State v. McArdle, DOCKET NO. A-4485-16T1

Decision Date29 August 2019
Docket NumberDOCKET NO. A-4485-16T1
PartiesSTATE OF NEW JERSEY, Plaintiff-Respondent, v. SEAN P. MCARDLE, Defendant-Appellant.
CourtNew Jersey Superior Court – Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-07-1338.

Elyse S. Schindel argued the cause for appellant (Kalavruzos Mumola Hartman & Lento, LLC, attorneys; Edward C. Bertucio, Jr., of counsel and on the brief; Elyse S. Schindel, on the briefs).

Ian David Brater, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Ian David Brater, of counsel and on the brief).

PER CURIAM

Following the denial of his motions to suppress evidence seized from his car and home, to exclude his post-arrest confession to police, to disclose the identity of a confidential informant (CI), and to reconsider the denial of the respective motions, defendant Sean McArdle entered an unconditional negotiated guilty plea to count three of an eight-count indictment charging him with first-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a).1 On June 9, 2017, in accordance with the plea agreement, he was sentenced to a flat seven-year term of imprisonment, and the remaining charges in the indictment were dismissed.2 The charges stemmed from a CI's tip that defendant was a "bulk-level distributor of marijuana" who used large duffel bags to transport marijuana to distribution locations. As a result, law enforcement officers conducted a motor vehicle stopafter observing defendant place two large duffel bags in his van. Defendant was arrested when the officers detected the odor of raw marijuana emanating from the van, and consented to a search of his van and home, leading to the seizure of the marijuana and other evidence that formed the evidential basis for the charges.

On appeal, defendant raises the following points for our consideration:

POINT I
THE TRIAL COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE SEIZED WITHOUT A WARRANT AND RELATED MOTION TO CONFIRM AND REVEAL THE IDENTITY OF THE [CI] AND THE APPELLATE DIVISION SHOULD REVERSE THE TRIAL COURT'S DECISION AND SUPPRESS THE PHYSICAL EVIDENCE IN THIS CASE.
POINT II
THE TRIAL COURT ERRONEOUSLY DENIED [DEFENDANT'S] MOTION FOR RECONSIDERATION AFTER THE DEFENSE RECEIVED CRITICAL INFORMATION IN THE FORM OF A TRANSCRIPT OF THE TELEPHONE CALL BETWEEN [DEFENDANT] AND THE CI ON THE DATE OF [DEFENDANT'S] ARREST.

We reject these contentions and affirm.

I.

Preliminarily, we agree with the State that, other than the denial of his suppression motion, when defendant entered an unconditional guilty plea, he waived his right to appeal any other adverse determination, including his motion to compel the State to disclose the CI's identity, and his motion for reconsideration of that decision. "[T]he failure to enter a conditional plea under Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment constitutional issues." State v. J.M., 182 N.J. 402, 410 (2005). "Our rules provide for three exceptions to the general rule of waiver[,]" none of which apply to the other adverse decisions defendant now seeks to challenge on appeal. State v. Knight, 183 N.J. 449, 471 (2005). See State v. Robinson, 224 N.J. Super. 495, 498-99 (App. Div. 1988) (explaining that under the rules, notwithstanding a guilty plea, a defendant may appeal "from the denial of his motion to suppress as permitted by [Rule] 3:5-7(d), from the denial of admission into pretrial intervention pursuant to [Rule] 3:28(g), and, with consent of the court and approval of the prosecutor, from any other pre-trial order when the issue is preserved, [Rule] 3:9-3(f)").

Neither is this one of those "limited situations where it would result in an injustice to strictly adhere to the requirements of the rule[.]" J.M., 182 N.J. at 402, 410 (citing State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992)).Thus, because defendant failed to preserve his right to appeal any other pre-trial orders, only his challenge to the legality of the search and seizure of evidence "automatically survive[s] the entry of a guilty plea" and is properly before us. State v. Greeley, 178 N.J. 38, 50-51 (2003).

During the suppression hearing, conducted over the course of three non-consecutive days, the State presented Monmouth County Prosecutor's Office Detective Jose Goncalves as its sole witness. Goncalves, who had been involved in "[h]undreds" of narcotics investigations during his law enforcement career, testified that on March 11, 2013, while he was on assignment at the New Jersey field office of the United States Drug Enforcement Agency (DEA), Special Agent Terrance Dunlap of the DEA's New York field office contacted his office. Dunlap advised a superior officer that defendant was a suspected "bulk-level distributor of marijuana." According to Dunlap, a CI with whom he had worked with in the past had provided information that defendant was transporting marijuana to distribution locations in "large[-]size duffel bags, almost like hockey[-]size duffel bags." Dunlap stated that based on the CI's tip, DEA agents had conducted surveillance of defendant and had observed him making exchanges with high-level marijuana traffickers who were the targets of a drug investigation in New York. Additionally, Dunlap had personally conducted an"overhear" of a March 13, 2013 telephone conversation between defendant and the CI, during which the CI arranged to purchase marijuana from defendant the following day, March 14, 2013.

After receiving this information, on the day of the pre-arranged sale, a task force, comprised of officers from the DEA, the Monmouth County Prosecutor's Office, and the Middletown Police Department, "conducted surveillance" of defendant's home, located in Port Monmouth. At approximately 7:00 a.m. on March 14, the task force stationed undercover vehicles outside defendant's home and conducted aerial surveillance from a helicopter. While under surveillance, after loading two "large[-]size weighted duffel bag[s]" from his garage into a black Sierra pick-up truck parked in his driveway, defendant went back inside his house. Approximately thirty minutes later, defendant came back outside, transferred the duffel bags from the pick-up truck to a red Dodge van in his driveway, and returned to his house. A few minutes later, defendant came outside a third time and drove away in the red Dodge van.

While task force officers followed him, defendant drove a "very short distance" from his home, stopped to scan the area by "looking around aimlessly in many different directions[,]" and then continued driving. After defendant resumed driving, Goncalves directed Middletown Corporal Gerald Weimer, whowas in uniform and driving a marked police car, to conduct a motor vehicle stop of defendant's van. At approximately 11:17 a.m., Weimer pulled defendant over, asked him for his driving credentials, and instructed him to exit the van. When Goncalves arrived at the scene, he immediately detected "[a] very strong odor of marijuana" "emanating from [defendant's] van." Goncalves approached defendant and informed him that he was stopped because law enforcement had received information that he was "involved in criminal activity[,]" and had observed defendant moving "two large duffel[-]size bags" between vehicles at his home. As Goncalves spoke to defendant, he "could also smell marijuana" on him.3

Thereafter, Goncalves advised defendant of his Miranda4 rights by reading "a Miranda warning waiver card" to defendant, who "waived his rights" and agreed to talk to the officers. Defendant also read and signed "a consent to search form" after Goncalves reviewed it with him. Goncalves read the consent form to defendant aloud, informing him of his right "to refuse to allow police to conduct the search," to "revoke [his] consent to search at any time," to "stop thesearch at any time[,]" and "to be present while the search [was] conducted." Defendant initialed next to each of these rights, and next to the section indicating that he had "given []his permission voluntarily of [his] own free will without coercion, fear, or threat." The consent form, which was executed approximately forty minutes after the motor vehicle stop, specifically authorized the search of defendant's residence, the red Dodge van, and the black Sierra pick-up truck.

In the ensuing search, inside the two large duffel bags in the red Dodge van, the officers found "bulk marijuana . . . wrapped in clear plastic." At his home, defendant, who was neither restrained nor handcuffed, led the officers to the basement where they found "bulk marijuana," "hashish," "a large amount of U.S. currency," drug "paraphernalia," "three weapons[,]" and other contraband. In the basement, defendant showed the officers "a wall shelf with a lever," which opened up a part of a bookshelf, revealing a hidden compartment where officers found "numerous duffel bags," "bins," and other containers filled with marijuana and hashish. The officers also recovered a handgun and a shotgun from the hidden compartment. Additionally, the officers found a safe inside the hidden compartment, which they opened after defendant gave them the code, and found cash and a Derringer handgun with a defaced serial number inside. In another area of the basement, the officers found another safe with cash inside.

In total, the officers seized approximately 394 pounds of marijuana and over $762,000 in cash from defendant's basement. After the search, defendant was transported to Middletown...

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