstances. State v. Novembrino, 105 N.J. 95, 104 (1987).
To establish probable cause for the issuance of a search warrant, the police must demonstrate "a 'well-grounded' suspicion that a crime has been or is being committed." State v. Johnson, 171 N.J. 192, 214 (2002) (quoting Sullivan, supra, 169 N.J. at 211). Probable cause can be established based upon information from informants but, because the information is hearsay, "police corroboration of that information 'is an essential part of the determination of probable cause.'" Sullivan, supra, 169 N.J. at 213 (quoting State v. Smith, 155 N.J. 83, 95 (1998)). Such independent corroboration establishes the informant's veracity even if the affidavit does not sufficiently establish the informant's veracity or basis of knowledge. State v. Keyes, 184 N.J. 541, 556 (2005).
Here the police corroborated the informant's information in several ways. First, the vehicle information was verified and it confirmed the informant's information. Second, the police obtained pictures of defendant and the person he was last arrested with and the CI confirmed that they were the men involved. Most important, the police arranged two controlled buys of heroin from defendant. These multiple types of corroboration provided ample evidence of the reliability of the CI. Moreover, we conclude that the totality of circumstances shown by the affidavit established probable cause for the issuance of the search warrant.
Nevertheless, defendant argues that the judge improperly determined the validity of the warrant without providing an evidentiary hearing where he could hear the testimony of the affiant and the CI and have the opportunity to cross-examine them. In some circumstances, a criminal defendant may "challenge the validity of a search warrant on the basis of alleged false statements in a supporting affidavit." State v, Howery, 80 N.J. 563, 567 (1979). In challenging the validity of a search warrant, the defendant must make a "'substantial preliminary showing' of falsity in the warrant." Id. at 567 (quoting Franks v. Delaware, 438 U.S. 154, 168, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 681 (1978)).
As the affidavit supporting the search warrant has a presumption of validity, to obtain an evidentiary hearing the defendant must "allege 'deliberate falsehood or reckless disregard for the truth,' pointing out with specificity the portions of the warrant that are claimed to be untrue." Ibid. The allegations of falsehood and disregard of the truth should be "supported by an offer of proof including reliable statements by witnesses." Ibid. (quoting Franks, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). The defendant's claim must be more than conclusory and must be "supported by more than a mere desire to cross-examine." Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682.
We find that defendant has presented nothing more than sheer conjecture to support his allegations of deliberate fabrication of the warrant. Defendant supplied none of the requisite reliable statements from witnesses attesting to firsthand knowledge of facts supporting defendant's blanket denial. Far more is required before we will entertain a challenge to the validity of a warrant that on its face establishes legally sufficient probable cause. Accordingly, we reject defendant's claim that his request for an evidentiary hearing should have been granted.
Defendant also argues that the identity of the confidential informant and the surveillance locations should have been disclosed. We disagree.
The State may decline to disclose the identity of a police informant in order to protect the free flow of information regarding criminal activity as well as the informant's safety. State v. Milligan, 71 N.J. 373, 380-83 (1976). See also N.J.S.A. 2A:84A-28; N.J.R.E. 516. While there is a privilege for confidential informants, that privilege is not absolute. State v. Florez, 134 N.J. 570, 578 (1994); State v. Milligan, supra, 71 N.J. at 383. In order to warrant disclosure, the defendant must demonstrate the materiality of the informer's identity or testimony. Milligan, supra, 71 N.J. at 383-84. Without such a strong showing, "courts will generally deny a request for disclosure." Florez, supra, 134 N.J. at 578.
In making a determination of whether to require disclosure of a confidential informant, the court balances "the public interest in protecting the flow of information against the individual's right to prepare his defense, . . . taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Milligan, supra, 71 N.J. at 384 (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)). The privilege should not be permitted in certain circumstances, including when the informer is an indispensable witness on an essential issue in the case, an active participant in the crime for which defendant is on trial, when the defense of entrapment has been reasonably asserted, or when fundamental fairness requires disclosure. Florez, supra, 134 N.J. at 579.
However, when the informant merely provided the initial tip and was present during uncharged crimes, the identity of the informant will remain confidential. Milligan, supra, 71 N.J. at 390. Here the indictment did not charge defendant with distribution of CDS based upon the controlled purchases. Rather, the indictment involved related narcotics and weapons charges based on the evidence seized pursuant to the search warrants. Thus, the testimony of the informant was tangential to the specific charges on which defendant was indicted. We conclude that defendant failed to make a special showing of how disclosure would be helpful to his defense of the charges in the indictment.
Defendant also argues that the trial judge erred in not granting his request for disclosure of the surveillance locations. New Jersey recognizes a "surveillance location privilege." State v. Garcia, 131 N.J. 67, 77 (1993). In Garcia, our Supreme Court held that the State could seek to protect such information in certain circumstances under the "official information privilege." Ibid. In order for the privilege to be recognized, the State "must first convince a court that disclosure would compromise an important public interest." Ibid. The trial court should hold an in camera hearing at which point the State must "demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Id. at 78.
Further, the balancing test established in Milligan for disclosure of informants should be used to determine whether the surveillance location should be revealed. Id. at 80 (citing Milligan, supra, 71 N.J. at 383). As with the confidential informant's privilege, "[a]bsent some showing of need by a defendant for the exact surveillance location, the trial court should deny its disclosure." Ibid.
Here the State acknowledges that the trial judge did not hold an in camera hearing to determine if the disclosure would compromise a particular government interest as required by Garcia. However, the State argues that the failure to hold a hearing was harmless error, in light of the fact that the surveillance locations involved a police investigation of two controlled buys that were not the subject of criminal charges and defendant did not identify any particularized need that he had for the exact locations in order to mount an effective defense. We agree. Accordingly, we conclude that the failure to hold an in camera hearing was harmless error as it was not clearly capable of bringing about an unjust result. See R. 2:10-2.