May 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
HAROLD WEBB, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically on April 25, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-08-1519.
Peter Thomas Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, on the brief).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
Before Judges Reisner and Yannotti.
Defendant Harold Webb appeals from his conviction for possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), for which he was sentenced to one year of probation.
On this appeal defendant contends that the police did not establish probable cause for the issuance of the search warrant. He also contends that he was entitled to an evidentiary hearing on his claim that the police used unreasonable force during the search of the house where the drugs were found. He presents these arguments in the following points:
PROBABLE CAUSE DID NOT EXIST TO BELIEVE THAT DRUGS WOULD BE FOUND IN WEBB'S HOME BECAUSE THE C.I.'S TIPS THAT HE BOUGHT DRUGS THERE AT SOME UNSPECIFIED TIME AND THAT HE WAS INVITED TO RETURN FOR MORE REMAINED UNCORROBORATED WHEN A CONTROLLED PURCHASE OCCURRED AWAY FROM THE HOME. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED ON WHETHER AN OFFICER USED UNREASONABLE FORCE DURING THE SEARCH BECAUSE A WITNESS ALLEGED THAT THE OFFICER BURST INTO WEBB'S HOME, CONFRONTED WEBB, COFI, AND THE WITNESS, AND FIRED AN UNPROVOKED SHOT IN THEIR MIDST. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.
Finding no merit in either contention, we affirm.
We begin by addressing the record relating to the search warrant. The warrant was issued on the basis of an affidavit from Investigator Larry Petrola, of the Ocean County Prosecutor's Office. According to his affidavit, during the week of December 7, 2008, Petrola got a tip from a known, reliable confidential informant (C.I.), whose prior assistance to law enforcement had resulted in four arrests and the seizure of drugs. The C.I. stated that on prior occasions, he/she had bought cocaine at a specific address from a person known as "Ghost." Based on the C.I.'s physical description of the suspect and the nickname, the police ascertained that "Ghost" was an individual named Salim Cofi. The C.I. identified a photograph of Cofi as a photo of "Ghost." The C.I. further told Petrola that Ghost lived at the specified address (the house) with defendant Harold Webb and his brother Joey Webb.
The C.I. then made a controlled buy of cocaine, under police surveillance. The C.I. had advised Petrola that Ghost would be selling him/her the cocaine at a location away from the house. Accordingly the police watched the house and saw three men, including Cofi, leave the premises. They followed the three men to the sale location. Another team of officers followed the C.I. to that location. The C.I. returned from the meeting with a bag of drugs that proved to be cocaine. During the weeks of December 21 and 28, 2008, the C.I. reported that Cofi told him/her that he had obtained more cocaine and invited the C.I. to buy the cocaine at Cofi's house.
Before applying for a search warrant, Petrola checked the three suspects' criminal records and determined that they all had prior drug arrests. Cofi also had two prior convictions for resisting arrest, as well as arrests for assaulting a police officer and weapons possession. Defendant had prior arrests for possession of a handgun, possession of dum-dum bullets, and threats to kill. In addition, Petrola attested that Cofi was a suspected member of the Bloods street gang and "openly associate[d] with identified gang members." Based on both the danger to the police and the risk that the suspects would destroy evidence, Petrola applied for and obtained a no-knock search warrant.
During the resulting search, the police found a bag of drugs in one of the bedrooms. They also found a digital scale. The police found no guns. They did find a knife and a "spent Winchester 40 S&W shell casing" in the kitchen.
Next, we address the record relating to defendant's claim that the police used unreasonable force. During the no-knock search, a team of police officers (entry team) burst into the house to secure the premises, before a team of Prosecutor's investigators went in to conduct the search. One of the officers on the entry team shot Cofi in the left hip. The defense sought to suppress the fruits of the search based on the theory that the officer used excessive force.
