STATE OF NEW JERSEY VS. DEE THOMAS (13-10-1272, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-5187-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEE THOMAS,
Defendant-Appellant.
_____________________________
Submitted March 9, 2017 – Decided May 10, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
13-10-1272.
Joseph E. Krakora, Public Defender, attorney
for appellant (Al Glimis, Assistant Deputy
Public Defender, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Alycia I. Pollice-
Beyrouty, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Dee Thomas appeals from a May 27, 2015 judgment of
conviction after the entry of a guilty plea. We affirm defendant's
conviction but remand for a statement of reasons as to why the
court imposed a four-year period of parole ineligibility.
Mercer County Prosecutor's Office (MCPO), Special
Investigations Unit, conducted a six-month narcotics investigation
surrounding cocaine distribution by defendant from two separate
addresses in Trenton. In April 2013, Detective Kevin Searing
received information from a confidential informant (CI) who had
personal knowledge an individual by the name of "Cork" was selling
large quantities of cocaine throughout Trenton. Because of
previous investigations, Searing knew "Cork" was defendant.
The CI had purchased cocaine from defendant on prior
occasions, and routinely called defendant each time requesting a
specific amount. Defendant would pick a time and location to meet
and complete the transaction. The CI provided defendant's
residential address and stated defendant drove a gray GMC Yukon
(Yukon) and a black BMW (BMW).1 The CI reported defendant
possessed a firearm at another address in Trenton (second address).
The CI described defendant as a black male, between thirty to
thirty-five years old, approximately 6'5" and 220 pounds. Searing
obtained a photograph of defendant from the New Jersey Department
1 Hereinafter, we refer to defendant's residential address as
"residential address." We note this is defendant's girlfriend's
residence where defendant spends his time.
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of Motor Vehicle Services (Motor Vehicle), and the CI identified
the person in the photo as "Cork."
A controlled buy was arranged between the CI and defendant.
Searing met with the CI, searched the CI and his vehicle for drugs
and money, and provided the CI with the funds necessary to complete
the transaction. The CI then called defendant and held the phone
so Searing could hear the conversation. The CI asked to purchase
cocaine and defendant said to meet him at the second address in
twenty minutes. Searing's colleague, Detective Jesus Perea, was
surveilling the residential address and reported defendant's Yukon
was in front of the home.
The CI drove to the second address. Searing followed, while
surveillance units followed defendant as he left the residential
address in the Yukon. Searing observed defendant arrive and enter
the second address. The CI walked to the front door, knocked, and
entered. A few minutes later, the CI exited the residence and
left the area in his vehicle.
Several members of the surveillance unit followed defendant
back to the residential address while Searing met with the CI at
another location. The CI informed Searing that once he was inside
the residence, defendant gave him cocaine in exchange for money.
The CI gave Searing the cocaine, which tested positive. Two more
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controlled buys were arranged between defendant and the CI. All
buys produced positive results for cocaine.
After the third controlled buy, on May 23, 2013, Searing
obtained five search warrants: one for defendant, one for the
residential address, one for the second address, one for
defendant's Yukon, and one for defendant's BMW.
On May 29, 2013, at approximately 5:14 p.m., police executed
the search warrant at the second address. As officers approached
the residence, defendant was walking from his BMW parked across
the street. Officers approached and secured defendant, as other
officers entered the residence and observed two boxes of baking
soda, one box of plastic bags, one plastic zip lock bag containing
numerous smaller zip lock bags, and two fully operable digital
scales. After a search of defendant's person, officers found
$1,853 in cash and a set of car keys for the BMW. The search of
the BMW uncovered two plastic bags with what appeared to be crack
cocaine, a credit transfer paperwork in defendant's name, and a
New Jersey vehicle registration and insurance card for the BMW,
both in defendant's name.
Around the same time, officers executed a search of the
residential address. Police found plastic bags with what appeared
to be crack cocaine, $620 in cash, a box of .44 caliber ammunition,
a bill of sale for the BMW, pieces of mail in defendant's name,
4 A-5187-14T2
baking soda, plastic bags, an operable digital scale, as well as
some loose rocks, suspected to be crack cocaine.
Defendant was arrested and advised of his constitutional
rights; he agreed to speak with the police. Defendant admitted
the drugs recovered by the officers were his and that he had the
intent to distribute.
On October 4, 2013, a Mercer County grand jury indicted
defendant on two counts of third-degree possession of a controlled
dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1)
(counts one and two); first-degree possession of CDS with the
intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(1) (count three); second-degree possession
with intent to distribute CDS, contrary to N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(2) (count four); two counts of third-
degree possession of CDS with the intent to distribute on or near
school property, contrary to N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-
5(a)(1), and N.J.S.A. 2C:35-5(b)(1) (counts five and six); and
second-degree possession of CDS with intent to distribute near a
public facility, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(1) (count seven).
On August 14, 2014, defendant moved to suppress evidence
seized pursuant to the search warrants. The judge denied the
motion.
5 A-5187-14T2
On April 27, 2015, defendant pled guilty to first-degree
possession of CDS with intent to distribute. On May 22, 2015,
defendant was sentenced to a ten-year prison term with four years
of parole ineligibility, in accordance with the recommended
sentence in the plea agreement. In imposing the sentence, the
court found aggravating factors three, risk defendant will commit
another offense, and nine, the need for deterrence. The court
found no mitigating factors.
Defendant filed a notice of appeal on July 21, 2015.
Defendant raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
REQUEST FOR A HEARING ON THE VERACITY OF THE
ALLEGATIONS IN THE SEARCH WARRANT AFFIDAVIT.
IN ANY EVENT, THE AFFIDAVIT FAILED TO PROVIDE
PROBABLE CAUSE TO SEARCH DEFENDANT'S HOME,
AUTOMOBILE, AND PERSON. (U.S. CONST., ART. I,
PAR. 4; N.J. CONST. ART. I, PAR. 7.).
POINT II
A REMAND FOR RESENTENCING IS REQUIRED BECAUSE
THE SENTENCING JUDGE IMPOSED A LONGER PERIOD
OF PAROLE INELIGIBILITY THAN REQUIRED UNDER
N.J.S.A. 2C:35-5 WITHOUT ARTICULATING THE
REASONS FOR THE ADDITIONAL PERIOD OF PAROLE
INELIGIBILITY.
I.
Defendant argues the trial court erred by denying his request
for an evidentiary hearing on his suppression motion, arguing the
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warrant's supporting affidavit contained material falsehoods and
demonstrated a reckless disregard for the truth. Additionally,
defendant argues the search warrant did not establish probable
cause. We disagree.
When reviewing a trial court's denial of a motion to suppress,
we will "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, 192 N.J. 224,
243 (2007) (citation omitted). We will only disturb the trial
court's decision "if [it is] so clearly mistaken 'that the
interests of justice demand intervention and correction.'" Ibid.
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We must
focus on "whether the motion to suppress was properly decided
based on the evidence presented at that time." State v. Gibson,
318 N.J. Super. 1, 9 (App. Div. 1999).
A defendant challenging the validity of a search warrant must
"make[] a substantial preliminary showing of material
misstatements in a search warrant affidavit, made knowingly or
with [a] reckless disregard for the truth." State v. Howery, 80
N.J. 563, 566 (citing Franks v. Delaware, 438 U.S. 154, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978)), cert. denied, 444 U.S. 994, 100
S. Ct. 527, 62 L. Ed. 2d 424 (1979). If defendant can prove, by
a preponderance of the evidence, such a falsity exists, the warrant
7 A-5187-14T2
is deemed invalid and all evidence seized pursuant to the search
warrant must be suppressed. Ibid. (citing Franks, supra, 438 U.S.
at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672). The defendant
must support his or her allegations
by an offer of proof including reliable
statements by witnesses, . . . and they must
be provided by a preponderance of the
evidence. Finally, the misstatements claimed
to be false must be material to the extent
that when they are excised from the affidavit,
that document no longer contains facts
sufficient to establish probable cause.
