STATE OF NEW JERSEY VS. RONALD T. DANIELS, JR. (13-07-1240, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1847-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD T. DANIELS, JR.,
Defendant-Appellant.
_____________________________
Submitted May 14, 2018 – Decided March 11, 2019
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 13-07-
1240.
Joseph E. Krakora, Public Defender, attorney for
appellant (Margaret R. Mclane, Assistant Deputy
Public Defender, of counsel and on the briefs).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica L. do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Before obtaining an order authorizing electronic surveillance, the
applicant must show, and the court must find probable cause to believe, that
"normal investigative procedures . . . have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous to
employ." N.J.S.A. 2A:156A-9(c)(6) (application for order); N.J.S.A. 2A:156A-
10(c) (grounds for entering order). Contending that the State failed to satisfy
that "necessity requirement" of the New Jersey Wiretapping and Electronic
Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37,
defendant Ronald T. Daniels, Jr., sought to suppress the fruits of a wiretap that
led to his indictment, and that of several others, on charges of first-degree
racketeering, gang criminality, and possession of controlled dangerous
substances with intent to distribute, as well related second- and third-degree
crimes. The trial court denied defendant's suppression motion. 1
Defendant thereafter pleaded guilty to participating in a racketeering
conspiracy to distribute more than five ounces of heroin. N.J.S.A. 2C:5-2;
N.J.S.A. 2C:41-2(d). The court sentenced defendant to a ten-year prison term,
1
The trial court also rejected defendant's contention that the State failed to
minimize the interception of communications not subject to interception, see
N.J.S.A. 2A:156A-12(f), but defendant does not pursue that issue on appeal.
A-1847-15T4
2
two years shorter than the plea agreement allowed, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. The term was to run consecutive to the
sentence defendant received in a separate case for unlawful possession of a
handgun.2
Defendant appeals, contending:
THE COURT ERRED DENYING THE
SUPPRESSION MOTION BECAUSE THE STATE
FAILED TO ESTABLISH THAT NORMAL
INVESTIGATIVE PROCEDURES WERE
UNLIKELY TO SUCCEED.
Defendant also challenges his sentence, contending:
THE COURT ERRED IN IMPOSING
CONSECUTIVE SENTENCES AND THE
AGGREGATE SENTENCE IS MANIFESTLY
EXCESSIVE.
Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the conviction and sentence.
I.
We review for an abuse of discretion a trial court's decision to grant an
order authorizing wire and electronic surveillance. See State v. Dye, 60 N.J.
518, 526-27 (1972) (reviewing compliance with necessity requirement); see also
2
We affirmed the conviction and sentence in that case in a separate opinion.
State v. Daniels, No. A-5223-14 (App. Div. Mar. 4, 2019) (Daniels I).
A-1847-15T4
3
State v. Feliciano, 224 N.J. 351, 378 (2016) (requiring compliance with
minimization requirement). When a defendant challenges compliance with the
necessity requirement, a reviewing court shall consider whether "the facts
contained in the affidavit sufficiently indicated that normal police investigative
methods would not serve the purpose . . . ." Dye, 60 N.J. at 526. We review
questions of law de novo. State v. K.W., 214 N.J. 499, 507 (2013).
In order to maximize individual privacy, our courts strictly construe and
enforce the Wiretap Act. State v. Worthy, 141 N.J. 368, 379-80 (1995) (stating
that the legislative concern for privacy "demands the strict interpretation and
application" of the Act). In interpreting the Act, we carefully consider federal
decisions interpreting the federal statute upon which the Act is based. State v.
Ates, 217 N.J. 253, 269 (2014); In re Application of State for Commc'ns Data
Warrants to Obtain the Contents of Stored Commc'ns from Twitter, Inc., 448
N.J. Super. 471, 479-80 (App. Div. 2017). The federal provisions that mirror
sections 9(c)(6) and 10(c) of the Act are found at 18 U.S.C. § 2518(1)(c) and 18
U.S.C. § 2518(3)(c). Failure to comply with the Act's substantive or critical
requirements shall result in the suppression of evidence. See Worthy, 141 N.J.
at 381-86; N.J.S.A. 2A:156A-21.
A-1847-15T4
4
The "necessity requirement" is "designed to assure that wiretapping is not
resorted to in situations where traditional investigative techniques would suffice
to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).
The requirement assures that electronic surveillance is not "routinely employed
as the initial step in [a] criminal investigation." United States v. Giordano, 416
U.S. 505, 515 (1974). But, the requirement does not render electronic
surveillance a "last resort" either. United States v. Macklin, 902 F.2d 1320,
1327 (8th Cir. 1990).
It has been said the necessity requirement should be applied in a "practical
and common[-]sense fashion." See, e.g., In re Dunn, 507 F.2d 195, 197 (1st Cir.
1974); see also James G. Carr, The Law of Electronic Surveillance §4.4(d) at 4-
54 (1989) (Electronic Surveillance) (acknowledging but criticizing the
"practical and common-sense" standard, which originated in the Senate
Committee Report). Yet, wiretap applications should explain the necessity
through "particular facts of the case at hand," and not boilerplate
generalizations. United States v. Campos, 541 F.3d 735, 749 (7th Cir. 2008).
Federal case law establishes that the government can satisfy the necessity
requirement in three ways:
One is by showing the failure of other methods, which
need not go so far as to indicate that every conceivable
A-1847-15T4
5
investigatory alternative has been unsuccessfully
attempted. The second is by showing other methods are
unlikely to succeed, which can be accomplished, for
example, by indicating the difficulty in penetrating a
particular conspiracy or by asserting that a
conventional search warrant would not likely produce
incriminating evidence. The third alternative is
showing other methods would be too dangerous, either
in terms of disclosing the investigation or placing an
officer or informant in physical danger.
[2 Wayne R. LaFave et al., Criminal Procedure §4.6(e),
at 555-57 (4th ed. 2015) (citing cases).]
See also Carr, Electronic Surveillance § 4.4(d)(1)-(3) (reviewing cases that
establish the failure, likely disutility, or danger of other methods). Of particular
relevance to this case, the government may satisfy the necessity requirement if
non-electronic methods fall short of disclosing the full extent of a conspiracy,
even if those methods would support prosecution against known individuals.
See United States v. Perez, 661 F.3d 568, 581-82 (11th Cir. 2011) (noting that
even though the government possessed sufficient evidence to prosecute one
suspect, "it had only limited knowledge of the full extent of his criminal
activities and his coconspirators").
Consistent with these principles, our Supreme Court held that the State
met the necessity requirement by showing: the suspects' refusal to engage in
illicit behavior with an undercover agent; the limited success of undercover
A-1847-15T4
6
surveillance; and investigators' inability to identify coconspirators absent wire
and electronic surveillance. Dye, 60 N.J. at 526. In State v. Christy, 112 N.J.
Super. 48, 64-65 (Cty. Ct. 1970), then-Judge Handler held the affiant met the
necessity requirement by explaining that sustained surveillance would arouse
suspicion and jeopardize the investigation; and the illegal operation was carried
out in such a "furtive and surreptitious manner" that investigators would be
unable to identify the participants and their involvement without wiretapping.
Similarly, we held the necessity requirement was met where the affiant
reasonably concluded that an undercover officer's continued efforts to insinuate
himself into the criminal operation would not be productive, in light of
heightened suspicions, and might jeopardize the entire investigation. State v.
Pemberthy, 224 N.J. Super. 280, 297 (App. Div. 1988). Furthermore, a target's
surreptitious activities "rendered physical surveillance alone extremely difficult
if not impossible." Ibid.Applying these principles, we discern no basis to disturb the trial court's
order denying defendant's motion to suppress. We have reviewed in detail the
detective's lengthy affidavit in support of the initial order, and his two affidavits
leading to two subsequent orders renewing and expanding the surveillance. The
A-1847-15T4
7
affidavits present sufficient facts to support the conclusion that the necessity
requirement was met.
In the detective's first affidavit, submitted in September 2012, he
described the activities of thirteen known target subjects, including defendant,
who were members of, or associated with, a set of the Bloods street gang. Those
activities included numerous hand-to-hand drugs sales to an undercover
investigator between July and September. All the sales were arranged by
communications through the three target telephone facilities. These undercover
buys and related surveillance disclosed that defendant participated in the drug
distribution jointly with other subjects.
The detective also identified target subjects who were engaged in acts of
violence and the trafficking of firearms. The detective recounted several
separate incidents involving shootings, robbery, and homicide. One such
incident involved defendant's arrest for possession of a handgun that was later
connected to a gang-related homicide. (That arrest later led to his conviction in
Daniels I.) The detective described posts on social media depicting gatherings
or other joint endeavors (such as raising bail for defendant), which demonstrated
that the target subjects were part of a closed group. He also described efforts of
A-1847-15T4
8
the Fruit Town Brims set of the Bloods, to which defendant belonged, to recruit
new members.
Despite the ongoing surveillance and undercover transactions, the
investigators were unable to determine the hierarchy and structure of the targets'
enterprise, or to identify all the participants. Although the investigators could
prove individual sales of drugs, they were not privy to the targets' suppliers,
their customers, or the extent of their distribution network.