In support of the motion, the defense produced the unsworn report of a private investigator, who had conducted an unsworn interview of a female friend of Cofi (the witness). The witness told the investigator that she was in the house when the search occurred. According to the witness, she, Cofi and defendant walked into the house shortly before the police arrived. The witness began walking into the living room. Cofi, who was to one side of her and five or six feet away, turned to his left to go into his bedroom. At that point, the police broke in through the front and patio doors, and shouted to the three occupants to get down on the floor. The witness turned in an unspecified direction, away from Cofi, and then heard one shot. She turned back toward Cofi and saw him lying on the floor, injured. She did not actually see the shooting and did not know what, if anything, Cofi was doing just before he was shot. She told the investigator that she did not know if Cofi had "made any kind of movement that could be interpreted as an assault on a police officer." However, she knew Cofi was not holding a weapon in his hand.
The shooting was the subject of an Internal Affairs investigation. However, the officer who shot Cofi was neither disciplined nor indicted as a result of the incident. Before deciding the suppression issue, the trial judge heard argument on April 6, 2010, and required the State to produce, for in camera review, documents concerning the Internal Affairs investigation of the shooting.
On August 4, 2010, the judge placed an oral opinion on the record, deciding both aspects of the suppression motion. He concluded that Petrola's affidavit established probable cause to issue a warrant, based on the information from the C.I. and the observations of the police. He also found that the affidavit established sufficient grounds to issue a no-knock warrant, under the totality of the circumstances.
Addressing the unreasonable force issue, the judge distinguished State v. Ravotto, 169 N.J. 227 (2001), in which the police, who had no warrant, used excessive force to obtain a blood sample from a DUI suspect. The judge reasoned that it was not necessary to determine whether the police used excessive force, because, unlike in Ravotto, "the contraband seized was not the fruit of the potentially unlawful force utilized in this search." He also found that defendant had not cited any case law establishing "that our law requires suppression of evidence where unreasonable force is used executing a valid search warrant where there is no nexus between the use of the unreasonable force and the evidence seized." He stated that the unreasonable use of force might give rise to a civil lawsuit, but would not justify excluding the evidence, where the police had obtained a valid warrant before conducting the search.
We begin by considering the search warrant. To the extent that the trial judge's decision rested upon legal conclusions, our review is de novo. State v. Rockford, N.J. (2013 (slip op. at 16). However, our review of the warrant-issuing judge's decision is limited. "A search warrant is presumed to be valid and an appellate court's role is not to determine anew whether there was probable cause for issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). We owe "'substantial deference to the issuing court's finding of probable cause.'" Id . at 33 (quoting State v. Perry, 59 N.J. 383, 393 (1971)). It is the defendant's burden to prove that the warrant was issued without probable cause or that the search was otherwise unreasonable. Id . at 26.
In reviewing the warrant application, we use common sense.
[W]arrant 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."
[State v. Sullivan, 169 N.J. 204, 217 (2001) (quoting State v. Laws, 50 N.J. 159, 173 (1967)).]
Where a warrant affidavit relies on a tip provided by an informant, we consider the totality of the circumstances, including the informant's prior demonstrated veracity and whether the informant had a "basis of knowledge for the information provided to the police." Id . at 213. We also consider whether the police were able to corroborate the C.I.'s information. A previous "controlled buy" using the informant is a factor that supports a finding of probable cause. Id . at 215-16.
[R]elevant corroborating facts may include a controlled drug buy performed on the basis of the tip, positive test results of the drugs obtained, records confirming the informant's description of the target location, the suspect's criminal history, and the experience of the officer who submitted the supporting affidavit. Although no corroborating fact, by itself, conclusively establishes probable cause, a successful "controlled buy 'typically will be persuasive evidence in establishing probable cause.'" Indeed, when the police have performed a successful controlled drug buy we have found that "even one additional circumstance might suffice, in the totality of the circumstances, to demonstrate probable cause."
[State v. Keyes, 184 N.J. 541, 556-57 (2005) (citations omitted).]