[Id. at 567-68 (citing Franks, supra, 438 U.S.
at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d 682).]
Defendant challenges the search warrants, citing "several
material misstatements" concerning the CI's description of
defendant. The CI described defendant as 6'5", 220 pounds, and
between 30 to 35 years old. Defendant argues he is 6'3", 335
pounds, and is 28 years old. Additionally, defendant argues the
CI failed to mention his most distinctive feature: his long braids.
Defendant argues the CI's information demonstrates material
misstatements in the affidavit. We disagree.
The CI's description of defendant was reasonably close to
defendant's true characteristics, but regardless of his
description of defendant, the CI was able to correctly identify
defendant as the man he knew as "Cork" from defendant's Motor
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Vehicle picture. If the CI's initial description of defendant
were stricken from the affidavit, there would still be sufficient
information to support a finding of probable cause based upon the
CI's identification of defendant's picture. See State v. Goldberg,
214 N.J. Super. 401, 406 (App. Div. 1986) (holding if probable
cause would still exist despite the inaccurate information the
defendant is not entitled to an evidentiary hearing), certif.
denied, 107 N.J. 118 (1987).
Next, defendant argues the affidavit omitted that the second
address in the search warrant was in fact a gambling house,
frequented by many people. Defendant argues the affidavit does
not establish defendant had control or dominion over the property
and fails to indicate how many people were inside the second
address during the CI's alleged controlled buys. We disagree and
find defendant's argument to be irrelevant. The surveillance team
observed the CI call defendant to arrange a time to purchase
cocaine, the officers observed defendant leave the residential
address and drive to the second address he provided to the CI, and
observed defendant enter the second address. The CI then entered
the second address, without cocaine, and came out and met Detective
Searing with the purchased cocaine. The affidavit supported a
finding of probable cause that defendant was the "Cork" the CI
stated was dealing cocaine.
9 A-5187-14T2
Last, defendant argues Detective Perea's observations
repeated in the affidavit lack credibility because of an unrelated
incident and all observations made by him must be stricken from
the record. Without Detective Perea's observations, defendant
argues, probable cause for the search warrant is lacking. The
trial court rejected this argument, because there existed
sufficient probable cause to connect defendant to the residential
address, in light of the other officers who witnessed defendant
leave the second address and drive back to the residential address.
If all portions of Detective Perea's observations were stricken
from the affidavit, probable cause supports the search warrant in
light of the totality of observations reported by other officers
in the surveillance team.
Defendant's argument that statements in the affidavit
constitute material misrepresentations or reckless disregard for
the truth is not supported by the record. The trial court's denial
of defendant's motion to suppress and seek a Franks hearing was
not an abuse of discretion.
Defendant also argues the affidavit failed to establish
probable cause to search the two address, defendant's person, and
the two cars. We disagree.
We give substantial deference to a judge's decision to issue
a search warrant. State v. Keyes, 184 N.J. 541, 554 (2005). We
10 A-5187-14T2
presume a search warrant to be valid and the burden is on the
defendant to prove "there was no probable cause supporting the
issuance of the warrant or that the search was otherwise
unreasonable." State v. Valenica, 93 N.J. 126, 133 (1983). Any
"[d]oubt as to the validity of the warrant 'should ordinarily be
resolved by sustaining the search.'" Keyes, supra, 184 N.J. at
554 (quoting State v. Jones, 179 N.J. 377, 389 (2004)).
For a search warrant to be valid, a judge must find there is
probable cause, which generally "means less than legal evidence
necessary to convict though more than mere naked suspicion." State
v. Sullivan, 169 N.J. 204, 210-11 (2001) (quoting State v. Mark,
46 N.J. 262, 271 (1966)). Courts must consider the totality of
the circumstances in determining whether there was probable cause
for a search warrant. Id. at 212.
Probable cause may be based upon information received from
informants, so long as there is "substantial evidence in the record
to support the informant's statements." Keyes, supra, 184 N.J.
at 555; see also Jones, supra, 179 N.J. at 399; Sullivan, supra,
169 N.J. at 212-13. The court "must consider the 'veracity and
basis of knowledge' of the informant as part of its 'totality'
analysis." Jones, supra, 179 N.J. at 389 (quoting State v.
Novembrino, 105 N.J. 95, 123 (1987)). "A deficiency in one of
those factors 'may be compensated for, in determining the overall
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reliability of a tip, by a strong showing as to the other, or by
some other indicia of reliability.'" State v. Zutic, 155 N.J.
103, 110-11 (1998) (quoting Illinois v. Gates, 462 U.S. 213, 233,
103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 545 (1983)).
While an informant's veracity may be established by a showing
of an informant's reliability in past police investigations, see
Sullivan, supra, 169 N.J. at 213, "a few past instances of
reliability do not conclusively establish an informant's
reliability." State v. Smith, 155 N.J. 83, 94 (1998). As for
basis of knowledge, "the court must decide whether the tip reveals
'expressly or clearly' how the informant became aware of the
alleged criminal activity." Keyes, supra, 184 N.J. at 555-56
(quoting Smith, supra, 155 N.J. at 94). If such express disclosure
is absent, "the nature and details revealed in the tip may imply
that the informant's knowledge of the alleged criminal activity
is derived from a trustworthy source." Smith, supra, 155 N.J. at
94. Police corroboration of an informant's tip "is an essential
part of the determination of probable cause" as it "ratif[ies] the
informant's veracity and validate[s] the truthfulness of the tip."
Id. at 95.
Defendant argues the State failed to establish the CI's
veracity and basis of knowledge because the CI had not previously
provided any information to the MCPO that led to the arrests of
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any individuals. Defendant argues the CI's description of him was
inaccurate and the police never corroborated the CI's claim
defendant was selling drugs.
We begin by addressing the CI's basis of knowledge. The CI
had previously purchased cocaine from defendant, establishing the
tip reflects first-hand knowledge. Additionally, the detectives
coordinated three controlled buys to corroborate the CI's
statements prior to applying for the search warrant. Each of the
controlled buys were conducted in the same manner, and each time
the detectives observed defendant entering and exiting the second
address. While a controlled buy in and of itself does not
establish probable cause, see Sullivan, supra, 169 N.J. at 216,
the controlled buys in the present case were further supported by
the CI's other information. As to the CI's description of
defendant, we previously stated the description provided was
reasonably close to the attributes of defendant. Moreover, the
CI's identification of defendant from his Motor Vehicle picture
provided a sufficient basis for his knowledge the man in the
picture was the defendant.
As to the CI's veracity, the fact the CI had never been used
by the MCPO before does not negate reliability. Because the CI
had a direct, personal basis of knowledge for the tip and the
detectives corroborated the CI's tip, the CI's basis of knowledge
13 A-5187-14T2
and veracity were sufficient to find probable cause to issue the
search warrants.
II.
Defendant argues the trial court did not provide an
explanation as to why the court imposed a period of parole
ineligibility beyond what was statutorily required. We agree and
are constrained to remand to the trial judge to explain reasons
for imposing the four-year period of parole ineligibility.
Defendant pled guilty to N.J.S.A. 2C:35-5(a)(1), which
carries a minimum period of parole ineligibility between one-third
and one-half of the sentence imposed. See N.J.S.A. 2C:35-5(b)(1).
For a ten-year sentence, the minimum period of parole ineligibility
would be three and a half years. Here, the sentencing judge
imposed four years but did not provide a statement of reasons as
to why he did not impose the minimum amount required. We remand
the matter to the sentencing judge to provide his reasoning for
imposing a four-year period of parole ineligibility.
Affirmed in part and remanded in part, consistent with this
opinion. We do not retain jurisdiction.
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