Opinion
DOCKET NO. A-4457-12T1
12-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VERNON L. BRANTLEY, a/k/a VERNON BRANTLY, 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). Jason M. Boudwin, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0185. 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). Jason M. Boudwin, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). We affirm.
On August 29, 2010, Mercer County law enforcement officers met with a reliable confidential informant (CI1) and gave him money to purchase cocaine from occupants of a residence (the residence). Thereafter, CI1 returned to the officers, produced cocaine, and informed the police that he bought the cocaine from an individual inside the residence named Li-Li.
On September 5, 2010, the officers met with a second reliable confidential informant (CI2) and followed the identical procedures that they had used with CI1. On this day, CI2 returned with cocaine and informed the officers he purchased the cocaine from a man in the residence he identified as IB, later determined to be defendant.
On September 12, 2010, the officers met with CI2, who advised them that he knew from personal observations and conversations with Li-Li and IB that the two were still selling cocaine from the residence. CI2 then identified defendant and Li-Li in a series of pictures.
On September 16, 2010, the officers applied for a warrant to search the residence, defendant, and Li-Li. The judge reviewed the search warrant affidavits, and issued the warrants. Later that day, the police executed the warrant to search the residence. Defendant opened the door, stepped backwards into the residence and threw two small packages of cocaine on the floor. The police searched defendant and seized from his pants pockets a plastic bag containing a brown substance, marijuana, and $1,014.
A grand jury indicted and charged defendant with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); and third-degree possession of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (Count Three).
Defendant filed motions to suppress the cocaine and compel disclosure of the identities of CI1 and CI2 (the CIs). Defendant argued he needed the names of these individuals to properly challenge the validity of the search warrant. The State responded by indicating that defendant failed to point to any material fact in the search warrant affidavits that had been falsely represented.
The judge denied both motions, rendering an oral opinion. The judge emphasized that defendant failed to produce any information that the CIs were unreliable. He explained that defendant had not "presented any fact that brings into question the veracity of the [CIs'] statements or their actions." The judge pointed out that defendant had not contested in any way the actions of the CIs. And most importantly, the judge stated that the CIs were not present when the police executed the search warrant, seized the CDS, and arrested defendant. He correctly noted that the charges against defendant were related solely to the incident on September 16, 2010, not the controlled buys that had occurred in August and early September 2010.
Defendant pled guilty to third-degree possession of a CDS with intent to distribute (Count Two). At the plea hearing, defendant testified that on September 16, 2010, he possessed the cocaine with intent to distribute. The judge concluded that defendant pled guilty knowingly and voluntarily, and she then accepted the guilty plea.
The judge sentenced defendant in accordance with the negotiated plea agreement. She imposed a five-year prison term with two and one-half years of parole ineligibility, together with the appropriate fines and penalties. As part of the plea agreement, the judge dismissed Counts One and Three of the indictment.
On appeal, defendant argues:
THIS COURT SHOULD ADOPT THE PRINCIPLES OF STATE V. CASAL, 699 P.2d 1234 (WASH. 1985), WHICH ALLOW FOR IN CAMERA HEARINGS ON A MOTION TO DISCLOSE THE IDENTITY OF THE CONFIDENTIAL INFORMANT, AND REMAND FOR RECONSIDERATION. U.S. Const. Amends. IV;
XIV; N.J. Const. [a]rt. I, ¶¶ 1, 7. (NOT RAISED BELOW).
Defendant did not request that the motion judge conduct an in camera inquiry into the CIs' identities. Rather, defendant moved to compel disclosure of the CIs' names. We generally decline to consider issues that were not presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding an appellate court will decline to consider issues not previously raised before the trial court, unless the challenges address "the jurisdiction of the trial court or concern matters of great public interest"). Nevertheless, in the interests of justice, we will address defendant's contentions.
We review an order compelling disclosure of a confidential informant's identity using an abuse of discretion standard, that is, "whether the trial court abused its discretion after weighing the competing considerations of the balancing test." State v. Milligan, 71 N.J. 373, 384 (1976). By the same token, there is a presumption protecting a confidential informant's identity, Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957), which is even stronger in narcotics cases given that "informants are an important, indeed indispensable, part of the arsenal that law-enforcement forces bring to bear against drug crimes[,]" State v. Florez, 134 N.J. 570, 582 (1994); see also Milligan, supra, 71 N.J. at 381 n.3.
The judge must engage in "a balancing of the public's interest in protecting the flow of information in aid of law enforcement with a defendant's right to effectively prepare his case." State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003). The decision "must rest upon probabilities." State v. Oliver, 50 N.J. 39, 48 (1967).
