Court upholds wiretap order
STATE OF NEW JERSEY,
April 20, 2009
Submitted October 21, 2008 – Decided
Before Judges Collester and Graves.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
Jacobs & Barbone, attorneys for appellant
(Louis M. Barbone, of counsel and on the
Theodore F. L. Housel, Atlantic County
Prosecutor, attorney for respondent (James F.
Smith, Assistant Prosecutor, of counsel and on the brief).
Pursuant to a negotiated plea agreement, defendant Christopher Graham entered a guilty plea to three counts of a 105-count indictment against him, namely, conspiracy to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(2); operating a controlled dangerous substance production facility, contrary to N.J.S.A. 2C:35-4; and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1). On April 20, 2007, he was sentenced to an aggregate term of twenty years.1
Defendant’s convictions stem from an extensive, ongoing investigation of narcotics trafficking in Atlantic County which began on January 4, 2006, when members of the Atlantic County Prosecutor’s Narcotic Strike Force arrested an individual in Pleasantville with three ounces of crack cocaine and a shotgun. This individual agreed to serve as a cooperating witness (CW) in the Strike Force’s ongoing investigation. He told members of the Strike Force that he had purchased the crack the previous day from Troy Sanchez and that Sanchez gave him the shotgun to hide for him. He said he had been dealing with Sanchez for about two years, purchasing two ounces of cocaine from Sanchez roughly every four days. An inquiry into Sanchez’s background revealed that he had been arrested five times for drug offenses over the past decade and that one arrest culminated in a conviction for distribution of CDS and a seven-year sentence.
On January 6, 2006, the CW made a controlled purchase of one and one-half ounces of crack cocaine from a Sanchez associate. Four days later the CW attempted to arrange a purchase of the same quantity of crack cocaine, but the transaction was not completed because Sanchez had only powdered cocaine. Two days later on January 12, 2006, the CW made a second controlled purchase of two ounces of crack cocaine from the same Sanchez associate and paid $1,650. The third controlled purchase of crack cocaine was made on January 16, 2006, and the CW paid $1,450 to Sanchez’s associate.
Four days after his third controlled purchase of crack cocaine, the CW was found dead in Atlantic City. He had been strangled and shot.
Investigator Tracy P. Wich of the Strike Force then prepared an application for an order authorizing the interception of wire and electronic communications from the telephone Sanchez used to arrange the sales of crack cocaine to the CW. Wich’s application stated he had been employed by the Division of Criminal Justice for approximately seven years, the last three with the Major Narcotics Bureau. He received training in narcotics investigations through national courses and in-service training, participated in more than 1,000 narcotics-related investigations, and had experience preparing applications for communications data warrants and monitoring wiretaps.
The application was granted on January 30, 2006, by Judge Albert J. Garafolo, a Superior Court judge designated to review and grant wiretap warrants. Two days later, investigators intercepted a conversation between Sanchez and the defendant during which defendant told Sanchez, “I got that situation for you.” In response, Sanchez said: “Alright, just put that on ice though cause . . . that’s to the side . . . that’s already in . . . . I’m gonna start . . . the day after tomorrow with that. . . .” After defendant answered “Alright,” Sanchez concluded, “I’m ready to come back around though, I’m coming around in a little bit.”
Based on his training, experience and knowledge of facts disclosed by the investigation into Sanchez’s activities, Investigator Wich stated that the conversation related to a cocaine transaction. Wich interpreted the statements by defendant to mean he had cocaine for Sanchez, and that Sanchez wanted defendant to put the cocaine aside so he could sell it to his customers the next day.
Two days later investigators overheard Sanchez arrange for the sale of two ounces of cocaine to an unidentified female. Over the following week investigators intercepted various communications in which Sanchez arranged various illegal transactions involving firearms and the sale of cocaine, Percocet, and marijuana. On February 12, 2006, investigators intercepted another conversation between Sanchez and defendant. Defendant asked Sanchez on that date why Sanchez had not previously called him. Sanchez responded:
Nah, I thought you got, I thought you probably seen the time in the . . . kitchen. . . . I’m like, you know nobody don’t like to get rushed on that shit, you know what I mean? Its all in the in the wrist baby, I ain’t want to, you know what I mean? You needed your concentration. . . .
Defendant replied, “Nah man, on the straight up you don’t even got [to] twirl nothing you just got to pour the water out,” Sanchez said, “Oh right (laughing), oh that’s how you do it? You ain’t twirling nothing, you, you got me straight on that one. . . .”
