STATE OF NEW JERSEY VS. TERRY E. DILLIGARD II (12-03-0036 AND 12-03-0067, MERCER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5060-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRY E. DILLIGARD II,
Defendant-Appellant.
____________________________
Submitted May 12, 2020 – Decided July 17, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment Nos. 12-03-0036
and 12-03-0067.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew Robert Burroughs, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel A. Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Terry Dilligard II appeals from the judgment of conviction
entered by the Law Division on July 22, 2015. 1 On appeal, he challenges the
September 4, 2014 trial court decision which denied his motion to suppress
statements he provided to police and which denied, in part, suppression of
evidence seized from his apartment. We affirm.
I.
On March 8, 2012, a Mercer County grand jury returned Indictment No.
12-03-0036, charging defendant with the following offenses: second-degree
conspiracy to commit theft by deception and financial facilitation, pursuant to
N.J.S.A. 2C:5-2, 2C:21-25(a) and 2C:21-25(b) (counts one and six); second-
degree theft by deception, pursuant to N.J.S.A. 2C:20-4, 2C:20-2(b)(1)(a) and
1
On April 8, 2016, defendant filed a petition for post-conviction relief (PCR)
alleging, among other things, that his appellate counsel was ineffective for
failing to challenge the trial court decision denying his suppression motion on
direct appeal. On June 11, 2019, Judge Timothy P. Lydon issued an order
granting defendant leave to file an appeal of the September 4, 2014 order
denying his motion to suppress. Judge Lydon found defendant's trial counsel
submitted a "transmittal of Adult Appeal" form signed August 6, 2015; however,
defendant's appeal was not properly filed "as confirmed by the Office of the
Public Defender in a letter dated April 7, 2016." Pursuant to Rule 3:22-11, the
judge granted defendant forty-five days to file a direct appeal of the denial of
his motion to suppress and all related claims raised in his PCR petit ion. The
judge also dismissed defendant's PCR petition without prejudice, and further
provided defendant may refile his PCR petition within ninety days of the date
of our decision on his direct appeal, pursuant to Rule 3:22-12(a)(3).
A-5060-18T4
2
2C:2-6 (counts two, three and eight); third-degree theft by deception, pursuant
to N.J.S.A. 2C:20-4, 2C:20-2(b)(2)(a) and 2C:2-6 (count four); second-degree
financial facilitation, possession of property derived from criminal activity,
pursuant to N.J.S.A. 2C:21-25(a), 2C:2-6 (count five); second-degree identity
theft, pursuant to N.J.S.A. 2C:21-17(a)(1), 2C:21-17(c)(3) and 2C:2-6 (count
seven); third-degree financial facilitation, possession of property derived from
criminal activity, pursuant to N.J.S.A. 2C:21-25(a), 2C:2-6 (count nine); first-
degree financial facilitation, possession of property derived from criminal
activity, pursuant to N.J.S.A. 2C:21-25(a), 2C:2-6 (count ten); first-degree
financial facilitation, engaging in transactions for the purpose of disguising the
nature of the transaction, pursuant to N.J.S.A. 2C:21-25(b)(1), 2C:21-
25(b)(2)(a) and 2C:2-6 (count eleven).
On March 27, 2012, an Atlantic County grand jury returned Indictment
No. 12-03-0067, charging defendant with the following offenses: second-degree
theft by deception, pursuant to N.J.S.A. 2C:20-4, 2C:20-2(b)(1)(a) and 2C:2-6
(count one); third-degree uttering a forged instrument, pursuant to N.J.S.A.
2C:21-1(a)(3) (counts two through ten).
On May 24, 2013, defendant filed a motion to suppress evidence seized
pursuant to the warrantless search of his apartment and a motion to suppress his
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3
recorded statement. At the motion hearing, Judge Mark J. Fleming heard
testimony from defendant and five detectives.
We derive the following facts from the suppression motion record. In July
2010, the Division of Criminal Justice and the New Jersey Department of Labor
(DOL) initiated an investigation after receiving reports that more than seventy
claimants filed false claims for unemployment insurance based on fictitious
previous employment. The investigation revealed that defendant filed
approximately 100 fraudulent claims for unemployment insurance benefits
between August 27, 2006 and November 9, 2010, resulting in the theft of
$2,400,000 from the State of New Jersey. To file these fraudulent claims,
defendant obtained personal identifying information of individuals from his
father, Terry Dilligard, who obtained access to the information through his job
registering voters in Florida.
On November 9, 2010, after the initial investigation, officers obtained and
executed an arrest warrant for defendant. The officers arrived at one of two
locations in the arrest warrant believed to be defendant's home, knocked on the
door, and announced their presence. Meanwhile, one of the officers on the
scene, Detective Patrick Sole, received a call from a detective at the Whippany
Office revealing that defendant's girlfriend, Monique Valentine, was already in
A-5060-18T4
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police custody and receiving text messages from defendant, telling her that he
heard police at his door and that he wanted to send Valentine money. Later,
defendant disclosed to Valentine through text messages that the money was in a
spare bedroom in his apartment and requested that Valentine post his bail
because he was about to turn himself in to the police.
After receiving this information, Detective Mario Estrada stated through
the door, "Terry we know you are in there, open the door." Defendant opened
the door and was placed under arrest in the hallway adjacent to the living room
area of his apartment. In plain view in the living room were an HP Laptop, a
MacBook Pro computer, several iPhones, a Nokia cell phone, a Samsung T-
Mobile cell phone, and a black box containing numerous VISA and Mastercard
debit cards.
The officers walked defendant to a table in between the kitchen and living
room. Detective Estrada then asked defendant if any weapons or people were
present in the apartment and defendant responded no. Detective Estrada next
asked defendant for his consent to search his apartment for evidence, without
revealing the purpose of their investigation. He subsequently read to defendant
a permission to search form that permitted officers to seize any evidence they
considered pertinent to the investigation. The form stated that defendant ha d
A-5060-18T4
5
the right to refuse permission of the search. Defendant signed the form.
Defendant also signed a Miranda2 rights form, confirming he voluntarily
acknowledged and waived his rights. After signing both forms, defendant was
informed that he was being arrested for unemployment fraud. During the search,
the police seized items believed to be proceeds of the alleged fraud.
The officers then transported defendant to police headquarters in
Whippany. Defendant was read a Miranda rights form for a second time and
again waived his rights by signing the form. He then learned that Valentine was
in custody. Later, defendant was brought into an interview room, where he again
was read a Miranda rights form and again waived his rights by signing the form.
He then made a statement to police regarding his involvement in the alleged
fraud. Defendant testified he did not sign the permission to search form or the
Miranda form, and claimed the signatures on the forms were not his signatures.
On September 4, 2014, Judge Fleming, in a thirty-two-page statement of
reasons, denied defendant's motion to suppress evidence as to weapons but
granted the motion as to evidence found outside of defendant's consent to search
for weapons. He also denied the motion to suppress defendant's statement. The
judge found the testifying officers credible, explaining they testified in a
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-5060-18T4
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forthright and candid manner. The judge stated the minor inconsistencies in
their testimonies "only made them more credible" because it showed their
testimonies were not rehearsed. In contrast, the judge found defendant's
testimony "to be much less credible" consisting of,
primarily . . . blanket denials of the State's version of
events. Numerous inconsistencies in [defendant's]
testimony were revealed on cross-examination and
defendant's overall demeanor throughout his testimony
was one of hostility and apparent belief that he was a
victim who had been wronged by the State. His strident
refusal to admit that he had signed forms that was
contradicted by the State's witnesses was particularly
troubling. Overall, the court finds defendant's
testimony to be not worthy of belief.
Turning to the search of the premises without a warrant, the judge
reasoned defendant's subjective perception that his consent was not given
voluntarily did not "vitiate the consent" of defendant signing the consent to
search form shown by defendant's signature and Detective Estrada's credible
testimony. The judge found that all of the factors pursuant to Schneckloth3
pointed to defendant providing a knowing and voluntarily consent to search the
premises for only weapons, rather than for an investigation of unemployment
fraud.
3
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
A-5060-18T4
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The judge explained that the present set of facts resembled State v. Leslie,
338 N.J. Super. 269 (App. Div. 2001), and concluded that because Detective
Estrada initially asked if the police could search for weapons, defendant
reasonably believed that signing the consent form permitted law enforcement
officers to only search the premises for weapons, rather than a general search
for evidence of unemployment fraud of his apartment.
The judge narrowed the areas of the apartment the officers were permitted
to search based on where a weapon could be found and suppressed evidence
where a weapon could not reasonably be located:
[T]he detectives lawfully seized all computers and cell
phones, as well as numerous debit and credit cards
found inside a box in the defendant's living room and
the currency found inside a bag in a closet in
defendant's bedroom. Further, detectives were
permitted to search through the large red expanding
folder found inside defendant's bedroom. [H]owever,
they were not entitled to search through smaller
envelopes or other areas of the apartment where a
weapon could not reasonably be located.
