July 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RASHEEN L. YARBROUGH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-06-1270.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Sapp-Peterson and Nugent.
Following the denial of his motion to suppress drugs and drug paraphernalia seized from his residence by the police who executed a "no-knock" search warrant, defendant Rasheen Yarbrough pled guilty to possession with intent to distribute a controlled dangerous substance (CDS), and to committing that offense near school property, crimes which the court merged when it sentenced defendant to a seven-year prison term. Defendant argues that the affidavit of the police officer who obtained the warrant established neither probable cause to search his residence nor a sufficient basis to justify a no-knock entry. Defendant also argues that his sentence is excessive. Having considered defendant's arguments in light of the record and controlling law, we reject them and affirm his conviction and sentence.
On February 22, 2009, law enforcement officers executed a no-knock search warrant at defendant's residence where they found and seized crack cocaine, cell phones, a scale, marijuana, zip lock bags, gang-related documents, and money. Defendant admitted that the contraband belonged to him alone and no one else in the residence.
Following defendant's arrest, a Monmouth County Grand Jury charged him in a three-count indictment with third-degree possession of CDS, cocaine, N.J.S.A. 2C:35-10a(1) (first count); second-degree possession with intent to distribute CDS, cocaine, N.J.S.A. 2C:35-5b(2) (second count); and third-degree possession with intent to distribute CDS near school property, N.J.S.A. 2C:35-7 (third count). The police separately charged defendant with two disorderly persons offenses: possession of less than fifty grams of marijuana or hashish, N.J.S.A. 2C:35-10a(4), and use of drug paraphernalia, N.J.S.A. 2C:36-2.
At the suppression hearing the parties called no witnesses. Instead, they based their arguments on the facts in the affidavit of the officer who obtained the warrant. Long Branch Police Department Patrolman Ramon L. Camacho attested to the facts in the affidavit.
Officer Camacho had gained experience concerning narcotics activity through training in the Monmouth County Police Academy and during his years of service in three municipal police departments. He had executed several search warrants and been involved in "numerous narcotic investigations." According to his affidavit, Officer Camacho had spoken with informants and users about how drugs are sold and what type of records are kept to record drug sales. He was "familiar with the practices and procedures utilized by narcotic traffickers to avoid detention by law enforcement officials."
The officer further explained that defendant came to his attention in 2009 when several confidential informants provided information that defendant was selling crack cocaine out of his residence in Long Branch. The police checked a certificate of occupancy that listed "Rasheen Yarbrough" as an occupant of the Long Branch residence identified by the confidential informants.Based on the information provided by informants, Officer Camacho's unit set up surveillance of defendant's residence, which was located at the end of a dead-end street. In January 2009, Sergeant Chaparro and Officer Camacho surveilled defendant's residence and observed several people walk up to the house, enter through the front or side doors, remain inside for five to seven minutes, then exit the residence. Based on his training and experience, Officer Camacho concluded that the activity he observed was consistent with narcotics trafficking.
During the time the officers surveilled defendant's residence, they "developed" a confidential informant that confirmed defendant was selling crack cocaine from the house. The informant described defendant and identified him in a photograph.
The next month, a confidential informant working for the officers made two controlled purchases from defendant. On each occasion, the officers searched the informant at a prearranged location to assure that he had no money or drugs, gave him money from a designated police fund, and kept him under surveillance as he entered defendant's home. Each time the confidential informant entered defendant's residence to purchase drugs, an unidentified male emerged from the residence, walked toward an intersecting street, continually scanned the area, and appeared to be acting as a lookout.
On each occasion, the informant emerged from defendant's residence six or seven minutes after entering it. When the confidential informant came out of defendant's residence, the police kept him under surveillance until they met him at a prearranged location where they searched him again to assure that he had no money or contraband, other than what he purchased from defendant. The confidential informant purchased "an off white rock like" substance from defendant each time. The substances later tested positive for cocaine.
Officer Camacho averred that defendant had the following criminal record:
(1) On March 27, 1996, [defendant] was [charged with] unlawful possession of a weapon.
(2) On April 29, 1999, [defendant] was convicted of theft and resisting arrest.
