Opinion
DOCKET NO. A-0388-14T2
05-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGINALD BARRIS, a/k/a CARLOS BARRIS, Defendant-Appellant.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-09-0714. Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
Following the denial of his motions to suppress evidence seized pursuant to a search warrant, to discover the identity of a confidential informant and for a Franks hearing, defendant Reginald Barris entered a conditional guilty plea pursuant to a negotiated agreement to first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1), and was sentenced to seven years in state prison with thirty-six months of parole ineligibility. He appeals pursuant to Rule 3:9-3(f), not urging any error in the trial court's analysis of the facts or the law but contending he should have been accorded an in camera hearing on his motion to disclose the identity of the informant. Because we conclude defendant was not entitled to a hearing in camera, we affirm.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
In September 2011, a confidential informant told a detective in the Passaic Police Department that defendant, a man he knew as Godafi, was selling cocaine from an apartment on Monroe Street. The informant described defendant as a thirty-year-old Hispanic man with a tattoo of the word "PRINCESS" on his neck. The detective was familiar with defendant from other investigations. The detective showed the informant a picture of defendant, obtained through a police database, and the informant identified defendant as the man selling cocaine.
Based on information from the informant, law enforcement officers in Passaic arranged for him to make a "controlled buy" of drugs from defendant. The purchase was structured in such a way that the officers could be certain the informant did not possess any drugs prior to his purchase from defendant, and they kept the informant under constant visual surveillance before and after the purchase. Because the informant purchased the drugs inside the Monroe apartment, which the investigators confirmed was defendant's through a check of his driver's license, the investigators could only observe the informant going into and coming out of the front door of defendant's apartment building. They could not see the actual purchase.
The informant told the investigators that after being admitted into the building, he walked up the stairs to defendant's apartment and knocked on the door. Defendant opened the door, the informant handed defendant the money provided by law enforcement and received from him in exchange a quantity of cocaine. Once the buy was complete, the informant gave what he purchased to the investigators, who field-tested it and confirmed the drugs were cocaine.
A few days later, the informant advised that defendant was also selling cocaine out of an apartment on Highland Street. The detective undertook surveillance of the building and saw several people he knew from prior narcotics investigations and arrests to be drug users and friends of defendant. Law enforcement officers arranged another controlled buy, structured like the first, only this time, the informant was to purchase the drugs from defendant at the Highland Street apartment. Officers conducting the surveillance saw the informant approach defendant, who was sitting on the front porch, and hand him something. They watched as the two men then entered the building. A little while later, they saw the informant emerge alone.
When the informant turned over what he said he purchased from defendant, whom he identified as the same man who sold him drugs in the Monroe Street apartment, the field-test again confirmed the substance was cocaine. The informant told the officers defendant had provided him the drugs, in exchange for the money they had watched informant hand defendant on the porch, in the only apartment on the second floor. A subpoena to PSE&G revealed the person receiving electric service in that apartment was named Surita.
Law enforcement officers conducted two more controlled buys by the informant from defendant at the Highland Street apartment. After one of those buys, law enforcement officers watched as defendant left the building and got into the passenger side of a waiting car. An officer followed the car directly to defendant's apartment on Monroe Street, where he watched as defendant got out and entered his apartment building. The car that dropped defendant off then immediately left the area.
Following the last of the controlled buys, the detective swore out an affidavit for a search warrant for defendant and both the Monroe Street and Highland Street apartments. A municipal court judge signed warrants, which the officers executed. Officers arrested defendant in his Monroe Street apartment and seized the drugs which defendant sought to suppress in this action.
Defendant's motions to discover the identity of the informant, the surveillance locations and for a Franks hearing were heard by the Honorable Miguel de la Carrera. Defendant sought the informant's identity in order to contest the factual merits of the probable cause determination underlying the search warrant. He argued his right to present a complete defense outweighed the informer's privilege of N.J.R.E. 516 and that disclosure was necessary "to assure a fair determination of the issues."
In response to questions posed to defense counsel by Judge de la Carrera as to the deficiencies defendant perceived in the affidavit supporting the warrant, defendant claimed that he was wearing a leg brace as a result of knee surgery at the time of the last controlled buys and would not have been able to manage the stairs at Highland Avenue. Defendant contended the detective did not mention the brace in the affidavit, even though the police claimed they saw defendant and consequently should have seen the brace. Defendant also argued that in addition to the PRINCESS tattoo on his neck, he had other quite distinctive tattoos on his face and neck at that time. He claimed those tattoos would have been visible to the informant and were distinctive enough that they should have figured in the informant's description of him. Defendant did not seek an in camera hearing before Judge de la Carrera to allow the judge to probe the informant's veracity while still protecting his identity.
Defendant also apparently produced a statement made by Pedro Surita, whom the police arrested in the Highland Street apartment when executing the warrant. Surita it appears pled guilty to possession with intent to distribute the cocaine seized from his apartment that day. In the statement Surita made to defense counsel's investigator after completion of his sentence, Surita claimed he was the only person selling drugs out of his Highland Street apartment and that defendant was not involved. This statement was not included in the appendix; what we knew of it came only from brief references in the transcript of the motion argument before Judge de la Carrera. Subsequent to argument, defendant provided the statement to the court with consent of the State. Having now reviewed the statement, which is unsworn, we conclude it adds nothing to the analysis here.
