NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...