STATE OF NEW JERSEY VS. WILLIAM RICHARDSON (15-04-0742, OCEAN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2532-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM RICHARDSON,
Defendant-Appellant.
____________________________
Argued November 8, 2018 – Decided August 30, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-04-0742.
Susan Lee Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan Lee Romeo, of
counsel and on the briefs).
William Kyle Meighan, Senior Assistant Prosecutor,
argued the cause for appellant (Bradley D. Billhimer,
Ocean County Prosecutor, attorney; Samuel J.
Marzarella, Chief Appellate Attorney, of counsel;
William Kyle Meighan, on the brief).
PER CURIAM
Defendant William Richardson was indicted by an Ocean County grand
jury and charged with third degree possession of heroin, N.J.S.A. 2C:35-
10(a)(1), third degree conspiracy to possess heroin, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:35-10(a)(1), second degree possession of heroin with intent to
distribute, in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(2), and second degree conspiracy to distribute and/or
possess with intent to distribute heroin, in a quantity of one-half ounce or more,
N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2).
After the trial court denied his motion to suppress, defendant entered into
a negotiated agreement with the State through which he pled guilty to second
degree possession of heroin with intent to distribute, in a quantity of one-half
ounce or more. In return, the State agreed to dismiss the remaining counts in
the indictment and recommend the court sentence defendant to an extended term
of eleven years, with forty-six months of parole ineligibility. On December 9,
2016, the court sentenced defendant in accordance with the plea agreement.
In this appeal, defendant challenges the legality of the initial motor
vehicle stop and the evidence seized by the police pursuant to a search warrant.
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We affirm. We derive the following facts from the record developed before the
trial court.
On November 6, 2013, Ocean County Prosecutor's Office Detective David
Fox and Detective Ruiz 1 met with a confidential informant (CI) who claimed a
man named William Richardson, a/k/a "I-Shine" was distributing "large
quantities of heroin in the Ocean and Monmouth County area." In a Special
Operations Group (SOG) report written by Fox that same day, he documented
that the CI described Richardson as "an extremely large black male,
approximately 40 years of age, approximately 6' tall, and weighing
approximately 350 pounds[,]" who was at the time residing in the City of Long
Branch. The CI claimed Richardson used a number of cars to distribute the
heroin, including a Mazda Protégé and a silver Mercedes. The CI also provided
the registration number of the Mazda and the temporary registration of the
Mercedes.
Fox noted in the report that the CI had purchased heroin from Richardson
"on numerous occasions in the past" and was willing to call him on his cellphone
to arrange to buy more heroin at a particular location. According to the CI,
1
Detective Ruiz's first name is not disclosed in the appellate record. Moreover,
except for Detective Fox, all of the law enforcement officers who partici pated
in this case are referred to only by their last names.
A-2532-16T4
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Richardson was known as a "large scale heroin distributor" who he had
personally seen "in possession of multiple bricks of heroin in the past."
At approximately 9:30 a.m. that day, the CI called Fox to advise him that
Richardson had agreed "to deliver 30 bricks of heroin for approximately
$5,000.00 and would deliver the heroin to the Kennedy Fried Chicken
[restaurant] located on Kennedy Boulevard in Lakewood." Fox specifically
emphasized the reliability of this CI by noting that he/she had worked with SOG
detectives in prior investigations that led "to the arrest of 10 individuals for a
large quantity of heroin and cocaine."
Detectives from Ocean and Monmouth counties who make up the SOG
met to brief everyone on this matter. They agreed to set up surveillance points
in a particular location on Morris Avenue in Long Branch. At around noon that
day, Fox and Ruiz met the CI at a prearranged location "in the Lakewood area."
Fox documented that in his presence, the CI called Richardson on his cellphone.
Fox wrote that Ruiz "observed and overheard the communications between [the]
CI . . . and an individual the CI indicated to be William Richardson Jr aka 'I-
Shine' confirming the drug transaction that was [to] take place in Lakewood
Township." Richardson also confirmed he would bring with him "30 bricks of
heroin."
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Fox wrote in his report that at approximately 12:15 p.m., SOG Detective
Dennis saw an individual matching Richardson's physical description leave an
apartment located on Morris Avenue in Long Branch and drive away in a 2003
Mazda Protégé with a license plate that matched the registration numbers given
by the CI. SOG detectives followed the Mazda as it headed toward Neptune,
although they lost sight of the car "momentarily . . . in the area of Marlboro
Road." According to Fox, shortly after Dennis saw Richardson leave the
apartment, the CI received a phone call from Richardson confirming the CI had
the amount of money agreed upon and advising him/her he was on his way with
the heroin.
At around 1:15 p.m., Fox saw Richardson, accompanied by an African
American man, drive a car matching the description of the Mazda provided by
the CI westbound on Kennedy Boulevard and past the Kennedy Fried Chicken
restaurant. Detective Fox claimed he saw Richardson "look in the direction of
the Kennedy Fried Chicken parking lot." Richardson drove into a parking lot
located at the corner of Kennedy Boulevard, parked the car and "exited the
driver's seat and looked around, up and down Kennedy Boulevard." He then
saw Richardson return to the car and drive away back east on Kennedy
Boulevard, past the Kennedy Fried Chicken restaurant.
A-2532-16T4
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At the time the following events occurred, Detective Sergeant Hess was
in the car with Fox. After following Richardson's car for an undisclosed period
of time, Fox concluded he had sufficient legal grounds to conduct an automobile
stop. Fox "instructed [Richardson] to pull his vehicle onto Park Place." Fox
particularly noted in the report that he and Hess were wearing "clearly marked
. . . police identification and police vests" when they approached Richardson.
Fox told Richardson to exit the vehicle and in Hess's presence, read to him his
constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966). According
to Fox, Richardson acknowledged he understood these rights.
Fox explained to Richardson that he "was conducting a narcotic related
investigation." Fox wrote that Richardson "was extremely un-cooperative
verbally" and told him: "you have no right to stop me and I have nothing in the
car." At this point, Fox detained both Richardson and the passenger in the car
and transported them both to the Lakewood Police Department "pending
application of [a] search warrant." Fox incorporated these facts in an affidavit
dated that same day that he submitted to a Superior Court Judge in support of a
warrant to search Richardson's car. Fox also requested that the Ocean County
Sheriff's Department send a canine unit to conduct a sniff search of the vehicle.
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Richardson's car was secured by the police officers at the scene. The
canine unit Sheriff's Officer reported to the SOG officers that the sniff search
indicated the presence of a controlled dangerous substance. The vehicle was
towed to the Ocean County Prosecutor's Office Special Operations
Headquarters. Later that same day, Superior Court Judge Francis R. Hodgson,
Jr., issued a search warrant to search the Mazda Protégé. At approximately 5:00
p.m., SOG officers executed the warrant. In his report, Fox and the officers
found a black bag inside a cardboard box in the trunk of the car that contained
"35 bricks (1,750 bags) of heroin."
Against these facts, defendant now appeals raising the following
arguments.
POINT I
THE TRIAL COURT'S RULING THAT DENIED
DEFENDANT'S MOTION TO SUPPRESS THE
EVIDENCE SHOULD BE REVERSED BECAUSE
THE DOCUMENTARY EVIDENCE
ESTABALISHED, AS A MATTER OF LAW, THAT
THE STATE FAILED TO MEET ITS BURDEN TO
PROVE BY A PREPONDERANCE OF THE
EVIDENCE THAT THE POLICE HAD THE
REASONABLE ARTICULABLE SUSPICION
REQUIRED UNDER U.S. CONST. AMEND. IV AND
N.J. CONST. ART. I, ¶ 7 TO STOP DEFENDANT'S
CAR.
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POINT II
THE TRIAL COURT'S RULING THAT DENIED
DEFENDANT'S MOTION TO SUPPRESS THE
EVIDENCE SHOULD BE REVERSED BECAUSE
THE STATE PRESENTED NO EVIDENCE TO
PROVE, AS IT WAS REQUIRED TO DO, THAT THE
DOG SNIFF DID NOT UNREASONABLY
PROLONG THE STOP IN VIOLATION OF U.S.
CONST. AMEND. IV AND N.J. CONST. ART. I, ¶7.
POINT III
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
APPLICATION FOR A TESTIMONIAL HEARING
ON HIS SUPPRESSION MOTION SHOULD BE
REVERSED BECAUSE THE COURT APPLIED THE
WRONG STANDARD, FROM AN INAPPLICABLE
UNITED STATES SUPREME COURT CASE,
THEREBY REQUIRING DEFENDANT TO MEET A
HIGHER BURDEN OF PROOF THAN THAT
IMPOSED BY RULE 3:5-7 AND NEW JERSEY
CASE LAW.
We reject these arguments and affirm. A police officer does not need a
warrant to stop a motor vehicle provided the stop is based on specific and
articulable facts which, taken together with rational inferences derived
therefrom, give the officer a reasonable suspicion of criminal activity. State v.
Rodriguez, 172 N.J. 117, 126-27 (2002). Here, Fox stopped defendant's car
based on the information provided by the CI that defendant was in possession of
a large quantity of heroin which he intended to distribute to him/her in exchange
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for $5,000. The propriety of the motor vehicle stop thus turns on the reliability
of the information provided by the CI.
Information provided by a confidential informant can be the basis for a
lawful motor vehicle stop provided it is corroborated by the officer. State v.
Birkenmeier, 185 N.J. 552, 562-63 (2006). Fox corroborated the CI's
information in a variety of ways: (1) defendant's physique matched the physical
description given by the CI; (2) defendant's cars matched the make, model, and
registration numbers given by the CI; (3) Detective Ruiz corroborated the
content of the cellphone conversation between the CI and defendant that
established the quantity of the heroin, the price, and the location of the point of
distribution; and (4) the CI was well-known to law enforcement officers and had
provided reliable information in past cases that resulted in successful
prosecutions. Judge Hodgson relied on this same information which Fox
presented in his sworn affidavit in support of his application for a warrant to
search defendant's Mazda Protégé. Judge Hodgson found this sworn
information established probable cause to issue the search warrant.
We next address the validity of the search warrant. Judge Rochelle
Gizinski denied defendant's application for an evidentiary hearing to challenge
the validity of the search warrant under Franks v. Delaware, 438 U.S. 154
A-2532-16T4
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(1978). The judge found defendant did not present any evidence to establish a
prima facie case of deliberate misrepresentation by Detective Fox. We agree.
In State v. Howery, our Supreme Court explained the burden of proof a
defendant must satisfy to challenge the facial validity of a search warrant issued
by an independent magistrate:
First, the defendant must make a "substantial
preliminary showing" of falsity in the warrant. Franks,
at 681. In keeping with the purpose of the exclusionary
rule as a deterrent to egregious police conduct, the
defendant cannot rely on allegations of unintentional
falsification in a warrant affidavit. He [or she] must
allege "deliberate falsehood or reckless disregard for
the truth," pointing out with specificity the portions of
the warrant that are claimed to be untrue. These
allegations should be supported by an offer of proof
including reliable statements by witnesses, [Id. at 171],
and they must be proved by a preponderance of the
evidence. Finally, the misstatements claimed to be
false must be material to the extent that when they are
excised from the affidavit, that document no longer
contains facts sufficient to establish probable cause.
Ibid.
[80 N.J. at 567-68]
Here, defendant did not present any evidence that comes close to meeting
this standard. Mere unsupported allegations are not enough to overcome the
warrant's presumption of validity. Finally, we find no legal or factual grounds
to remand this matter for the court to conduct an evidentiary hearing to
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determine how long it took the Sheriff's Department canine unit to respond to a
request for a sniff search. The concerns expressed by the Court in State v.
Dunbar, 229 N.J. 521, 532-34 (2017) are not relevant here. Defendant was taken
into custody by Detective Fox at the scene of the motor vehicle stop based on
the probable cause explained in detail by Fox in the SOG report. Furthermore,
defense counsel did not raise this issue as a basis for relief when he argued the
motion to suppress before Judge Gizinski. Under these circumstances, the
interests of justice do not require that we address this issue. R. 2:10-2.
Affirmed.
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