(3) On December 18, 1998, [defendant] was convicted of disorderly conduct.
(4) On October 7, 1999, [defendant] received a conditional discharge for possession of CDS.
(5) On November 15, 1999, [defendant] was convicted of resisting arrest.
(6) On May 4, 2000, [defendant] was convicted of possession of marijuana.
(7) On March 22, 2001, [defendant] was convicted of local ordinance violations, with the original charge being obstruction.
(8) On July 18, 2001, [defendant] was convicted of eluding.
(9) On April 7, 2003, [defendant] was convicted of hindering.
(10) On April 25, 2006, [defendant] was convicting of absconding from parole.
Officer Camacho also requested a no-knock warrant:
Based on concerns for the safety of the officers executing the search warrants, as well as preventing the destruction of evidence, I respectfully request that a no-knock warrant be issued. This request is being made based on your deponent's training and experience while conducting narcotic investigations and executing search warrants. I along with other members of the Long Branch Police Department have encountered individuals involved with illegal [CDS] in possession of weapons. These weapons include firearms, knives, and other weapons, which could be utilized to injure the law enforcement personnel.
Further, the investigation has revealed that [defendant] has previous convictions for possession of a weapon, resisting arrest, and eluding the police. Police surveillance in this case reveals that [defendant] utilizes lookouts as counter surveillance to warn him of police presence. The use of lookouts along with the position of the residence on a dead-end street provides ample surveillance opportunities for the target to look out the window when we approach. This would allow [defendant] enough time to destroy the evidence and/or arm himself if any officers had to knock and announce his presence, and due to the fact that the [confidential informant] has never been allowed into the residence further than the enclosed porch areas and a few feet into the living room area, it is unknown where the CDS is located in the residence. Based on the foregoing, an announcement would inhibit the effective investigation of the criminal activities occurring at this location and endanger the police.
In an oral opinion delivered from the bench following argument, Judge Jamie S. Perri denied defendant's motion. In her thorough opinion, Judge Perri concluded that the affidavit established probable cause for the issuance of the warrant, the warrant having provided the court with "multiple sources of information" regarding both the premises and the identification of defendant as the person selling drugs within the premises. The judge found that the information received from the informants was amply corroborated by, among other things, the two controlled drug buys.
Judge Perri also determined that defendant's criminal record, his use of lookouts while selling drugs, and the location of his residence on a dead-end street, constituted the reasonable, particularized suspicion required to justify the no-knock warrant.
Following the denial of his motion, defendant pled guilty to the second and third counts of the indictment. At sentencing, the judge dismissed the first count, merged the third count into the second, and imposed a seven-year custodial term with forty-one months of parole ineligibility. The court also imposed appropriate penalties and assessments, and dismissed the disorderly persons offenses. This appeal followed:
Defendant argues the following:
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AS THERE WAS INSUFFICIENT PROBABLE CAUSE TO SUPPORT BOTH THE SEARCHES AND THE "NO-KNOCK" PROVISION. U.S. CONST. ART. I, PARA 4; N.J. CONST. ART. I, PARA. 7.
THE DEFENDANT'S SENTENCE IS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
In his first point, defendant challenges the denial of his suppression motion. Because the trial court's decision denying the suppression motion "rests upon a legal conclusion, we conduct a de novo, plenary review." State v. Rockford, 213 N.J. 424, 440 (2013).
Defendant contends "the information contained in the application for the search warrant was not enough for the finding of probable cause . . . ." We affirm the finding of probable cause substantially for the reasons given by Judge Perri in her oral decision. We add only the following comments.
Defendant argues that in State v. Sullivan, 169 N.J. 204, 216 (2001), the Supreme Court rejected the notion that controlled buys, in and of themselves, are sufficient to establish probable cause. In Sullivan, the Court "reject[ed] the State's suggestion that a controlled drug buy conclusively establishes probable cause." Ibid. "That observation, however, was not intended to suggest that a controlled drug purchase is an inconsequential factor. Rather, . . . a controlled buy 'typically will be persuasive evidence in establishing probable cause.'" State v. Jones, 179 N.J. 377, 392 (2004) (quoting Sullivan, supra, 169 N.J. at 217).