The judge found that the plain view exception applied to the HP laptop, several
iPhones, a Nokia cell phone, and a Samsung T-Mobile cell phone.
Turning to whether defendant voluntarily waived his Miranda rights, the
judge noted that it was unclear whether defendant drew certain conclusions
regarding how his cooperation would affect Valentine. However, the judge
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ruled that defendant's confession was not coerced and should not be suppressed.
Additionally, the judge noted police appeared courteous during the interrogation
and "defendant was calm and willing to answer their questions."
All charges against defendant were resolved when the Atlantic County
charges were consolidated with the Mercer County charges, and defendant pled
guilty to three of the charges, pursuant to a plea agreement. On April 13, 2015,
defendant appeared before Judge Lydon and pled guilty to counts three and
eleven, under Indictment No. 12-03-0036, and to count one, under Indictment
No. 12-03-0067. Defendant admitted to creating an unemployment benefit
claims scheme for numerous ineligible individuals. He also admitted to creating
and controlling multiple Metabank banking accounts to receive direct deposits
from the State of New Jersey in other people's names as part of the scheme.
Defendant admitted that he gambled and won over $75,000 at Harrah's Casino
Resort, took photographs of the checks, deposited the checks and then used the
photographed copies to receive additional proceeds in excess of $75,000.
Consistent with the plea agreement, on June 26, 2015, Judge Lydon
sentenced defendant on counts three and eleven of Indictment No. 12-03-0036
to two consecutive nine-year terms of imprisonment. On Indictment No. 12-03-
0067, he sentenced defendant to a concurrent seven-year prison term.
A-5060-18T4
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On March 9, 2016, we heard oral argument pursuant to Rule 2:9-11 on
defendant's appeal of his sentence. Defendant argued his sentence was excessive
because his two nine-year prison terms were consecutive. In a written order, we
affirmed the sentence imposed, ruling that the sentence was "not manifestly
excessive or duly punitive and does not constitute an abuse of discretion." State
v. Dilligard, II, No. A-0284-15 (App. Div. March 9, 2016).
Pursuant to Judge Lydon's June 11, 2019 order, defendant filed this appeal
and presents the following arguments:
POINT I
AS THE ENTRY INTO MR. DILLIGARD'S HOME
WAS UNLAWFUL, THE TRIAL COURT ERRED
WHEN IT DENIED HIS MOTION TO SUPPRESS
EVIDENCE SEIZED THEREOF AND FURTHER
THE TRIAL COURT SHOULD HAVE SUPPRESSED
THOSE PORTIONS OF MR. DILLIGARD'S
ANSWERS THAT WERE ELICITED DURING THE
MIRANDA STATEMENT THAT WERE BASED ON
EVIDENCE UNLAWFULLY SEIZED. (PARTLY
RAISED BELOW)
POINT II
TRIAL COUNSEL WAS INEFFECTIVE BY
FAILING TO ARGUE THAT THE INITIAL
WARRANTLESS ENTRY INTO MR. DILLIGARD'S
HOME WAS UNLAWFUL. (RAISED BELOW)
A-5060-18T4
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II.
Defendant argues for the first time on appeal that the officer's initial entry
into his home was unlawful. Specifically, defendant asserts the police entered
his home without his consent, arrested him, transferred him to his kitchen , and
then asked him to consent to a search of the remainder of his home.
Because this argument is raised for the first time on appeal, the "plain
error" standard applies and we review the record to determine whether the
alleged error is "clearly capable of producing an unjust result." R. 2:10-2.
We apply a highly deferential standard of review to a trial judge's
determination on a motion to suppress. State v. Gonzales, 227 N.J. 77, 101
(2016). We will uphold "the motion judge's factual findings so long as sufficient
credible evidence in the record supports those findings. Those factual findings
are entitled to deference because the motion judge . . . has the 'opportunity to
hear and see the witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (citations omitted) (quoting State v. Johnson, 42 N.J.
146, 161 (1964)).
"[U]nder . . . the Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of our State Constitution, searches and seizures conducted
without warrants issued upon probable cause are presumptively unreasonable
A-5060-18T4
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and therefore invalid." State v. Elders, 192 N.J. 224, 246 (2007). Searches and
seizures conducted without a warrant, "particularly in a home, are presumptively
unreasonable." State v. Edmonds, 211 N.J. 117, 129 (2012) (quoting State v.
Bolte, 115 N.J. 579, 585 (1989)). Indeed, entry into the home is the "chief evil
against which the wording of the Fourth Amendment is directed." State v.
