STATE OF NEW JERSEY VS. JOSHUA ARIAS-LIZANO (17-05-0244, SOMERSET COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3493-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA ARIAS-LIZANO, a/k/a
JOSHUA ARIAS, JOSHUA
ARIASLIZANO, JOSHUA ARISA,
JOSHUA ARISALIZANO, and
JOSHUA LIZANO,
Defendant-Appellant.
________________________________
Submitted February 26, 2019 – Decided April 3, 2019
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 17-05-
0244.
Joseph E. Krakora, Public Defender, attorney for
appellant (Susan L. Romeo, Assistant Deputy Public
Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Paul H. Heinzel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Joshua Arias-Lizano, who was charged with multiple drug
offenses, filed a motion to suppress evidence obtained from an anticipatory
warrant to search a package addressed to defendant at the United States Post
Office in Bound Brook, and his residence. After the court denied the motion to
suppress, defendant pleaded guilty to two counts of third-degree possession of
a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). The trial court
sentenced him to one year probation.
Defendant then filed this appeal. He presents the following argument for
consideration:
THE DENIAL OF DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE FOUND DURING A
SEARCH OF HIS HOME MUST BE REVERSED,
BECAUSE NEITHER THE MERE ACCEPTANCE OF
A PACKAGE DELIVERY OF POSSIBLE CDS AT
THE HOME, NOR THE UNCORROBORATED
ALLEGATIONS OF THIRD PARTIES OFFERED IN
SUPPORT OF THE SEARCH WARRANT
APPLICATION WERE SUFFICIENT, AS A
MATTER OF LAW, TO ESTABLISH PROBABLE
CAUSE TO SEARCH THE HOME.
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At the motion to suppress and on appeal, defendant conceded there was
probable cause to search the package upon delivery. As a result, defendant's
only argument on appeal is that the warrant to search his residence should not
have been issued, and the motion to suppress should have been granted. We
reject this argument and affirm.
On March 27, 2017, a Superior Court judge issued the anticipatory search
warrant of the package and defendant's residence, "to be executed upon
[defendant] taking physical possession of [the] package after delivery."
Detective Jason Gianotto, who was assigned to the Somerset County
Prosecutor's Office Organized Crime and Narcotics Task Force, testified before
the judge to apply for the warrant. Since our review is limited to the information
contained within the four corners of this testimony, see State v. Wilson, 178 N.J.
7, 14 (2003), we begin our review with a summary of those facts.
Detective Gianotto first set forth his extensive experience as a patrolman for
fifteen years and his specialized training in drug interdiction. He further testified to
the experience and reliability of his patrol and narcotics-trained K-9, which had
performed approximately ninety drug sniffs and made fifty-five positive alerts, from
which CDS was discovered fifty-four times.
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In support of the warrant, Detective Gianotto testified about information
provided by United States Postal Service employees. On March 25, 2017, the
post office in Bound Brook received a package addressed to defendant that
smelled of marijuana. Detective Gianotto brought his K-9 to the post office,
where the dog sniffed the package and provided a positive alert. The detective
further testified that the package "fit the pattern of [forty-two] other packages
that have been addressed to the same location that had been delivered this year[,]
coming from either the [s]tates of California, Washington, or Colorado . . . ."
Defendant often called the post office to check on the arrival of the packages,
and when he would arrive to pick them up, "he had the odor of marijuana on
him."
Lastly, Detective Gianotto testified that, over several months, defendant’s
landlord observed many cars, from New York and other states, parked at
defendant's residence. Occupants of these cars would exchange duffle bags with
defendant. Additionally, the landlord observed a case of butane had recently
been delivered to defendant's residence; Detective Gianotto testified that butane
is known by police as a product used to make "hash oil."
Based on Detective Gianotto's testimony, a Superior Court judge
authorized the anticipatory search warrant on the package and defendant's
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residence. The judge found "[p]articularly telling" the "probable drug activity
occurring" at defendant's residence, based on the landlord's observations. The
judge further found the K-9 "extremely reliable," and thus relied on its "positive
response to the sniffing of the package." The judge concluded that this evidence,
along with "the previous deliveries of packages to this residence[,] clearly gives
rise to probable cause that criminal activity, [i.e.] drug activity is afoot."
On October 31, 2017, Judge Bradford Bury heard oral argument regarding
defendant's motion to suppress the contraband seized from his residence during
the execution of the warrant. Judge Bury described the appropriate standard for
probable cause, and recognized that the issuing judge's finding of probable cause
should receive substantial deference. He acknowledged the requirement of
considering the totality of the circumstances.
Judge Bury proceeded to review all of the information in the affidavit,
including: the landlord's observations of defendant's butane delivery, and the
continuous exchanges of duffle bags between defendant and out-of-state
individuals; the K-9 dog's positive alert of CDS in the package addressed to
defendant; the previous forty-two packages sent to defendant, and his smell of
marijuana upon arrival at the post office. In denying the suppression motion,
the judge concluded:
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Each one of these individual facts as a standalone fact
would not . . . be sufficient to establish probable cause,
but under the totality of circumstances . . . they do
establish probable cause to believe that not only would
marijuana be found inside the package but . . . also,
inside . . . [defendant's] residence . . . .
Under the Constitutions of the United States and New Jersey, individuals
are protected from unreasonable searches and seizures, and no warrant shall
issue except upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I, ¶
7. Unless a search falls within one of the recognized exceptions to the warrant
requirement, the police must first obtain a warrant from a neutral judicial officer
as a prerequisite to a search. State v. Sullivan, 169 N.J. 204, 210 (2001) (citing
State v. Cooke, 163 N.J. 657, 664 (2000)). "Before issuing a warrant, the judge
must be satisfied that there is probable cause to believe that a crime has been
committed, or is being committed, at a specific location or that evidence of a
crime is at the place sought to be searched." Ibid. (citing State v. Laws, 50 N.J.
