STATE OF NEW JERSEY VS. WALTER HARRISON (15-02-0244, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2870-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALTER HARRISON, a/k/a
WALTER M. MAURICE JOHNSON,
MAURICE HARRISON and MAURICE
JOHNSON,
Defendant-Appellant.
______________________________
Submitted May 16, 2018 – Decided June 28, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
15-02-0244.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stefan Van Jura, Deputy Public
Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Joseph Paravecchia,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Walter Harrison appeals from his conviction after
pleading guilty to one count of fourth-degree possession of a
controlled dangerous substance (CDS). On appeal, defendant
challenges the denial of his motion to suppress physical evidence
recovered from his residence. We affirm.
On February 3, 2012, defendant was sentenced to a state prison
term of five years and six months for possession of CDS with intent
to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-
7(a). The court imposed a mandatory minimum of two years and
seven months' with credit for time served.
In 2014, defendant was released and placed on parole subject
to certain conditions. One of the conditions imposed required
that defendant was "to submit to drug or alcohol testing at any
time as directed by the assigned parole officer." Another general
condition provided that defendant "submit to a search conducted
by a parole officer . . . [of his] place of residence . . . at any
time a parole officer has a reasonable, articulable basis to
believe that the search will produce contraband or evidence that
a condition of supervision has been violated . . . ."
On February 26, 2015, a Monmouth County grand jury returned
a six-count indictment charging defendant with fourth-degree
possession of a CDS, N.J.S.A. 2C:35-10(a)(2) (count one); third-
degree possession of a CDS with intent to distribute, N.J.S.A.
2 A-2870-16T4
2C:35-5(b)(11) (count two); third-degree possession of a CDS with
intent to distribute on or near school property, N.J.S.A. 2C:35-
7(a) (count three); third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a
firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1(a)
(count five); second-degree certain persons not to possess a
firearm, N.J.S.A. 2C:39-7(b)(1) (count six).
The indictment was based upon defendant's arrest after a
search of his residence by officers from the New Jersey State
Parole Board (NJSPB). Defendant moved to suppress the physical
evidence seized during the warrantless search.
During a hearing on the motion, the State presented a single
witness, Lieutenant Alexander Falbo, of the NJSPB. We take the
following from Falbo's testimony.
Falbo is the District Parole Supervisor for the Trenton
District Office. At 10 a.m. on September 6, 2014, Falbo, along
with other officers, was involved in a joint security operation
at the "Opportunities for All Community Resource Center" (CRC).
The CRC conducts rehabilitation programs for parolees who require
assistance, including services for substance abuse.
Defendant was present at the CRC during the joint security
operation. The purpose of the security operation was to look for
weapons and contraband. In addition to a physical search and pat
3 A-2870-16T4
down, the task force members administered both urine tests and ion
scan tests to the individuals present. Both the pat down and the
urinalysis test of defendant were negative for weapons or
contraband. The ion scan of defendant was positive for fentanyl
and marijuana.
Falbo described the ion scan and its application.
[T]here is a wand with a piece of sample paper
on it. The paper is then rubbed on different
items, and then the paper is removed and put
into this machine. [T]he machine is able to
analyze based on the microparticles for gun
powder, explosives and other narcotics and
substances.
In our case we have the same piece of
machinery. . . . We rub it on [the] offender's
hands, back, insides, backs of the hand,
sometimes around the belt area or the pockets,
and then the paper is removed from the wand.
It's slipped into this machine and the machine
analyzes it and gives out a reading on the
screen and also a printed receipt of what it's
analyzing and what it finds or doesn't find.
. . . .
It'll test for marijuana, heroin,
cocaine, prescription medications that are
considered scheduled. It'll test for drugs
like fentanyl, other cutting agents. It'll
test for baking soda, which is a cutting agent
and used in heroin and cocaine distribution.
. . . .
[I]'m not an expert on how it works, but from
what I've seen from the investigator that does
4 A-2870-16T4
do the examination that is trained in it, the
machine cleans itself between each sample.[1]
A different piece of paper is used each time the scan is conducted.
Falbo estimated he had "done a hundred assignments with the
machine."
After consulting with his commanding officer about the
positive result and defendant's criminal history, Falbo determined
a search of defendant's home should be conducted with the use of
the K-9 unit. Defendant was handcuffed and taken into custody.
Falbo and other officers then proceeded to defendant's residence
to conduct the search.
Upon approaching defendant's residence, "there was a strong
odor of burnt marijuana coming from the front porch and front
door area." A female answered the door and identified herself as
defendant's girlfriend. Defendant's girlfriend admitted to
smoking marijuana prior to the officer's arrival. Defendant's
girlfriend was asked to exit the home whereupon the officers began
the search with the K-9 unit. No one else was present in the
home.
Upon command, the dog "bolted right up the stairs to the
second floor, made a left right by the staircase and went into an
1
The court limited Falbo's testimony to his personal observations
or knowledge, as he was not admitted as an expert.
5 A-2870-16T4
open room, a door that had an open room to it." In the room,
which "seemed to be an area for storage," the dog alerted an
officer to an unplugged "mini fridge." Inside, a large, clear bag
of marijuana with five smaller bags within it was recovered. A
Crosman BB gun in a black holster was also found in the mini
fridge.
At the conclusion of the hearing, the judge denied the motion
and stated her reasons on the record. Thereafter, defendant pled
guilty to count one of the indictment. On December 9, 2016, the
judge sentenced defendant to two years' probation with conditions.
The remaining counts of the indictment were dismissed. This appeal
followed.
On appeal, defendant raises the following points:
POINT I
THE EVIDENCE DISCOVERED IN DEFENDANT'S HOME
MUST BE SUPPRESSED BECAUSE THE PAROLE OFFICERS
SHOULD NOT HAVE USED THE RESULTS OF AN ION
SCAN OF DEFENDANT TO JUSTIFY THE SEARCH OF HIS
HOME.
[A.] THE ION SCAN OF DEFENDANT WAS
A SEARCH WITHOUT PRE-EXISTING
REASONABLE, ARTICULABLE SUSPICION,
AS REQUIRED BY N.J.A.C. 10A:72-
6.1(B).
[B.] THE STATE HAS NOT DEMONSTRATED
THE ION SCANNER TO BE OF SUFFICIENT
RELIABILITY TO JUSTIFY THE SEARCH OF
DEFENDANT'S HOME.
6 A-2870-16T4
POINT II
THE WARRANTLESS SEARCH OF DEFENDANT'S HOME WAS
UNREASONABLE BECAUSE THE STATE MADE NO EFFORT
TO DETERMINE THE AREAS OF THE HOME THAT WERE
UNDER THE EXCLUSIVE CONTROL OF ANOTHER, WHICH
CANNOT BE SEARCHED WITHOUT WRITTEN VOLUNTARY
CONSENT PURSUANT TO N.J.A.C. 10A:72-6.3(B).
Our review of a judge's decision on a motion to suppress
evidence is limited. State v. Vargas, 213 N.J. 301, 326-27 (2013).
We are obliged to uphold the motion judge's factual findings that
are supported by sufficient credible evidence in the record. State
v. Diaz-Bridges, 208 N.J. 544, 565 (2012) (citing State v. Locurto,
157 N.J. 463, 471 (1999)). Deference to those findings is
particularly appropriate when the trial court has the "opportunity
to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). We are not, however, required to accept findings that
are "so clearly mistaken" based on our independent review of the
record. Ibid. And we need not give deference to a judge's
interpretation of the law and review legal issues de novo. Vargas,
213 N.J. at 327.
We commence our discussion with defendant's arguments
regarding the ion scan conducted on his hands and clothing by a
parole officer. Defendant first argues that an ion scan is a
7 A-2870-16T4
"search" for Fourth Amendment purposes. Defendant further
contends he did not consent to this search as a condition of his
parole, for the ion scan test was not supported by a reasonable,
articulable suspicion to believe defendant possessed contraband.
In addition, defendant argues the positive ion scan result did not
support reasonable suspicion to search his home.
The judge found that the ion scan did not violate the Fourth
Amendment's proscription against unreasonable searches and
seizures as "it is not objectively reasonable for a parolee to
expect that he would not be subject to a[n] ion scan at a CRC
event." In reaching this finding, the judge reasoned that a
"parolee is in a different position from that of the ordinary
citizen. He is still serving his sentence. He remains under the
ultimate control of his parole officer. His parole is subject to
revocation for reasons that would not permit the arrest or
incarceration of other persons." As such, the judge found
defendant consented to the ion search due to his parolee status.
Accordingly, the judge found that, under the totality of the
circumstances, the positive ion scan test provided reasonable
suspicion for the officers to search his residence for evidence
of CDS.
Parole allows an individual to complete the final portion of
a sentence outside of prison but subject to specified conditions.
8 A-2870-16T4
State v. Black, 153 N.J. 438, 447 (1998). A parolee does not
enjoy the same freedoms as an ordinary citizen, but rather has
conditional liberty subject to the observance of various parole
requirements. Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
A warrant is not needed to conduct a search of a parolee's
home. Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). The
State only needs to show there were reasonable grounds to believe
evidence of a probation violation would be found. Ibid. That is,
parole officers can conduct a search of a parolee's residence if
there is a reasonable articulable suspicion that such a search
would discover evidence that the parolee's probation had been
violated. N.J.A.C. 10A:72-6.3(a)(1). "'Reasonable suspicion'
means a belief that an action is necessary based upon specific and
articulable facts that, taken together with rational inferences
from those facts, reasonably support a conclusion such as that a
condition of parole has been or is being violated by a parolee."
N.J.A.C. 10A:72-1.1.
A high-level supervisor or assistant district parole
supervisor can provide the authorization for the search of a
parolee's home under these circumstances. See State v. Maples,
346 N.J. Super. 408, 412-13 (App. Div. 2002) (stating that a parole
officer can search a bag in a parolee's home when the officer has
a reasonable suspicion that a condition of parole has been
9 A-2870-16T4
violated). In Maples, this court discussed Griffin, 483 U.S. at
873-74, in which the Supreme Court held that a probation officer's
warrantless search of a probationer's home, based upon a tip from
police, satisfied the Fourth Amendment. Id. at 412-13. We
explained that a certain degree of governmental intrusion is
allowable with regard to parolees, whereas similar conduct might
be impermissible in a different scenario with an ordinary citizen.
Id. at 413.
Here, defendant was a parolee with a reduced expectation of
privacy. N.J.A.C. 10A:71-6.4(a)(16) states that a parolee must
"[s]ubmit to drug or alcohol testing at any time as directed by
the assigned parole officer." The record includes a copy of
defendant's signed agreement to this condition of parole. The ion
scan is a machine that tests for the presence of drugs and only
involves touching the outer clothing and hands of a person. Thus,
the positive result from the ion scan for marijuana and fentanyl
was not an unreasonable search and instead suggested defendant
violated the conditions of his parole.
Notwithstanding the positive result from the ion scan of
defendant, we note another factor that provided reasonable
suspicion. Upon arriving at defendant's home and prior to the
entry and search, the officers smelled burnt marijuana emanating
from the front porch. The plain odor independently provided
10 A-2870-16T4
reasonable suspicion to enter defendant's home to search for
evidence of CDS. See State v. Pena-Flores, 198 N.J. 6, 30 (2009)
(citing State v. Nishina, 175 N.J. 502, 515-16 (2003)); State v.
Myers, 442 N.J. Super. 287, 295 (App. Div. 2015). Hence, under
the totality of the circumstances presented, we are satisfied that
the parole officers had a reasonable suspicion that defendant
violated the conditions of his parole.
Defendant also argues for the first time on appeal that the
State did not demonstrate the reliability of the ion scan under
Daubert/Frye.2 "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). "'[T]he points of
divergence developed in proceedings before a trial court define
the metes and bounds of appellate review.' Parties must make
known their positions at the suppression hearing so that the trial
court can rule on the issues before it." State v. Witt, 223 N.J.
409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 19 (2009)).
"For sound jurisprudential reasons, with few exceptions, 'our
appellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such
a presentation is available.'" Ibid. (Robinson, 200 N.J. at 20).
2
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
11 A-2870-16T4
We find no exceptions here. The opportunity to raise the
issue of the test's scientific reliability was available and it
could have been raised before the judge. During the hearing, the
only objections to the reliability of the ion scan were that the
parole officers did not comply with parole guidelines for
conducting the test. On that score, given Falbo's extensive
testimony as to the process employed in administering the test as
well as our standard of review of evidentiary rulings, we discern
no error in the consideration of the ion test results.3 State v.
Weaver, 219 N.J. 131, 149 (2014).
Finally, we conclude defendant's remaining argument relative
to the scope of the search to be without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
3
Ion scan evidence was found to be admissible after a Daubert
hearing in United States v. Hernandez-De La Rosa, 606 F. Supp. 2d
175, 178, 185-87 (D.P.R. 2009) ("[T]he [ion scan] technology is
able to detect the presence of illegal drugs and analyze the
relative quantity of such drugs present. . . . [T]his piece of
evidence will 'assist the trier of fact to determine a fact in
issue' . . . ."). Further, although not directly related to
reliability, we have permitted the use of this type of testing in
other contexts. See State v. Daniels, 382 N.J. Super. 14, 15-17
(App. Div. 2005) (affirming an order denying defendant's motion
to suppress where defendant tested positive on an ion scan while
visiting her son at a correctional facility and her vehicle was
subsequently searched, revealing evidence of CDS); Jackson v.
Dep't of Corr., 335 N.J. Super. 227, 229 (App. Div. 2000)
(affirming as constitutional a Department of Corrections policy
subjecting visitors to searches using ion scans and canine units).
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