STATE OF NEW JERSEY VS. WALTER HARRISON (15-02-0244, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 28, 2018
• Docket: A-2870-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2870-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER HARRISON, a/k/a WALTER M. MAURICE JOHNSON, MAURICE HARRISON and MAURICE JOHNSON,

Defendant-Appellant. ______________________________

Submitted May 16, 2018 – Decided June 28, 2018

Before Judges Koblitz and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 15-02-0244.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Deputy Public Defender, of counsel and on the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Joseph Paravecchia, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Walter Harrison appeals from his conviction after

pleading guilty to one count of fourth-degree possession of a

controlled dangerous substance (CDS). On appeal, defendant

challenges the denial of his motion to suppress physical evidence

recovered from his residence. We affirm.

On February 3, 2012, defendant was sentenced to a state prison

term of five years and six months for possession of CDS with intent

to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-

7(a). The court imposed a mandatory minimum of two years and

seven months' with credit for time served.

In 2014, defendant was released and placed on parole subject

to certain conditions. One of the conditions imposed required

that defendant was "to submit to drug or alcohol testing at any

time as directed by the assigned parole officer." Another general

condition provided that defendant "submit to a search conducted

by a parole officer . . . [of his] place of residence . . . at any

time a parole officer has a reasonable, articulable basis to

believe that the search will produce contraband or evidence that

a condition of supervision has been violated . . . ."

On February 26, 2015, a Monmouth County grand jury returned

a six-count indictment charging defendant with fourth-degree

possession of a CDS, N.J.S.A. 2C:35-10(a)(2) (count one); third-

degree possession of a CDS with intent to distribute, N.J.S.A.

2 A-2870-16T4 2C:35-5(b)(11) (count two); third-degree possession of a CDS with

intent to distribute on or near school property, N.J.S.A. 2C:35-

7(a) (count three); third-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a

firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1(a)

(count five); second-degree certain persons not to possess a

firearm, N.J.S.A. 2C:39-7(b)(1) (count six).

The indictment was based upon defendant's arrest after a

search of his residence by officers from the New Jersey State

Parole Board (NJSPB). Defendant moved to suppress the physical

evidence seized during the warrantless search.

During a hearing on the motion, the State presented a single

witness, Lieutenant Alexander Falbo, of the NJSPB. We take the

following from Falbo's testimony.

Falbo is the District Parole Supervisor for the Trenton

District Office. At 10 a.m. on September 6, 2014, Falbo, along

with other officers, was involved in a joint security operation

at the "Opportunities for All Community Resource Center" (CRC).

The CRC conducts rehabilitation programs for parolees who require

assistance, including services for substance abuse.

Defendant was present at the CRC during the joint security

operation. The purpose of the security operation was to look for

weapons and contraband. In addition to a physical search and pat

3 A-2870-16T4 down, the task force members administered both urine tests and ion

scan tests to the individuals present. Both the pat down and the

urinalysis test of defendant were negative for weapons or

contraband. The ion scan of defendant was positive for fentanyl

and marijuana.

Falbo described the ion scan and its application.

[T]here is a wand with a piece of sample paper on it. The paper is then rubbed on different items, and then the paper is removed and put into this machine. [T]he machine is able to analyze based on the microparticles for gun powder, explosives and other narcotics and substances.

In our case we have the same piece of machinery. . . . We rub it on [the] offender's hands, back, insides, backs of the hand, sometimes around the belt area or the pockets, and then the paper is removed from the wand. It's slipped into this machine and the machine analyzes it and gives out a reading on the screen and also a printed receipt of what it's analyzing and what it finds or doesn't find.

. . . .

It'll test for marijuana, heroin, cocaine, prescription medications that are considered scheduled. It'll test for drugs like fentanyl, other cutting agents. It'll test for baking soda, which is a cutting agent and used in heroin and cocaine distribution.

[I]'m not an expert on how it works, but from what I've seen from the investigator that does

4 A-2870-16T4 do the examination that is trained in it, the machine cleans itself between each sample.[1]

A different piece of paper is used each time the scan is conducted.

Falbo estimated he had "done a hundred assignments with the

machine."

After consulting with his commanding officer about the

positive result and defendant's criminal history, Falbo determined

a search of defendant's home should be conducted with the use of

the K-9 unit. Defendant was handcuffed and taken into custody.

Falbo and other officers then proceeded to defendant's residence

to conduct the search.

Upon approaching defendant's residence, "there was a strong

odor of burnt marijuana coming from the front porch and front

door area." A female answered the door and identified herself as

defendant's girlfriend. Defendant's girlfriend admitted to

smoking marijuana prior to the officer's arrival. Defendant's

girlfriend was asked to exit the home whereupon the officers began

the search with the K-9 unit. No one else was present in the

home.

Upon command, the dog "bolted right up the stairs to the

second floor, made a left right by the staircase and went into an

1 The court limited Falbo's testimony to his personal observations or knowledge, as he was not admitted as an expert.

5 A-2870-16T4 open room, a door that had an open room to it." In the room,

which "seemed to be an area for storage," the dog alerted an

officer to an unplugged "mini fridge." Inside, a large, clear bag

of marijuana with five smaller bags within it was recovered. A

Crosman BB gun in a black holster was also found in the mini

fridge.

At the conclusion of the hearing, the judge denied the motion

and stated her reasons on the record. Thereafter, defendant pled

guilty to count one of the indictment. On December 9, 2016, the

judge sentenced defendant to two years' probation with conditions.

The remaining counts of the indictment were dismissed. This appeal

followed.

On appeal, defendant raises the following points:

POINT I

THE EVIDENCE DISCOVERED IN DEFENDANT'S HOME MUST BE SUPPRESSED BECAUSE THE PAROLE OFFICERS SHOULD NOT HAVE USED THE RESULTS OF AN ION SCAN OF DEFENDANT TO JUSTIFY THE SEARCH OF HIS HOME.

[A.] THE ION SCAN OF DEFENDANT WAS A SEARCH WITHOUT PRE-EXISTING REASONABLE, ARTICULABLE SUSPICION, AS REQUIRED BY N.J.A.C. 10A:72- 6.1(B).

[B.] THE STATE HAS NOT DEMONSTRATED THE ION SCANNER TO BE OF SUFFICIENT RELIABILITY TO JUSTIFY THE SEARCH OF DEFENDANT'S HOME.

6 A-2870-16T4 POINT II

THE WARRANTLESS SEARCH OF DEFENDANT'S HOME WAS UNREASONABLE BECAUSE THE STATE MADE NO EFFORT TO DETERMINE THE AREAS OF THE HOME THAT WERE UNDER THE EXCLUSIVE CONTROL OF ANOTHER, WHICH CANNOT BE SEARCHED WITHOUT WRITTEN VOLUNTARY CONSENT PURSUANT TO N.J.A.C. 10A:72-6.3(B).

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).

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) (citing State v. Locurto,

157 N.J. 463, 471 (1999)). Deference to those findings is

particularly appropriate when the trial court has the "opportunity

to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy." State v. Elders, 192 N.J.

224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161

(1964)). We are not, however, required to accept findings that

are "so clearly mistaken" based on our independent review of the

record. Ibid. And we need not give deference to a judge's

interpretation of the law and review legal issues de novo. Vargas,

213 N.J. at 327.

We commence our discussion with defendant's arguments

regarding the ion scan conducted on his hands and clothing by a

parole officer. Defendant first argues that an ion scan is a

7 A-2870-16T4 "search" for Fourth Amendment purposes. Defendant further

contends he did not consent to this search as a condition of his

parole, for the ion scan test was not supported by a reasonable,

articulable suspicion to believe defendant possessed contraband.

In addition, defendant argues the positive ion scan result did not

support reasonable suspicion to search his home.

The judge found that the ion scan did not violate the Fourth

Amendment's proscription against unreasonable searches and

seizures as "it is not objectively reasonable for a parolee to

expect that he would not be subject to a[n] ion scan at a CRC

event." In reaching this finding, the judge reasoned that a

"parolee is in a different position from that of the ordinary

citizen. He is still serving his sentence. He remains under the

ultimate control of his parole officer. His parole is subject to

revocation for reasons that would not permit the arrest or

incarceration of other persons." As such, the judge found

defendant consented to the ion search due to his parolee status.

Accordingly, the judge found that, under the totality of the

circumstances, the positive ion scan test provided reasonable

suspicion for the officers to search his residence for evidence

of CDS.

Parole allows an individual to complete the final portion of

a sentence outside of prison but subject to specified conditions.

8 A-2870-16T4 State v. Black, 153 N.J. 438, 447 (1998). A parolee does not

enjoy the same freedoms as an ordinary citizen, but rather has

conditional liberty subject to the observance of various parole

requirements. Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

A warrant is not needed to conduct a search of a parolee's

home. Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). The

State only needs to show there were reasonable grounds to believe

evidence of a probation violation would be found. Ibid. That is,

parole officers can conduct a search of a parolee's residence if

there is a reasonable articulable suspicion that such a search

would discover evidence that the parolee's probation had been

violated. N.J.A.C. 10A:72-6.3(a)(1). "'Reasonable suspicion'

means a belief that an action is necessary based upon specific and

articulable facts that, taken together with rational inferences

from those facts, reasonably support a conclusion such as that a

condition of parole has been or is being violated by a parolee."

N.J.A.C. 10A:72-1.1.

A high-level supervisor or assistant district parole

supervisor can provide the authorization for the search of a

parolee's home under these circumstances. See State v. Maples,

346 N.J. Super. 408, 412-13 (App. Div. 2002) (stating that a parole

officer can search a bag in a parolee's home when the officer has

a reasonable suspicion that a condition of parole has been

9 A-2870-16T4 violated). In Maples, this court discussed Griffin, 483 U.S. at

873-74, in which the Supreme Court held that a probation officer's

warrantless search of a probationer's home, based upon a tip from

police, satisfied the Fourth Amendment. Id. at 412-13. We

explained that a certain degree of governmental intrusion is

allowable with regard to parolees, whereas similar conduct might

be impermissible in a different scenario with an ordinary citizen.

Id. at 413.

Here, defendant was a parolee with a reduced expectation of

privacy. N.J.A.C. 10A:71-6.4(a)(16) states that a parolee must

"[s]ubmit to drug or alcohol testing at any time as directed by

the assigned parole officer." The record includes a copy of

defendant's signed agreement to this condition of parole. The ion

scan is a machine that tests for the presence of drugs and only

involves touching the outer clothing and hands of a person. Thus,

the positive result from the ion scan for marijuana and fentanyl

was not an unreasonable search and instead suggested defendant

violated the conditions of his parole.

Notwithstanding the positive result from the ion scan of

defendant, we note another factor that provided reasonable

suspicion. Upon arriving at defendant's home and prior to the

entry and search, the officers smelled burnt marijuana emanating

from the front porch. The plain odor independently provided

10 A-2870-16T4 reasonable suspicion to enter defendant's home to search for

evidence of CDS. See State v. Pena-Flores, 198 N.J. 6, 30 (2009)

(citing State v. Nishina, 175 N.J. 502, 515-16 (2003)); State v.

Myers, 442 N.J. Super. 287, 295 (App. Div. 2015). Hence, under

the totality of the circumstances presented, we are satisfied that

the parole officers had a reasonable suspicion that defendant

Defendant also argues for the first time on appeal that the

State did not demonstrate the reliability of the ion scan under

Daubert/Frye.2 "Generally, an appellate court will not consider

issues, even constitutional ones, which were not raised below."

State v. Galicia, 210 N.J. 364, 383 (2012). "'[T]he points of

divergence developed in proceedings before a trial court define

the metes and bounds of appellate review.' Parties must make

known their positions at the suppression hearing so that the trial

court can rule on the issues before it." State v. Witt, 223 N.J.

409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 19 (2009)).

"For sound jurisprudential reasons, with few exceptions, 'our

appellate courts will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such

a presentation is available.'" Ibid. (Robinson, 200 N.J. at 20).

2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

11 A-2870-16T4 We find no exceptions here. The opportunity to raise the

issue of the test's scientific reliability was available and it

could have been raised before the judge. During the hearing, the

only objections to the reliability of the ion scan were that the

parole officers did not comply with parole guidelines for

conducting the test. On that score, given Falbo's extensive

testimony as to the process employed in administering the test as

well as our standard of review of evidentiary rulings, we discern

no error in the consideration of the ion test results.3 State v.

Weaver, 219 N.J. 131, 149 (2014).

Finally, we conclude defendant's remaining argument relative

to the scope of the search to be without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

3 Ion scan evidence was found to be admissible after a Daubert hearing in United States v. Hernandez-De La Rosa, 606 F. Supp. 2d 175, 178, 185-87 (D.P.R. 2009) ("[T]he [ion scan] technology is able to detect the presence of illegal drugs and analyze the relative quantity of such drugs present. . . . [T]his piece of evidence will 'assist the trier of fact to determine a fact in issue' . . . ."). Further, although not directly related to reliability, we have permitted the use of this type of testing in other contexts. See State v. Daniels, 382 N.J. Super. 14, 15-17 (App. Div. 2005) (affirming an order denying defendant's motion to suppress where defendant tested positive on an ion scan while visiting her son at a correctional facility and her vehicle was subsequently searched, revealing evidence of CDS); Jackson v. Dep't of Corr., 335 N.J. Super. 227, 229 (App. Div. 2000) (affirming as constitutional a Department of Corrections policy subjecting visitors to searches using ion scans and canine units).

12 A-2870-16T4