In this case, we find no basis to second-guess the warrant-issuing judge. The Petrola affidavit established that the C.I. who provided the tip had previously provided reliable information. The C.I. provided very specific information in this case, concerning the house from which the drugs were being sold and the identity of its occupants. The C.I. engaged in a controlled buy, under police surveillance. The police observed the sellers departing from the house the C.I. described, and followed them to the sale location. They then recovered the drugs from the C.I. after the sale. Their observations not only corroborated the C.I.'s information and reliability, but also gave rise to a reasonable inference that the sellers kept their drug stash in the house. That information in turn supported an inference that the C.I.'s next tip, concerning a proposed drug sale at the house, was reliable. The suspects' criminal records, including prior drug convictions, were an additional factor supporting the issuance of the warrant. See id. at 556.
In summary, we find there was probable cause to issue the search warrant. Although defendant has not specifically challenged the "no-knock" aspect of the warrant, we note there were more than adequate grounds to issue a no-knock warrant, based on the potential risk to the officers' safety. Those factors included the suspects' prior arrests for illegal possession of guns and ammunition, resisting arrest, and assault on a police officer. See State v. Johnson, 168 N.J. 608, 619, 625 (2001).
We turn next to defendant's argument that the trial court should have held an evidentiary hearing on his claim that the search was unreasonable. In reviewing the trial judge's decision on a suppression motion, we defer to his factual findings, although not to his legal interpretations. See State v. Robinson, 200 N.J. 1, 15 (2009).
Preliminarily, we note that our Supreme Court has determined that a police search pursuant to an improperly issued no-knock warrant will justify suppression of evidence. See Johnson, supra, 168 N.J. at 616. The Court has not yet decided whether the use of unreasonable force in entering or searching a dwelling pursuant to a valid search warrant, will result in suppression of the evidence. The Court avoided addressing that issue in Rockford, which involved the use of a flash-bang device in connection with the execution of an ordinary "knock and announce" warrant. Rockford, supra, slip op. at 27 n.4.
In making his suppression argument, defendant relies heavily on Ravotto, a case in which the police, acting without a search warrant, forced a suspect to submit to a blood test in a DUI case. In that context, the Court stated:
With or without a warrant, the police may not use unreasonable force to perform a search or seizure of a person. "[T]he 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."
[Ravotto, supra, 169 N.J. at 236 (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443, 456 (1989)).]
The Court acknowledged then-existing case law permitting the police to require a suspect to give a blood sample in a drunk-driving case, but held that the police used unreasonable force to extract Ravotto's blood, in light of his extreme fear of needles. The Court, however, did not hold that the unreasonable use of force resulted in automatic suppression of the evidence. Instead, the Court next considered the State's contention that the blood test results should be admitted under the independent source rule. Id . at 244-45. The Court rejected that argument because it was not convinced that "the hospital staff would have obtained blood samples from an uncooperative but seemingly uninjured driver such as defendant without the request and aid of the police." Id . at 245.
In light of the applicable case law, and the record presented to us, we find defendant's suppression argument unpersuasive. Defendant produced no evidence to support his contention that the police "confronted Webb, Cofi and the witness, and fired an unprovoked shot into their midst." The witness did not see the shooting and did not know whether it was unprovoked.
Unlike the detonation of the flash-bang device in Rockford, there is no evidence that shooting a gun was part of an intentional police strategy to gain entry to the house. Nor is there any evidence that the officer fired into the "midst" of the suspects or that he shot at defendant. He shot Cofi in the left hip, an area from which one might expect an armed suspect to draw a gun. There was an Internal Affairs investigation, after which the officer was not disciplined or charged criminally in connection with the shooting. The defense proffered no testimony, or even a written statement, from Cofi or from defendant concerning the shooting.
Finally, it is clear that the shooting of Cofi had no connection to the discovery of the drugs in the bedroom. That discovery, pursuant to a valid search warrant, was inevitable. See State v. Sugar, 108 N.J. 151, 156 (1987). Under the circumstances, we conclude that there were no disputed material facts requiring a testimonial hearing on defendant's suppression motion. See R. 3:5-7(c).