STATE OF NEW JERSEY v. DARIEN L. MARTIN (15-12-0598, SALEM COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3392-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIEN L. MARTIN, a/k/a
DARREN L. MARTIN,
Defendant-Appellant.
__________________________
Submitted November 8, 2021 – Decided January 31, 2022
Before Judges Sabatino, Rothstadt, and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 15-12-0598.
Joseph E. Krakora, Public Defender, attorney for
appellant (Melanie K. Dellplain, Assistant Deputy
Public Defender, of counsel and on the briefs).
Kristin J. Telsey, Acting Salem County Prosecutor,
attorney for respondent (David M. Galemba, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Darien L. Martin appeals from his conviction and sentence to
an aggregate term of ten years, which were entered after he pled guilty to two
second-degree and one third-degree drug offenses. On appeal, he argues the
following two points:
POINT I
THE COURT ERRED WHEN IT DENIED
[DEFENDANT'S] SUPPRESSION MOTION,
THEREBY DEPRIVING HIM OF HIS
CONSTITUTIONAL RIGHTS AGAINST
UNREASONABLE SEARCH AND SEIZURE.
A. THE NO-KNOCK PROVISION OF THE
JULY 21, 2015 SEARCH WARRANT FOR
[DEFENDANT] AND HIS RESIDENCE WAS
INVALID, SO THE ENSUING SEARCH OF
MARTIN'S RESIDENCE WAS ILLEGAL AND THE
FRUITS OF THAT SEARCH MUST BE
SUPPRESSED.
B. THERE WAS NO PROBABLE CAUSE
TO SUPPORT THE INITIAL [COMMUNICATION
DATA WARRANT (CDW)], RENEWAL CDW, AND
WIRETAP ORDER, SO ALL EVIDENCE
OBTAINED AS A RESULT OF THE INITIAL CDW,
RENEWAL CDW, AND WIRETAP ORDER MUST
BE SUPPRESSED.
POINT II
[DEFENDANT'S] SENTENCE IS EXCESSIVE
BECAUSE THE SENTENCING COURT FAILED TO
DISTINGUISH THIS OFFENSE FROM OTHERS IN
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ITS CLASS WHEN IT WEIGHED AGGRAVATING
FACTOR NINE. (NOT RAISED BELOW).
We are not persuaded by these contentions. For the reasons stated in this
opinion, we affirm the denial of defendant's motions to suppress and his
sentence.
I.
We summarize the facts leading to defendant's arrest and conviction as
follows. In January 2014, Senior Investigator Ryan Donelson of the Salem
County Prosecutor's Office (SCPO) received information from a confidential
informant (CI) about defendant selling cocaine in Salem City. Donelson, who
became the lead investigator into the allegations, was familiar with defendant
from prior related investigations involving the distribution of controlled
dangerous substances (CDS).
As part of Donelson's investigation, on April 2, 2015, he successfully
applied for a CDW, relying upon information from a CI and Donelson's
experiences with and knowledge about defendant's drug dealing, which by then
included recent controlled purchases of CDS through the CIs' participation. The
CDW was later renewed and a wiretap order was issued based on information
gleaned from the initial wiretaps.
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Later, in July 2015, Donelson used similar information and facts
developed through the CDW to secure a search warrant for defendant's residence
located on Carpenter Street in Salem. When Donelson applied for the search
warrant, he did not specify on his affidavit that he was requesting a "no-knock
entry" warrant.1 However, the warrant indicated a "'no[-]knock' entry request"
was "[a]pproved." (Emphasis omitted).
The search warrant was executed on July 27, 2015, at 8:55 a.m. It resulted
in discovery of paraphernalia associated with the possession and distribution of
CDS but not any CDS.
Information developed through Donelson's investigation also revealed
defendant was using the Magnolia Street home of a codefendant, Lisa Wilson,
to store CDS. Police conducted a search of her home, which yielded the
discovery of a safe that Wilson explained belonged to defendant. Donelson later
secured a warrant to seize and search the safe, inside which large quantities
cocaine were discovered.
Based on the discovery of the CDS and the information developed through
Donelson's investigation, police arrested defendant. He and thirteen
codefendants were later charged in an indictment with having committed
1
The State acknowledges this fact on appeal.
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numerous CDS distribution offenses. After his indictment, defendant filed many
motions. Pertinent to this appeal were his motion to suppress evidence obtained
in the search of his residence, and a motion to suppress evidence obtained
through the CDWs and wiretap order.
The trial court conducted an evidentiary hearing as to both on June 8,
2017. After the presentation of the evidence, the trial court denied the motion
related to the search. As to defendant's challenges to the CDWs and their
execution, the trial court conducted additional hearings through 2017. On
February 14, 2018, after considering the parties' oral arguments, the trial court
also denied the motion as to the CDWs.
After the denial of his motions, on July 6, 2018, defendant pled guilty to
third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), and two counts of
second-degree conspiracy to possess with intent to distribute CDS in a quantity
of one-half ounce or more but less than five ounces, N.J.S.A. 2C:35-5(b)(2). On
August 3, 2018, the trial court sentenced defendant pursuant to his negotiated
plea agreement. Later, the trial court corrected an issue regarding the merger of
two offenses and on August 15, 2018, entered a Judgment of Conviction that
reflected defendant's aggregate ten-year term, subject to a five-year period of
parole ineligibility. This appeal followed.
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II.
We begin our review by addressing defendant's challenge to the trial
court's order denying his motion to suppress the evidence seized at his residence.
According to defendant, the search warrant was improperly granted, requiring
reversal of his conviction because the search warrant's no-knock provisions were
not requested by Donelson and the affidavit did not support a no-knock entry.
Relying primarily on State v. Johnson, 168 N.J. 608, 615 (2001), he argues the
warrant was invalid, and the resulting search was illegal, mandating reversal of
his conviction and suppression of the evidence obtained in the search of his
home. We disagree.
A.
On July 21, 2015, Donelson submitted an affidavit in support of a search
warrant application, 2 which was granted the same day. It is undisputed that
although he did not explicitly request a no-knock entry in his affidavit, the
warrant indicated that an application for that procedure had been approved .
In his supporting affidavit, Donelson detailed the wiretap investigation
and the phone calls that investigators believed were discussions about the sale
of narcotics, which included defendant directing the caller to meet him on
2
The record does not contain the application form, only the affidavit.
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Carpenter Street. In one call, defendant discussed carrying a gun and a prior
incident where he committed a robbery. The affidavit also detailed defendant's
criminal history, including nine arrests and seven felony convictions for
hindering, distribution of cocaine (twice), unlawful possession of a weapon,
robbery, distribution of narcotics, and possession of a controlled dangerous
substance.
At the suppression hearing, Donelson was the only witness. There was no
evidence adduced as to whether the officers entered defendant's residence
without knocking or otherwise announcing their presence. Moreover, defense
counsel never made any inquiry during cross-examination about how the
warrants were executed. Nevertheless, defense counsel argued that, because
Donelson did not request a no-knock entry, granting it was a violation of
defendant's rights and that "the search and seizure of [defendant], the arrest of
him in his home[,] and the taking of any materials from the home [was] improper
based on the no-knock warrant."
In denying the motion, the trial court explained the warrant and the
affidavit were presented to the judge simultaneously. The court further
explained, in this case, "the warrant clearly state[d] the request for the no-knock
entry was approved," but defendant was "correct that there [was] no written
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request for a no-knock entry in the affidavit." However, the court considered
the "summary of electronic surveillance and interceptions," including
"surveillance of [defendant] going to and from the location to be searched; a
recitation of some of the conversations intercepted, including one in which
defendant describe[d] committing an armed robbery and claims to have hit the
victim over the head with a 357 firearm." Additionally, the court highlighted
that the affidavit listed defendant's prior convictions—including three prior
distributions of CDS charges, hindering, robbery, and unlawful possession of a
weapon. Therefore, the court concluded the affidavit "most certainly provided
sufficient details to support a finding that circumstances existed to justify
issuance of a no-knock warrant."
B.
We begin by noting, in our review of a trial court's denial of a suppression
motion, 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. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson,
200 N.J. 1, 15 (2009)). "The governing principle, then, is that '[a] trial court's
findings should be disturbed only if they are so clearly mistaken that the interests
of justice demand intervention and correction.'" Robinson, 200 N.J. at 15
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(alteration in original) (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
However, "[t]o the extent that the trial court's determination rests upon a legal
conclusion, we conduct a de novo, plenary review." Rockford, 213 N.J. at 440.
In our review of a matter that challenges the bona fides of a search
warrant, we accord substantial deference to a court's decision to issue a search
warrant. State v. Keyes, 184 N.J. 541 (2005). "[O]nce the State establishes that
the search warrant was issued in accordance with the procedures prescribed by
the rules governing search warrants," "[a] search based upon a warrant is
presumed valid," and defendant bears the burden to prove "there was no
probable cause supporting the issuance of the warrant or that the search was
otherwise unreasonable." State v. Valencia, 93 N.J. 126, 133 (1983).
With these guiding principles in mind, we consider whether a search
warrant is rendered a nullity because it included a no-knock provision that was
not requested by law enforcement. We conclude it does not.
"There are two types of warrants police can request: a no-knock warrant
and a knock-and-announce warrant." State v. Caronna, __ N.J. Super. __, __
(App. Div. 2021) (slip op. at 23). "[T]o justify a no-knock warrant, a police
officer, under the totality of the circumstances and based on his or her
experience and knowledge, 'must have a reasonable, particularized suspicion
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that a no-knock entry is required to prevent the destruction of evidence, to
protect the officer's safety, or to effectuate the arrest or seizure of evidence. '"
Ibid. at 24 n.17 (quoting Johnson, 168 N.J. at 619).
A no-knock warrant is an exception to well-established Fourth
Amendment principles, that the police must knock-and-announce their presence
before executing a warrant. 3 Johnson, 168 N.J. at 615-16. "The knock-and-
announce rule protects 'human life and limb, because an unannounced entry may
provoke violence in supposed self-defense by the surprised resident.'" Caronna,
__ N.J. Super. __ (slip op. at 41) (quoting Hudson v. Michigan, 547 U.S. 586(2006)). "Suffice it to say that the rule safeguards against violence to occupants
of the residence, and importantly, likewise protects police officers themselves."
Id. at 41-42. However, the knock-and-announce requirement is "not absolute."
State v. Jones, 179 N.J. 377, 397 (2004). In general, reasons to ignore the
requirement when executing a warrant are inclusive of the justifications to grant
3
As of December 7, 2021, Acting Attorney General Andrew J. Bruck announced
Attorney General Law Enforcement Directive No. 2021-12, which provides
guidance to prosecutors and law enforcement officers on the application and
execution of warrants containing a "no-knock" provision. This new directive
creates narrower restrictions on the conditions that would support a successful
application of a no-knock warrant. These narrower restrictions were not in force
at the time of the application of the warrant defendant contests, and, therefore,
not applied to defendant's appeal.
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a no-knock warrant, and also include exigent circumstances. Caronna, __ N.J.
Super. __ (slip op. at 7 n.4) (citing Robinson, 200 N.J. at 14) (affirming trial
court granting a suppression motion where the police ignored a knock -and-
announce requirement in a valid search warrant because there was no dispute
that no exigent circumstances or other justification existed such as to justify a
no-knock entry).
The Court, in Johnson, noted "the task of courts evaluating the propriety
of a no-knock provision is to determine whether the applying officer has
articulated a reasonable suspicion to believe that one or more exceptions to the
knock-and-announce rule are justified." 168 N.J. at 618. The Court clarified
"there must be some indication in the record that the applying officer articulated
his or her reasonable suspicions to justify the no-knock provision before the
issuing court can consider and ultimately approve that form of entry." Id. at 623(emphasis added). "[T]he applying officer must state the specific reasons for
departing from the knock-and-announce rule to the satisfaction of the reviewing
court." Id. at 624 (emphasis added).
After Johnson, in Jones, the Court addressed the issue of "officer safety"
as it affected the validity of a no-knock warrant. 179 N.J. at 397. The Court
explained "'boilerplate' police concerns" are insufficient. Id. at 398. Instead, to
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justify no-knock entry, there must be case-specific "objective facts" that amount
to "a reasonable suspicion of a heightened risk to officer safety." Ibid. The
Court stated "[s]everal factors, alone or in combination, may provide sufficient
justification to dispense with the knock-and-announce requirement," regardless
of a suspects inclination for violence or criminal history, including an
informant's tip about the presence of weapons, an officer's knowledge of a
suspect's violent criminal history coupled with information from an informant
that the suspect still exhibits violent behavior, or the layout of an apartment
where one of the occupants has had a violent criminal past. Id. at 400-01. And,
where a suspect had multiple drug convictions and faces a possible extended
term, the greater potential for resisting arrest is relevant, because of the "strong
incentive to resist capture by the police." Id. at 408.
Where the no-knock application is based upon the destruction of evidence,
"the police must articulate some reason specific to the crime, to the person under
investigation, or to some other permissible factor, that leads them reasonably to
believe that destruction of evidence is more than a hypothetical possibility."
State v. Carlino, 373 N.J. Super. 377, 387 (App. Div. 2004).
Many cases involving no-knock provision disputes have turned on the
question of whether the applying officer's affidavit specified facts that were
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particularized to the circumstances to justify no-knock entry. See, e.g., Jones,
179 N.J. at 407-08 (holding affidavit supported a no-knock warrant where
officer included facts about an individual believed to be at the location to be
searched who had a seven-year-old arrest for assault on a police officer). The
crux of these disputes was whether the particular facts in the affidavit were
enough to support entry—not whether the officer requested the provision and
provided a reason why he or she had that suspicion. In all these cases, unlike
the case now before us, the officer made an explicit request for no-knock entry
and stated reasons why the request should be granted.
Here, it is undisputed that Donelson did not make an explicit request for
a no-knock provision in his affidavit, nor did he explicitly state the reasons why
he believed no-knock entry was required. Defendant does not point to any
authority, nor have we been able to find any, that specifically addresses a
situation where issuing a no-knock warrant was not based upon an officer's
explicit request for no-knock entry in the affidavit itself.4 However, in his
affidavit, Donelson stated extensive facts regarding defendant's criminal history,
ongoing drug activity, and about a conversation during which defendant spoke
4
Defendant does not argue the no-knock entry provision is an irregularity on
this warrant or that it was included in bad faith, and no facts in the record would
support such an argument.
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about possessing a gun and using it in a prior robbery. Therefore, as the trial
court did here, we can determine from the affidavit submitted in support of the
application for the search warrant that Donelson articulated valid reasons for
seeking a no-knock warrant.
Those facts alone do not answer the question as to whether the police in
this case acted upon the unrequested no-knock provision in the warrant or if they
announced their arrival on the premises when they executed the warrants. As
the Johnson Court explained, "we reaffirm the existing tenet that 'in deciding
whether the facts and circumstances of a particular entry justify dispensing with
the knock-and-announce requirement, the trial court must make a fact-specific
and fact-sensitive inquiry as to whether the entry was justifiable under [the]
circumstances." 168 N.J. at 624. And, as we explained in Caronna, "the method
of entry into the dwelling is an important factor to consider when evaluating the
reasonableness of police action and the applicability of the exclusionary rule. "
Caronna, __ N.J. Super. __ (slip op. at 40) (citing Johnson, 168 N.J. at 616). As
with other cases involving Fourth Amendment protections and the execution of
a valid warrant, there are no hard and fast rules. Rather, the cases turn on the
facts relating to the execution of the challenged warrant. See Rockford, 213 N.J.
at 443 ("Courts should evaluate the execution of each warrant in its factual
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context, 'largely avoiding categories and protocols for searches.'" (quoting
United States v. Banks, 540 U.S. 31, 35 (2003))).
As no one even asked Donelson at the suppression hearing about how the
police executed the warrant. We can only assume that defendant, who raised
the issue about the warrant granting no-knock authority without Donelson
asking for it, never raised an issue about the manner of execution before the trial
court. Therefore, we assume there was no issue with the manner of execution,
and the only challenge was to the warrant granting no-knock authority, which
we conclude was supported by the information supplied by Donelson. In the
event the warrant was indeed executed by a no-knock entry, Donelson
demonstrated a reasonable, particularized suspicion that a no-knock entry is
required. See Caronna, __ N.J. Super. __ (slip op. at 7 n.4). Under these
circumstances, we have no cause to reverse the denial of defendant's suppression
motion.
III.
We turn our attention to defendant's contention that both CDWs and the
wiretap order were granted without probable cause and, therefore, the evidence
against him should have been suppressed. Specifically, he argues the wiretap
communications, drugs and drug paraphernalia, and the incriminating
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statements made by his codefendants all must be suppressed, and his convictions
be reversed. In support of this argument, he contends that both of Donelson' s
affidavits relied on hearsay from CIs, that the affidavits did not show that the
informants were reliable, and that Donelson impermissibly relied upon
defendant's criminal history. We again disagree.
A.
As already mentioned, Donelson obtained from a CI a cellular phone
number that was believed to be used by defendant. Donelson submitted an
affidavit as part of an application for a CDW, seeking to obtain phone records
that would show the activation date, the account status, and cell site information
for the phone number. The affidavit also sought to "access all incoming and
outgoing dialed numbers[, ]cell site information . . . [and] subscriber
information for all telephone numbers received from said records." Donelson
claimed the information obtained through this warrant would "provide evidence
as to the identities and location of individuals involved" in the criminal offenses.
In support of this request, Donelson stated in his affidavit that over recent
years, the SCPO and Salem Police Department (SPD) received information,
which came from CIs, anonymous sources, and other law enforcement
personnel, about defendant and his possible involvement in narcotics trafficking.
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Donelson included a description of several recent controlled CDS purchases that
a reliable CI, designated as CRI-331 made from defendant. Donelson also
described how, when he accompanied CRI-331 while undercover to purchase
CDS from defendant, defendant refused to deal with him because he did not
know Donelson.
After considering Donelson's affidavit and application, the court issued a
CDW, authorizing the investigative agencies and Donelson to secure the
information they sought through the CDW. After obtaining that information, an
analysis of the call detail record revealed that a total of 4,063 calls were placed
from or received by the cell phone number during the period of surveillance.
An application for a renewal CDW and a wiretap order was made by
Donelson on June 26, 2015. 5 This application sought, among other things, an
5
At times the parties refer to this as the second CDW. However, a CDW is
different from a wiretap order. State v. Finesmith, 408 N.J. Super. 206, 211-12
(App. Div. 2009). "A wiretap order permits the interception by law enforcement
of a communication contemporaneous with the transmission while a CDW is
directed to acquisition of communications in post-transmission electronic
storage kept by an electronic communication service or remote computing
service for reasons of backup protections for the communication." Id. at 211-
12. An application for a CDW also requires a showing of probable cause;
however, unlike a wiretap order, a CDW does not require a showing of necessity
because normal investigative procedures have failed. Id. at 212; see also
N.J.S.A. 2A:156A-29 (CDW requirements for access). To be clear, the police
first obtained a CDW and examined the phone records of calls. Later, it applied
for and was granted a renewal CDW and the wiretap order.
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order authorizing the "interception of wire and electronic communications of
[defendant], and other as yet unidentified individuals, engaging in, and whose
communications are evidential of, the specified crimes." The application also
sought authorization to intercept text messages, calls, and other data
communication events. The application requested interceptions for no longer
than twenty days.
In his supporting affidavit, Donelson recounted the investigation of
defendant, who had been "on the Salem County Law Enforcement investigative
radar" since 2007. Since that time, a "myriad" of investigative methods had
been used to "cease [defendant's] extremely organized narcotics distribution
activities and network." These methods included the use of CIs, controlled buys,
surveillance, an attempt to introduce an undercover officer to defendant, and the
installation of pole cameras.
As to the investigation efforts, Donelson explained that "[i]nformation and
intelligence was received from numerous [CIs], whose information have proven
truthful and reliable in the past and which has [led] to the arrest and conviction
of narcotics traffickers," and that defendant was "part of an organization
operating a large narcotics distribution ring within [Salem County]." However,
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Donelson continued, defendant evaded serious convictions for "various
reasons."
Donelson recounted that in February 2007, a CI, designated as CI #1,
provided information that defendant was distributing cocaine from his residence.
According to Donelson, CI #1 was "proven reliable in the past by providing
information which [was] independently corroborated by other sources" and law
enforcement, and CI #1 indicated he/she observed large quantities of cocaine
inside defendant's residence. The information provided by CI #1 led to
defendant's arrest, conviction, and sentence in 2008.
As to the then-current investigation, Donelson explained that in January
2014, a CI, referred to by Donelson as CI #2, contacted defendant by phone and
arranged for controlled purchases of CDS from defendant. In February 2014,
Donelson worked with yet another CI, designated as CI #3, to arrange additional
controlled purchases.
The investigation continued in February 2015, when a fourth confidential
informant, CI #4, 6 tried to introduce an undercover police officer to defendant.
6
It is not completely clear from the record that CI #4 and CRI-331 are the same
person, however between the two affidavits, Donelson reports the same conduct
during the same time frame. Specifically, both CI #4 and CRI-331 attempted to
introduce an undercover police officer to defendant. We assume that those
descriptions refer to the same person.
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Donelson recounted the same controlled buys as previously discussed in the
warrant application for the first CDW. During the week of May 25, 2015,
Donelson met with CI #4, who conducted an additional controlled buy with
defendant.
Donelson also recounted obtaining the first CDW, and explained the
results of that warrant, which revealed a total of 4,063 calls were placed or
received by the phone number believed to belong to defendant for the period of
February 16, 2015 through April 2, 2015. Donelson listed the results, including
the phone numbers the calls were made to or received from, the name of the
person who was registered to each phone number, the phone user's criminal
history, and whether the SCPO was familiar with that individual. The
application also detailed defendant's criminal history and the investigative
techniques used by law enforcement that failed, or techniques, such as search
warrants and interviews, not used because they would alert the subjects of a
police investigation. An order granting the wiretap and renewing the CDW was
issued, and on July 17, 2015, a renewal order was granted for ten more days of
surveillance.
At the June 8, 2017 suppression hearing, Donelson testified about his
involvement in applying for the CDWs and wiretap orders and, after the warrants
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and orders were issued, his later gathering of the information obtained from the
CDWs. On cross-examination by a codefendant's counsel, Donelson said that
prior to making the application for the CDW, he used CIs, surveillance, and pole
cameras, and that the investigators "exhausted" all their investigative techniques
prior to obtaining the wiretap order. Moreover, although defendant's number
was provided by CIs, Donelson did not confirm the phone number belonged to
defendant prior to obtaining the CDW.
Defense counsel did not ask Donelson about his affidavit or any
suspicions Donelson may have had while applying for the search warrant. He
did ask about the training given to the monitors on surveillance, whether reports
existed detailing the controlled buys, and confirmed that Donelson did not have
prior contact with defendant before the investigation.
After the June 2017 hearing, the trial court held additional hearings that
year to further address defendant's challenges to the CDWs, wiretap orders, and
their execution, including on minimization issues. On February 14, 2018, the
trial court considered oral argument on the issues of authentication of the
recordings, admission of the wiretaps, and sealing of the wiretaps. As to the
suppression issue, the trial court asked defendant's counsel about the motion to
suppress the results of the CDW, and defendant's counsel, who was not joined
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by codefendant's counsel in this particular motion, stated that he would "rest on
the papers" because he thought "the argument [was] clearly laid out." The State
also relied on the papers.
The trial court then denied the motion, stating the following:
On the CDW the allegation is that the affidavit
submitted in support of it was legally insufficient. And
[a] CDW requires a showing of probable cause in order
for a warrant to be issued.
A law enforcement officer must present specific
and articulable facts showing that there are reasonable
grounds to believe that the record or other information
is relevant and material to an ongoing criminal
investigation.
The CDW application details specific controlled
b[uys] conducted by the confidential informants
through [defendant's] alleged cell phone number.
The details provided specific and articulable facts
from which to conclude that the information sought by
the CDW would be relevant and material to an ongoing
criminal investigation and, therefore, the motion to
suppress the results of the CDW is denied.
An order denying the motion to suppress "any and all statements, text or
similar communication obtained by the State pursuant to multiple CDW[s] and
electronic surveillance orders" was entered on February 15, 2018.
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B.
"Article I, Paragraph 7 of the New Jersey Constitution guarantees that
'[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated; and no
warrant shall issue except upon probable cause.'" State v. Manning, 240 N.J.
308, 327-28 (2020) (alteration in original) (quoting N.J. Const. art. I, ¶ 7). This
protection extends to "not only physical searches but also electronic interception
of phone conversations." State v. Feliciano, 224 N.J. 351, 367 (2016). "Because
phone records are protected by Article I, Paragraph 7, law-enforcement officers
must secure a warrant or court order from a judicial officer authorizing the
search of such records . . . ." Manning, 240 N.J. at 328.
Under New Jersey's Wiretap and Electronic Surveillance Control Act,
N.J.S.A. 2A:156A-10(a), a court may grant a wiretap if it finds probable cause
to believe:
a. The person whose communication is to be intercepted
is engaging or was engaged over a period of time as a
part of a continuing criminal activity or is committing,
has or had committed or is about to commit an
[enumerated] offense . . . ;
b. Particular communications concerning such offense
may be obtained through such interception;
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c. Normal investigative procedures with respect to such
offense have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too
dangerous to employ; [and]
d. Except in the case of an application meeting the
requirements of [N.J.S.A. 2A:156A-9, the roving
wiretap provision], the facilities from which, or the
place where, the wire, electronic or oral
communications are to be intercepted, are or have been
used, or are about to be used, in connection with the
commission of such offense, or are leased to, listed in
the name of, or commonly used by, such individual.
[Feliciano, 224 N.J. at 368 (alterations and omissions
in original).]
Our Supreme Court stated the probable cause standard "is not susceptible
of precise definition." State v. Moore, 181 N.J. 40, 45 (2004) (citing State v.
Wilson, 178 N.J. 7, 13 (2003)). Generally, "it '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)).
Probable cause will be found to exist "if at the time of the police action there is
'a "well grounded" suspicion that a crime has been or is being committed.'" Id.
at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The probable cause
standard is a "common-sense, practical standard for determining the validity of
a search warrant." State v. Novembrino, 105 N.J. 95, 120 (1987).
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In determining whether probable cause exists, courts analyze the totality
of the circumstances test, as set forth in Illinois v. Gates, 462 U.S. 213, 238
(1983), which "requires the court to make a practical, common sense
determination." Moore, 181 N.J. 40. Among other things, courts may consider
an officer's "experience with specific forms of criminal activity" and
observations of events, as well as a suspect's criminal record. Id. at 46;
Novembrino, 105 N.J. at 126; Jones, 179 N.J. 3at 390-91.
"Information related by informants may constitute a basis for probable
cause, provided that a substantial basis for crediting that information is
presented." Jones, 179 N.J. at 389. "When examining an informant's tip to
determine whether it establishes probable cause to issue a search warrant, the
issuing court must consider the 'veracity and basis of knowledge' of the
informant as part of its 'totality' analysis." Ibid. (quoting Novembrino, 105 N.J.
at 123). "A deficiency in one of those factors 'may be compensated for, in
determining the overall reliability of a tip, by a strong showing as to the other,
or by some indicia of reliability.'" Sullivan, 169 N.J. at 212 (quoting State v.
Zutic, 155 N.J. 103, 110-11 (1998)).
As to the first factor, veracity, past instances of reliability may be
"probative of veracity," but their weight "in the ultimate determination of
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probable cause may vary with the circumstances of each case." Id. at 213(quoting State v. Smith, 155 N.J. 83, 94 (1998)). "[A] conclusory statement that
the affidavit is 'based on information [the police] received from a confidential
reliable informer' is not sufficient to establish the informant's veracity." Keyes,
184 N.J. at 555 (alteration in original) (quoting Zutic, 155 N.J. at 111).
Second, an informant's basis of knowledge is demonstrated when "the tip
itself relates expressly or clearly how the informant knows of the criminal
activity." Sullivan, 169 N.J. at 213 (quoting Smith, 155 N.J. at 94). However,
"[i]n the absence of such explicit disclosure, '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.'" Ibid. (quoting Smith, 155 N.J. at 94).
"Because the information contained in a tip is hearsay, police
corroboration of that information 'is an essential part of the determination of
probable cause.'" Ibid. (quoting Smith, 155 N.J. at 94). Police corroboration
may bolster the veracity of an informant where the affidavit "inadequately
documented" it. Id. at 213-14. "[I]f police corroborate 'information from which
it can be inferred that the informant's tip was grounded on inside information,
this corroboration is sufficient to satisfy the basis of knowledge prong' as we ll
as the veracity prong." Id. at 214 (quoting Smith, 155 N.J. at 95-96).
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Corroborating factors may include "controlled drug purchases performed
on the basis of the informant's tip, the positive test results of narcotics obtained
during a controlled purchase, and records corroborating an informant's account
of the location of suspected drug activity." Jones, 179 N.J. at 390. An officer's
experience in investigating a drug enterprise should also be considered, as well
as a suspect's criminal history. Id. at 390-91.
The Jones Court emphasized the importance of a controlled buy. It
clarified that although a controlled buy, without more, would not conclusively
establish probable cause; it is still a significant factor. See Jones, 179 N.J. at
392. Instead, the Court reiterated "a controlled buy 'typically will be persuasive
evidence in establishing probable cause.'" Ibid. (quoting Sullivan, 169 N.J. at
217). It further explained the test for probable cause was "qualitative[, ]not
quantitative," and, "[t]hus, even one additional circumstance might suffice, in
the totality of the circumstances, to demonstrate probable cause when the police
successfully have performed a controlled drug buy." Ibid.Here, defendant first argues the police lacked probable cause because the
affidavits "relied on information obtained from [CIs], but neither provide
reliability of the informants." He highlights the affidavit did not indicate how
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27
many times the informant was proven reliable or how the informant had proven
truthful and reliable. We are unpersuaded.
In Keyes, the Court found the affidavit for a search warrant did "more than
merely state that the tip came from a reliable confidential informant." 184 N.J.
at 557. It based its finding that the affidavit was sufficient on the affidavit
"stat[ing] that the informant ha[d] proven himself to be reliable by providing
'information in the past that ha[d] resulted in the arrest of numerous suspects
and the recovery of proceeds from drug sales.'" Ibid. While the Court noted the
affidavit could have provided a more detailed explanation, it still found , under
the totality of the circumstances 7 in that case, the affidavit satisfied the veracity
requirement. Ibid.Donelson's affidavit for the first CDW stated he met with CRI-331, who
"ha[d] provided information and cooperation to [the SCPO] in the past and ha[d]
proven truthful and reliable." This statement is vague, and unlike the statement
in Keyes, we do not know what the informant's information lead to, such as any
7
In Keyes, based on a CI's tip, the police conducted a controlled buy with the
CI. Id. at 548-49. The suspected drugs field tested positive, defendant had a
criminal record of four felony convictions, two of which involved drug offenses,
and complaints were received by the police about drug activity on that street.
Id. at 550, 559.
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arrests or the seizure of any evidence, and thus, the veracity prong is not met by
this statement alone.
Likewise, the "basis of knowledge" prong is not met, as Donelson's first
affidavit stated only that CRI-331 told him defendant used a phone with a
specific number to receive orders for cocaine purchases. This statement
indicates some inside knowledge and previous dealings with defendant, as it is
axiomatic a person would have some inside knowledge by knowing the person's
phone number, but the information provided in the affidavit does not explain
how CRI-331 knew defendant's phone number.
Nevertheless, the controlled buys, other corroboration, and Donelson's
experience, established probable cause to support the CDW application,
Donelson's belief that defendant was engaged in illegal conduct, and that the
phone was being used by defendant to aid in the commission of CDS offenses.
For example, the affidavit established, over several years, the police received
information that defendant was engaged in trafficking narcotics. Additionally,
in February 2015, the police conducted two controlled buys with CRI-331 and,
in March used CRI-331 to attempt to introduce an undercover officer to
defendant, but defendant would not deal with a person he did not know. Along
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with the controlled buys, the affidavit also detailed Donelson's training and
experience in drug investigations.
The second affidavit provided even more corroboration, including prior
controlled buys with several additional CIs in 2014; defendant's criminal history
which included nine convictions, some of which included drug charges; a
detailed explanation of Donelson's experience and training, and the results of
the first CDW, which included thousands of phone calls, hundreds of which were
between defendant and known individuals with criminal records for drug
offenses. Under these circumstances, there was probable cause to believe that a
wiretap order and a renewal CDW would uncover evidence of defendant's
involvement in the drug enterprise and reveal the other players involved.
We are not persuaded otherwise by defendant's other assertion on appeal
that under N.J.R.E. 609, Donelson's affidavit impermissibly relied upon his
remote criminal history. Defendant does not cite any binding authority that
requires either the police or a reviewing court to only consider recent arrest
history in either applying for a warrant or conducting a totality of the
circumstances analysis for probable cause. And, many cases mention the
defendant's criminal history as a factor to be considered, without limiting that
history to only "recent" criminal history. See, e.g., Keyes, 184 N.J. at 557
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(listing possible corroborating facts, including "the suspect's criminal history").
Thus, "the use of a prior criminal act [for purposes of obtaining a warrant] is
subject to a less-stringent test than that applied to the admission of a prior
conviction to impeach a defendant's credibility" under N.J.R.E. 609. Jones, 179
N.J. at 391.
Here, even applying the N.J.R.E. 609 ten-year test for remoteness,
defendant's argument fails because the recent crimes that fall within the ten-year
timeframe were relevant and sufficient to support the warrant. Per Donelson's
affidavit, defendant was the subject of an investigation in 2007 and 2008, which
resulted in the search of defendant's home and drugs were found, leading to his
arrest and conviction. In January 2014, the police were informed again that
defendant was selling narcotics. The CDW and wiretap warrant applications
were filed in 2015. Thus, defendant's criminal history, in part, included recent
convictions, which on their own were sufficient to support the warrant.
Defendant largely ignores some of his criminal history was recent and
directly related to the criminal investigation for which the warrants and wiret ap
were sought. Instead, he relies upon State v. Christy, 112 N.J. Super. 48 (Law
Div. 1970), which does not support his argument, even if it was binding
authority. The language of that case does not mandate that only recent arrests
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or convictions can be considered. There the trial court stated prior arrests, "as
distinguished from actual convictions," standing alone would not be sufficient
to support a warrant for seemingly innocent behavior. Id. at 70. However, "a
past history of recent arrests for offenses similar to the one believed to be
currently occurring" could have some "bearing upon the quest for probable
cause," and, therefore, "the issuing judge was entitled to give some weight" to
recent arrests in those circumstances. Id. at 70. Here, defendant was convicted
in 2008 for drug offenses, that conviction would not fall beyond the ambit of
Rule 609, if it even applied, and is highly relevant to the determination of
probable cause as suggested by Christy, because it relates to the activity
defendant was suspected of engaging in shortly after his release from prison.
Also, Christy carefully distinguished mere arrests from convictions, which are
more relevant to that determination. Ultimately, there was no reason for
Donelson to not include defendant's complete criminal history or for the issuing
court to disregard his earlier crimes.
Under these circumstances, we are convinced the trial court correctly
decided that the CDWs and wiretap order were properly issued.
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IV.
Last, we consider defendant's challenge to his sentence. Relying on State
v. Case, 220 N.J. 49 (2014), defendant argues his sentence is excessive because
the trial court did not give any reasoning for finding aggravating factor nine
applied and carried significant weight. We find no merit to this contention.
A.
Prior to sentencing defendant, the trial court reviewed his criminal history,
which included the following previous convictions: distribution of CDS and
hindering (1995); unlawful possession of a handgun, robbery, and resisting
arrest (1996); possession of CDS within a school zone (1998); distribution of
CDS (2000); and "twice possession with intent and also a possession of CDS"
(2008). The court found the terms of the negotiated plea agreement were
appropriate and sentenced defendant in accordance with the agreement.
As relevant to the issues on appeal, when the court discussed the
aggravating factors it stated the following:
I find aggravating factor six, the extent of the
defendant's prior criminal record and the nature of any
of those convictions. His criminal history is as I have
just noted. And I give factor six significant weight.
And I find aggravating factor nine, the need to
deter this defendant and others from violating the law.
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This factor applies in all cases and in this case I find it
to be entitled to significant weight.
Looking at the statutory mitigating factors I find
that none of them are applicable to this particular case.
B.
We "review of a sentencing court's imposition of sentence [under] an
abuse of discretion standard." State v. Jones, 232 N.J. 308, 318 (2018). We will
"not substitute [our] judgment for that of the sentencing court." State v. Fuentes,
217 N.J. 57, 70 (2014). Instead, we will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case make the sentence clearly unreasonable so as to
shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).]
"A sentence imposed pursuant to a plea agreement is presumed to be
reasonable because a defendant voluntarily '[waived] . . . his rights to a trial in
return for the reduction or dismissal of certain charges, recommendations as to
sentence and the like.'" Id. at 70-71 (alteration and omission in original)
(quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1990)).
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Nonetheless, a sentence recommended as part of a plea bargain may be "vacated
if it does not comport with the sentencing provisions of our Code of Criminal
Justice." Id. at 71. "[T]he Code, our case law and the court rules prescribe a
careful and deliberate analysis before a sentence is imposed." Ibid. (alteration
in original). A "general" statutory framework guides "'judicial discretion . . .' to
ensure that similarly situated defendants [do] not receive dissimilar sentences."
Id. at 72 (alteration in original) (quoting State v. Natale, 184 N.J. 458, 485
(2005)). "When the trial court fails to provide a qualitative analysis of the
relevant sentencing factors on the record, [we] may remand for resentencing."
Id. at 70.
A qualitative analysis requires consideration of the sentencing factors
under N.J.S.A. 2C:44-1. Id. at 72. First, the sentencing judge must identify
whether any aggravating factors under N.J.S.A. 2C:44-1(a) apply, and whether
any mitigating factors under N.J.S.A. 2C:44-1(b) apply. Ibid. "Each factor
found by the trial court to be relevant must be supported by 'competent,
reasonably credible evidence.'" Ibid. (quoting Roth, 95 N.J. at 363). Then, the
court must balance the aggravating and mitigating factors, the judge "does more
than quantitatively compare the number of pertinent aggravating factors with the
number of applicable mitigating factors; the relevant factors are qualitatively
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35
assessed and assigned appropriate weight in a case-specific balancing process."
Id. at 72-73.
Importantly, "[a]t the time of sentencing, the court must 'state reasons for
imposing such sentence including . . . the factual basis supporting a finding of
particular aggravating or mitigating factors affecting sentence.'" Id. at 73
(omission in original) (quoting R. 3:21-4(g)). "A careful statement of reasons"
should address the factors at issue to demonstrate both to defendants and the
public that all arguments have been evaluated and to "facilitate[] appellate
review." Id. at 73-74. Indeed, "a trial court should explain its analysis of
N.J.S.A. 2C:44-1's aggravating and mitigating factors with care and precision,"
to "avoid disparity in sentencing as the Legislature intended, to facilitate fair
and effective appellate review, and to ensure that the defendant, the State and
the public understand the reasons for the sentence." Id. at 81.
As the Fuentes Court explained, aggravating factor nine "invokes '[t]he
need for deterring the defendant and others from violating the law.'" Id. at 78
(alteration in original) (quoting N.J.S.A. 2C:44-1(a)(9)). On this factor, the
court's determination must be "a 'qualitative assessment' of the risk of
recidivism," and the decision must "involve[] determinations that go beyond the
simple finding of a criminal history," as well as "include an evaluation and
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judgment about the individual in light of his or her history." Ibid. (quoting State
v. Thomas, 188 N.J. 137, 153 (2006)).
In Fuentes, when sentencing the defendant, the court originally only found
one aggravating factor, number nine, and "assigned it 'substantial weight.'" Id.
at 67. Later it held another sentencing hearing and added factor one. Ibid. The
Court reversed, finding, among other things, that the trial court's reasons for
applying factor nine were "insufficiently explained" and the application of the
factor was "not supported by competent and credible evidence in the record."
Id. at 80-81. The Court noted, in sentencing Fuentes, the trial court
acknowledged he had no criminal history and found mitigating factor eight (the
offense was "the result of circumstances unlikely to recur," N.J.S.A. 2C:44-
1(b)(8)) applied, which further "complicated" its finding of aggravating factor
nine. Id. at 67, 79. On remand, the Court instructed the trial court to address
both specific and general deterrence and explain "in greater detail its assessment
of the weight assigned to each aggravating and mitigating factor, and its
balancing of those statutory factors as they apply to [the] defendant." Id. at 81.
In Case, at the defendant's sentencing, the court "placed 'particular
emphasis on aggravating factor nine' because 'adult predators of young girls
must be deterred' and because the 'need to deter this particular defendant and
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others from these types of crimes is substantial.'" 220 N.J. at 61. The defendant
presented nine mitigating factors as well, and the court only addressed three of
those. Id. at 69.
On appeal, our Supreme Court vacated the defendant's sentence because
of several issues with weighing the mitigating and aggravating factors, including
the sentencing court did not "sufficiently explain[ing]" why it placed "particular
emphasis" on factor nine. Id. at 68. The Court agreed with the sentencing court
that adult predators had to be deterred, but also recognized "general deterrence
unrelated to specific deterrence has relatively insignificant penal value." Ibid.
Additionally, the Court highlighted the record showed the defendant was a first-
time offender who suffered from Post-Traumatic Stress Disorder and
depression, in the years between his arrest and trial, he underwent psychological
therapy, and during that time remained law-abiding and helped to support his
family. Ibid. It also noted the defendant would be on parole supervision for life
and subject to random searches of his computer. Ibid. The Court "did not
suggest that aggravating factor nine [could not] be credited here," but reiterated
"the issue is how much weight should be given to that factor." Ibid.
In contrast, in State v. Pillot, where the defendant pled guilty to charges
associated with several armed robberies she had committed, the trial court found
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38
at her sentencing: "[u]nder [N.J.S.A.] 2C:44-1, aggravating circumstances,
[s]ections 1, 3, 6, and 9. Mitigating circumstances, none." 115 N.J. 558, 563
(1989) (first and second alterations in original). The Court upheld the sentence,
reasoning the court's statement of reasons could have been clearer, but it was
"possible in the context of this record to extrapolate without great difficulty the
court's reasoning." Id. at 566. It also noted that the sentence was within the
discretionary parameters of the Code and that it was imposed pursuant to a guilty
plea and was presumed reasonable. Ibid.Here, the trial court did not provide an explanation as to why it assigned
factor nine significant weight. However, unlike the circumstances in Fuentes
and Case, the record here is clear as to why the need to deter defendant was
granted significant weight. The Fuentes and Case Courts both reversed where
there was an insufficient explanation, and the record did not support the
imposition of applying aggravating factor nine or assigning it significant weight.
That same issue is not present here.
Defendant had nine prior felony convictions, the most recent of which for
distribution of CDS. Defendant also did not present any mitigating evidence,
unlike the defendant in Case, who was a first-time offender and had gone
through therapy. As this sentence was within the parameters of the Code, it did
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not "shock the judicial conscience," see Pillot, 115 N.J. at 566, and the sentence
imposed was presumed reasonable, as it conformed to the plea bargain. See
ibid. There is no reason to remand for resentencing here, where there is clear
evidence supporting the application of aggravating factor nine in the record,
even if the trial court did not delve into reasons for applying that factor.
Affirmed.
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