July 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
BYRON THOMPSON, a/k/a SEAN JONES, BRYANT THOMAS, TROY THOMAS, BRYANT THOMPSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-07-0706.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Byron Thompson appeals his conviction for first-degree possession of a controlled dangerous substance (CDS) and possession with intent to distribute CDS. The sole issue on appeal is whether the judge erred by denying defendant's motion to suppress. We affirm.
On July 31, 2008, a Mercer County Grand Jury charged defendant with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count two); third-degree possession of a CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count three); and second-degree possession of a CDS with intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count four).
On June 21, 2010, defendant entered a negotiated plea of guilty to count two of the indictment, charging him with first-degree possession of a CDS with the intent to distribute. At the time of his plea, defendant reserved the right to appeal the denial of his motion for recusal, as well as motions to suppress evidence and his statement during arrest. At sentencing, the court imposed the recommended term of seventeen years imprisonment with a sixty-six-month parole ineligibility period, and dismissed the remaining counts of the indictment.
Pertinent to this appeal, on January 7, 2008, the Honorable Maryann K. Bielamowicz, J.S.C., issued a warrant to search a semi-attached row house in Trenton, New Jersey, where defendant lived with his girlfriend and their young child. Specifically, the warrant authorized the search for evidence of the CDS phencyclidine (PCP), its associated paraphernalia, and any evidence of its distribution, including scales, packaging materials and cutting agents. The warrant was supported by the sworn affidavit of Mercer County Detective Joseph Angarone.
In his affidavit, Angarone averred, in relevant part, that:
(1) During the month of December 2007, he received information from a confidential informant (CI) who knew from conversations and personal observations that defendant used his house as a location to conceal and distribute PCP. CI claimed that buyers contacted defendant on his cell phone to arrange drug purchases. CI further claimed to have purchased PCP from defendant in this manner on several occasions during the past year. CI described defendant as a black male, who was approximately thirty to thirty-five years of age, approximately 5'10" to 6'0" in height, and weighed 175 to 180 pounds;
(2) Also during December 2007, a second informant (CI #2) informed Angarone that defendant lived at a specific address in Trenton, New Jersey, with his girlfriend and their four-year-old child, and used the address to conceal and distribute PCP. According to CI #2, defendant kept PCP in small brown jars inside the residence and also concealed quantities in the backyard. CI #2 claimed to have observed defendant with PCP at the residence on several occasions during the past year. CI #2 provided a similar physical description of defendant and added that defendant had a large lump on the right side of his skull;
(3) On December 4, 2007, both CI and CI #2 identified defendant from a photograph shown to them by Angarone. Angarone also conducted a search using a specified internet search engine and a criminal history check to confirm defendant's address. Defendant's criminal history also showed thirteen arrests and four felony convictions, three of which were for possession and distribution of CDS;
(4) During the week of December 30, 2007, CI made a controlled buy from defendant at his house under constant police surveillance; and
(5) On January 9, 2008, Angarone observed defendant enter and exit his house multiple times.
At about 2:55 p.m. on January 9, 2008, members of the Mercer County Prosecutor's Office Special Investigations Unit executed the warrant. At the time of the officers' entry, defendant was placed under arrest, given his Miranda warnings, and asked if there were any drugs in the residence. In response, he stated that liquid PCP could be found in a bottle on the kitchen counter and in a Listerine bottle in the upstairs bathroom.
On October 15, 2009, the Honorable Mitchel E. Ostrer, J.S.C., heard and denied the defendant's motions for recusal, to suppress evidence recovered from a search of the residence, and to suppress defendant's statement to police. In a thorough oral opinion, the judge reviewed the information the two informants provided to Angarone and found it supported a finding that probable cause existed for the issuance of the search warrant. While acknowledging that the informants were "previously untested, " the judge determined that they, nonetheless, provided information that Angarone was able to verify. In particular, the judge found that CI provided information that defendant lived at a specific address in Trenton, New Jersey, and was engaged in PCP distribution. Furthermore, CI provided a physical description of defendant and his cell phone number. The judge also considered it "most significant" that CI contacted defendant by calling the identified cell phone number, and in a conversation overheard by an officer, made arrangements to purchase PCP which was consummated as planned. CI #2 provided the same information and added that defendant resided with his girlfriend and child. CI #2 also divulged that defendant kept PCP in small brown jars in the house and in the backyard.
To verify the information provided, Angarone had the informants identify defendant from a photograph, and he conducted a criminal history check and accessed the Accurint database to confirm defendant's address. Angarone also observed defendant under surveillance coming and going from his house on multiple occasions on one day, which the judge concluded was "consistent with someone who is engage[d] in the retail sale of drugs." Based on those findings, the judge denied defendant's motion to suppress.
On appeal, defendant argues:
THE SEARCH WARRANT WAS ISSUED WITHOUT PROBABLE CAUSE AND IS THEREFORE INVALID. THE SEIZURE OF CONTRABAND WAS UNCONSTITUTIONAL AND SHOULD HAVE BEEN SUPPRESSED.
Defendant claims that the affidavit submitted in support of the warrant failed to provide a sufficient factual basis to form the requisite probable cause. We are not persuaded by this argument.
Our review of the Law Division's ruling on a motion to suppress evidence is limited. We "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." State v. Rockford, 213 N.J. 424, 440 (2013) (citations omitted) (internal quotation marks omitted). We defer to the trial court's fact findings and "feel" of the case and may not substitute our own conclusions regarding the evidence. State v. Locurto, 157 N.J. 463, 471 (1999).
Pursuant to the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "[A] search warrant executed pursuant to a warrant is presumed to be valid, " State v. Jones, 179 N.J. 377, 388 (2004) (citation omitted), and a reviewing court must "accord substantial deference to the discretionary determination resulting in the issuance of the warrant, " State v. Sullivan, 169 N.J. 204, 211 (2001) (citation omitted).
The defendant bears the burden of proving the invalidity of a search executed pursuant to a warrant, i.e., the warrant lacked probable cause based on the facts provided or the search was otherwise unreasonable. Ibid. Hence, "where the adequacy of the facts . . . appears to be marginal, the doubt should ordinarily be resolved by sustaining the search." Jones, supra, 179 N.J. at 388-89 (citations omitted).
Prior to "issuing the warrant, the judge must be satisfied that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched" based on the totality of the circumstances. Sullivan, supra, 169 N.J. at 210. Although probable cause cannot be precisely defined, courts have interpreted it to require "less than legal evidence necessary to convict though more than mere naked suspicion." Ibid. (citation omitted). Therefore,
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
[Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983).]
A court may issue a search warrant based on information received from a confidential informant, "provided that a substantial basis for crediting that information is presented." Jones, supra, 179 N.J. at 389 (citations omitted). Under the totality of circumstances test, "courts consider an informant's veracity and his or her basis of knowledge to be the two most important factors in evaluating the informant's tip." Sullivan, supra, 169 N.J. at 212. Additionally, "[b]ecause the information contained in an informant's tip is hearsay and must be invested with trustworthiness to be considered as probative evidence, . . . [i]ndependent [police] corroboration is necessary to ratify the informant's veracity and validate the truthfulness of the tip." State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed.2d 480 (1998).
Defendant argues that the affidavit was based entirely on the hearsay allegations of the two informants and lacked further independent corroboration of drug distribution by the police. Moreover, he contends that the surveillance of defendant's residence does not show any indication of drug sales or contraband, but merely that he lived at that location.
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." Sullivan, supra, 169 N.J. at 213. We also consider whether the police were able to corroborate the informant's information. A previous controlled buy using the informant is a factor that supports a finding of probable cause. See Jones, supra, 179 N.J. at 392 (citing Sullivan, supra, 169 N.J. at 215-16). In State v. Keyes, the New Jersey Supreme Court opined:
[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.
[184 N.J. 541, 556-57 (2005) (citations omitted) (internal quotation marks omitted).]
In this case, we find no basis to second-guess either the warrant-issuing judge or the motion judge. While the informants may have been assisting the police for the first time in this case, the affidavit established that the very specific information provided, namely the house from which the drugs were being sold, defendant's identity and description, and the cell phone number were confirmed by Angarone so as to ratify the informants' veracity and validate the truthfulness of the tips. Furthermore, CI's participation in a controlled buy under police surveillance and the police observations of defendant's movements to and from the house not only corroborated the informants' information and reliability, but also gave rise to the reasonable inference that defendant was engaged in the sale of illegal drugs and that there was contraband in the home. Defendant's criminal history, including prior drug convictions, was an additional factor supporting the issuance of the warrant.
We conclude there was probable cause to issue the search warrant and sufficient evidence in the record to support the denial of defendant's motion to suppress