159, 173 (1967)).
The concept of probable cause "eludes precise definition." Sullivan, 169
N.J. at 210 (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000)).
Courts generally accept it to mean "less than legal evidence necessary to convict
though more than mere naked suspicion." Id. at 210-11 (quoting State v. Mark,
46 N.J. 262, 271 (1966)). Probable cause is "consistently characterized . . . as a
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common-sense, practical standard for determining the validity of a search
warrant." State v. Novembrino, 105 N.J. 95, 120 (1987). It is met when police
have "a 'well-grounded' suspicion that a crime has been or is being committed."
Ibid. (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).
In identifying the competing policy concerns behind the probable cause
requirement, our Supreme Court explained:
Probable cause is a flexible, nontechnical concept. It
includes a conscious balancing of the governmental need
for enforcement of the criminal law against the citizens'
constitutionally protected right of privacy. It must be
regarded as representing an effort to accommodate those
often competing interests so as to serve them both in a
practical fashion without unduly hampering the one or
unreasonably impairing the significant content of the
other.
[State v. Kasabucki, 52 N.J. 110, 116 (1968) (citing State
v. Davis, 50 N.J. 16, 24 (1967)).]
The United States Supreme Court similarly described probable cause as a
"practical, nontechnical conception." Illinois v. Gates, 462 U.S. 213, 231 (1983)
(quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). Probable cause
requires more than mere suspicion; it requires a showing of a "fair probability" that
criminal activity is taking place. State v. Demeter, 124 N.J. 374, 380-81 (1991)
(quoting Gates, 462 U.S. at 238).
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Courts must base a probable cause determination on the totality of the
circumstances and consider the probabilities. State v. Jones, 179 N.J. 377, 389
(2004) (citing Schneider v. Simonini, 163 N.J. 336, 361 (2000)). The court must
also apply a qualitative analysis to the unique facts and circumstances of any given
case. State v. Keyes, 184 N.J. 541, 556 (2005) (citing Jones, 179 N.J. at 390). The
analysis comes down to a "practical, common-sense decision." Jones, 179 N.J. at
390 (quoting State v. Smith, 155 N.J. 83, 93 (1998)). "[W]hether or not probable
cause exists 'involves no more than a value judgment upon a factual complex rather
than an evident application of a precise rule of law, and indeed a value judgment
which inevitably reflects the seasoning and experience of the one who judges.'"
Schneider, 163 N.J. at 362 (quoting State v. Funicello, 60 N.J. 60, 72-73 (1972)
(Weintraub, C.J., concurring)).
For these reasons, a reviewing judge "should pay substantial deference" to the
discretionary determination of the issuing judge. Kasabucki, 52 N.J. at 117. Review
of a warrant's adequacy "is guided by the flexible nature of probable cause and by
the deference shown to issuing courts that apply that doctrine." Sullivan, 169 N.J.
at 217.
[W]arrant applications "should be read sensibly rather
than hypercritically and should be deemed legally
sufficient so long as they contain[] factual assertions
which would lead a prudent [person] to believe that a
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crime [has] been committed and that evidence . . . of
the crime [is] at the place sought to be searched."
[Ibid. (alterations in original) (quoting Laws, 50 N.J. at
173).]
"[W]hen the adequacy of the facts offered to show probable cause is
challenged after a search made pursuant to a warrant, and their adequacy appears
to be marginal, the doubt should ordinarily be resolved by sustaining the search."
Jones, 179 N.J. at 388-89 (quoting Kasabucki, 52 N.J. at 116). It is therefore
well settled that a search executed pursuant to a warrant is presumed valid, and
the defendant bears the burden of proving lack of probable cause in the warrant
application. Sullivan, 169 N.J. at 211 (citing State v. Valencia, 93 N.J. 126, 133
(1983)).
Applying these principles, we agree with Judge Bury's assessment that the
issuing judge committed no error in finding probable cause. The conceded
probable cause of CDS in the package, based on the package smelling of
marijuana and the K-9's positive alert, extends to probable cause of criminal
activity in defendant's residence when the totality of the circumstances are
considered. Detective Gianotto testified the postal workers observed, within the
year, forty-two similar packages addressed to defendant, who would arrive to
retrieve them, with the odor of marijuana on his person. The detective further
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testified that defendant's landlord continuously observed cars arriving from other
states, and duffle bags would be exchanged with defendant; the landlord also
observed defendant's receipt of a case of butane.
Defendant contends the landlord's claims were uncorroborated; however, it
may be "assume[d] that an ordinary citizen" – as opposed to an anonymous
informant – "reporting a crime, which the citizen purports to have observed, is
providing reliable information." State v. Hathaway, 222 N.J. 453, 471 (2015)
(quoting State v. Basil, 202 N.J. 570, 586 (2010)). The same can be said regarding
the reliability of the postal workers' observations, which defendant also challenges
on appeal. Defendant further contends the landlord did not observe criminal activity,
nor did he observe anything that would establish probable cause. But when the
landlord's observations are considered alongside the K-9 dog's positive alert of the
package and the postal workers' claims of defendant's consistently suspicious
conduct before them, a "fair probability" of criminal conduct occurring at the
residence emerges. Defendant's suppression motion was properly denied.
To the extent not specifically addressed here, defendant's remaining
arguments are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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