Here, Judge Perri found that in addition to the two controlled buys, Officer Camacho provided the court with multiple sources of information regarding not only the location of the premises, but also the identification of the individual who was alleged to have been selling drugs from the location, thus establishing probable cause to search defendant's residence. We agree entirely with her conclusion.
We also agree with Judge Perri's conclusion that Officer Camacho's affidavit provided an adequate basis for a no-knock warrant. Exceptions to the longstanding "requirement that [police] knock and announce their presence before entering a dwelling" exist when "'(1) immediate action is required to preserve evidence; (2) the officer's peril would be increased; or (3) the arrest would be frustrated.'" State v. Johnson, 168 N.J. 608, 615, 617 (2001) (quoting State v. Fair, 45 N.J. 77, 86 (1965)). To establish an exception, the applicant for the warrant must satisfy three requirements:
First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.
[Id. at 619]
In determining whether an applicant for a warrant has articulated a reasonable suspicion to believe that evidence may be destroyed, a court may consider factors such as the size and layout of the premises to be searched, whether persons other than a defendant reside at the premises, and whether the defendant and others involved in selling drugs can reasonably be expected to be present when the warrant is executed. See State v. Bilancio, 318 N.J.Super. 408, 417 (App. Div.), certif. denied, 160 N.J. 478 (1999). Additionally, the presence of a surveillance camera and other monitoring equipment at a location where controlled purchases of drugs have been made "can form the basis for an officer's particularized suspicion that a 'no-knock' search warrant is necessary to prevent the destruction of evidence and insure officer safety." State v. Carlino, 373 N.J.Super. 377, 392 (App. Div. 2004), certif. denied, 182 N.J. 430 (2005).
Factors that provide a reasonable, particularized suspicion that a no-knock entry is required to protect the safety of law enforcement officers include an informant's tip that there are weapons at the location to be searched, an officer's knowledge of a suspect's violent criminal history coupled with an informant's report that the suspect has continued to exhibit violent propensities during controlled drug buys, and the layout of the apartment when the suspect has a violent criminal past. Jones, supra, 179 N.J. at 400 (2004). Additionally, a suspect's nine-year-old arrest for aggravated assault and unlawful possession of a weapon, along with other circumstances, has been held to justify the provision of a no-knock entry. State v. Sanchez, 179 N.J. 409, 411-412 (2004).
In the case before us, the police officers who surveilled defendant's residence observed lookouts each time an informant made a controlled buy from defendant. Consequently, the police had reason to believe that persons other than defendant were involved in the drug distribution scheme and would be present when the police searched defendant's residence. The location of the residence at a dead-end street increased the likelihood that officers would be seen approaching it. Moreover, defendant had an extensive criminal record that included a pattern of fleeing from or otherwise resisting law enforcement officers who attempted to apprehend him. Lastly, defendant had been arrested twice for possessing CDS, and once for possessing a weapon.
Considering that "the showing required to justify a no-knock entry 'is not high[, ]'" Sanchez, supra, 179 N.J. at 412 (quoting Johnson, supra, 168 N.J. at 624), we conclude, as did Judge Perri, that under the totality of the circumstances Officer Camacho had a reasonable, particularized suspicion that a no-knock entry was required to prevent the destruction of evidence and to protect his safety and that of other officers; and that he articulated a minimal level of objective justification to support the no-knock provision in the warrant. See Johnson, supra, 168 N.J. 619.
We next address defendant's claim in his second point that his sentence is excessive. He first argues that "everyone involved with the sentencing seemed to believe that the seven- year term with a forty-one month parole bar was mandated by State v. Brimage, 153 N.J. 1 (1998), and that this was [a] binding, agreed-upon sentence for the second-degree offense." From that premise, defendant reasons that because N.J.S.A. 2C:35-5b(2) does not require a judge to impose a mandatory minimum sentence, and because N.J.S.A. 2C:35-7b authorizes a court to waive or reduce the minimum term of parole ineligibility required under N.J.S.A. 2C:35-7a, the sentencing judge had the discretion to impose a lesser prison term and parole disqualifier. Defendant suggests, implicitly, that the judge would have so exercised his discretion had he not been under the misimpression that the State's sentencing recommendation was binding. The record does not support defendant's argument.
The transcript of defendant's plea does reflect some confusion on the part of the attorneys as to the State's sentencing recommendation on the third count, third-degree possession of a CDS near school property. At the hearing, after stating that defendant intended to plead guilty to the second and third counts of the indictment, the prosecutor said that in exchange the State would recommend "that this [c]ourt sentence the defendant to seven years at New Jersey State Prison with a 41-month period of parole ineligibility to run concurrent to those two counts and that's an offer arrived through the Brimage guidelines in this case." The judge immediately asked, "how do we get to seven years on the third-degree?" The prosecutor agreed to change the recommended sentence on the third count to five years with thirty-six months of parole ineligibility.
Although the prosecutor agreed at the plea hearing to recommend concurrent sentences, when defendant appeared for sentencing the prosecutor informed the judge that the third count should be merged into the second count, and the judge merged them before imposing sentence. The second count was not subject to an explicit statutory mandatory minimum period of parole ineligibility. Nevertheless, defendant remained subject to the minimum sentence mandated by N.J.S.A. 2C:35-7a. See State v. Dillihay, 127 N.J. 42, 45 (1992) (holding "that convictions for school-zone offenses must merge into convictions for related first- or second-degree [N.J.S.A. 2C:35-5] offenses, but that in such cases a mandatory minimum sentence no less severe than that required by the school-some statue should nevertheless be imposed on defendants convicted of a [N.J.S.A. 2C:35-5] offense). That mandatory minimum is now subject to N.J.S.A. 2C:35-7b, which authorizes a court to "waive or reduce the minimum term of parole ineligibility required under [N.J.S.A. 2C:35-7a]." Thus, the Brimage guidelines applied to defendant's sentence.
Although the sentencing judge had discretion under N.J.S.A. 2C:35-7b to waive or reduce the minimum term of parole ineligibility required under N.J.S.A. 2C:35-7a, neither of those provisions affected the judge's obligation to impose an appropriate sentence for defendant's conviction of possession with intent to distribute a CDS, N.J.S.A. 2C:35-5b(2). And though the statutory sentence for that offense does not mandate a minimum period of parole ineligibility, a court has the discretion to impose one. N.J.S.A. 2C:43-6b.
Here, defendant argues that the sentencing judge appeared to be unaware that the imposition of a period of parole ineligibility was discretionary, not mandatory. Nothing in the record before us supports defendant's supposition.
Before imposing sentence, the judge weighed aggravating and mitigating factors. The judge stated that he had gone through the pre-sentence report "with a fine-tooth comb because one of the things the [c]ourt has to do in imposing sentence is find out the aggravating factors and the mitigating factors." The court found as aggravating factors the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); his extensive prior criminal record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1a(6); and the need to deter him and others from violating the law, N.J.S.A. 2C:44-1a(9). The judge could find no mitigating factors that applied to defendant. After explaining his findings of aggravating and mitigating factors, the judge told defendant that he, the judge, would go along with the plea agreement, but that it "could have been a lot worse."
Nothing in the sentencing record suggests that the judge misapprehended his sentencing discretion, or that he believed that he could not exercise that discretion by imposing a lesser sentence. Contrarily, the judge's comment suggests that had he decided to deviate from the plea agreement, he would have imposed a more severe sentence. For those reasons, we reject defendant's implicit suggestion, based on supposition, that the sentencing judge might have imposed a lesser sentence, and fewer months of parole ineligibility, had he not labored under the misimpression that he was bound by the plea agreement.
Defendant also argues that the sentence was not "justified under [a] traditional aggravating versus mitigating factor analysis." That argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentencing judge determined whether aggravating or mitigating factors applied to defendant, weighed the relevant factors, and imposed a custodial term within the permissible range for a second-degree offense. The court's determination of aggravating and mitigating factors was supported by substantial evidence in the record. Because the judge adhered to applicable sentencing principles and properly exercised his discretion, he is "immune from second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).