STATE OF NEW JERSEY VS. KAREEM A. HARRIS (15-05-0389 AND 15-10-0650, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2564-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAREEM A. HARRIS and
JEAN A. ST. FLEUR, a/k/a
JAMES HALL, and FABIAN
C. WALKER,
Defendants-Appellants,
and
MILO ST. FLEUR,
Defendant.
____________________________
Submitted September 6, 2018 – Decided January 14, 2019
Before Judges Rothstadt and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 15-05-0389
and 15-10-0650.
Alan D. Bowman, attorney for appellants.
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Alexandra L.
Pecora, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendants Kareem A. Harris and Jean A. St. Fleur appeal from the
August 15, 2016 order of the Law Division denying their motion to suppress
evidence obtained during execution of a search warrant. We affirm.
I.
The following facts are derived from the record. In December 2014, a
confidential informant (CI) gave Roselle Police Department (RPD) Detective
Matthew Jakubowski information about drug sales in the community. The CI
had previously provided members of the RPD with information leading to four
arrests and the recovery of controlled dangerous substances (CDS). Jakubowski
worked for RPD for twenty-one years, thirteen of which he served as a detective.
The CI told Jakubowski that an African-American male, known to the CI as
Kareem Harris, had been selling marijuana from his home in Roselle since July
2014. The CI described Harris as being approximately twenty-four years old,
five feet, six inches tall, with a medium build, facial hair, and long black braids.
The CI provided the specific address at which the sales took place. In addition,
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the CI informed the detective that Harris sold marijuana from his vehicle, which
the CI described as a 2008 BMW with a New Jersey registration the CI provided
in detail. When shown a photograph of Harris from New Jersey Motor Vehicle
Commission (MVC) records, the CI positively identified him as the person who
he knew to be selling marijuana from his home and his vehicle. In addition, the
physical description given by the CI was corroborated.
According to the records of the RPD and the MVC, Harris had, since 2002,
maintained a residence on the first floor of the house at the address provided by
the CI. Municipal tax records classified the building as a two-family rental
home, owned by Harris's step-father, St. Fleur. An unrelated person occupied
the second floor of the house. MVC records showed that the vehicle identified
by the CI was registered to Harris's mother, Miloe St. Fleur, and was co -owned
by Harris and his mother.
Based on this information, Jakubowski arranged for three controlled buys
between Harris and the CI during December 2014 and January 2015. The first
transaction took place on the front steps of Harris's home. The subsequent two
buys occurred in other locations in Roselle with the exchanges taking place from
Harris's BMW. On all three occasions, the CI called Harris in the presence of
Jakubowski to arrange the sale. Prior to each transaction, RPD officers met the
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CI, searched the CI for contraband, and supplied the CI with money for the
purchase. In addition, the officers maintained surveillance of the CI as each
transaction took place. Following each sale, the CI turned over substances that
tested positive for marijuana.
On January 20, 2015, the trial court issued a search warrant for the first
floor of the building where Harris resided, and for Harris's person, and car. It
did so after reviewing the detective's affidavit detailing the above-described
information, as well as Harris's five prior arrests on drug-related charges, and
the prior issuance of a search warrant for Harris's home in a drug-related
investigation.
Police executed the warrant on January 22, 2015. Officers conducted a
motor vehicle stop of Harris after observing him leave his house. A search of
his person and car did not reveal CDS. Officers cuffed Harris for their safety,
and used his house keys to enter the home after they knocked and announced
their presence. Three juveniles in the living room were patted down for
weapons. After hearing noises emanating from the basement, officers proceeded
down the stairs and encountered St. Fleur. They ordered St. Fleur to the ground
and handcuffed him. A search incident to St. Fleur's arrest revealed a knotted,
clear-plastic bag containing marijuana.
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A subsequent search of the basement recovered heroin and cocaine in bulk
and packaged form, numerous Ziploc bags and rubber bands, ink pads and
stamps, kitchen utensils with CDS residue, glass vials with caps, plastic bags
containing marijuana, a digital scale, and a legal notice addressed to Harris.
Officers searched the bedroom used by St. Fleur and recovered various-sized
bags and jars containing marijuana, a knotted bag of heroin, glassine envelopes
containing heroin, a glass plate covered in heroin, a box containing glassine
envelopes stamped "Daily News," a loaded Rossi .357 magnum revolver, $4146
in United States currency, and mail addressed to St. Fleur and Miloe St. Fleur.
On October 8, 2015, a grand jury issued an indictment charging both
defendants with first-degree maintaining/operating a CDS production facility,
N.J.S.A. 2C:35-4; third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1);
fourth-degree possession of marijuana in a quantity over fifty grams, N.J.S.A.
2C:35-10(a)(3); second-degree possession of heroin with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); third-degree possession of
marijuana in a quantity of one ounce or more with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); third-degree possession of one or
more ounces of marijuana within 1000 feet of a school, N.J.S.A. 2C:35-7; and
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second-degree possession of marijuana with intent to distribute within 500 feet
of a public park, N.J.S.A. 2C:35-7.1.
In addition, St. Fleur was charged with second-degree possession of a
firearm during the commission of a CDS offense, N.J.S.A. 2C:39-4.1(a); and
fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). In a
separate indictment, St. Fleur was charged with second-degree possession of a
weapon by certain persons, N.J.S.A. 2C:39-7.
Defendants filed a motion to suppress the evidence seized during
execution of the search warrant, arguing that the warrant was issued without
probable cause. They contended that the information the CI provided to
Jakubowski was uncorroborated hearsay. In addition, defendants argued that
because police did not record the telephone conversations between the CI and
Harris, or the three CDS sales, they were entitled to an evidentiary hearing to
test the veracity of the affidavit on which the warrant was issued. Defendants
also argued that the affidavit lacked particularity, and misrepresented Harris's
background, and the nature of the dwelling.
In addition, defendants argued that the officers exceeded the scope of the
warrant when they entered parts of the home not occupied exclusively by Harris.
They noted that Harris was the only occupant of the home whose conduct formed
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the basis of the affidavit on which the warrant was based. According to
defendants, the State was aware that Harris occupied a limited space in the
residence, which was primarily occupied by his mother, step-father, and
siblings. Thus, they argued, the warrant should not have permitted officers to
search the entirety of the first-floor residence or to enter the basement.
The trial court denied the motion in a written decision and order issued on
August 15, 2016. The court concluded that defendants merely asserted that
Jakubowski's affidavit was "woefully lacking and conclusory," but produced no
evidence that any of the information contained in the affidavit was false. Thus,
the court concluded, defendants did not meet their burden of making a
substantial preliminary showing of falsity, based on a deliberate falsehood or
reckless disregard for the truth, necessary to warrant an evidentiary hearing. See
State v. Howery, 80 N.J. 563, 567 (citing Franks v. Delaware, 438 U.S. 154,
170-71 (1979)). The court described defendants' arguments as "simply an[]
expression of a desire to cross-examine" Jakubowski, which does not constitute
a disputed material fact warranting his testimony. See R. 3:5-7(c).
With respect to defendants' probable cause argument, the court held:
At the time of the application, the State had more than
enough information to justify the seeking and issuance
of the warrant for defendant Harris, his vehicle and
home. Here, there was information relayed from a
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confidential informant, who had a proven veracity, and
verified by police investigation through controlled
purchases and surveillance. Contrary to the
defendant[s]' assertion, this was not simply conclusory
information. Detective Jakubowski sets out clearly the
basis for his belief that there is probable cause,
specifically, due to the C.I.'s tip, three controlled
purchases and police corroboration. The information
presented amounted to probable cause.
In addition, the trial court found that the search warrant was sufficiently
particular in its description of the place to be searched. The court noted that
individual living units in a multi-unit dwelling are to be treated as separate
residences for purposes of the Fourth Amendment's warrant requirement. Yet,
relying on our holdings in State v. Sheehan, 217 N.J. Super. 20, 29-30 (App.
Div. 1987), and State v. Schumann, 156 N.J. Super. 563 (App. Div. 1978), the
trial court held that in the absence of evidence that a particular room or rooms
in an individual living unit are exclusively occupied by the subject of the
warrant, the entire living unit may be searched, even when shared by unrelated
persons. The court found no support in the record for defendants' proposition
that the State knew or should have known that Harris occupied and had access
to only one room in the dwelling he shared with his family. The court noted that
the police investigation revealed that Harris lived on the first floor of what was
identified as a two-family home, not a boarding house or apartment building,
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and that the warrant appropriately excluded the second floor of the dwelling,
which was occupied by an unrelated tenant in a separate living unit.
On October 3, 2016, St. Fleur entered a negotiated guilty plea to third-
degree possession of one or more ounces of marijuana within 1000 feet of a
school, N.J.S.A. 2C:35-7, and second-degree possession of a weapon by certain
persons, N.J.S.A. 2C:39-7. The same day, Harris entered a negotiated guilty
plea to second-degree possession of heroin with intent to distribute, N.J.S.A.
2C:35-5(a)(1). Defendants reserved their right to appeal the trial court's denial
of their motion to suppress.
On January 6, 2017, the court sentenced St. Fleur to a five-year period of
incarceration with a thirty-month period of parole ineligibility on the marijuana
possession conviction, and a concurrent five-year period of incarceration with a
five-year period of parole ineligibility on the weapons possession conviction.
The court dismissed the remaining counts against St. Fleur. The court sentenced
Harris to a six-year term of imprisonment with a thirty-six-month period of
parole ineligibility on the heroin possession conviction. The court dismissed the
remaining charges against Harris. The court imposed fines and penalties against
defendants, and ordered the $4146 forfeited.
This appeal followed. Defendants raise the following arguments:
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POINT I
THE AFFIDAVIT DOES NOT CONTAIN
SUFFICIENT PROBABLE CAUSE TO UNDERPIN
INSSUANCE OF A SEARCH WARRANT FOR THE
ENTIRETY OF APPELLANTS' DOMICILE.
POINT II
THE EVIDENCE MUST BE SUPPRESSED.
POINT III
MOVANT (SIC) WAS ABSOLUTELY ENTITLED
TO A HEARING.
II.
The Fourth Amendment, and Article I, Paragraph 7 of the New Jersey
Constitution, protect "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . ."
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "[P]hysical entry of the home is
the chief evil against which the wording of the Fourth Amendment is directed."
Payton v. New York, 445 U.S. 573, 585 (1980) (quoting United States v. United
States Dist. Court, 407 U.S. 297, 313 (1972)). "Under our constitutional
jurisprudence, when it is practicable to do so, the police are generally required
to secure a warrant before conducting a search" of a residence. State v.
Hathaway, 222 N.J. 453, 468 (2015).
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A warrant to conduct a search will not be issued except "upon probable
cause, supported by Oath or affirmation, and particularly describing the place to
be searched and the persons and things to be seized." U.S. Const. amend. IV;
accord N.J. Const., art. I, ¶ 7; State v. Smith, 212 N.J. 365, 387 (2012). A
warrant will issue when a "court is satisfied that there is probable cause to
believe that . . . evidence of a crime is at the place sought to be searched." Smith,
212 N.J. at 388 (internal quotations and citations omitted). "The issu ing court
is required only to make a practical and realistic evaluation of the information
presented on the issue of probable cause." State v. Chippero, 201 N.J. 14, 32
(2009) (citing State v. Kasabucki, 52 N.J. 110, 117 (1968)).
Probable cause is no more than a well-grounded suspicion or belief of
guilt, or a fair probability that an offense has been committed. State v. Moskal,
246 N.J. Super. 12, 21 (App. Div. 1991); State v. Johnson, 171 N.J. 192, 214-15
(2002). It requires "something less than the proof needed to convict and
something more than a raw, unsupported suspicion." Moskal, 246 N.J. Super.
at 21. "Probable cause exists when, considering the totality of the
circumstances, a person of reasonable caution would be justified in believing
that evidence of a crime exists in a certain location." Smith, 212 N.J. at 388
(internal quotations and citation omitted).
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When reviewing a challenge to the sufficiency of a warrant, the reviewing
court must accord "substantial deference to the discretionary determination
resulting in the issuance of the [search] warrant." State v. Sullivan, 169 N.J.
204, 211-12 (2001) (alternation in original) (citing State v. Marshall, 123 N.J.
1, 72 (1991)). "[A]n appellate court reviewing a motion to suppress must 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. Elders, 192
N.J. 224, 243 (2007) (quotations omitted). We disregard only those findings
that "are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015).
A warrant is "presumed to be valid, and defendant bears the burden of
demonstrating that the warrant was issued without probable cause or that the
search was otherwise unreasonable." Chippero, 201 N.J. at 26 (quoting State v.
Evers, 175 N.J. 355, 381 (2003)). "[T]he resolution of doubtful or marginal
cases in this area should be largely determined by the preference to be accorded
to warrants." State v Perry, 59 N.J. 383, 394 (1971) (quotations omitted).
Our careful review of the record reveals ample evidence supporting the
trial court's determination that the search warrant was based on probable cause.
As the trial court found, a CI with an established history of reliability informed
Jakubowski that Harris had been selling marijuana from his home and vehicle
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for several months. The CI provided detailed information, including a specific
address, vehicle make, license plate number, and physical description of the
person the CI knew to be Harris. The detective corroborated all of that
information through an investigation, including confirming that the address was
Harris's home, owned by his step-father.
It has long been established that information provided by a CI, including
hearsay statements, may form the basis for probable cause, provided there is a
substantial basis for crediting the information. State v. Smith, 155 N.J. 83, 92
(1998). The reliability of an informant's information is determined under the
totality of the circumstances. State v. Novembrino, 105 N.J. 95, 122 (1987);
Illinois v. Gates, 462 U.S. 213, 238 (1983). The court must consider "all
relevant circumstances" in its analysis, including the basis for the informant's
knowledge. Smith, 155 N.J. at 92.
Past instances of an informant's reliability are "probative of veracity." Id.
at 94; see also Novembrino, 105 N.J. at 123. In addition, police may establish
an informant's veracity through corroboration from an independent
investigation. State v. Rodriguez, 172 N.J. 117, 127-28 (2002); State v. Zutic,
155 N.J. 103, 111 (1998). This is precisely what took place here. RPD officers
arranged for the CI to purchase CDS from Harris through three controlled
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transactions. Harris sold CDS to the CI, while under surveillance by officers,
once from the front porch of his home, and twice from the vehicle identified by
the CI. These transactions confirmed the accuracy of the CI's information and
pointed directly to Harris's home and vehicle as likely locations of evidence of
his criminal activity.
Nor are we persuaded by defendants' argument that the trial court erred in
not holding an evidentiary hearing on their motion to suppress. Although
defendants challenged the veracity of the information supporting the warrant,
they proffered no evidence that Jakubowski's affidavit was false, let alone
knowingly, intentionally or recklessly false. See Franks, 438 U.S. at 155-56;
Howery, 80 N.J. at 568. We agree with the trial court's conclusion that
defendants' desire to cross-examine Jakubowski, standing alone, is not a
sufficient basis for a Franks hearing.
We find no merit in defendants' argument that the trial court mistakenly
concluded that the warrant was sufficiently particular in its description of the
place to be searched. The constitutional protections against search and seizure
do not require "pin-point precision" in the warrant's scope. State v. Marshall,
398 N.J. Super. 92, 106 (App. Div. 2008) (quotations omitted). Here, the
warrant provided the address of Harris's home, and limited the search to the first-
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floor premises he occupied. Defendants offered no evidence that officers were
aware that Harris occupied only one room of the residence.
Nor have defendants established, as they argue, that further efforts by the
officers to corroborate the CI's information would have led the officers to
conclude that Harris occupied a single room in the residence. They point to no
evidence that would have been uncovered by the officers establishing the
farfetched proposition that Harris was permitted only to occupy his bedroom,
and was barred from using the bathroom, kitchen, living room, basement and
other facets of a home he shared with his mother, step-father, and siblings.
Finally, defendants' argument that the information supporting the
detective's affidavit was stale because the affidavit was signed eight days after
the last of the three controlled buys is unconvincing. The officers were informed
that Harris had been selling CDS from his home and car for several months.
They arranged for sales of marijuana from Harris to the CI on three o ccasions
in an approximately one-month period. Nothing during the investigation
suggested that Harris was preparing to depart from his home, or intended to
curtail his ongoing drug distribution operation. An eight-day gap between
Harris's final sale of CDS and the execution of the detective's affidavit is
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insufficient to render the information in the affidavit stale, absent convincing
evidence to the contrary.
Affirmed.
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