NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4764-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAD S. SEARLES,
Defendant-Appellant. _____________________________________________________________
Submitted May 31, 2017 – Decided June 30, 2017
Before Judges Ostrer, Leone, and Moynihan.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13- 05-1239.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Roberta DiBiase, Supervising Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Rashad S. Searles, moved to suppress evidence
seized during the execution of search warrants at two different locations. Following the denial of that motion, defendant pleaded
guilty to second-degree possession of a controlled dangerous
substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1),
2C:35-5b(2). Defendant was sentenced to an extended term of ten
years during which he is ineligible for parole for forty-six
months, concurrent to a parole violation. Defendant contends on
appeal:
POINT I
THE "NO-KNOCK" SEARCHES HERE WERE UNSUPPORTED AND UNREASONABLE, AND THE RESULTS ACCORDINGLY MUST BE SUPPRESSED. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR.7.
POINT II
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We disagree and affirm.
I.
Detective David Fox, an investigator with the Ocean County
Prosecutor's Office Special Operations Group, submitted an
affidavit in support of the application for both search warrants
that related the following: Fox and another detective met with a
confidential informant (CI) who advised that defendant employed
"multiple individuals" "distributing heroin from various locations
in the Ocean County New Jersey area." The CI also told the
2 A-4764-14T1 detectives defendant stored heroin in various locations, including
the target houses on Red Cedar Street in Toms River and First
Avenue in South Toms River. Fox indicated various records linked
defendant to both addresses. Two days before the application, the
CI informed the affiant defendant possessed a large quantity of
heroin, and advised the CI to contact him when the CI "was ready
to purchase a quantity of cocaine."
The detective used the CI to make three controlled purchases
of heroin from defendant, the details of which are set forth in
the affidavit. Police surveilled defendant leave the First Avenue
house, and travel directly to an arranged location to complete the
transaction with the CI during the first and second operations;
they observed him return directly to and enter the First Avenue
house after the first purchase. Police observed defendant leave
the Red Cedar Street house and travel directly to an arranged
location to complete the sale to the CI during the third controlled
buy; defendant returned to and entered the First Avenue house
immediately after he completed the sale.
The affidavit also disclosed that records in the Prosecutor's
Office documented that another informant, whose cooperation
resulted in defendant's arrest and conviction for distribution of
heroin, identified defendant as a member of the "'Bloods' street
gang."
3 A-4764-14T1 The affiant also provided defendant's criminal history:
Date of Arrest Charges Final Disposition November 18, 1998 possession of CDS; dismissed possession with intent to distribute (PWI) March 26, 2000 possession of CDS; dismissed PWI; possession of firearm for an unlawful purpose June 10, 2000 distribution of CDS; conviction for aggravated assault; distribution CDS resisting arrest August 18, 2000 resisting arrest conviction for contempt of court August 25, 2000 possession of not guilty marijuana December 23, 2000 possession of CDS dismissed December 30, 2000 possession of CDS; conviction for PWI; resisting distribution CDS arrest August 20, 2005 simple assault dismissed December 26, 2006 obstruction of the guilty administration of law January 29, 2009 PWI guilty November 16, 2009 resisting arrest; guilty: distribution possession of CDS; CDS PWI - school zone
Fox applied for a "no-knock" warrant. He generally related,
based on his training and experience, the ease with which CDS can
be destroyed after criminals learn that law enforcement is on
scene during the execution of a search warrant. He also mentioned
that drug dealers often possess "dangerous weapons." The detective
4 A-4764-14T1 contended defendant's arrests for possession of a firearm,
aggravated assault, resisting arrest and obstructing the
administration of law indicated that he posed a risk to the safety
of officers executing the warrant. The detective also posited
defendant's prior record exposed him to a longer prison sentence,
increasing the risk that defendant would resist arrest. Fox cited
defendant's status in the Bloods as another reason for concern for
violence and the destruction of evidence. He also swore that
defendant "and/or one of his 'Blood' street gang associates will
be present" at either one of the two target residences when the
warrant was executed.
A judge issued search warrants, containing no-knock
provisions, for both residences. The motion judge found, and the
parties do not contest, that the warrant for Red Cedar Street was
executed at 5:03 a.m.; the warrant for First Avenue was executed
by a separate team of law enforcement personnel at 5:18 a.m.
Defendant was arrested at the Red Cedar Street house; the time of
his arrest is unknown. Two adults and three children were also
present in the Red Cedar Street house. Three of defendant's adult
relatives were present at the First Avenue house. Quantities of
CDS were seized at both locations.
5 A-4764-14T1 II.
Our review of a judge's decision on a motion to suppress
evidence is limited. State v. Vargas, 213 N.J. 301, 326-27 (2013).
In performing our task, we are obliged to uphold the motion judge's
factual findings that are supported by sufficient credible
evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565
(2012). We need not, however, give deference to a trial judge's
interpretation of the law, and we review legal issues de novo.
Vargas, supra, 213 N.J. at 327.
The "knock and announce" requirement is "[r]ooted deeply in
our federal and State constitutions and four centuries of common
law," State v. Johnson, 168 N.J. 608, 625 (2001), and "protects
rights and expectations linked to ancient principles in our
constitutional order." Hudson v. Michigan, 547 U.S. 586, 602, 126
S. Ct. 2159, 2170, 165 L. Ed. 2d 56, 71 (2006) (Kennedy, J.,
concurring). Exceptions to the "knock and announce" requirement
exist when "(1) immediate action is required to preserve evidence;
(2) the officer's peril would be increased; or (3) the arrest
would be frustrated." State v. Fair, 45 N.J. 77, 86 (1965). The
Johnson Court announced a tripartite test to determine if a no-
knock provision may be included in a warrant:
First, . . . , a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the
6 A-4764-14T1 destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no- knock entry, meaning it may not be based on a mere hunch.
[Johnson, supra, 168 N.J. at 619.]
The showing required to meet the reasonable, particularized
suspicion test is "not high." Id. at 624 (quoting Richards v.
Wisconsin, 520 U.S. 385, 395-95, 117 S. Ct. 1416, 1422, 137 L. Ed.
2d 615, 622 (1999)). "[T]he level of suspicion required is
'considerably less than proof of wrongdoing by a preponderance of
the evidence,' and 'obviously less' than is necessary for probable
cause." State v. Gamble, 218 N.J. 412, 428 (2014) (quoting United
States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L.
Ed. 2d 1, 10 (1989)). "The determination is highly fact sensitive
and requires a balancing of risks." State v. Jones, 179 N.J. 377,
406 (2004). "[T]here must be some indication in the record that
the applying officer articulated his or her reasonable suspicions
. . . ." Johnson, supra, 168 N.J. at 623.
7 A-4764-14T1 We agree with the motion judge that Fox's general contentions
that drug evidence can be easily destroyed, and that drug dealers
often possess weapons, cannot themselves justify a no-knock
provision; they are the type of conclusory allegations that
"swallow the rule" because they apply to virtually every drug
case, and are not reasons specific to the crime or defendant. Id.
at 617, 620, 623. Fox's recitation of defendant's prior record,
however, provided specific information that, as the motion judge
found, established a reasonable, particularized suspicion to
believe a no-knock warrant was required to protect officer safety.
Jones, supra, 179 N.J. at 398-99. Defendant's arrests for
possession of a firearm for an unlawful purpose, aggravated
assault, and resisting arrest manifested his proclivity for
violence and avoiding apprehension. See id. at 402, 407 (holding
arrest for assault, without evidence of a conviction, can sustain
a finding of reasonable suspicion that a no-knock warrant is
required for safety of law enforcement personnel). That some of
the arrests resulted in convictions for non-violent offenses1 "does
1 The affidavit revealed one of defendant's arrests for offenses, including aggravated assault and resisting arrest, resulted in a conviction for distribution of CDS; another arrest for resisting arrest resulted in a conviction for contempt; arrests for offenses, including resisting arrest, resulted in another distribution conviction; and a final arrest for resisting arrest and drug charges resulted in another distribution conviction.
8 A-4764-14T1 not undermine the probative value to officer safety suggested by
the original charges against a suspect." Id. at 403.
Defendant's prior convictions for distribution also subjected
him to a mandatory extended term sentence, N.J.S.A. 2C:43-6f,
increasing the chances that he would follow past form and resist
arrest, posing a risk to the police. Jones, supra, 179 N.J. at
408.
While sufficient cause for the issuance of the no-knock
warrant existed without consideration of the second informant's
disclosure that defendant was a member of the Bloods, that
information is a factor that can establish a reasonable suspicion
of danger to police officers.2 See State v. Byrd, 198 N.J. 319,
340-41 (2009)(observing "fear of retaliation from gangs can be so
overwhelming that some persons will refuse to come forward even
when a family member is victimized or the safety of the
neighborhood is imperiled"). This evidence is tempered by the
lack of information about when the informant's disclosure was made
to the police; yet it is supported by the fact that the informant's
cooperation led to defendant's arrest and conviction for
2 The motion judge found that defendant's "participation in the Bloods street gang" also provided "a more than hypothetical justification for destroying the CDS." The judge did not say why she linked gang membership to destruction of evidence. We do not adopt her conclusion.
9 A-4764-14T1 distribution. No matter what weight is given to that information,
defendant's gang membership is neither a necessary or major factor
in determining that Fox presented other sufficient facts to the
issuing judge to satisfy the three-pronged test set forth in
Johnson.
Defendant argues that his arrest at the Red Cedar Street
house obviated any danger police faced at the First Avenue house,
nullifying the no-knock provision for that residence.
As the motion judge noted, reasonableness is the "touchstone"
in determining whether an unannounced entry to a residence is
justified. Johnson, supra, 168 N.J. at 616-17. A search passes
constitutional muster if the police conduct is objectively
reasonable. State v. Maristany, 133 N.J. 299, 305 (1993).
Two separate teams of officers executed the search warrants
for houses located in different municipalities. Police entered
the houses fifteen minutes apart. Defendant's argument that the
Red Cedar Street team should have notified the First Avenue team
of defendant's arrest discounts many factors used to determine the
reasonableness of police actions. Both these situations were
fluid. The team at the Red Cedar Street house entered under no-
knock conditions. It encountered three adults and three children.
This was a house - not a smaller apartment - that had to be secured
by police even before a search began. There is no evidence that
10 A-4764-14T1 the Red Cedar Street team coordinated operations with the First
Avenue team. The First Avenue team also executed a no-knock
warrant. Common sense dictates that the team was not standing
idle before they entered at 5:18 a.m. The entry to the First
Avenue house was an effort that, obviously, had to be orchestrated;
preparations had to precede entry into the house. It is
unreasonable under the circumstances to have expected the Red
Cedar Street team to halt its operation as soon as defendant was
arrested.3 Defendant's arrest was not the only task the Red Cedar
Street team needed to accomplish. They had to secure the occupants
and the premises, and maintain that security. They had to find,
seize and inventory drugs and other evidence. It was an ongoing
operation.
The no-knock entry into the First Avenue house, pursuant to
the terms of search warrant, was valid, as was the no-knock entry
into the Red Cedar Street house.
III.
Defendant argues the sentencing judge "overvalued the
applicable aggravating factors and failed to find applicable
mitigating factors," resulting in an excessive period of parole
ineligibility. Defendant concedes the aggravating factors found
3 The time of defendant's arrest was never established; nor was the status of the search at the time of his arrest disclosed.
11 A-4764-14T1 by the court apply, but avers that they, "particularly [aggravating
factor nine], are not particularly weighty." Defendant contends
mitigating factors nine, defendant's character and attitude
indicate he is unlikely to commit another offense, N.J.S.A. 2C:44-
1b(9), and eleven, the imprisonment of defendant would entail
excessive hardship to him or his dependents, N.J.S.A. 2C:44-
1b(11), are applicable.
Our review of the sentencing court's decision is limited to
determining:
first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.
[State v. Roth, 95 N.J. 334, 365-66 (1984).]
We are mindful that we must not substitute our judgment for that
of the sentencing court. Id. at 365. Furthermore, "an appellate
court should not second-guess a trial court's finding of sufficient
facts to support an aggravating or mitigating factor if that
finding is supported by sufficient evidence in the record." State
v. Carey, 168 N.J. 413, 426-27 (2001) (internal citations omitted).
12 A-4764-14T1 Defendant accepted a plea offer calling for a ten-year prison
sentence with forty-eight months of parole ineligibility, which
sentence was to run concurrent to defendant's parole violation.
The sentencing judge found aggravating factors three, the risk
that defendant will reoffend, N.J.S.A. 2C:44-1a(3), six, the
extent of defendant's prior criminal history, N.J.S.A. 2C:44-
1a(6), and nine, the need for general and specific deterrence,
N.J.S.A. 2C:44-1a(9). The judge imposed a sentence less than that
bargained for: ten years with a parole disqualifier of forty-six
months.
We do not agree with defendant's argument that his "success"
during "his significant employment history," and his educational
career through one semester of college,4 both of which were
considered by the sentencing court, together with his acceptance
of responsibility, show that his character and attitude indicate
that it is unlikely he will commit another offense. The sentencing
judge recognized defendant's lengthy history of arrests and four
prior indictable convictions. His prior distribution convictions
required the imposition of an extended term sentence. Moreover,
as the judge said, "What bothers me is that you got this charge
4 The pre-sentence report indicates defendant completed the semester while in state prison.
13 A-4764-14T1 within six months of being paroled." She also found that, since
defendant had no substance abuse history, he sold heroin for the
sole purpose to make money.5 The judge's findings not only
supported her conclusions relating to the aggravating factors,
they clearly militated against finding mitigating factor nine.6
Neither his education, nor his employment kept defendant from
committing another crime.
Defendant argues "he clearly has contributed support to at
least some extent," warranting the application of mitigating
factor eleven. As acknowledged in his brief, however, defendant's
child support arrears are significant, diminishing any basis to
find that factor. The judge took into account defendant's wish
to attend his daughter's graduation. Although she did not
5 The judge did not find aggravating factor eleven, monetary sanctions without imprisonment would be viewed as a cost of doing business, N.J.S.A. 2C:44-1a(11). 6 Defendant did not argue for any specific mitigating factors at sentencing, but did proffer the arguments we here review. "[M]itigating factors that are suggested, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record." State v. Blackmon, 202 N.J. 283, 297 (2010). But, trial courts do not have to "explicitly reject each and every mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609 (2010). The judge implicitly rejected the tendered evidence relating to the mitigating factors now requested by defendant by finding aggravating factors three, six and nine.
14 A-4764-14T1 specifically find mitigating factor eleven, she, in effect,
applied it when she reduced the parole disqualifier to forty-six
months to allow defendant an opportunity to attend the graduation.
The judge found defendant's prior record was "moderate,
bordering on lengthy." Although she did not ascribe weight to any
other aggravating factor, and did not articulate her aggregate
balance of the factors,7 we see no reason to find the base sentence
- at the bottom of the extended term second-degree range - at all
unreasonable. The period of parole ineligibility, although not
in line with the favorable base term imposed, is supported by the
substantial evidence found by the sentencing judge and, likewise,
is reasonable. See State v. Sainz, 107 N.J. 283, 294 (1987)
(sentences imposed pursuant to plea agreements are presumed
reasonable); State v. S.C., 289 N.J. Super. 61, 71 (App. Div),
certif. denied, 145 N.J. 373 (1996). Obviously, the aggravating
factors outweighed the non-existent mitigating factors. Defendant
has posited nothing that would overcome the presumed
reasonableness of the sentence imposed.
Affirmed.
7 Sentencing judges are required to set forth on the record the reason for imposing the sentence and the factual basis supporting each aggravating and mitigating factor considered. N.J.S.A. 2C:43-2e; R. 3:21-4(e). The judge must also state the balancing process that led to the sentence. State v. Martelli, 201 N.J. Super. 378, 385 (App. Div. 1985).
15 A-4764-14T1