The State countered by arguing that defendant had not, in either his submissions or at argument, identified any lies or statements made in reckless disregard of the truth in the affidavit. The State asserted that the controlled buys were conducted in order to corroborate the informant's information and that defendant was not charged with any crime in connection with the Highland Street apartment. The State additionally argued that the informant was not an essential witness to the crimes with which defendant was charged. Finally, with respect to defendant's tattoos, the State pointed out that the informant identified defendant by his photograph, not by his tattoos.
In an oral opinion from the bench, Judge de la Carrera denied the Franks motion, finding there was nothing about the "affidavits submitted in support of the search warrants which even hint of willful misrepresentations or reckless disregard of the truth." Addressing defendant's request for discovery of the identity of the informant and the surveillance locations, the judge stated:
There's been absolutely nothing here which would justify revelation of the CI's [confidential informant's] identity, nor the surveillance location, because the CI again is a marginal figure in terms of the charges. The notion that because a CI provides tips and information and gauges and actions, which are part of what provide the basis for probable cause, and an important part of that probable cause, doesn't mean
that that becomes discoverable, that it trumps not only the privilege under the [evidence] rule, but the public policy supporting the cooperation of a citizenry and providing information to police about illegal activity. There's been no showing whatsoever that disclosure of the CI is vital to the defendant's position in the trial, as that CI is not going to be a witness in the trial. The defendant was not charged with any of the transactions the CI was involved in. There is no substantial unfairness which could result.
The judge concluded with regard to the Highland Street apartment's place in the
uncharged transactions, which were among the factors considered in the affidavit in support of the search warrant, . . . that location is irrelevant because it's not part of this case itself, which involves evidence discovered at [the Monroe Street apartment] pursuant to the search warrant. What counsel is, in effect, seeking is very much the kind of fishing expedition, which our case law greatly disfavors. And, again, there's been no substantial showing with me to overcome the State's privilege in that regard.
On appeal, defendant raises only a single issue:
THIS COURT SHOULD ADOPT THE PRINCIPLES OF STATE V. CASAL, 699 P.2d 1234 (WASH. 1985), WHICH ALLOW FOR IN CAMERA HEARING ON A MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT, AND REMAND FOR RECONSIDERATION. U.S. Const. Amends. IV, XIV; N.J. Const. Art. I, ¶¶ 1, 7.We reject his proposal and find no basis to remand this matter to the trial court.
We review a trial court's ruling granting or denying discovery for purposes of a Franks hearing for abuse of discretion. See State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010).
Defendant concedes he was unable to make the showing necessary for a Franks hearing under established New Jersey law. See State v. Howery, 80 N.J. 563, 568, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979) (holding a defendant seeking a Franks hearing must make a substantial preliminary showing that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included in the affidavit supporting the warrant). He argues that it was impossible for him to do so because he had no ability to investigate or interview the informant. Because he was not provided the identity of the confidential informant, he claims he was without access to the information he needed to make the showing Franks requires. He asks us to follow the lead of the Supreme Court of Washington and remand this case for an in camera hearing at which the State would be required to produce the informant so the judge could probe his veracity.
The State contends we should not consider that argument because defendant never asked Judge de la Carrera for an in camera hearing. On the merits of that issue, the State argues the Supreme Court rejected the request for an in camera hearing in these circumstances in State v. Milligan, 71 N.J. 373, 384 (1976), and that defendant has not shown his entitlement to an in camera hearing even under the out-of-state precedent on which he relies.
Although the State is correct that defendant did not seek an in camera hearing in the trial court, we are satisfied the legal issue is one properly before us. As even the most cursory review of the trial court transcripts demonstrates, defendant's central argument to Judge de la Carrera was his inability to probe the affidavit underlying the warrant because he could not learn the identity of the confidential informant. Defendant's pursuit of this discovery in the trial court, albeit without suggesting the in camera remedy he now argues to us, makes this case very different from those cases in which the Supreme Court has declined to address on appeal issues never raised initially in the trial court on which the State relies. See State v. Witt, 223 N.J. 409, 418-19 (2015) (declining to address on appeal justification for the car stop not raised to the trial court); State v. Robinson, 200 N.J. 1, 18-19 (2009) (declining to address defendant's challenge to use of a flash bang device to gain entry on a knock and announce warrant not raised in the trial court).
Although we reject the State's procedural argument as without merit, we agree with it that defendant is not entitled to an in camera hearing to test the existence and veracity of the confidential informant. Our Supreme Court considered and rejected such hearings in Milligan, a case in which the confidential informant played a much larger role than the one assumed by the informant in this case. In Milligan, the informant introduced an undercover narcotics agent to the defendant and accompanied them to the place where the agent bought heroin from the defendant, although the informant was out of the room when the sale was actually transacted. Milligan, supra, 71 N.J. at 377-79. Milligan was indicted and tried for the possession and sale of the heroin he sold to the undercover agent that day. Id. at 379.