Lamb, 218 N.J. 300, 314 (2014) (citation and internal quotation marks omitted).
Therefore, "our jurisprudence expresses a clear preference for police officers to
secure a warrant before entering and searching a home." State v. Brown, 216
N.J. 508, 527 (2014). Where a search of a home is challenged, the State has the
burden of proving by a preponderance of the evidence the search is "justified by
one of the 'well-delineated exceptions' to the warrant requirement." State v.
Shaw, 213 N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586, 598
(2004)).
Although "an arrest warrant generally furnishes no authority to the police
to intrude on the privacy of a home or to engage in a search therein," State v.
Miller, 342 N.J. Super. 474, 490 (App Div. 2001), "[a]n arrest warrant 'implicitly
carries with it the limited authority to enter a dwelling' where the suspect lives
when there is reason to believe the suspect is inside." State v. Brown, 205 N.J.
133, 145 (2011) (quoting Payton v. New York, 445 U.S. 573, 603 (1980)).
A-5060-18T4
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Law enforcement does not have an autonomous right to execute an arrest
warrant in a dwelling. In Miller, we held that "in the absence of consent or
exigency, an arrest warrant is not lawfully executed in a dwelling unless the
officers executing the warrant have objectively reasonable bases for believing
that the person named in the warrant both resides in the dwelling and is within
the dwelling at the time." Miller, 342 N.J. Super. at 479.
Defendant's argument regarding inadequate consent into his home lacks
merit because it conflicts with the well-settled principle that police may enter a
home to execute an arrest warrant. The officers went to the apartment to execute
an open arrest warrant, with a reasonable belief defendant lived at the apartment;
upon arrival, the officers knew defendant was located inside because he was
simultaneously texting Valentine information about police at his door. The
judge found that the police arrested defendant in a hallway adjacent to the living
room area of his apartment, after he opened the door for them. The judge made
these findings based on the credibility of the testifying officers and finding
defendant's testimony lacked credibility. We must defer to the trial judge's
credibility and factual findings. We therefore find that the officers exercised
their limited authority by arresting defendant in his home and transferring him
to a table so he could sit down.
A-5060-18T4
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Having found police lawfully entered defendant's home under their
limited authority to execute an arrest warrant, we find that the judge correctly
limited the evidence seized during the lawful search to that embodied by a
weapons search and that found in light of the plain view exception. We affirm
the September 4, 2014 order under review substantially for the reasons set forth
in Judge Fleming's well-reasoned statement of reasons.
"[A] confession or incriminating statement obtained during a custodial
interrogation may not be admitted in evidence unless a defendant has been
advised of his or her constitutional rights." State v. Hubbard, 222 N.J. 249, 265
(2015). Those rights, however, may be waived so long as the waiver is
"voluntary, knowing and intelligent." State v. Hreha, 217 N.J. 368, 382 (2014).
To determine whether a statement was made voluntarily, a court must
assess the totality of the circumstances surrounding the giving of the statement.
State v. Roach, 146 N.J. 208, 227, cert. denied, 519 U.S. 1021, 117 (1996).
"Relevant factors include the defendant's age, education, intelligence, advice
concerning his [or her] constitutional rights, length of detention, and the nature
of the questioning — specifically, whether the questioning was repeated and
prolonged and whether it involved physical punishment or mental exhaustion."
State v. Bey, 112 N.J. 123, 135 (1988).
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Defendant argues that police based their questions on information
obtained during the illegal search of his apartment and therefore his statement
should be suppressed. The judge found defendant not credible and pointed to
defendant's strident denial of signing any waiver or consent to search form
despite numerous credible witnesses testifying that he did sign the forms .
Additionally, defendant signed not only a Miranda waiver form at his apartment
but twice more at the police station. Only thereafter did he make a statement to
police. The record supports the judge's conclusion that defendant's statements
were voluntary and not coerced and that his statement should not be suppressed.
Lastly, to the extent that defendant now alleges his trial court counsel was
ineffective for "failing to argue that the initial warrantless entry into
[defendant's] home was unlawful," we note that ineffective assistance of counsel
claims are best suited for PCR proceedings because they often involve matters
for which there is not a complete record of counsel's reasons for the trial strategy
employed in a particular case. State v. Rambo, 401 N.J. Super. 506, 525 (App.
Div. 2008) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). Defendant may
assert his ineffective assistance claim if he chooses to refile his PCR petition
within ninety days of the date of our decision, as permitted by Judge Lydon's
June 11, 2019 order.
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Affirmed.
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