STATE OF NEW JERSEY VS. LARRY D. FISHERÂ (15-08-1690, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5411-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY D. FISHER,
Defendant-Appellant.
_______________________________
Argued October 3, 2017 – Decided November 27, 2017
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 15-
08-1690.
Edward C. Bertucio argued the cause for
appellant (Hobbie, Corrigan & Bertucio, PC,
attorneys; Mr. Bertucio and Elyse S. Schindel,
on the briefs).
Arielle E. Katz, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Ms.
Katz, of counsel and on the brief).
PER CURIAM
Defendant appeals the denial of his motion to suppress
evidence; he argues:
POINT I
THE JUDGMENT OF CONVICTION SHOULD BE REVERSED
BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED
APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED
WITH A WARRANT.
A. THE EXECUTION OF THE SEARCH WARRANT
VIOLATED THE "KNOCK AND ANNOUNCE" RULE.
B. THERE WAS NO PROBABLE CAUSE FOR THE
ISSUANCE OF THE SEARCH WARRANT FOR THE
RESIDENCE. THERE WAS ALSO NO BASIS TO INCLUDE
A SEARCH FOR WEAPONS IN THE SEARCH WARRANT
APPLICATION.
We agree with the motion judge that probable cause existed for the
issuance of the search warrant, the firearm was properly seized,
and the execution of the warrant did not violate the knock and
announce rule. Accordingly, we affirm.
Detective John Gartner submitted two affidavits in support
of applications for search warrants for defendant's Lakewood
residence and a Lexus registered in his name. Gartner's affidavits
recited that a confidential informant (CI), whose past cooperation
with Gartner's unit led to the arrest of four persons "for a
quantity of heroin and cocaine," told Gartner that the CI could
buy marijuana from an individual he identified in a photograph as
defendant, at defendant's residence.
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Gartner also described in detail two controlled purchases of
marijuana from defendant by the CI. Gartner submitted that he and
another detective witnessed the CI arrange, by telephone, the
purchase. Thereafter, the detectives searched the CI for money
and contraband with negative results, provided him with money to
make the purchase, and transported him to a location near
defendant's residence. Gartner described what he and other
detectives observed during their constant surveillance of the CI
and defendant. The CI arrived at defendant's residence and made
contact with him. The defendant then exited the residence,
appeared to direct the CI away from the residence, entered the
Lexus and drove to meet the CI. Defendant met the CI, who entered
the Lexus, and drove the CI back to the residence. The CI exited
the Lexus, met directly with detectives, described the purchase
of marijuana from defendant, and turned the substance over to
Gartner. The detectives again searched the CI for drugs and
contraband with negative results. The substance field-tested
positive for marijuana. Gartner's affidavits also recited a
second, similar purchase made by the CI from defendant at
defendant's residence.
Gartner also related that the Lakewood address was listed as
defendant's residence in New Jersey Division of Motor Vehicle
records and defendant's Computerized Criminal History.
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The motion judge found probable cause was established by the
surveilled controlled purchases of confirmed marijuana by the CI
whose previous cooperation with law enforcement led to four arrests
for possession of heroin and cocaine. The judge ruled the
purchases confirmed the CI's tip regarding his ability to purchase
marijuana from defendant.
Defendant argues the motion judge erred because the CI's tip
was without sufficient foundation – the CI's basis of knowledge –
to justify the issuance of the warrant; and the detectives never
participated in or witnessed a drug transaction with defendant or
a drug transaction at the residence.
When determining whether probable cause exists for a warrant,
a reviewing court must consider only the "four corners" of the
affidavit and any sworn testimony given before the issuing judge.
State v. Wilson, 178 N.J. 7, 14 (2003). A defendant has the burden
to show the absence of probable cause. State v. Keyes, 184 N.J.
541, 554 (2005).
When information is based on an informant's tip, "the issuing
court must consider the 'veracity and basis of knowledge' of the
informant[,]" id. at 555 (quoting State v. Jones, 179 N.J. 377,
389 (2004)), as well as law enforcement's ability to corroborate
the tip, id. at 556. Under the first factor, although not
conclusive, an informant's past reliability can be probative of
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veracity. State v. Sullivan, 169 N.J. 204, 213 (2001). Under the
second factor, we consider whether the informant can demonstrate
that he received the information in a reliable way, and in the
absence of such disclosure, whether the informant's tip is
sufficiently detailed. Ibid. "Because the information contained
in a tip is hearsay, police corroboration of that information 'is
an essential part of the determination of probable cause.'" Ibid.(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)). Corroborating
facts may include "controlled drug purchases performed on the
basis of the informant's tip, the positive test results of
narcotics obtained during a controlled purchase, and records
corroborating an informant's account of the location of suspended
drug activity." Jones, supra, 179 N.J. at 390.
In Sullivan, a confidential informant told a detective that
the defendant had been selling cocaine out of his apartment.
Sullivan, supra, 169 N.J. at 207. After receiving that
information, the detective arranged a controlled purchase with the
informant. Id. at 208. During the purchase, the detective
observed the informant go into the apartment and exit the building
moments later. Ibid. The informant gave the detective vials
containing a substance later determined to be cocaine. Ibid. The
detective observed the informant make a similar purchase from the
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defendant a week later. Id. at 208-09. Based on these facts, the
trial court issued a warrant authorizing the police to search the
defendant's person and the apartment. Id. at 209.
The Sullivan Court held, although the informant had no history
of providing reliable information to the police, the two controlled
purchases of cocaine established his reliability. Id. at 214-15.
The Court concluded the detective properly corroborated the
informant's tip by reviewing a utility bill to verify defendant's
residence at the address provided by the informant, and by
confirming that the substance purchased was cocaine. Id. at 216.
The inability of the police to observe the informant enter the
specific apartment was not considered fatal. Ibid.Here, the CI demonstrated past reliability by assisting in
four drugs arrests. Moreover, the CI completed two controlled
purchases from defendant after meeting defendant at his residence.
Law enforcement surveillance confirmed the CI's actions, and those
of defendant, except for the actual transactions. The substance
handed over by the CI to the detectives field-tested positive for
marijuana. Although the detective did not supply the CI's basis
of knowledge, the CI's past cooperation, combined with the
controlled purchases that were confirmed by police surveillance,
sufficiently established probable cause for the issuance of the
search warrant.
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Defendant correctly observes that the issuing judge was
presented with no information that would justify the inclusion of
"weapons" in the search warrant for defendant's residence.
Contrary to defendant's contention before the motion judge and on
appeal, that flaw was not fatal to the warrant.
Save for the single word – "weapons" – the warrant was proper.
We agree with the motion judge who found no evidence of bad faith
on the part of the affiant. When the detective recited the items
for which he wanted to search pursuant to the warrant, he did not
include weapons, nor did he mention weapons in any other part of
the affidavit. The inclusion of the word seems to be a scrivener's
error. It is a "technical . . . irregularit[y] in the warrant"
which, in the absence of bad faith, does not render the search or
seizure unlawful. R. 3:5-7(g).
Moreover, the firearm was not seized from defendant's
apartment pursuant to the warrant. The motion judge found
defendant, after being advised of his Miranda warnings,1
volunteered the location of the firearm that was secreted in an
air-conditioning unit.2 We give deference to those findings.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
Because the firearm was secreted, and defendant directed police
to it, we do not agree with the motion judge, or the State's
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State v. Elders, 192 N.J. 224, 244 (2007). The police did not
conduct an "exploratory investigation and pry[] into hidden places
for that which is concealed" so as to constitute a search. State
v. Anglada, 144 N.J. Super. 358, 361 (App. Div. 1976). Defendant
forewent any search and seizure protections by voluntarily
disclosing the location of the firearm. See Katz v. United States,
389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 582 (1967)
("What a person knowingly exposes to the public, even in his own
home . . . is not a subject of Fourth Amendment protection").
The search warrant was not rendered infirm by the inclusion
of the term "weapons," and the firearm was properly seized after
defendant volunteered its location.
Defendant argues the execution of the search warrant violated
the knock and announce rule because the warrant did not contain a
no-knock provision, and there were no exigent circumstances to
justify the no-knock entry into defendant's residence with a
breaching ram. The State argues the police did not violate the
knock and announce rule because they knocked, waited a reasonable
amount of time before entering and had reasonable suspicion that
defendant was attempting to either hide or destroy the evidence
of drugs.
argument on appeal, that the firearm was properly seized pursuant
to the plain view doctrine.
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The motion judge considered testimony from Sergeant
Christopher Spagnuolo, who was present and in charge of the unit
that first entered defendant's residence. The judge found that
the officers knocked and announced their presence to defendant
twice before breaching the door. Specifically, she found Officer
Messer knocked and loudly announced, "Police. Search Warrant. Open
the door[,]" whereafter movement was heard near a window. Another
announcement of, "Police. Search Warrant. Open the door[,]" was
made. After another pause without any response, the door was
breached and entry made. The motion judge also found another
detective saw a black bag tossed out a residence window.
Again, we give deference to these findings "which are
substantially influenced by [the motion judge's] opportunity to
hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." Elders, supra, 192 N.J.
at 244. "An appellate court should not disturb the trial court's
finding merely because 'it may 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." Ibid. (quoting State v. Johnson, 42 N.J. 146, 162
(1964)). 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. Only in those circumstances
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should an appellate court "appraise the record as if it were
deciding the matter at inception and make its own findings and
conclusions." Ibid. However, we need not defer to a trial court's
interpretation of the law. State v. Shaw, 213 N.J. 398, 411
(2012). We review legal issues de novo. Ibid.The record supports the judge's findings. Spagnuolo
testified Messer was the first officer in a "stack" of fourteen
or fifteen Lakewood S.W.A.T. officers that approached the front
door of defendant's residence. He said Messer opened the screen
door, knocked "very loudly" and announced, "Lakewood Police.
Search warrant. Open the door." Spagnuolo testified Messer then
said that "he [could] hear movement inside the house and . . .
rustling around inside the house and movement at a window."
Approximately ten seconds after the first knock, Spagnuolo said
he commanded Messer to announce again. Messer knocked "loudly"
and made the same announcement. Approximately ten seconds after
the second knock, receiving no response from inside the house,
Spagnuolo ordered the door breached.
New Jersey courts recognize the Fourth Amendment implications
of the knock and announce rule. See e.g. State v. Johnson, 168
N.J. 608, 625-26 (2001) (finding a no-knock entry was impermissible
under both the Fourth Amendment and the analogous provision in the
New Jersey Constitution). When officers knock and announce but
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there is no response, a reasonable time must elapse between the
announcement and the forced entry. Id. at 621-22. In drug cases,
a reasonable wait time is generally measured by the amount of time
it would take to dispose of drugs, and not the time it would take
a resident to reach the door. See State v. Robinson, 200 N.J. 1,
17 (2009) (holding that a delay of twenty to thirty seconds between
knock and announcement and forcible entry was reasonable where the
object of the warrant was drugs and there was a potential for the
destruction of evidence while entry was delayed). See also State
v. Rodriguez, 399 N.J. Super. 192, 202 (App. Div. 2008) (concluding
that a wait of fifteen to twenty seconds after announcement was
reasonable).
The testimony credited by the judge and confirmed by the
record establish that the police knocked and announced their
presence and waited a reasonable period before forcibly entering
the residence; the wait time was reasonable, especially
considering that the object of the warrant was the seizure of
drugs, and movements inside after the first knock indicated their
potential destruction. The entry team did not violate the knock
and announce rule, and properly executed the search warrant.
We do not conclude that the breach was necessitated, in part,
by the detective's observation of a black bag being tossed out a
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window. There is no testimony or other evidence that would prove
the entry team knew the bag was thrown before the breach.
Defendant also challenges the denial of his motion to suppress
his statement, contending:
POINT II
THE JUDGMENT OF CONVICTION SHOULD BE REVERSED
BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED
APPELLANT'S MOTION TO SUPPRESS STATEMENTS IN
VIOLATION OF THE FOURTH AMENDMENT AND ARTICLE
I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
Defendant argues that the motion judge erred because,
notwithstanding her finding that police administered Miranda
warnings to defendant, and that he acknowledged his understanding
of those rights, she "did not address the fact that [his] statement
[at police headquarters] was the product of an illegal arrest and
illegal searches," requiring suppression of the statement as fruit
of the poisonous tree.
We find insufficient merit in this argument to warrant
discussion. R. 2:11-3(e)(2). Since there was no illegal arrest
or search, defendant's statement at police headquarters was not
fruit of the poisonous tree.
Affirmed.
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