The detective asserted that it would be impossible to determine the
hierarchy and structure of the enterprise without electronic surveillance. He
noted that the investigation was frustrated by the "lack of full cooperation of any
co-conspirators or witnesses." The confidential informants who assisted
investigators in conducting undercover purchases insisted upon retaining their
anonymity, out of fear of retaliation, and thus could not be expected to serve as
witnesses. The group was also resistant to further infiltration by an undercover
agent. The detective noted that one undercover agent's safety was already
threatened. In particular, defendant attempted to compel the agent to consume
a bag of heroin to prove he was not a police officer. "Efforts to introduce another
undercover officer was abandoned when detectives suspected she was being set
A-1847-15T4
9
up for a robbery." The targets' propensity for gun violence exacerbated the
danger.
Neither surveillance nor search warrants could provide the information
the investigators sought. Physical surveillance was limited to confirming hand-
to-hand transactions on the street. Search warrants would not enable the
investigators to uncover the identity of additional coconspirators. Telephone
record data had limited usefulness. Such data did not disclose the contents of
communications. Nor did the data disclose the identity of the communicants,
because the targets extensively used pre-paid telephones.
In October, the detective sought renewal of the order as it pertained to two
of the original target phones, including defendant's, plus four additional wireless
phones, including one defendant's father used. Over the next month, the
detective sought renewal and expansion of the order to cover a total of nine
phones, including two used by defendant. The detective described the
previously intercepted calls and texts messages, which disclosed how defendant
and others, including defendant's father, worked together to distribute heroin
and other controlled dangerous substances in Long Branch and other areas. The
interception led investigators to identify numerous individuals believed to
purchase heroin from the group. Other intercepted communications apparently
A-1847-15T4
10
referenced the group's supplier by a nickname. The wiretap also disclosed
continued gun trafficking activities. Tellingly, the communications disclosed
that members of the group were aware of some police investigative efforts.
Echoing the justifications for the first order, the detective in both renewal
affidavits described the limitations of "normal investigative procedures" and the
need to continue to pursue electronic surveillance. The detective noted that the
drug distribution enterprise utilized wireless communications to operate, which
in turn necessitated interception of those communications to understand the
scope of that enterprise.
In sum, the detective demonstrated, with sufficient factual support, that
although "normal investigative procedures" were tried and successful in
securing evidence of discrete offenses, they failed to secure, and would be
unlikely to secure, evidence of the scope and activities of the larger suspected
criminal operation, or would be "too dangerous to employ." N.J.S.A. 2A:156A -
9(c)(6); N.J.S.A. 2A:156-10(c). We therefore affirm the trial court's order
denying the motion to suppress.
II.
Defendant's plea agreement provided that "consecutive sentences are
likely," although he could argue for concurrent sentences. His agreement also
A-1847-15T4
11
authorized the court to impose a twelve-year term for the racketeering
conspiracy conviction. As noted above, the court imposed a ten-year term for
the racketeering conspiracy, to run consecutive to the eight-year term imposed
on his conviction for unlawful possession of a handgun.
Defendant challenges the consecutive sentence. He contends concurrent
sentences were mandated because the gun possession was linked to the
racketeering conspiracy. Defendant notes that the first wiretap affidavit
mentioned defendant's gun arrest.
We are not persuaded. Declaring "there can be no free crimes in a system
for which the punishment shall fit the crime," the Supreme Court directed
sentencing courts to consider whether:
(a) the crimes and their objectives were predominantly
independent of each other;
(b) the crimes involved separate acts of violence or
threats of violence;
(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be
imposed are numerous; . . .
[State v. Yarbough, 100 N.J. 627, 643-44 (1985).]
A-1847-15T4
12
The trial judge focused on factors (a) and (c). He found that the
racketeering conspiracy to which defendant pleaded guilty was independent of
his conviction for gun possession. The court noted that the gun that defendant
possessed was linked to a murder, which related to a dispute between gangs.
The gun possession therefore had separate objectives from the racketeering
conspiracy. The judge also observed that the two offenses did not occur at the
same time – the drug conspiracy both preceded and followed the gun offense.
We discern no grounds to disturb the court's conclusion. Notwithstanding
the observations in the wiretap affidavit, there was no evidence the gun
possession furthered the racketeering conspiracy to which defendant pleaded
guilty. Although the racketeering conspiracy count of the indictment charged
that the enterprise engaged in acquiring firearms, defendant did not mention that
in his allocution, admitting only to engaging in a racketeering conspiracy to
distribute heroin.
We recognize that the trial judge did not expressly analyze every
Yarbough factor. Nonetheless, we can "'readily deduce'" that the judge found
they did not outweigh the fact that the two offenses were independent. See State
v. Miller, 205 N.J. 109, 129-30 (2011) (quoting State v. Bieniek, 200 N.J. 601,
609 (2010)). The fact that neither conviction involved an act of violence by
A-1847-15T4
13
defendant does not minimize the seriousness of the two offenses. Furthermore,
although the gun possession on a single date in September overlapped with the
conspiracy, the offenses were independent.
Affirmed.
A-1847-15T4
14