In considering and declining to adopt the arguments for in camera hearings defendant urges here, the Court in Milligan wrote:
We are aware of a proposal that trial judges, prior to deciding whether to require disclosure, hold in camera hearings attended exclusively by themselves, the prosecuting attorney and the informer. See, e.g., United States v. Day, [384 F.2d at 464, 467, 469-470 (3d Cir. 1967) (McLaughlin, J., concurring); Levine, The Use of In Camera Hearings in Ruling on the Informer Privilege, 8 U. Mich. J.L. Reform 151 (1974)]. Such a proceeding would provide the judge with sufficient information to
make a fair and rational determination as to whether disclosure should be allowed.
While we believe that this proposal is theoretically attractive, and while we have no objection to the use of in camera proceedings per se (see State v. Allen, 70 N.J. 474 (1976); cf. People v. Goggins, [313 N.E.2d 41, 43-44 (N.Y. 1974)], we conclude that as a practical matter this proposal should not be adopted in cases of this nature. We believe that by requiring informers to appear in court before a judge, even though the defendant is excluded and the transcript is sealed, this proposal will effectively reduce cooperation with the police and defeat the purposes which underlie the informer's privilege. Therefore, at least until further study is done on the matter, we reaffirm our holding in State v. Oliver, [50 N.J. 39, 47-48 (1967)]:
In dealing with the informer privilege, we must be mindful of the ease with which the privilege would be destroyed if disclosure were required without a substantial showing of a need for it. * * *
We recognize of course a remote possibility that an informer's testimony might serve some defendant. The dilemma is that ordinarily a defendant cannot know unless the informer is made available, while to require him to be made available will end the prosecution and deny society the services of informers. We asked counsel for their views as to whether the knot could be cut by committing to a trial judge the power to question an informer privately or to consider a written
statement of the informer, so limited as to preserve his anonymity, to determine whether his testimony would aid the defendant. We doubt that such a device could be used without revealing the informer or making the danger of his disclosure a forbidding possibility. Not infrequently an informer is known only to a single police officer and would not consent to a disclosure of his identity to a superior officer or even the prosecutor.
Perhaps a situation may arise in which some such procedure would be feasible and warranted. At the moment a choice seems unavoidable between a disclosure of the witness-informer in all cases or in none at all. A policy-decision must be made and it must rest upon probabilities. In those terms the risk of loss to defendants is pure conjecture, while the loss to society in its efforts to cope with crime would be real and substantial. The balance contemplated by Roviaro [v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, 646 (1957)] must be struck in favor of law and order. Cf. State v. La Fera, 42 N.J. 97, 107-108 (1964).
[Milligan, supra, 71 N.J. at 393 n.12 (quoting Oliver, supra, 50 N.J. at 47-48).]
Defendant has provided us no reason in this case to depart from our Supreme Court's considered judgment on this question, even were we free to do so. The case on which defendant relies, State v. Casal, 699 P.2d 1234 (Wash. 1985), was decided over thirty years ago, and did not prompt a great many other states to follow its example. In that case, the Supreme Court of Washington held that state's trial courts should exercise their discretion to conduct an in camera examination of a confidential informant "where a defendant presents information which casts a reasonable doubt on the veracity of material representations made by a search warrant affiant, and the challenged statements are the sole basis for probable cause to issue the search warrant . . . ." Id. at 1235.
The sole basis for probable cause in Casal was that "a reliable, confidential informant had been inside petitioner's home in the preceding 24 hours and had observed a quantity of marijuana growing and packaged for sale." Id. at 1235-36. The defendant submitted an affidavit claiming the informant had revealed himself to him, and that the informant represented he told the police he had not seen any marijuana in the defendant's home. Id. at 1236.
Here, defendant Barris did not present information casting reasonable doubt on the veracity of the material representations made by the search warrant affiant, nor were the statements attributed to the informant the sole basis for probable cause. Unlike the defendant in Casal, Barris did not challenge any of the material allegations in the affidavit supporting the warrant application. Instead, he merely pointed to facts which, in his opinion, should have been noted by the informant or the surveillance team and mentioned in the affidavit. Moreover, the statements attributed to the informant were not the sole basis for the probable cause finding. The tip the informant provided, that defendant was selling drugs out of his Monroe Street apartment, prompted the investigation which included surveillance and four controlled buys. Those controlled buys, in addition to the informant's initial tip, provided probable cause for issuance of the warrant. Accordingly, defendant cannot show an entitlement to an in camera hearing even under the test he urges us to adopt.
Even the Surita statement, which we now have, is only an unsworn statement to a defense investigator given after Surita's guilty plea to possession of drugs seized from his Highland Street home contending defendant did not sell drugs from that apartment and does not address the drugs seized in defendant's possession at his Monroe Street apartment.
We also note we are unaware of any proposals to amend the Rules of Court or N.J.R.E. 516 to authorize such in camera hearings. --------
Because defendant asserts no error in Judge de la Carrera's findings of fact and conclusions of law and has not otherwise demonstrated any entitlement to an in camera hearing, we affirm.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION