Opinion
DOCKET NO. A-3651-09T3 DOCKET NO. A-3716-09T1
07-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. K.P.S., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARMINI LALOO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant K.P.S. (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Carmini Laloo (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the briefs).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Lihotz. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-07-1076. Joseph E. Krakora, Public Defender, attorney for appellant K.P.S. (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Carmini Laloo (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the briefs). PER CURIAM
Co-defendants K.P.S., Carmini Laloo and Peter Lisa jointly moved to suppress evidence they claimed was seized in unconstitutional searches of Lisa's residence. Suppression was denied and the co-defendants separately entered negotiated plea agreements: both K.P.S. and Laloo pleaded guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), reserving the right to appeal the denial of suppression, pursuant to Rule 3:5-7(d).
We use initials for this defendant to protect the privacy of the minor victim, who is his relative. N.J.S.A. 2A:82-46; R. 1:38-3(a), (c)(9).
Lisa's appeal was heard first; the appellate panel affirmed the trial court order. The appeals by K.P.S. and Laloo were consolidated and heard by a different appellate panel, which also affirmed the trial court order. The panel concluded K.P.S. and Laloo's constitutional challenge to the search was reviewed and decided in Lisa's appeal. Accordingly, that determination served as "the law of the case."
K.P.S. and Laloo petitioned for certification, which the Supreme Court granted, "limited to the issue of the application of the law of the case doctrine to preclude the Appellate Division's review of the trial court's rulings on the motions to suppress." State v. K.P.S., 217 N.J. 301, 301 (2014). Upon review, the Court reversed the Appellate Division's determination on the suppression challenges. State v. K.P.S., 221 N.J. 266, 270 (2015). Holding appeals by co-defendants are "independent of each other" and separate consideration is required by due process and "guaranteed by the New Jersey Constitution," the Court concluded "'[t]he law of the case' doctrine was not intended to deny a defendant the opportunity to be heard on his separate appeal, even if the co-defendant unsuccessfully raised the same issue on the same record." Ibid. (citing N.J. Const. art. VI, § 5, ¶ 2). The matter was remanded to a different panel for de novo review.
We now consider the arguments of error as advanced on direct appeal, from the denial of the suppression motion by co-defendants K.P.S. and Laloo. K.P.S. argues all evidence seized from the December 18, 2007 and January 8, 2008 searches of Lisa's residence was erroneously obtained, specifically asserting:
K.P.S. and Laloo also raised sentencing challenges. The issues surrounding those claims were not subject to certification and therefore will not be discussed on remand. Id. at 270 n.2.
POINT IDefendant Laloo argues:
SINCE THE SEARCH WARRANT TO SEIZE THE VIDEOTAPES FROM CO-DEFENDANT'S GARAGE WAS BASED ON MERE SUSPICION THAT THEY CONTAINED EVIDENCE OF CRIMES, THE TAPES SHOULD HAVE BEEN SUPPRESSED AS BEING OUTSIDE THE SCOPE OF THE WARRANT.
POINT II
THE COURT ERRED IN DENYING [K.P.S.]'S MOTION TO SUPPRESS PHYSICAL EVIDENCE BECAUSE THE POLICE DID NOT HAVE CONSENT TO SEARCH LISA'S RESIDENCE, WHICH WAS THE BASIS OF THE SEARCH WARRANTS.
POINT IWe reject these arguments and affirm.
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED DURING THE EXECUTION OF A SEARCH WARRANT BECAUSE THAT WARRANT WAS BASED ON INFORMATION OBTAINED THROUGH AN UNLAWFUL SEARCH OF THE LISA RESIDENCE.
POINT II
THE LOWER COURT ERRED IN DENYING MS. LALOO'S MOTION TO SUPPRESS VIDEO EVIDENCE BECAUSE THE SEARCH WARRANT WAS UNSUPPORTED BY PROBABLE CAUSE.
The underlying facts are taken from the Supreme Court's opinion.
The charges against the three co-defendants arose from evidence discovered by the police during a series of searches of Lisa's residence -- a home owned by Lisa's mother. . . . The trial judge held a motion-to-suppress hearing. The State
presented no testimony at the hearing and instead relied on the search warrants and supporting affidavits to justify the lawfulness of the searches. Defendants presented the testimony of Lisa's mother, who disputed the State's version of whether and when she gave consent to search her home.
The following evidence was developed at the suppression hearing. On December 17, 2007, officers of the Paramus Police Department conducted a search for weapons at Lisa's home -- a search authorized by a domestic violence temporary restraining order that provided for the seizure of weapons. During the search, the police seized guns, some of which they later learned were stolen. The police also observed in the garage a motorcycle trailer that fit the description of a trailer reported as stolen. Other evidence uncovered supported a theory that Lisa was involved in burglaries. Additionally, while conducting the search, the police saw Lisa in his bedroom quickly and suspiciously turning off his computer.
According to Lisa's mother, she did not give her consent to the police to conduct a further search of the garage to view the trailer later that evening -- despite the presence of her signature on a consent-to-search form dated December 17, 2007, at 9:50 p.m. Rather, she testified that she signed the consent-to-search form the next morning at 9:50 a.m.
On December 18, 2007 and January 8, 2008, the police executed two search warrants on Lisa's home, seizing the motorcycle trailer and other purportedly stolen items as well as Lisa's computer, a camcorder, videotapes, and digital photo flash cards. The evidence revealed that Lisa, Laloo, and [K.P.S.] engaged in illicit sexual activities with [K.P.S.]'s minor son.
In a written decision, the trial court denied the motion to suppress, finding that probable cause supported the issuance of the warrants and that the items seized from Lisa's home were described with sufficient particularity in the warrant.
[Id. at 271-72 (footnotes omitted).]
We defer to a judge's factual findings when reviewing a decision on a suppression motion, so long as the findings are supported by sufficient credible evidence. State v. Lamb, 218 N.J. 300, 313 (2014). However, the same standard does not apply to legal conclusions. "On such matters, a reviewing court owes no deference to the trial court's determinations and decides the question de novo." Garnes v. Passaic Cnty., 437 N.J. Super. 520, 527 (2014) (citing State v. Coles, 218 N.J. 322, 342 (2014)).
We note the search of a private residence has a "unique status" and is accorded special constitutional protections. State v. Wright, ___ N.J. ___, ___ (2015) (slip op. at 13). "[T]he sanctity and privacy of a person's home. . . . [is] entitled to the highest degree of respect and protection in the framework of our constitutional system." Id. at 13-14 (citations and internal quotation marks omitted).
Respecting these constitutional protections, police in this matter sought a warrant to search Lisa's residence. Unlike warrantless searches, which are presumptively invalid, searches conducted pursuant to an issued warrant are presumed valid. State v. Keyes, 184 N.J. 541, 554 (2005); State v. Jones, 179 N.J. 377, 388 (2004) ("It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" (quoting State v. Valencia, 93 N.J. 126, 133 (1983))).
When considering a challenge to the adequacy of factual underpinnings supporting a search warrant, our examination is limited to whether the application for the search warrant provided sufficient evidence for the issuing judge's finding of probable cause to search the premises for the items listed. State v. Chippero, 201 N.J. 14, 32 (2009). "[G]enerally, the probable-cause determination for the search of a home is made 'by a judicial officer, not by a policeman . . . .'" State v. Brown, 216 N.J. 508, 527 (2014) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948)). A judge's determination when considering the sufficiency of the facts, "'must consider the totality of the circumstances, and . . . must deal with probabilities.'" Jones, supra, 179 N.J. at 389 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)).
In our review, "[w]e accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant" by an issuing judge. Id. at 388 (alterations in original) (citation and internal quotation marks omitted). Doubts are "'ordinarily . . . resolved by sustaining the search.'" Id. at 389 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).
K.P.S. and Laloo challenge the factual foundation relied upon for issuing the December 18 warrant, particularly challenging the inclusion of the computer and peripherals. They argue there was no nexus between the items seized — Lisa's computer, videotapes and other media storage — and the alleged criminal activity being investigated — domestic violence and burglary of the motorcycle trailer and other property. In applying for the warrant, police sought seizure of the computer stating it may contain information relevant to the burglaries. K.P.S. and Laloo assert this statement reflects no more than a mere suspicion of criminal activity, not the necessary probable cause. Thus, the warrant erroneously allowed seizure of Lisa's computer. Further, K.P.S. and Laloo contend evidence seized during the allegedly unconstitutional December 18 search was relied upon to obtain the warrant executed January 8.
The State responds, asserting K.P.S. and Laloo lack standing to challenge the search because they had no constitutionally protected reasonable expectation of privacy in Lisa's residence. The State suggests, "[t]o meet this test, [they] must establish that [they] had both an actual (subjective) expectation of privacy, and one that society is prepared to recognize as reasonable." State v. Evers, 175 N.J. 355, 369 (2003) (citation and internal quotation marks omitted). However, the Court has recently affirmed,
New Jersey has retained the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), overruled by United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Under the automatic standing rule, virtually all defendants have standing to contest a search or seizure by police where they have either "a proprietary, possessory or participatory interest in either the place searched or the property seized," or if "possession of the seized evidence at the time of the contested search is an essential element of guilt." [State v. Alston, 88 N.J. 211, 228 (1981)]. In this way, our courts have construed the New Jersey Constitution as affording New Jersey citizens greater protection against unreasonable searches and seizures than accorded under the United States Constitution. State v. Johnson, 193 N.J. 528, 541 (2008).
[Lamb, supra, 218 N.J. at 313-14.]
Because the State's challenge to standing was neither raised below nor briefed by defendants, we choose to address each co-defendant's substantive assertions seeking reversal of the denial of their respective motions to generally suppress all evidence seized from the December 18 and January 8 searches, and specifically suppress the evidence capturing the sexual assaults for which defendants were charged. In keeping with the Supreme Court's remand, we separately review arguments presented by each co-defendant.
K.P.S. first challenges the sufficiency of the affidavit filed to support the request for the December 18 warrant, arguing it failed to establish the required probable cause. We disagree.
A court must not issue a warrant unless "satisfied that there is probable cause to believe that . . . evidence of a crime is at the place sought to be searched." State v. Smith, 212 N.J. 365, 388 (2012) (alteration in original) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Even though "the probable cause standard is not susceptible of precise definition," a "principal component . . . 'is a well-grounded suspicion . . . .'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). Our jurisprudence has established probable cause "means less than legal evidence necessary to convict though more than mere naked suspicion," and "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, supra, 212 N.J. at 388 (citations and internal quotations omitted).
In this matter, the detective's affidavit accompanying the December 18 warrant request included ample facts establishing probable cause that Lisa was involved in burglaries. This included that eight of sixteen of guns seized pursuant to the domestic violence warrant were stolen in reported burglaries, and the consent search of the garage confirmed the motorcycle trailer found therein matched the description of one reported stolen. Specific support for seizing computers, peripherals and data storage devices was grounded on Lisa's hurried attempt to shut down his computer and shield its screen from view when police entered his bedroom. Lisa's actions suggested a desire to hide the information visible on the screen from police and it can be reasonably inferred data stored on the computer or other media recorded items stolen in the prior burglaries.
Following our review of the record, we reject K.P.S.'s suggestion the facts alleged in the affidavit to secure the warrant amounted to mere suspicion, not probable cause. See Kasabucki, supra, 52 N.J. at 117 (holding to view facts with a "grudging or negative attitude" is inconsistent with the required deference given to the discretion of judge issuing a search warrant); accord Chippero, supra, 201 N.J. at 33. We conclude the trial judge correctly found the totality of the circumstances submitted to support the requested warrant satisfied the probable cause standard and supported the detective's reasonable belief Lisa had committed crimes and likely kept records of stolen items on his computer or on related media peripheries. See Smith, supra, 212 N.J. at 388. Accordingly, the evidence seized fell properly within the scope of the December 18 warrant, making K.P.S.'s challenge, asserting the search exceeded the scope of the warrant, unsupported.
K.P.S. also argues police did not have consent for the warrantless search of the garage. He argues the affidavit of probable cause used to obtain the December 18 warrant was based largely upon discovery made during the consent search of the garage. If that evidence was illegally obtained, the search conducted pursuant to the December 18 warrant cannot be upheld. The record does not support this allegation.
During the suppression hearing, Lisa's mother testified she did not give consent for police to inspect the trailer at 9:50 p.m. on December 17, as shown by her signature on a consent-to-search form. Rather, she testified she signed the form the next morning at 9:50 a.m. Although her testimony was a bit confusing, Lisa's mother insisted once completing the domestic violence search police never returned to her home on the evening of December 17, but arrived exactly twelve hours later at 9:50 a.m., the morning of December 18. She also agreed police did not remove any property the second time they came to her home, inquiring about the trailer. Her testimony proves police returned to Lisa's residence and sought his mother's consent to inspect the trailer and she granted access, despite the fact certain items on the consent form, such as the date and time, purportedly were left blank when she signed.
Lisa's mother had executed two certifications filed in support of the suppression motion. Both stated police arrived and sought her consent on December 18; however, the first certified the time of arrival was 9:50 p.m. and the second stated the time was 9:50 a.m. --------
K.P.S. does not argue Lisa's mother, who owned the home, lacked authority to provide consent. See State v. Suazo, 133 N.J. 315, 320 (1993) ("A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974))). Rather, maintaining the consent is invalid, he focuses on the time of the search.
Although we agree the trial judge omitted credibility determinations and any discussion evaluating Lisa's mother's testimony, the record nevertheless supports the conclusion the search was conducted after obtaining her consent. Lisa's mother's testimony regarding the time she authorized entry into the garage does not render her consent invalid. She testified the consent search occurred at 9:50 a.m. The warrant was executed at 11:35 a.m. Therefore, the search conducted to confirm the trailer's characteristics was in fact undertaken by consent, given prior to obtaining the search warrant. Therefore, that evidence could be used to support probable cause in the affidavit for the December 18 warrant.
Turning to Laloo's appeal, she also argues Lisa's mother did not provide valid consent for a warrantless garage search on December 17, conducted to secure the search warrant executed on December 18. The flaw in this argument is Lisa's mother denied police returned to her home on the evening of December 17 and insisted no additional search occurred that evening. Accepting this testimony as true, Lisa's mother acknowledged police returned the following morning and she signed the consent-to-search form allowing access to inspect the motorcycle trailer.
Laloo also argues Lisa's mother's consent was not voluntary. However, the signed consent-to-search form stated:
I give this consent to search freely and voluntarily without fear, threat, coercion and promises of any kind, and with full knowledge of my constitutional right to refuse to give my consent to search, which I hereby waive. I also am fully aware that if I wished to exercise this right, it would be respected.Lisa's mother's testimony provided no evidential support showing she was coerced, threatened or forced to consent. The testimonial assertion that she thought she had to sign is simply an unsupported bald assertion, which does not invalidate her stated written waiver and authorization.
Laloo's second argument attacks the probable cause supporting the December 18 warrant, suggesting the detective's affidavit was insufficient to allow seizure of the videos and other media storage listed in the warrant. She argues "suspicion and good faith on the officer's part, without more, will not suffice" to satisfy the requisite probable cause. State v. Novembrino, 105 N.J. 95, 120 (1987) (citation and internal quotation marks omitted).
We have fully reviewed and rejected a similar claim when addressing K.P.S.'s appeal. We reiterate the factual basis stated in the detective's affidavit to support the requested search warrant included ample evidence Lisa was engaged in criminal activity, that is, numerous burglaries of the surrounding neighborhood homes and businesses.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION