NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0748-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAROLD MILLER, a/k/a WAKEEM MILLER and WAKEEM DIGGS,
Defendant-Appellant.
Submitted May 16, 2018 – Decided June 14, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 14-10-1166 and 15-01-0070.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Harold Miller appeals from his convictions and
sentences, following the Law Division's denial of his motions to
compel discovery, for a Franks1 hearing, and to suppress evidence.
Having considered the parties' arguments in light of the record
and applicable legal standards, we affirm the denial of the motions
and the convictions but remand for resentencing.
I.
We discern the following facts from the record. Members of
the Anti-Crime Unit of the New Brunswick Police Department received
multiple complaints from a concerned citizen regarding narcotics
activity. According to the citizen, individuals known to him or
her as Bryan Arline and Harold Miller were selling heroin and
cocaine from their second floor apartment (the Apartment) located
in a two-story residential building in New Brunswick (the
Building). The citizen further stated Arline and Miller
transported the drugs to and from the Apartment in a green Acura
and a green Cadillac.
Based on this information, on May 5, 2014, Detective Joshua
Alexander conducted surveillance of the Building. Alexander
observed Arline pull up to the front of the Building in a green
Acura. Another individual, later identified as Michal Alegre,
1 Franks v. Delaware, 438 U.S. 154 (1978).
2 A-0748-16T2 arrived separately in a black Honda. Alegre entered the Building
and remained inside for less than five minutes before exiting and
quickly driving away.
Alexander then observed Dwayne Lambert exit the Building,
look inside the trunk of Arline's Acura, go back inside the
Building, and leave about twenty minutes later. Shortly
thereafter, Alegre returned to the Building in the same Honda and
went inside. After remaining inside for less than five minutes,
Alegre went outside and spoke to Lambert. Alegre and Lambert went
back inside the Building. Two minutes later, Alegre left the
Building and drove away.
Sometime thereafter, Alexander spoke with a reliable
confidential informant (CI). The CI confirmed narcotics sales by
individuals known to him or her as Bryan and Harold from the
Apartment. The CI confirmed Bryan and Harold frequently drove a
green Acura and a green Cadillac to transport drugs to the
Apartment. The CI advised he or she personally observed Bryan and
Harold selling heroin and cocaine inside the Apartment.
Three controlled buys were made by the CI at the Apartment.
Two involved Lambert and the other involved Arline. On May 14,
2014, Alexander applied for and obtained a search warrant for the
Apartment and the persons of Lambert and Arline but not Miller.
3 A-0748-16T2 The following day, prior to executing the search warrant,
Alexander and Sergeant John Quick observed Alegre arrive in her
black Honda. Alegre went inside the Building where she remained
for less than ten minutes before exiting with Arline. Alegre
entered her vehicle and Arline leaned into the vehicle for a brief
conversation. When Alegre drove off, Quick advised Detectives
Robert Bogdanski and Rosario Maimone to stop Alegre because she
was driving with a suspended license and registration.
Bogdanski and Maimone followed Alegre to a gas station.
Maimone told Alegre he stopped her for driving with a suspended
license and registration. Alegre began to cry and said she had
to use the bathroom. Maimone told her she could use the bathroom
as soon as they were done. Alegre then stated, "Ok, ok, ok, I
have a little bit of heroin on me and a set." She turned over
seven bags of heroin marked "Brick Mansion," a hypodermic needle,
and a shoe lace from her jacket pocket. At police headquarters,
Alegre gave a videotaped statement, during which she stated she
bought seven bags of heroin that day from "Jamal," and had
previously bought heroin from "Dowop." Alegre identified a
photograph of Miller as the man she knew as "Jamal," the man she
had purchased heroin from that day. Quick knew "Jamal" was Miller
and "Dowop" was Lambert from prior investigations.
4 A-0748-16T2 While still outside the Building, Alexander observed Arline
exit with an unidentified female wearing scrubs. Alexander
followed them to Robert Wood Johnson Hospital. The female went
inside and Arline left on a bicycle towards Plum Street. Quick
decided to stop Arline. When Quick and Detective Karlo Sarmiento
exited their van and announced "Police," Arline fled on his bike.
The officers chased Arline to the Building. Arline entered the
Building but was unable to open the door to the Apartment. He
then reached into his pockets and threw thirty-eight decks of
heroin and thirty dollars into a nearby crate, which were recovered
by Quick.
After knocking and announcing, Sarmiento gained access to the
Apartment with a ram and entered it with Detective Walcott.
Walcott apprehended Lambert in the dining room. Sarmiento
proceeded to the bathroom where he found Miller hiding in the
bathtub. Sarmiento apprehended Miller, brought him to the kitchen,
ordered him to the ground, and handcuffed him.
Sarmiento then conducted a protective search of Miller during
which he felt a bulge created by objects inside Miller's front
right pants pocket. The search revealed a bag of cocaine in his
left front pants pocket and two bags of heroin in his right front
pants pocket containing 100 decks of heroin labeled "Brick
Mansion." Meanwhile, Quick apprehended Arline and brought him
5 A-0748-16T2 into the Apartment. By the time Alexander entered the Apartment,
all three suspects were handcuffed and sitting on the kitchen
floor. Alexander observed Miller attempt to discard five decks
of heroin labeled "Brick Mansion" that he had removed from the
back pocket of his pants. Alexander then found an additional
forty decks of heroin and $225 in the same back pocket. The police
also recovered a red plastic bag used to hold currency from
Miller's bedroom and $1686.75 from Miller's bedroom closet.
A canine unit alerted positive for narcotics during a sweep
of the Apartment and the green Cadillac. Miller gave consent to
search the Cadillac, but the detectives did not find any
contraband.
During the search of the remainder of the Apartment, the
detectives recovered four bags of cocaine, a plate and razor with
cocaine residue, two digital scales, two boxes of baking soda, and
a bag containing sandwich bags from the kitchen. They recovered
another bag of cocaine from the landing near the front door and a
bag containing Buprenorphine Hydrochloride pills and empty heroin
decks from another bedroom. They also recovered narcotics
paraphernalia, empty heroin decks, and a cell phone from Lambert's
bedroom.
On October 22, 2014, a grand jury returned Indictment No. 14-
10-1166, charging Miller, Arline, and Lambert with: third-degree
6 A-0748-16T2 conspiracy to possess heroin and cocaine with the intent to
distribute, N.J.S.A. 2C:35-5 and 2C:5-2 (count one); third-degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third-
degree possession of cocaine with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); third-
degree possession of cocaine with intent to distribute in a school
zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count four);
third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count
five); third-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)(3)
(count six); third-degree possession of heroin with intent to
distribute in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A.
2C:35-7 (count seven).2
This same indictment also charged Miller alone with: third-
degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(3) (count nine); and third-degree distribution of
heroin in a school zone, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7
(count ten).
Additionally, on January 21, 2015, a grand jury returned
Indictment No. 15-01-0070, charging Miller with: second-degree
2 Arline and Lambert were co-defendants on Indictment No. 14-10- 1166, but are not parties to this appeal.
7 A-0748-16T2 conspiracy to commit robbery, N.J.S.A. 2C:15-1(a)(1) and N.J.S.A.
2C:5-2 (count one); second-degree robbery, N.J.S.A. 2C:15-1(a)(1)
(count two); and third-degree hindering apprehension, N.J.S.A.
2C:29-3(b)(1) (count three).3
In May 2015, Miller moved to compel discovery in connection
with the controlled dangerous substance (CDS) offenses, seeking
disclosure of: (1) all documents relating to the three controlled
buys described in the search warrant affidavit; (2) the identity
of the concerned citizen; (3) all information relating to any
credibility findings of the police officers involved, including
any materials relating to disciplinary proceedings and findings
against members of the narcotics team; and (4) any recorded
testimony during the search warrant application.
The State represented none of the information relating to the
controlled buys would be presented by the State in its case-in-
chief. The State also indicated the police still actively used
the surveillance location and disclosure would result in the loss
of the location for future surveillance.
The trial court heard oral argument on July 15, 2015, and
denied Miller's motion in an August 25, 2015 order, which included
3 The robbery occurred on July 30, 2014, when defendant forcibly grabbed and attempted to take property from the victim.
8 A-0748-16T2 a comprehensive statement of reasons. Miller does not appeal from
that order.
The judge noted there were no controlled buys involving Miller
and he was not charged with any offenses occurring prior to the
execution of the search warrant. At trial, Miller could cross-
examine the officers who conducted the surveillance regarding
their distance, elevation, line of sight, and any visual
obstructions. He concluded Miller did not make a substantial
showing of a need for disclosure of the surveillance location in
order to be able to conduct his defense.
The judge found Rule 3:13-3(e) protected the identity of the
concerned citizen and safeguarding the citizen from physical
threats and harm warranted withholding his or her identity. He
noted the defense "simply asserts that the identity of the
concerned citizen is necessary to challenge the search by arguing
the warrant was obtained through false information."
As to disclosure of the personnel files, the judge rejected
Miller's argument that disclosure was necessary to test
credibility, finding defendant "failed to demonstrate how any of
the officers' personnel files are relevant, material, or
exculpatory." The judge concluded Miller had not shown any
"logical connection between the officers' personnel files and any
fact in issue." The judge also noted a recent in camera review
9 A-0748-16T2 of Quick's personnel file in an unrelated case revealed nothing
relevant or material with regard to his credibility. He held "the
mere possibility" that the "personnel files might include helpful
information, unsupported by the facts, is insufficient to justify
an in camera review let alone disclosure" of the files.
On January 8, 2016, Miller moved to: (1) suppress the evidence
seized from him during a warrantless search; (2) for a Franks
hearing to determine the validity of the search warrant; and (3)
for leave to use information relating to the controlled buys
conducted by Alexander at trial to show the sales were made by co-
defendants and not Miller.
A different judge heard oral argument on April 29, 2016, and
denied the motion in its entirety in a comprehensive written
opinion. As to the motion to suppress, the judge noted the search
warrant is presumed valid and Miller had not overcome that
presumption. The judge noted a valid warrant to search for
contraband gives limited authority to the police to detain the
occupants of the premises while the search is conducted.
Accordingly, she found defendant's initial detention during the
execution of the search warrant to be lawful.
As to the results of the protective search conducted by
Sarmiento, the judge reasoned:
10 A-0748-16T2 Considering the totality of the circumstances, the [c]ourt finds that it was reasonable for Detective Sarmiento to do a protective search of Mr. Miller's person to ensure that he was not armed, and there was no risk to officer safety while they searched the apartment pursuant to a search warrant. As such one bag of cocaine and 100 decks of heroin found on Mr. Miller as a result of a valid protective search will not be suppressed.
With regard to the additional items seized from Miller, the
judge stated:
Additionally, a more thorough search of Mr. Miller was conducted later in the kitchen when the officers observed Mr. Miller attempting to discard five decks of heroin from his back pocket. Because the officers had previously discovered cocaine and heroin on Mr. Miller's person, he was subject to arrest at that point in time. Thus, the subsequent search of Mr. Miller's person is lawful as a search incident to arrest. The additional evidence found on Mr. Miller's person, 45 decks of heroin and $225.00 in cash, will also not be suppressed.
However, even assuming the protective search and the later search incident to arrest was invalid, under the doctrine of inevitable discovery, the evidence found on Mr. Miller's person would have been discovered lawfully as a search incident to a lawful arrest as the search of the residence, including Mr. Miller's bedroom, revealed drugs, paraphernalia, cash, and packing material.
. . . .
The [c]ourt is satisfied that probable cause existed to arrest Mr. Miller as a result of the evidence recovered after the search of [the Apartment] was completed as contraband
11 A-0748-16T2 was discovered in the common areas of Mr. Miller's residence, as well as in his bedroom.
Once a valid arrest has been effectuated, a defendant's seizure automatically justifies a warrantless search of the defendant. State v. Goodwin, 173 N.J. 583, 598 (2002). Therefore, the police would have discovered the evidence on Mr. Miller's person wholly independent from any prior unlawful search of his person.
The judge also found Miller did not meet the threshold for a
Franks hearing as he had "not made a substantial preliminary
showing that the affiant, either deliberately or with reckless
disregard for the truth, procured the warrant."
The judge held non-disclosure in the affidavit of the quantity
of narcotics purchased, the purchase price, and any field testing
to be insufficient to warrant a Franks hearing because that
information "is not necessarily probative of a deliberate
falsehood or reckless disregard for the truth necessary to meet
the burden required for a Franks hearing."
The judge noted it was undisputed Miller did not participate
in any of the controlled buys and was not charged with any offenses
arising out of the controlled buys. Moreover, the officers were
not present during the controlled buys. The judge found no
"connection between the discovery sought and the ability to satisfy
the Franks standard." The judge also concluded that even if she
excised all of the information in the search warrant affidavit
12 A-0748-16T2 regarding the controlled buys, the remaining portions of the
affidavit still established probable cause.
As to the need to question Alexander during a Franks hearing,
the judge stated Miller "failed to meet [his] burden by either
attacking the warrant or suggesting material facts which are
disputed." The judge characterized the request as a "fishing
expedition which is completely contrary to the purpose served by
a Franks hearing."
Following the denial of his motions, Miller entered into a
plea agreement, pleading guilty to third-degree possession of
heroin with intent to distribute and second-degree robbery in
exchange for a recommended sentence of an extended seven-year
prison term subject to a forty-two-month period of parole
ineligibility pursuant to N.J.S.A. 2C:43-6(f) on the CDS count, a
concurrent five-year prison term subject to an eighty-five percent
period of parole ineligibility pursuant to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery count, and dismissal
of the remaining charges.
At sentencing, Miller argued for a four-year NERA term on the
robbery count, claiming the court should find mitigating factors
two (defendant did not contemplate his conduct would cause serious
harm), four (there were substantial grounds tending to excuse or
justify defendant's conduct), six (defendant will compensate the
13 A-0748-16T2 victim for his conduct or will participate in a program of
community service), eight (defendant's conduct was the result of
circumstances unlikely to recur), and eleven (imprisonment would
entail excessive hardship to defendant or his dependents).
N.J.S.A. 2C:44-1(b)(2), (4), (6), (8), and (11).
The judge found aggravating factors three (risk defendant
will commit another offense), five (substantial likelihood
defendant is involved in organized criminal activity), six (extent
of defendant's prior criminal record and seriousness of offenses
of which he has been convicted), nine (need for deterrence), and
eleven (imposition of a fine without imposing a term of
imprisonment would be perceived as part of the cost of doing
business). N.J.S.A. 2C:44-1(a)(3), (5), (6), (9), and (11). The
judge found no mitigating factors.
The judge sentenced Miller in accordance with the terms of
the negotiated plea agreement, noting Miller had an extensive
prior record of fourteen criminal convictions, including multiple
drug offenses,4 four municipal court convictions, and thirteen
adjudications of juvenile delinquency.
4 Miller does not contest he had been previously convicted of distribution of CDS and possession of CDS with intent to distribute, rendering him subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f)
14 A-0748-16T2 With respect to the CDS count, the judge indicated the
mandatory extended term with parole ineligibility was imposed
pursuant to N.J.S.A. 2C:43-6(f). The judge found aggravating
factor five applied because "there is a likelihood that the
defendant is involved in organized crime, because there is no
evidence that he has manufactured the drugs that were found in his
possession." While the judge stated "the aggravating factors do
substantially outweigh the mitigating factors," the judgment of
conviction states the aggravating factors "outweigh" the
mitigating factors.
The judge incorporated the same aggravating and mitigating
factors on the robbery count that she applied on the CDS count.
Accordingly, the judgment of conviction listed aggravating factors
three, five, six, nine, and eleven, no mitigating factors, and
stated the aggravating factors "outweigh" the mitigating factors.
However, an amended judgment of conviction deleted aggravating
factor five, stating "it was not found at time of sentencing."5
This appeal followed.
On appeal, defendant raises the following points:
5 "A trial court's oral opinion normally controls over an inconsistent judgment of conviction." State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) (citing State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994)); accord State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).
15 A-0748-16T2 POINT I
THE MOTION COURT COMMITTED REVERSIBLE ERROR WHEN DENYING THE DEFENSE'S REQUEST FOR AN EVIDENTIARY HEARING WITH RESPECT TO THE WARRANTLESS SEARCH OF MR. MILLER'S PERSON, NOTWITHSTANDING MATERIAL FACTS IN DISPUTE.
POINT II
THE MOTION COURT ERRED IN DENYING THE DEFENSE'S REQUEST FOR A HEARING PURSUANT TO FRANKS V. DELAWARE.
POINT III
THIS COURT SHOULD REMAND THE MATTER FOR RESENTENCING BECAUSE THE SENTENCING COURT ERRONEOUSLY FOUND AGGRAVATING FACTORS FIVE AND ELEVEN.
A. The Court Improperly Found Aggravating Factor Five Based on the Absence of Proof that Mr. Miller Manufactured the Third-Degree Weight of CDS.
B. The Court Erroneously Found Aggravating Factor Eleven Because It Was Not Weighing the Imposition of a Non- Custodial Sentence.
II.
We affirm the denial of the motion to compel discovery, motion
to suppress evidence, and application for a Franks hearing
substantially for the reasons expressed by the trial court in its
comprehensive and well-reasoned written decisions. We add the
following comments.
16 A-0748-16T2 Certain well-established principles guide our analysis.
Although we normally grant deference to the findings of fact made
by a trial judge in connection with a motion to suppress, there
was no evidentiary hearing in this case. State v. Elders, 192
N.J. 224, 243-44 (2007). Instead, the judge relied on the contents
of Alexander's affidavit and the supplemental investigation
reports prepared by Alexander, Quick, Maimone, and Sarmiento. A
reviewing court "may only consider whether the motion to suppress
was properly decided based on the evidence presented at that time."
State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (quoting
State v. Jordan, 115 N.J. Super. 73, 76 (App. Div. 1971)).
"A trial court's interpretation of the law . . . and the
consequences that flow from established facts are not entitled to
any special deference." State v. Gamble, 218 N.J. 412, 425 (2014)
(citing State v. Gandhi, 201 N.J. 161, 176 (2010); Manalapan Realty
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A trial
court's legal conclusions are reviewed de novo. Ibid. (citing
Gandhi, 201 N.J. at 176).
We first address Miller's argument that the trial court erred
by denying his application for a Franks hearing. We review a
trial judge's ruling regarding the need for an evidentiary hearing
for abuse of discretion. State v. Broom-Smith, 406 N.J. Super.
228, 239 (App. Div. 2009).
17 A-0748-16T2 A reviewing court gives substantial deference to a judge's
determination that probable cause existed to issue a search
warrant. State v. Mosner, 407 N.J. Super. 40, 61 (App. Div. 2009).
"A search warrant is presumed to be valid, and defendant bears the
burden of demonstrating that the warrant was issued without
probable cause[.]" Id. at 61 (alteration in original) (quoting
State v. Evers, 175 N.J. 355, 381 (2003)). Probable cause may be
based upon information received from informants, so long as there
is "substantial evidence in the record to support the informant's
statements." State v. Keyes, 184 N.J. 541, 555 (2005). "Doubt
as to the validity of the warrant 'should ordinarily be resolved
by sustaining the search.'" Id. at 554 (quoting State v. Jones,
179 N.J. 377, 389 (2004)).
A Franks hearing is required when a defendant "makes a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable
cause." Franks, 438 U.S. at 155-56; see also State v. Howery, 80
N.J. 563, 583 n.4 (1979) (stating a Franks hearing "is required
only if the defendant can make a substantial preliminary showing
of perjury").
18 A-0748-16T2 In order to make a substantial preliminary showing, defendant
must "allege 'deliberate falsehood or reckless disregard for the
truth,' and those allegations must be supported by an offer of
proof." Howery, 80 N.J. at 583 n.4. "[A] Franks hearing is not
directed at picking apart minor technical problems with a warrant
application," but rather, "it is aimed at warrants obtained through
intentional wrongdoing by law enforcement agents." Broom-Smith,
406 N.J. Super. at 240. Finally, a Franks hearing should not be
used as a "fishing expedition" or an attempt to learn the identity
of a confidential informant. Id. at 239.
Here, there was no need for a Franks hearing because Miller
failed to make a substantial showing of falsity or material
omission in the warrant affidavit. He did not point to specific
portions of the affidavit that are claimed to be untrue. See
Howery, 80 N.J. at 567. He has not demonstrated deliberate
falsehood or reckless disregard for the truth. Moreover,
Alexander's affidavit provides explicit detail concerning the
alleged drug activity at the Apartment, which he corroborated
through surveillance. Miller proffered no facts undermining the
factual assertions in the affidavit. On this record, a Franks
hearing was not required. See Broom-Smith, 406 N.J. Super. at
240.
19 A-0748-16T2 We next address Miller's argument that the trial court erred
by denying his request for an evidentiary hearing on the
suppression motion. We review a trial judge's ruling denying an
evidentiary hearing for abuse of discretion. Id. at 239.
Testimony must be taken during a suppression motion a hearing
if material facts are in dispute. R. 3:5-7(c). When a defendant
moves to suppress evidence seized during a warrantless search, the
State must file "a brief, including a statement of the facts as
it alleges them to be" and the defendant must then file "a brief
and counter statement of facts." R. 3:5-7(b).
"It is only when the defendant's counter statement places
material facts in dispute that an evidentiary hearing is required."
State v. Green, 346 N.J. Super. 87, 90 (App. Div. 2001) (citing
State v. Hewins, 166 N.J. Super. 210, 213-15 (Law Div. 1979),
aff'd, 178 N.J. Super. 360 (App. Div. 1981)). In Green, we
emphasized "[t]he mere allegation of a warrantless search, with
the attendant burden of proof on the State to justify same, does
not place material issues in dispute, nor does defendant's
assertion that he denies the truth of the State's allegations."
Id. at 91 (citing Hewins, 166 N.J. Super. at 214). "In the absence
of factual allegations to support the claim that the search and
seizure were illegal, a hearing [is] not required . . . ." State
v. Kadonsky, 288 N.J. Super. 41, 46 (App. Div. 1996).
20 A-0748-16T2 A defendant's counterstatement of facts must present
"something more than the naked conclusion that the warrantless
search was illegal, in order to obtain an evidentiary hearing
pursuant to [Rule] 3:5-7(c)." Hewins, 166 N.J. Super at 215.
The rule also seeks to avoid the time- consuming taking of testimony solely for the purpose of affording defense counsel additional discovery, and an opportunity to examine the State's witnesses in advance of trial. The motion to suppress is available to defendant in order to resolve questions concerning the validity of a search and/or seizure; it is not just another discovery device.
[Id. at 214.]
Here, Miller disputes he possessed the drugs police allege
he had on his person or discarded and claimed a hearing was
necessary to determine the timeline of when the drugs were found.
The denial that he physically possessed or discarded the drugs
that were seized does not constitute a material fact in dispute
with regard to whether the search of his person was illegal. Just
as an unconstitutional search is not rendered valid because it
produces contraband, a valid search is not rendered
unconstitutional because it did not result in the seizure of
While physical possession of the drugs is germane to whether
Miller is guilty of possession of CDS, an issue that he could have
21 A-0748-16T2 fully explored at trial, it is not determinative of whether the
police had a sufficient basis to conduct a valid protective search
or search incident to arrest. The validity of the search of
defendant's pockets turns on the facts leading up to the search,
not on whether the search results in the recovery of contraband.
Hence, defendant did not establish a disputed material fact with
regard to the propriety of the protective search.6
The trial court also applied the inevitable discovery
doctrine. The doctrine is an exception to the exclusionary rule
that permits evidence to be admitted in a criminal case, even
though it was obtained unlawfully, when the government can show
that discovery of the evidence by lawful means was inevitable.
State v. Holland, 176 N.J. 344, 361-62 (2003). The doctrine is
based on the recognition that:
the exclusionary rule [is] not served by excluding evidence that, but for the misconduct, the police inevitably would have discovered. If the evidence would have been obtained lawfully and properly without the misconduct, exclusion of the evidence would put the prosecution in a worse position than if no illegality had transpired.
[State v. Sugar, 100 N.J. 214, 237 (1985).]
6 We note the Miller's brief states: "Mr. Miller's person was searched, and CDS and cash were recovered from his pants pocket during the execution of the search warrant."
22 A-0748-16T2 In order to invoke the inevitable discovery doctrine, the
State must prove by clear and convincing evidence that:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[Id. at 238 (citing Wayne R. LaFave, Search and Seizure § 11.4 at 624 (1978)).]
Guided by these principles, we conclude the judge properly
applied the inevitable discovery doctrine's three-prong test and
found the State met its burden. See ibid.; State v. Maltese, 222
N.J. 525, 552 (2015).
Miller was not a guest; he resided in the Apartment. The
recovery of cocaine, a plate and a razor with cocaine residue,
digital scales, and packaging materials from common areas of the
Apartment, in conjunction with the facts revealed by the
investigation preceding the execution of the search warrant,
provided probable cause to arrest Miller. Therefore, an
independent, valid basis existed to conduct a search incident to
arrest before the protective search was conducted. See State v.
O'Neal, 190 N.J. 601, 614-15 (2007); State in re R.M., 408 N.J.
23 A-0748-16T2 Super. 304, 311 (App. Div. 2009). To be sure, there was abundant
probable cause to arrest Miller based on the results of the search
of the Apartment even if the protective search did not reveal
heroin and cocaine in his pockets. A search incident to arrest
would have followed. Thus, even assuming the protective search
was invalid, the heroin and cocaine seized from Miller's pockets
would be admissible under the inevitable discovery doctrine since
it would have been discovered by a lawful search incident to
arrest. See Maltese, 222 N.J. at 551-52.
We discern no abuse of discretion by the trial court in
denying defendant's motion to suppress without an evidentiary
hearing. The judge's factual findings and legal conclusions are
amply supported by the record.
III.
Finally, we address Miller's argument that he should be
resentenced because the trial court erred by applying aggravating
factors five and eleven. The State concedes the trial court should
not have applied these factors.
Aggravating and mitigating factors are used to determine the
length of imprisonment within the applicable statutory range for
the offense in question. See State v. Case, 220 N.J. 49, 64-65
(2014); State v. Fuentes, 217 N.J. 57, 72-73 (2014). An appellate
court may remand for resentencing where the trial court "considers
24 A-0748-16T2 an aggravating factor that is inappropriate to a particular
defendant or to the offense at issue." Fuentes, 217 N.J. at 70
(citing State v. Pineda, 119 N.J. 621, 628 (1990)).
After considering the presentence investigation report,
Miller's extensive prior history, and the offenses to which he
pled guilty, the judge found aggravating factors three, five, six,
nine, and eleven. She found no mitigating factors, and that the
aggravating factors substantially outweighed the non-existent
mitigating factors. On appeal, defendant does not argue the trial
court erred by not finding any mitigating factors.
A person convicted of possession of CDS with intent to
distribute, who has previously been convicted of distributing or
possessing CDS with intent to distribute, shall be sentenced to
an extended term. N.J.S.A. 2C:43-6(f). The judge sentenced
defendant to a seven-year term, subject to a thirty-six-month
period of parole ineligibility, in accordance with the plea
agreement. The sentencing range for the extended term was five
to ten years, N.J.S.A. 2C:43-7(a)(4), subject to a minimum period
of parole ineligibility "fixed at, or between, one-third and one-
half of the sentence imposed by the court or three years, whichever
is greater," N.J.S.A. 2C:43-6(f).
Because the court determines the length of the extended term
and the period of parole ineligibility based on its assessment of
25 A-0748-16T2 the aggravating and mitigating factors, eliminating aggravating
factors five and eleven from consideration could potentially
reduce the length of the prison term and the period of parole
ineligibility. Consequently, we are constrained to vacate the
sentence on count six of Indictment No. 14-10-1166, and remand for
resentencing consistent with this opinion.
Similarly, the consideration of aggravating factors five and
eleven potentially affected the imposition of a five-year NERA
term on the robbery count, rather than the four-year NERA term
sought by defendant. Accordingly, we likewise remand count two
of Indictment No. 15-01-0070 for resentencing.
IV.
In summary, we affirm the denial of the motion to suppress
without an evidentiary hearing or a Franks hearing and the
convictions on both counts. We vacate the sentences and remand
for resentencing on both counts. We express no opinion as to the
appropriate sentences on either count.7
7 Sentencing Miller to a four-year NERA term on the robbery count can only occur if he is sentenced one degree lower as a third- degree offense based on a finding by the trial court that it is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." N.J.S.A. 2C:44-1(f)(2). "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." State v. Megargel, 143 N.J. 484, 505 (1996).
26 A-0748-16T2 Affirmed in part and vacated and remanded in part. We do not
retain jurisdiction.
27 A-0748-16T2