A privilege, belonging to the State, exists to protect the identity of confidential informants. See N.J.S.A. 2A:84A-28 and N.J.R.E. 516; see also State v. Sessoms, 413 N.J. Super. 338, 343 (App. Div. 2010). The purpose of the privilege is twofold: "to protect the safety of the informant and to encourage the process of informing." Sessoms, supra, 413 N.J. Super. at 343. The privilege is in fact intended "to protect the public interest in a continuous flow of information to law enforcement officials." Grodjesk v. Faghani, 104 N.J. 89, 97 (1986). Indeed, the public has a strong interest in sustaining the flow of information about crime to law enforcement, and informants are a key source of that intelligence. See Roviaro, supra, 353 U.S. at 59, 77 S. Ct. at 627, 1 L. Ed. 2d at 644. Our Supreme Court has stated that even an in camera hearing "will effectively reduce cooperation with the police and defeat the purposes which underlie the informer's privilege." Milligan, supra, 71 N.J. at 393 n.12.
The privilege is not absolute. Florez, supra, 134 N.J. at 578. Under N.J.R.E. 516 and N.J.S.A. 2A:84A-28, the State may decline to disclose the identity of a police informant "unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues." Here, the first exception is inapplicable; therefore, we focus on the second exception, specifically whether disclosure is essential to a fair determination of the issues.
Under the second exception, the trial court balances "the public interest in protecting the flow of information against the individual's right to prepare his defense[,] . . . taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Milligan, supra, 71 N.J. at 384 (quoting Roviaro, supra, 353 U.S. at 62, 77 S. Ct. at 628, 1 L. Ed. 2d at 646). Thus, the court must balance the State's interest in encouraging the reporting of confidential information with a criminal defendant's right to fairness. State v. Burnett, 42 N.J. 377, 385-86 (1964).
There is a presumption against disclosure. Id. at 385. "[F]rivolous demands for information [or] unsubstantiated allegations of need" will not be enough to justify disclosure because "[s]omething more than speculation should be required of a defendant before the court overrules an informer's privilege of nondisclosure." Milligan, supra, 71 N.J. at 393. The defendant must demonstrate the materiality of the informer's identity or testimony. Id. at 383-84. Additionally, to overcome this presumption, defendant must make a "substantial showing of [] need" in favor of the disclosure. Oliver, supra, 50 N.J. at 47.
There are certain circumstances in which disclosure may be required, as for example, when the informant was directly involved or played an integral role in the crime for which the defendant has been indicted. Milligan, supra, 71 N.J. at 386-87; Maudsley v. State, 323 N.J. Super. 579, 594 (App. Div. 1999). Such is not the case here. While the informants did engage in controlled purchases of cocaine, the charges against defendant are linked specifically to the contraband found on his person following execution of the search warrant on September 16, 2010. Thus, as the charges do not stem from the August 29 and September 5, 2010 purchases, it cannot be said that the informants "w[ere] [] actual participant[s] of the crime for which the defendant is being charged." State v. Roundtree, 118 N.J. Super. 22, 31 (App. Div. 1971).
"[A]bsent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or 'tips' to the police or participating in the preliminary stage of a criminal investigation." Milligan, supra, 71 N.J. at 387; see State v. Infante, 116 N.J. Super. 252, 259 (App. Div. 1971) (holding that disclosure was not warranted when the informant had made a bet on the phone with the defendant as police listened because that "was not [] the criminal activity for which [the] defendant was convicted"). Additionally, when disclosure is sought to further a challenge to the existence of probable cause, like here, our Court has found it "reasonable and consistent with the purpose and the effective enforcement of the Fourth Amendment to deny disclosure of the informer . . . [,]" Burnett, supra, 42 N.J. at 388, based on the principle that a probable cause determination has a lower standard of proof than that required for conviction, Id. at 385-88 (rejecting disclosure of an informant's identity where a defendant challenged the judge's finding of probable cause for issuance of a warrant).
Here, defendant has not made a strong showing of need as the CIs only played a role in the preliminary stages of the criminal investigation. Their participation was limited to providing tips to the officers and participating in the controlled buys in August and early September 2010, before the seizure of the CDS on September 16, 2010, in which the CIs did not participate. Any claimed need by defendant for the CIs' identities to test their reliability is speculative. Speculation simply does not rise to the level of a "strong showing of need" necessary to overcome the presumption of confidentiality and compel disclosure. Milligan, supra, 71 N.J. at 387.
To establish probable cause for the issuance of a search warrant, the police must demonstrate "a 'well[-]grounded' suspicion that a crime has been or is being committed." State v. Johnson, 171 N.J. 192, 214 (2002) (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). Probable cause can be established based upon information from informants but, because the information is hearsay, "police corroboration of that information 'is an essential part of the determination of probable cause.'" Sullivan, supra, 169 N.J. at 213 (quoting State v. Smith, 155 N.J. 83, 95, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998)). Such independent corroboration establishes the informant's veracity even if the affidavit does not sufficiently establish the informant's veracity or basis of knowledge. State v. Keyes, 184 N.J. 541, 556 (2005).
