STATE OF NEW JERSEY VS. RONALD T. DANIELS, JR. (13-07-1240, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 11, 2019
• Docket: A-1847-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1847-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD T. DANIELS, JR.,

Defendant-Appellant. _____________________________

Submitted May 14, 2018 – Decided March 11, 2019

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-07- 1240.

Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. Mclane, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica L. do Outeiro, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by OSTRER, J.A.D.

Before obtaining an order authorizing electronic surveillance, the

applicant must show, and the court must find probable cause to believe, that

"normal investigative procedures . . . have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be too dangerous to

employ." N.J.S.A. 2A:156A-9(c)(6) (application for order); N.J.S.A. 2A:156A-

10(c) (grounds for entering order). Contending that the State failed to satisfy

that "necessity requirement" of the New Jersey Wiretapping and Electronic

Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37,

defendant Ronald T. Daniels, Jr., sought to suppress the fruits of a wiretap that

led to his indictment, and that of several others, on charges of first-degree

racketeering, gang criminality, and possession of controlled dangerous

substances with intent to distribute, as well related second- and third-degree

crimes. The trial court denied defendant's suppression motion. 1

Defendant thereafter pleaded guilty to participating in a racketeering

conspiracy to distribute more than five ounces of heroin. N.J.S.A. 2C:5-2;

N.J.S.A. 2C:41-2(d). The court sentenced defendant to a ten-year prison term,

1 The trial court also rejected defendant's contention that the State failed to minimize the interception of communications not subject to interception, see N.J.S.A. 2A:156A-12(f), but defendant does not pursue that issue on appeal. A-1847-15T4 2 two years shorter than the plea agreement allowed, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2. The term was to run consecutive to the

sentence defendant received in a separate case for unlawful possession of a

handgun.2

Defendant appeals, contending:

THE COURT ERRED DENYING THE SUPPRESSION MOTION BECAUSE THE STATE FAILED TO ESTABLISH THAT NORMAL INVESTIGATIVE PROCEDURES WERE UNLIKELY TO SUCCEED.

Defendant also challenges his sentence, contending:

THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES AND THE AGGREGATE SENTENCE IS MANIFESTLY EXCESSIVE.

Having carefully reviewed defendant's arguments in light of the record

and applicable legal principles, we affirm the conviction and sentence.

I.

We review for an abuse of discretion a trial court's decision to grant an

order authorizing wire and electronic surveillance. See State v. Dye, 60 N.J.

518, 526-27 (1972) (reviewing compliance with necessity requirement); see also

2 We affirmed the conviction and sentence in that case in a separate opinion. State v. Daniels, No. A-5223-14 (App. Div. Mar. 4, 2019) (Daniels I). A-1847-15T4 3 State v. Feliciano, 224 N.J. 351, 378 (2016) (requiring compliance with

minimization requirement). When a defendant challenges compliance with the

necessity requirement, a reviewing court shall consider whether "the facts

contained in the affidavit sufficiently indicated that normal police investigative

methods would not serve the purpose . . . ." Dye, 60 N.J. at 526. We review

questions of law de novo. State v. K.W., 214 N.J. 499, 507 (2013).

In order to maximize individual privacy, our courts strictly construe and

enforce the Wiretap Act. State v. Worthy, 141 N.J. 368, 379-80 (1995) (stating

that the legislative concern for privacy "demands the strict interpretation and

application" of the Act). In interpreting the Act, we carefully consider federal

decisions interpreting the federal statute upon which the Act is based. State v.

Ates, 217 N.J. 253, 269 (2014); In re Application of State for Commc'ns Data

Warrants to Obtain the Contents of Stored Commc'ns from Twitter, Inc., 448

N.J. Super. 471, 479-80 (App. Div. 2017). The federal provisions that mirror

sections 9(c)(6) and 10(c) of the Act are found at 18 U.S.C. § 2518(1)(c) and 18

U.S.C. § 2518(3)(c). Failure to comply with the Act's substantive or critical

requirements shall result in the suppression of evidence. See Worthy, 141 N.J.

at 381-86; N.J.S.A. 2A:156A-21.

A-1847-15T4 4 The "necessity requirement" is "designed to assure that wiretapping is not

resorted to in situations where traditional investigative techniques would suffice

to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).

The requirement assures that electronic surveillance is not "routinely employed

as the initial step in [a] criminal investigation." United States v. Giordano, 416

U.S. 505, 515 (1974). But, the requirement does not render electronic

surveillance a "last resort" either. United States v. Macklin, 902 F.2d 1320,

1327 (8th Cir. 1990).

It has been said the necessity requirement should be applied in a "practical

and common[-]sense fashion." See, e.g., In re Dunn, 507 F.2d 195, 197 (1st Cir.

1974); see also James G. Carr, The Law of Electronic Surveillance §4.4(d) at 4-

54 (1989) (Electronic Surveillance) (acknowledging but criticizing the

"practical and common-sense" standard, which originated in the Senate

Committee Report). Yet, wiretap applications should explain the necessity

through "particular facts of the case at hand," and not boilerplate

generalizations. United States v. Campos, 541 F.3d 735, 749 (7th Cir. 2008).

Federal case law establishes that the government can satisfy the necessity

requirement in three ways:

One is by showing the failure of other methods, which need not go so far as to indicate that every conceivable

A-1847-15T4 5 investigatory alternative has been unsuccessfully attempted. The second is by showing other methods are unlikely to succeed, which can be accomplished, for example, by indicating the difficulty in penetrating a particular conspiracy or by asserting that a conventional search warrant would not likely produce incriminating evidence. The third alternative is showing other methods would be too dangerous, either in terms of disclosing the investigation or placing an officer or informant in physical danger.

[2 Wayne R. LaFave et al., Criminal Procedure §4.6(e), at 555-57 (4th ed. 2015) (citing cases).]

See also Carr, Electronic Surveillance § 4.4(d)(1)-(3) (reviewing cases that

establish the failure, likely disutility, or danger of other methods). Of particular

relevance to this case, the government may satisfy the necessity requirement if

non-electronic methods fall short of disclosing the full extent of a conspiracy,

even if those methods would support prosecution against known individuals.

See United States v. Perez, 661 F.3d 568, 581-82 (11th Cir. 2011) (noting that

even though the government possessed sufficient evidence to prosecute one

suspect, "it had only limited knowledge of the full extent of his criminal

activities and his coconspirators").

Consistent with these principles, our Supreme Court held that the State

met the necessity requirement by showing: the suspects' refusal to engage in

illicit behavior with an undercover agent; the limited success of undercover

A-1847-15T4 6 surveillance; and investigators' inability to identify coconspirators absent wire

and electronic surveillance. Dye, 60 N.J. at 526. In State v. Christy, 112 N.J.

Super. 48, 64-65 (Cty. Ct. 1970), then-Judge Handler held the affiant met the

necessity requirement by explaining that sustained surveillance would arouse

suspicion and jeopardize the investigation; and the illegal operation was carried

out in such a "furtive and surreptitious manner" that investigators would be

unable to identify the participants and their involvement without wiretapping.

Similarly, we held the necessity requirement was met where the affiant

reasonably concluded that an undercover officer's continued efforts to insinuate

himself into the criminal operation would not be productive, in light of

heightened suspicions, and might jeopardize the entire investigation. State v.

Pemberthy, 224 N.J. Super. 280, 297 (App. Div. 1988). Furthermore, a target's

surreptitious activities "rendered physical surveillance alone extremely difficult

if not impossible." Ibid.

Applying these principles, we discern no basis to disturb the trial court's

order denying defendant's motion to suppress. We have reviewed in detail the

detective's lengthy affidavit in support of the initial order, and his two affidavits

leading to two subsequent orders renewing and expanding the surveillance. The

A-1847-15T4 7 affidavits present sufficient facts to support the conclusion that the necessity

requirement was met.

In the detective's first affidavit, submitted in September 2012, he

described the activities of thirteen known target subjects, including defendant,

who were members of, or associated with, a set of the Bloods street gang. Those

activities included numerous hand-to-hand drugs sales to an undercover

investigator between July and September. All the sales were arranged by

communications through the three target telephone facilities. These undercover

buys and related surveillance disclosed that defendant participated in the drug

distribution jointly with other subjects.

The detective also identified target subjects who were engaged in acts of

violence and the trafficking of firearms. The detective recounted several

separate incidents involving shootings, robbery, and homicide. One such

incident involved defendant's arrest for possession of a handgun that was later

connected to a gang-related homicide. (That arrest later led to his conviction in

Daniels I.) The detective described posts on social media depicting gatherings

or other joint endeavors (such as raising bail for defendant), which demonstrated

that the target subjects were part of a closed group. He also described efforts of

A-1847-15T4 8 the Fruit Town Brims set of the Bloods, to which defendant belonged, to recruit

new members.

Despite the ongoing surveillance and undercover transactions, the

investigators were unable to determine the hierarchy and structure of the targets'

enterprise, or to identify all the participants. Although the investigators could

prove individual sales of drugs, they were not privy to the targets' suppliers,

their customers, or the extent of their distribution network.

The detective asserted that it would be impossible to determine the

hierarchy and structure of the enterprise without electronic surveillance. He

noted that the investigation was frustrated by the "lack of full cooperation of any

co-conspirators or witnesses." The confidential informants who assisted

investigators in conducting undercover purchases insisted upon retaining their

anonymity, out of fear of retaliation, and thus could not be expected to serve as

witnesses. The group was also resistant to further infiltration by an undercover

agent. The detective noted that one undercover agent's safety was already

threatened. In particular, defendant attempted to compel the agent to consume

a bag of heroin to prove he was not a police officer. "Efforts to introduce another

undercover officer was abandoned when detectives suspected she was being set

A-1847-15T4 9 up for a robbery." The targets' propensity for gun violence exacerbated the

danger.

Neither surveillance nor search warrants could provide the information

the investigators sought. Physical surveillance was limited to confirming hand-

to-hand transactions on the street. Search warrants would not enable the

investigators to uncover the identity of additional coconspirators. Telephone

record data had limited usefulness. Such data did not disclose the contents of

communications. Nor did the data disclose the identity of the communicants,

because the targets extensively used pre-paid telephones.

In October, the detective sought renewal of the order as it pertained to two

of the original target phones, including defendant's, plus four additional wireless

phones, including one defendant's father used. Over the next month, the

detective sought renewal and expansion of the order to cover a total of nine

phones, including two used by defendant. The detective described the

previously intercepted calls and texts messages, which disclosed how defendant

and others, including defendant's father, worked together to distribute heroin

and other controlled dangerous substances in Long Branch and other areas. The

interception led investigators to identify numerous individuals believed to

purchase heroin from the group. Other intercepted communications apparently

A-1847-15T4 10 referenced the group's supplier by a nickname. The wiretap also disclosed

continued gun trafficking activities. Tellingly, the communications disclosed

that members of the group were aware of some police investigative efforts.

Echoing the justifications for the first order, the detective in both renewal

affidavits described the limitations of "normal investigative procedures" and the

need to continue to pursue electronic surveillance. The detective noted that the

drug distribution enterprise utilized wireless communications to operate, which

in turn necessitated interception of those communications to understand the

scope of that enterprise.

In sum, the detective demonstrated, with sufficient factual support, that

although "normal investigative procedures" were tried and successful in

securing evidence of discrete offenses, they failed to secure, and would be

unlikely to secure, evidence of the scope and activities of the larger suspected

criminal operation, or would be "too dangerous to employ." N.J.S.A. 2A:156A -

9(c)(6); N.J.S.A. 2A:156-10(c). We therefore affirm the trial court's order

denying the motion to suppress.

II.

Defendant's plea agreement provided that "consecutive sentences are

likely," although he could argue for concurrent sentences. His agreement also

A-1847-15T4 11 authorized the court to impose a twelve-year term for the racketeering

conspiracy conviction. As noted above, the court imposed a ten-year term for

the racketeering conspiracy, to run consecutive to the eight-year term imposed

on his conviction for unlawful possession of a handgun.

Defendant challenges the consecutive sentence. He contends concurrent

sentences were mandated because the gun possession was linked to the

racketeering conspiracy. Defendant notes that the first wiretap affidavit

mentioned defendant's gun arrest.

We are not persuaded. Declaring "there can be no free crimes in a system

for which the punishment shall fit the crime," the Supreme Court directed

sentencing courts to consider whether:

(a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous; . . .

[State v. Yarbough, 100 N.J. 627, 643-44 (1985).]

A-1847-15T4 12 The trial judge focused on factors (a) and (c). He found that the

racketeering conspiracy to which defendant pleaded guilty was independent of

his conviction for gun possession. The court noted that the gun that defendant

possessed was linked to a murder, which related to a dispute between gangs.

The gun possession therefore had separate objectives from the racketeering

conspiracy. The judge also observed that the two offenses did not occur at the

same time – the drug conspiracy both preceded and followed the gun offense.

We discern no grounds to disturb the court's conclusion. Notwithstanding

the observations in the wiretap affidavit, there was no evidence the gun

possession furthered the racketeering conspiracy to which defendant pleaded

guilty. Although the racketeering conspiracy count of the indictment charged

that the enterprise engaged in acquiring firearms, defendant did not mention that

in his allocution, admitting only to engaging in a racketeering conspiracy to

distribute heroin.

We recognize that the trial judge did not expressly analyze every

Yarbough factor. Nonetheless, we can "'readily deduce'" that the judge found

they did not outweigh the fact that the two offenses were independent. See State

v. Miller, 205 N.J. 109, 129-30 (2011) (quoting State v. Bieniek, 200 N.J. 601,

609 (2010)). The fact that neither conviction involved an act of violence by

A-1847-15T4 13 defendant does not minimize the seriousness of the two offenses. Furthermore,

although the gun possession on a single date in September overlapped with the

conspiracy, the offenses were independent.

Affirmed.

A-1847-15T4 14