Wich interpreted this conversation as Sanchez telling defendant he did not call him because he did not want to interrupt defendant’s cooking of powder cocaine into crack cocaine. Defendant’s response meant that he was so experienced with the process he did not have to concentrate on any twirling but, instead, just boiled the ingredients down and poured out the remaining water.
Three days later, on February 15, 2006, defendant and Sanchez spoke again. During this conversation, Sanchez asked defendant, “[W]hat’s the best you can do on a half?” Defendant answered: “I guess . . . you know that number. . . .” Sanchez then asked whether defendant would allow him to “meet the nigga” if Sanchez got “the whole jawn.” Once defendant answered in the affirmative, Sanchez asked, “[S]o if you grab the man for me what’s the tag me like a stack?” Defendant said, “Yeah,” and Sanchez went on, “Aight, instead of twenty three, it’ll be twenty four, right?” Defendant again said, “Yeah.”
Wich said that the defendant and Sanchez were discussing a future purchase of a large quantity of cocaine. The “half” to which Sanchez referred in the conversation was one-half a kilogram of cocaine. When defendant responded, “I guess . . . you know that number,” Wich said it indicated defendant had sold the same quantity to Sanchez in the past. When Sanchez spoke of getting the “whole jawn,” Wich’s interpretation was that he wanted to purchase a kilogram of cocaine, for which he normally would pay $23,000. However, he would have to pay $24,000 if defendant introduced him to the individual from whom defendant was receiving his own cocaine supply.
A check of defendant’s criminal history disclosed he had been arrested ten times and convicted five times. He was twice convicted for illegal possession of a handgun and possession of a controlled dangerous substance as well as receiving stolen property. He also was indicted for distribution of cocaine, possession of a defaced handgun and possession of a firearm by a convicted person, charges which were pending disposition at the time of the Sanchez investigation.
On March 21, 2006, members of the Strike Force followed defendant to Philadelphia where he purchased a kilogram of cocaine. The officers observed him place the package of cocaine in the trunk of his car. He was stopped after crossing back into New Jersey. Following a canine sniff, a search warrant was obtained for the vehicle, and the cocaine was seized. Defendant was arrested and subsequently named in a 212-count indictment charging him with, inter alia, second-degree conspiracy to distribute cocaine, first-degree operation of a CDS production facility and first-degree possession of CDS with intent to distribute. Following the denial of his motion to suppress the intercepted communications and to dismiss the indictment by Judge Michael A. Donio, defendant entered his plea of guilty. This appeal followed.
Defendant presents the following arguments:
POINT I – ANY AND ALL INTERCEPTIONS AND SEIZURE OF ELECTRONIC, ORAL OR DATA COMMUNICATIONS REGARDING DEFENDANT SHOULD HAVE BEEN SUPPRESSED PURSUANT TO N.J.S.A. 2A:156A-2.1.
POINT II – ANY AND ALL EVIDENCE DERIVED FROM THE INTERCEPTIONS SHOULD HAVE BEEN SUPPRESSED.
POINT III – THE ENTIRE PRESENTATION OF EVIDENCE AT GRAND JURY IS LEGALLY INFIRM, AS ALL OF IT IS DIRECTLY DERIVED FROM THE UNLAWFUL WIRE INTERCEPTIONS.
New Jersey’s Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides in pertinent part that upon consideration of an application a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication if based on the facts submitted by the applicant that there is or was probable cause for belief that:
a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense. . . .
b. Particular communications concerning such offense may be obtained through such interception; [and]
c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. . . .
The Wiretap Act also provides a framework for individuals seeking to suppress evidence gathered from illegal communication and data intercepts. It provides, in pertinent part, that:
Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
a. The communication was unlawfully intercepted;
b. The order of authorization is insufficient on its face; or,
c. The interception was not made in conformity with the order of authorization or in accordance with the requirements of section 12 of P.L.1968, c.409 (C.2A:156A-12).
A showing of bad faith on the part of law-enforcement officials is not necessary in order to warrant suppression of evidence obtained in violation of the Wiretap Act. State v. Worthy, 141 N.J. 368, 384 (1995). Nor is the Act’s exclusionary rule conditioned on a predicate finding of an intentional or deliberate violation or evasion of the Act’s requirements. Ibid. What is required to warrant suppression of such evidence is a showing that the substantive elements of the statute were not met. That is, that (1) there was no probable cause for interception, or (2) there was no need for electronic surveillance because of other investigation methods. State v. Murphy, 148 N.J. Super. 542, 548 (1977).
Defendant argues that the probable cause requirement of the Wiretap Act was not met and that there was no “independent investigation” other than the three intercepted phone calls which contained ambiguous phrases used by defendant and Sanchez. Defendant asserts that these phrases were automatically construed by Investigator Wich as detailing large narcotics transactions by simply changing and expanding his glossary of narcotics trafficking code to translate these phrases to support the investigation. We disagree. Considering the extensive investigation as a whole, there clearly existed probable cause to believe that defendant was involved in narcotics trafficking in Atlantic County.
Probable cause exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion. State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967)), cert. denied, 389 U.S. 1054 (1968). It is not a rigid concept; rather, it is “flexible [and] nontechnical.” State v. Novembrino, 105 N.J. 95, 120 (1987). A court determines the existence of probable cause by applying a “common-sense, practical standard.” Ibid. Moreover, in assessing the showing of probable cause upon a motion to suppress, a trial court should not lightly second-guess the determination made by the issuing judge. State v. Kasabucki, 52 N.J. 110, 117 (1968). Rather, the reviewing judge is to re-examine the record for the purpose of assuring that there were sufficient facts upon which the issuing judge could posit his finding of probable cause. State v. Christy, 112 N.J. Super. 48 (1970).
The evidence of the investigation was presented to Judge Garafolo through Wich’s affidavit. He found that there existed probable cause that defendant was involved in an ongoing criminal enterprise. Judge Garafolo’s finding of probable cause is supported by the affidavit, and Judge Donio gave that determination proper weight in his subsequent review. We find no error.
Defendant next argues that the wiretap order should have been denied because of the absence of a showing that other means of investigation were attempted and failed. N.J.S.A. 2A:156A-10(c) requires that on the basis of facts submitted by the applicant there is probable cause for belief that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or appear to be too dangerous to employ. The ongoing investigation conducted in this case featured surveillance, controlled purchases, and the use of a confidential informant who was later murdered. Further, it is clear that the wiretap was a necessary part of the investigation because the nature of the conspiracy itself was extensive and involved large amounts of cocaine.
In State v. Christy, supra, 112 N.J. Super. at 64-65, we held when an attempt to infiltrate an illegal organization failed, a wiretap order was justified. Similarly, in State v. Pemberthy, 224 N.J. Super. 280, 297 (1988), where efforts to introduce a confidential informant to a illegal enterprise would have compromised the investigation, it was reasonable to conclude that such efforts would not have been productive, thus justifying an affiant investigator’s request for a wiretap order. Additionally, where normal investigative techniques failed in a prior, related investigation, that failure may be taken into account in assessing whether such techniques would likely be productive in a successive investigation. Ibid. citing State v. Braeunig, 122 N.J. Super. 319, 326-27 (App. Div. 1973). In arguing that no normal investigative procedures were specifically used, defendant attempts to isolate the investigation against him. But defendant’s convictions were the result of an extremely large-scale, ongoing investigation of an extensive narcotics trafficking operation in Atlantic County, leading to a 217-count indictment of seventeen defendants.
Defendant argues that investigators might have used a cooperating witness against him in the same fashion that they had used such an individual to infiltrate Sanchez’s network at the beginning of the investigation. That CW was murdered, and while the murder was later found to be unrelated to the instant investigation, that was not known until after the wiretap order had been issued. Furthermore, that CW had been dealing with Sanchez for two years before the investigation even began, and the investigators had no potential informant who could approach Sanchez or defendant without arousing their suspicions or thwarting the investigation.
Moreover, physical surveillance had been attempted in this case, and it aroused suspicion. On January 10, 2006, a video surveillance van was parked with investigators inside near the site of the CW’s three controlled purchases. It was abandoned after Sanchez’s sister approached the van, shook it, and attempted to look inside. Investigators also sought to rent an apartment near the site of the CW’s buys. However, they later learned that a maintenance man told people throughout the building that police had rented an apartment to conduct surveillance.
The record satisfies us that the police exhausted standard investigative techniques up to the point where there was a risk that the investigation would be compromised. The State thereby satisfied its burden of establishing that only through a wiretap order could they have garnered sufficient evidence to continue their investigation. Therefore, we find no error in Judge Donio denying defendant’s motion to suppress statements obtained through use of wiretap surveillance.
Defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
1 On the same date he was also sentenced on one count of three other indictments, namely, distribution of a controlled dangerous substance and conspiracy to distribute a controlled dangerous substance. These three sentences were concurrent to each other for an aggregate sentence of nine years, which was ordered to run concurrently with defendant’s twenty-year sentence.
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