Here, the police corroborated the CIs' information in several ways. They conducted surveillance of the events leading up to the search warrant application, they tracked the purchase of the cocaine on separate days before obtaining the warrant, and they obtained a positive identification of defendant from CI2. These multiple types of corroboration provided ample evidence of the reliability of the CIs. Moreover, we conclude that the totality of the circumstances, as set forth in the affidavits, established probable cause for the issuance of the search warrant.
Nevertheless, defendant argues for the first time that the judge improperly determined the validity of the warrant without conducting an in camera hearing where he could hear testimony from the affiant. In some circumstances, a criminal defendant may "challenge the validity of a search warrant on the basis of alleged false statements in a supporting affidavit." State v. Howery, 80 N.J. 563, 566, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). In challenging the validity of a search warrant, the defendant must make a "'substantial preliminary showing' of falsity in the warrant." Id. at 567 (quoting Franks v. Delaware, 438 U.S. 154, 170, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 681 (1978)).
As an affidavit supporting a search warrant has a presumption of validity, to obtain an evidentiary hearing the defendant "must allege 'deliberate falsehood or reckless disregard for the truth,' pointing out with specificity the portions of the warrant that are claimed to be untrue." Ibid. The allegations of falsehood and disregard for the truth "should be supported by an offer of proof including reliable statements by witnesses[.]" Ibid. (quoting Franks, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). The defendant's claim "must be more than conclusory and must be supported by more than a mere desire to cross-examine." Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682.
We conclude, as the judge did, that defendant presented nothing more than sheer conjecture of deliberate fabrication of the affidavits. Defendant supplied none of the requisite reliable statements from witnesses attesting to first-hand knowledge of facts supporting defendant's blanket denial. Far more is required before we will entertain a challenge to the validity of a warrant that on its face establishes legally sufficient probable cause. Accordingly, under the totality of the circumstances of this case, we reject defendant's claim that an in camera inquiry was warranted.
Under certain circumstances not present here, an in camera proceeding is warranted. In general, disclosure of surveillance locations implicates a "surveillance location privilege." State v. Garcia, 131 N.J. 67, 73 (1993). In Garcia, our Supreme Court held that the State could seek to protect disclosure of such information in certain circumstances under the "official information privilege." Ibid. In order for the privilege to be recognized, "the State must first convince a court that disclosure would compromise an important public interest." Id. at 77. The trial court should then hold an in camera hearing at which point "the State must demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Id. at 78. Garcia is factually distinguishable and therefore inapplicable.
Finally, we reject defendant's request that we apply the principles contained in State v. Casal, 699 P.2d 1234 (Wash. 1985), which allow for an in camera hearing prior to ruling on a motion to disclose the identity of a confidential informant.
In Casal, unlike here, the defendant challenged the veracity of the affiant through an affidavit and offer of proof, maintaining that he knew the identity of the informant and the informant's account differed in numerous specific instances from that contained in the warrant affidavit. Id. at 1236. The defendant maintained the informant told him that the police instructed him to trespass on the defendant's property to search for drugs, but the informant thereafter told the police he did not find any drugs. Ibid.
The court held that
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, the trial court should exercise its discretion to conduct an in camera examination of the affiant and/or secret informant on the veracity issue.The court concluded in camera review was warranted in light of the defendant's identification of the informant and the specific discrepancies between the informant's account and the affidavit. Id. at 1239. The Casal court relied on People v. Poindexter, 282 N.W.2d 411, 416 n.4 (Mich. Ct. App. 1979), requiring a defendant to raise a "legitimate question" regarding the existence of an informant or the affiant's veracity, and United States v. Brian, 507 F. Supp. 761, 766 (D.R.I. 1981), requiring a defendant to make a "minimal showing of inconsistency" in the State's material.
[Id. at 1235 (second emphasis in original).]
Indeed, even under the approach defendant advocates, which we do not adopt, he must first "present[] information which casts a reasonable doubt on the veracity of material representations made by a search warrant affiant[.]" Casal, supra, 699 P.2d at 1235. Defendant fails to raise such doubt. Even on appeal, defendant fails to allege how material representations made by the affiant were untrue. Not only are the charges against defendant unrelated to the transactions with the informants, but defendant does not deny the transactions with the informants. Cf. Brian, supra, 507 F. Supp. at 766 (allowing in camera hearing where the defendants denied ever "d[oing] or s[aying] some of the things attributed to them by the[] informants").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION