Opinion
DOCKET NO. A-5055-12T3
02-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT I. TANNER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-09-0504. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Robert I. Tanner appeals his conviction, following a guilty plea, for one count of first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); one count of second-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); four counts of third-degree distribution of CDS, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and one count of third-degree distribution of CDS, within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
In or around June 2010, the Organized Crime and Narcotics Task Force of the Somerset County Prosecutor's Office (Task Force) received information from a confidential informant (CI) that Tanner was selling heroin and using a vehicle to deliver it. The CI had previously provided law enforcement officials with reliable information leading to arrests and convictions.
Tanner sold heroin to the CI in mid-June in a transaction that was observed by detectives from the Task Force. He delivered the heroin in a silver Toyota Camry registered to his brother, co-defendant Joseph Tanner. According to his driver's license, Tanner was living on Monroe Avenue in Plainfield.
We refer to Joseph by his first name for clarity.
The Task Force then arranged a series of controlled buys through an undercover officer. On three occasions, June 24, June 30, and July 13, Tanner arrived at a predetermined location in the Camry and sold cocaine to an undercover officer. On July 20, Tanner arrived at a predetermined location in a gold-colored Chevrolet Trailblazer registered to him and sold cocaine to the officer. All four purchases were observed by Detective Michael DeCarolis of the Far Hills Police Department. All four purchases occurred within 1000 feet of a school.
Shortly before the controlled buys on July 13 and 20, Task Force members conducted surveillance of the Monroe Avenue residence. On July 13, Detective Selim Senel of the Somerset County Prosecutor's Office saw Tanner exit the residence's detached garage, get into the Camry, and leave to meet the undercover officer. On July 20, Senel observed Tanner leave the residence from the front door with Joseph. They entered the detached garage, and when they exited the garage, Tanner drove away in the Trailblazer.
On July 29, Senel and DeCarolis appeared before a Superior Court judge in Somerset County, to apply for a search warrant. The appearance was tape recorded. The transcript of the application reflects Senel's oath, but not DeCarolis's. DeCarolis testified that he had probable cause to believe that (1) Tanner distributed CDS with Joseph's help, and (2) that evidence relating to the crime, including CDS, paraphernalia, and similar items could be found at the Monroe Avenue residence and in the two cars. He testified that the records of Public Service Electric and Gas Company (PSE&G) showed that the residence had "one account holder who pays for the [] PSE&G bills and that is Joseph Tanner." In addition, DeCarolis described the location as
a single[-]family multistory residence, with tan[-]colored siding. The front door is white in color, and is located within a small covered porch area, which is surrounded by a black metal railing. There are approximately seven steps from the ground level to the porch. There are three windows on the front of the house, two on the upper level, one on the first level. There is a paved driveway on the left side of the residence when viewed from Monroe Avenue. At the end of the driveway, there's a detached garage, with a single main door.The search area requested included the house and the detached garage. The judge approved the application and issued a warrant to search the persons of Tanner and Joseph, the house, the detached garage, and the two vehicles.
The search warrant was executed on August 3. Tanner gave the police permission to search an additional vehicle that contained CDS. The entire search uncovered over five ounces of cocaine, over one-half ounce of heroin, a torch to heat cocaine, baggies, and heroin stamps to mark the product.
Tanner and Joseph were indicted in September. In November 2011, Tanner filed a motion to suppress the evidence seized in the search. He argued that the warrant was not based on probable cause and was not sufficiently specific as to the place to be searched. Following oral argument on March 6, 2012, the motion judge denied the motion in an order filed on March 13, along with a written opinion.
The judge found that the search warrant for the residence was based on probable cause. She noted that, in support of their application, the detectives testified concerning the details of the investigation, including the controlled buys and surveillance of the residence. She noted that the PSE&G records reflected that one account holder paid the bills for the entire residence.
The judge also concluded that the search warrant did not violate the particularity requirement. She observed that Tanner failed to demonstrate that the Monroe Avenue house was, a multi-family residence occupied by someone other than himself or Joseph. Although the building had multiple electric meters, two doorbells at the front door, and the PSE&G records reflected that the residence was multi-family, the judge pointed to the fact that the sole account holder for the entire residence was Joseph. She characterized the fact that the residence was set up for multi-family use as irrelevant, because the residence was not actually being used as a multi-family residence.
In July, another judge denied a subsequent motion to suppress the laboratory reports.
On September 20, Tanner accepted a plea offer, under which he would plead guilty to six counts of the indictment and receive an aggregate sentence of incarceration for fifteen years, subject to six years of parole ineligibility. He would also agree to exculpate Joseph. Tanner was sentenced in accordance with the plea agreement in March 2013. The judge dismissed the remaining charges against Tanner and all of the charges against Joseph. This appeal followed.
II.
Tanner raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN UPHOLDING THE VALIDITY OF THE SEARCH WARRANT AND DENYING TANNER'S MOTION TO SUPPRESS THE EVIDENCE SEIZED PURSUANT THERETO (Partially Raised Below).
A. The Evidence Should Have Been Suppressed Because The Oath Requirement Was Not Complied With (Not Raised Below).
B. The Evidence Should Have Been Suppressed Because The Warrant Failed To Describe The Premises To
Be Searched With Sufficient Particularity.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress 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. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so
clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
[State v. Elders, 192 N.J. 224, 243-44 (2007) (third alteration in original).]
A.
For the first time on appeal, Tanner argues that the evidence seized pursuant to the warrant should have been suppressed because DeCarolis's testimony was not delivered under oath or affirmation as required by the federal and state constitutions and Rule 3:5-3(a).
As noted above, the typed transcript of the recording made during the in camera hearing at which the search warrant was sought contains testimony from both Senel and Decarolis. Tanner now points, for the first time, to the fact that the transcript reflects the administration of an oath to Senel, but not to DeCarolis. He argues that the omission of Decarolis's oath from the transcript renders the resulting warrant invalid.
In opposing the appeal, the State relies on the facts (1) that, following Senel's oath, the prosecutor stated on the record: "Your Honor has already sworn in the officers," and (2) that the warrant signed by the judge contains the following, with the underlined portion handwritten: "[T]he Court having reviewed . . . the testimony under oath of the said Det. Senel and Inv. DeCarolis and being satisfied therefrom."
Although an appellate court may consider allegations of error not brought to the trial judge's attention, it need not do so. Generally, unless such an issue (even a constitutional issue) goes to the jurisdiction of the trial court or concerns matters of substantial public interest, the appellate court will not consider it. State v. Robinson, 200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2015). "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). "[A]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Id. at 386; R. 2:10-2.
We note that there is a constitutional dimension to the issue raised. State v. Gioe, 401 N.J. Super. 331, 340-41 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).
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Because Tanner had the opportunity to raise the issue as part of his pretrial motion to suppress, at which time the participants in the warrant-application hearing could have testified concerning the proceeding that resulted in the issuance of the warrant, we decline to consider it now.
B.
We now turn to Tanner's argument that the warrant was not sufficiently particular about the location to be searched. The particularity requirement of the Fourth Amendment to the United States Constitution "[g]enerally mandates that 'the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.'" State v. Marshall, 199 N.J. 602, 611 (2009) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)). "It is widely recognized that when a multi-unit building is involved, the affidavit in support of the search warrant must exclude those units for which police do not have probable cause." Ibid. (citing Maryland v. Garrison, 480 U.S. 79, 85, 107 S. Ct. 1013, 1017, 94 L. Ed. 2d 72, 81 (1987)). The Court in Garrison explained that:
The manifest purpose of this particularity requirement was to prevent general searches.
By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found."
[Garrison, supra, 480 U.S. at 84, 107 S. Ct. at 1016, 94 L. Ed. 2d at 80-81 (footnote omitted) (quoting United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572, 593 (1982)).]
A warrantless search that does not fall "'within one of the few well-delineated exceptions to the warrant requirement'" is presumptively invalid. State v. Johnson, 193 N.J. 528, 552 (2008) (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)). However, "a search executed pursuant to a warrant is presumed valid." Marshall, supra, 199 N.J. at 612. As a result, a defendant who challenges a warrant "'has the burden to prove that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Ibid. (quoting State v. Jones, 179 N.J. 377, 388 (2002) (internal quotation marks omitted)). An appellate court "accord[s] substantial deference to a trial [judge]'s determination that there was probable cause to issue a warrant." Ibid.
Based on facts similar to the present case in State v. Rodriguez, 198 N.J. Super. 569, 571, 574 (App. Div. 1985), we reversed the trial judge's finding that a warrant was "too general" because it did not particularize the apartments to be searched in a two-family dwelling. In his affidavit in support of the application for a search warrant, the police officer in Rodriguez stated that he had received information from a reliable informant that "a Spanish male" was selling drugs from the second floor apartment of a particular building on Broadway in Elizabeth. Id. at 571. The affidavit noted that a second informant stated that a Spanish male was dispensing controlled substances out of "the premises of" that building. Ibid. The officer indicated that he "conducted surveillances of the premises on four occasions and observed a male," whom he identified as defendant Marto Rodriguez, that "fit the description given by the informant." Ibid.
The affidavit further stated that the tax records showed that Rodriguez owned the premises, the PSE&G records showed that Rodriguez occupied the second floor and that the first floor was vacant. Id. at 571-72. Based on his experience, the officer also attested that he had "probable cause to believe" that CDS would be found on "the person of a Spanish male," and "within the premises located" on Broadway in Elizabeth. Id. at 572.
The warrant, as approved, authorized both the search of an "unidentified Spanish male" and the premises on Broadway. Ibid. It did not distinguish between the first and the second floor or reflect that the premises could be used as a multi-family dwelling.
The defendants in Rodriguez challenged the warrant on the grounds that there was no probable cause to search the first floor apartment and that the warrant was overly broad. Id. at 573. The motion judge concluded that the warrant failed the particularity requirement because it was "too general." Id. at 571.
In reversing, we noted that "[t]he warrant application specifically points out that there are two apartments on the premises and that an investigation reveals that the owner lives in the second floor apartment and that the first floor apartment is vacant." Id. at 574. We continued:
We do not find the warrant to be "too general." It is reasonable to infer that an owner-occupier of a two family house who has one apartment vacant has access to that apartment and may stash contraband upon any portion of the entire premises. This is not a case where it was known or reasonably should have been known that there were occupied apartments upon the premises other than the apartment where the illegal activity was being conducted. There is no reason to conclude either from the facts contained in the warrant affidavit or from the defense affidavit that the police
reasonably should have known that the first floor apartment was occupied.
The issuing judge was not misled by an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Nor do we find the warrant to be facially deficient by failing to particularize the apartments to be searched as the affidavit supports the issuance of a warrant to search the entire premises.
[Ibid. (citations omitted).]
In this case, the motion judge correctly found that probable cause justified the search of the entire residence. We note that Tanner has not challenged the finding of probable cause. We conclude that it is of no moment that the description of the residence in the warrant failed to mention that it could be used to house more than one family. The warrant describes the home as a "single family" residence, which was technically correct given the information available to the officers at the time. While Tanner points to evidence suggesting that the residence could be occupied by more than one family, there was no evidence that this was actually the case at the time the application for the warrant was made. The PSE&G bills showed that Joseph paid the utility bills for all of the accounts, and Senel witnessed the brothers leave the front entrance of the residence together. The fact that there was a single front entrance suggested that both of them could access the entire dwelling.
In State v. Aiello, 91 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 48 N.J. 138 (1966), cert. denied, 388 U.S. 913, 87 S. Ct. 2106, 18 L. Ed. 2d 1351 (1967), the Supreme Court upheld the validity of a warrant and offered the following guidance concerning the particularity requirement:
This case is different from State v. Ratushny, 82 N.J. Super. 499 (App. Div. 1964), where the police knew that the premises were occupied by more than one family and had no reason to believe that incriminating or illegal objects might be found in more than one apartment. In such a situation a designation of the particular apartment to be searched is ordinarily required. Where, however, as here, such information is not known and the outward appearance of the house, in conjunction with what the police knew about [a defendant's] access to the house, furnished no basis for a reasonable belief that incriminating or illegal objects would be found in only a specific identifiable portion of the interior of the building, particularization of such a portion in the warrant is not necessary. As stated in State v. Romeo, 43 N.J. 188, 206, "The fundamental requirement of the Fourth Amendment is reasonableness." See, too, State v. Daniels, 46 N.J. 428 (1966), where it is held that accuracy in the description in every detail is not required. Certainly, the police, having watched this building for months and observing no occupancy by any family other than [a defendant's family] and [another defendant's] periodic visits, acted reasonably in describing the premises as a private one-family dwelling.Consequently, we find no error in the motion judge's determination that the search warrant was not deficient on grounds of lack of particularity.
C.
For the reasons outlined above, we affirm the denial of the motion to suppress and the conviction that followed Tanner's guilty plea.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION