November 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN ALAN JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 09-03-0548, 09-03-0544.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
Before Judges Reisner and Hayden.
Defendant Steven Alan Jackson appeals his conviction, pursuant to a guilty plea, for second-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1), following the denial of two motions to suppress. For the reasons that follow, we affirm.
Defendant moved to suppress evidence seized on separate dates that resulted in two separate indictments. According to the evidence presented by the State, in the first incident on September 9, 2008, police officers Jeffrey White and Eddy Raisin were on routine patrol in Asbury Park. Officer Raisin saw a man named Devron Dash, who had outstanding warrants, ride his bicycle into the driveway of a house on Fourth Avenue.
This property had belonged to defendant's father until his death in April 2008. The property passed to the father's estate, and defendant's sister was the executor. Defendant lived there until August 13, 2008, when the City condemned the property as uninhabitable due to multiple municipal code violations.*fn1 Since that date, the City prohibited anyone from residing there. No one was permitted on the property except city employees or the owner to do repairs. Defendant lived in a neighboring town and occasionally went there to pick up mail but not to do repairs. Defendant admitted that he knew he was not allowed on the property and that he had been arrested prior to September 9 for trespassing there. Officer White also knew the property was condemned because the police had made numerous trespassing arrests there.
Both officers witnessed Dash dismount from his bike and walk through the gate into the backyard before they lost sight of him. A six-foot stockade fence surrounded the residence, enclosing the backyard. The officers went down the driveway and, without knocking or announcing their presence, entered through the unlocked gate into the backyard. Once inside, they did not see Dash but saw steps leading up to a wooden porch and a man standing on the porch holding money. Then, they viewed defendant seated at the edge of the doorway to the house, holding what appeared to be a brick of heroin while removing several packets. When defendant saw the officers, he put the items in his pockets. The officers informed defendant that he was under arrest and attempted to get hold of him. Defendant struggled and began to scream, "First, First, First," at which point his "monstrous" pit bull appeared and charged at the officers. Officer Raisin took out his gun, preparing to shoot the dog for his own protection, when defendant jumped in front of the dog to shield him.
The police officers arrested defendant for aggravated assault on a police officer and resisting arrest, then conducted a protective sweep of the premises and found Dash. The police brought both Dash and defendant to the police station. While there, after learning that the police were preparing papers for a search warrant, defendant agreed to permit a search and signed a consent to search form. Defendant also accompanied the police back to the premises and showed them where he kept several bags of cocaine. The police charged defendant with multiple counts of possession of CDS and possession with intent to distribute CDS, possession with intent to distribute within five hundred feet of a public park, N.J.S.A. 2C:35-7.1, aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and resisting arrest, N.J.S.A. 2C:29-2(a)(3).
In the second incident on November 7, 2008, Officer Michael Barnes of Asbury Park saw defendant, whom he recognized from previous arrests, exit a building with a large pit bull and enter a car in which two women were waiting. Although parking spaces were available in front of the building defendant just exited, the women had parked down the street. Officer Barnes radioed police headquarters for a warrant search, which showed that defendant had eight active arrest warrants pending against him. While the officers were verifying the warrants, defendant exited the women's car and walked back to his building. After two or three minutes defendant began walking back towards the car.
When the warrants had been verified and other police officers had arrived, the officers pulled up to the women's car as defendant approached it and ordered defendant to halt. Instead, he dove into the car and yelled "go, go" to the driver. The officers pulled defendant out of the car but he resisted while trying to force a small bag between the seats. After defendant was secured, the officers returned to the vehicle and saw the bag between the seats and determined that it contained heroin. The officers conducted a search of defendant's person incident to arrest, found nine bags of crack cocaine and heroin, and arrested him. In the ensuing indictment, he was charged with possession of CDS and possession of CDS with intent to distribute, and possession of CDS with intent to distribute within five hundred feet of a public park.
During his testimony, defendant denied being on the condemned property, bringing his pit bull to the property, or using the dog to attack the police officers on September 9, 2008. The prosecutor asked on cross-examination whether defendant had drugs in his pockets on November 7 and if he recognized the heroin allegedly confiscated from him that day. Defendant initially denied ever having seen heroin before.
Counsel objected to these questions, arguing they were outside the scope of the direct.
At the suppression hearing, defendant argued that the officers illegally entered the property belonging to his father's estate on September 9 because they did not have a warrant, and there was no exigency or consent. He contended that any probable cause to arrest defendant was tainted by the officers' illegal presence on the property. The State countered that the arrest was lawful because the police had probable cause to believe a crime was committed while they were lawfully on condemned property. More importantly, defendant voluntarily gave his consent to the search.
The trial judge denied both motions. He credited the testimony of the police officers, finding them to be credible, direct, and consistent, and found defendant's testimony to be inconsistent and incredible. Referring to the September 9 search, the judge reasoned that the property at issue was condemned and that no one other than someone repairing the property or a city employee was allowed to be there. Thus, anyone else on the premises was a trespasser. The police officers knew it was condemned and as they did not need consent to enter the condemned premises to pursue a trespasser, they acted reasonably in their pursuit.
Further, the judge found the police had probable cause to arrest defendant when he resisted arrest and called his dog to attack the officers. Thereafter, defendant voluntarily signed a consent to search form before the officers searched the premises and found the drugs at issue. Consequently, the judge found the search lawful.
In addressing the evidence seized on November 7, the judge found that the arrest warrants were valid and that the officers conducted a proper search incident to a valid arrest, including the area within the defendant's immediate reach. The judge also observed that he could take "judicial notice" based on his own experience that many people involved in drug dealings have pit bulls for protection. He noted that the pit bull and defendant's other actions that day could have engendered in the mind of a trained narcotics officer a reasonable belief that a drug transaction was occurring.
On the day after the suppression hearing, defendant pled guilty to one count of second-degree possession with intent to distribute over one-half ounce of cocaine for the September 7, 2008 incident. He also pled guilty to one count of third-degree possession of CDS with intent to distribute for the November 7, 2008 charges. Additionally, he pled guilty to unrelated CDS charges stemming from arrests on June 18, 2008 and January 18, 2009. In his plea agreement, defendant had agreed to an extended term under the Brimage*fn2 guidelines, N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:35-12, for the second-degree possession with intent to distribute CDS.
The trial judge sentenced defendant to nine years in prison with a four year and six month parole ineligibility term on the second-degree possession with intent to distribute offense in accordance with the mandatory extended term under the Brimage guidelines and the plea agreement. Sentences on the other convictions were made concurrent with that sentence. This appeal followed.
On appeal, defendant raises the following contentions for our consideration.
POINT I: THE LOWER COURT'S UPHOLDING OF THE WARRANTLESS SEARCH OF THE HOUSE LOCATED AT 513 4TH STREET IN ASBURY PARK SHOULD BE REJECTED AND THE CONTRABAND SUPPRESSED AS IT WAS SEIZED IN VIOLATION OF DEFENDANT'S RIGHTS UNDER U.S. CONST. AMEND. IV AND N.J. CONST. ART. I, PAR 7.
POINT II: THE LOWER COURT ABUSED ITS DISCRETION AND PREJUDICED DEFENDANT WHEN IT IMPERMISSIBLY MADE THE FINDING OF FACT THROUGH JUDICIAL NOTICE THAT PIT BULLS ARE USED BY DRUG DEALERS FOR PROTECTION (Not Raised Below).
POINT III: THE LOWER COURT ABUSED ITS DISCRETION IN PERMITTING THE PROSECUTOR TO CROSS-EXAMINE THE DEFENDANT OUTSIDE THE SCOPE OF DIRECT EXAMINATION LEADING TO A PREJUDICIAL LINE OF QUESTIONING.
POINT IV: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
Defendant argues that the police did not have a right to enter the property because he had a legitimate expectation of privacy there and the city's condemnation of the property as uninhabitable did not override this expectation. The State argues that the police had a right to enter condemned property to chase a trespasser and that defendant had no expectation of privacy after it was condemned. Moreover, the State further asserts that the search of the property was based on defendant's voluntary consent after his valid arrest for aggravated assault on a police officer and resisting arrest.
The Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the State of New Jersey Constitution protect against unreasonable searches and seizures. The basic principle undergirding the Fourth Amendment is that warrantless searches of people's homes are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 650-51 (1980). Whether an area is considered part of the home may be a fact-specific inquiry; the Fourth Amendment only protects areas and objects in which the accused has a reasonable expectation of privacy. See, e.g., California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215 (1986) ("The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy."); State v. Reid, 194 N.J. 386, 396 (2008). A reasonable expectation of privacy is present when: 1) the defendant exhibits an actual or subjective expectation of privacy and 2) the expectation is one that society is prepared to recognize as reasonable. State v. Sloane, 193 N.J. 423, 434 (2008) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J. concurring)).
There is no dispute that this property had been condemned as uninhabitable, defendant no longer lived there, he resided elsewhere, and he had been arrested for trespassing on the condemned property prior to this incident. Additionally, defendant was not on the property to make repairs for the owner. Based upon these undisputed facts, we agree that defendant did not have a reasonable expectation of privacy on the condemned property. See State v. Linton, 356 N.J. Super. 255, 258 (App. Div. 2002).
Moreover, even if the police were not legally on the property, defendant did not have the right to resist arrest.
State v. Williams, 192 N.J. 1, 14-18 (2007); State v. Crawley, 187 N.J. 440, 450-52 (2006). The intervening events of defendant resisting arrest and calling his pit bull to assault the police gave the police a valid reason to arrest defendant. State v. Brown, 205 N.J. 133, 146-47 (2011). Consequently, we conclude that the evidence seized during the search based on defendant's voluntary consent to the search was valid and defendant's motion to suppress was properly denied.
Next, defendant asserts that, during the suppression hearing on the November 7 charges, the trial judge abused his discretion in observing that pit bulls are typically used by drug dealers and in allowing cross-examination outside the scope of direct examination. We find these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). We add only the following brief comments.
We agree with the trial judge's conclusion that the police arrested defendant pursuant to valid arrest warrants and a search incident to that arrest. Defendant does not challenge this holding on appeal. Rather, defendant takes issue with a casual remark made by the judge after he had found the arrest and search valid. We reject defendant's argument that this offhand observation, while unnecessary to his decision, tainted the judge's correct ruling, which was fully supported by the record.
Defendant also contends that the prosecutor's cross-examination of him was improper, specifically regarding questions about the pit bull, his drug history, and his alleged possession of CDS. Defendant contends the trial judge abused his discretion when he permitted these questions over defense counsel's objections, since they did not pertain to subject matter raised on direct examination, contrary to N.J.R.E. 611(b).
However, even if the questions were improper, defendant does not point to any prejudice he suffered as a result. Moreover, it is axiomatic that a guilty plea generally constitutes a waiver of any issue which was or could have been raised in advance thereof. State v. Knight, 183 N.J. 449, 470-71 (2005). We reject defendant's contention of error as we are unable to discern any harm resulting from this line of questioning.
Lastly, defendant submits that the sentence was excessive. At the sentencing, the trial judge found that aggravating factor three (the risk of committing another offense) and aggravating factor six (extent of prior record) applied, since defendant had nineteen convictions, seven involving possession of CDS or possession with intent to distribute CDS. N.J.S.A. 2C:44-1a(3), (6). The judge also applied aggravating factor nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(9). The judge found no applicable mitigating factors.
A reviewing court may only modify the sentence if the application of the facts to the law constitutes such a clear error of judgment that it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984). N.J.S.A. 2C:43-6(f), consistent with the Brimage guidelines, provides that a repeat drug offender may, upon application of the prosecutor, be sentenced to an extended term. This includes a minimum prison term of one-third to one-half of the sentence imposed, or three years, whichever is greater. See State v. Fowlkes, 169 N.J. 387, 391 (2001). A sentencing judge does not have discretion to impose a lesser period of imprisonment or parole ineligibility than that provided for in the terms of such a plea agreement but may reject the plea in its entirety. State v. Thomas, 392 N.J. Super. 169, 180 (App. Div.), certif. denied, 192 N.J. 597 (2007).
The State argues that the sentence resulted from a voluntary plea agreement and was subject to the Brimage guidelines. Defendant does not deny that his sentence follows the plea bargain and the guidelines but requests a lower sentence, as he feels that the judge gave too much weight to his nineteen convictions in considering the aggravating and mitigating factors under N.J.S.A. 2C:44-1. We disagree.
We conclude that the judge's findings as to the aggravating and mitigating factors are supported by the record, the imposition of the negotiated sentence complies with the Brimage guidelines, and the sentence does not shock our conscience.