State v. Saez
| Decision Date | 12 November 1993 |
| Citation | 268 N.J.Super. 250,633 A.2d 551 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Eddie SAEZ, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Luis SAEZ, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Orlando NAVARRO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Lorraine J. Betancourt, East Brunswick, for defendant-appellant Eddie Saez (A. Kenneth Weiner, attorney, Ms. Betancourt on the brief).
Kim A. Fellenz, Asbury Park, for defendant-appellant Luis Saez (Steinberg & Fellenz, attorneys, Ms. Fellenz on the brief).
Zulima V. Farber, Public Defender, for defendant-appellant Orlando R. Navarro (Vincent James Sanzone, Jr., Designated Counsel, South Orange, of counsel and on the brief). 1
Patricia Quelch, Freehold, for plaintiff-respondent State of New Jersey (John Kaye, Monmouth County Prosecutor, attorney, Mark P. Stalford, of counsel). 2
Before Judges LONG, D'ANNUNZIO and KEEFE.
The opinion of the court was delivered by
KEEFE, J.A.D.
Several issues are presented by this appeal. However, the issue that divides the court is the question of whether the observation by a police officer of illegal conduct through a basement party wall at the invitation of a tenant informant was an unconstitutional warrantless search. The majority concludes that it was not.
Defendants Eddie Saez, Luis Saez and Orlando Navarro were the subject of a nine count indictment charging them with: Count One, maintaining or operating a CDS production facility, contrary to the provisions of N.J.S.A. 2C:35-4 (first degree); Count Two, possession of Cocaine contrary to the provisions of N.J.S.A. 2C:35-10a(1) (third degree); Count Three, possession of cocaine within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-10 (third degree); Count Four, possession of cocaine in a quantity of one-half ounce or more, with the intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5b(2) (second degree); Count Five, possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5b(2) (third degree); Count Six, possession of heroin, contrary to the provisions of N.J.S.A. 2C:35-10a(1) (third degree); Count Seven, possession of heroin within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-10 (third degree); Count Eight, possession of heroin with the intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5b(3) (third degree); and Count Nine, possession of heroin with the intent to distribute within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5b(3) (third degree).
Defendants' motion to suppress evidence relevant to the indictment was denied. Thereafter, they were tried to a jury who found Eddie Saez and Orlando Navarro guilty of counts one through five of the indictment, and found Luis Saez guilty as to all counts of the indictment.
The State's motion for extended term sentencing of Luis and Eddie Saez was granted. Eddie Saez was sentenced to a presumptive 50 year extended term with a 20 year parole disqualifier, and a $150,000 fine. Luis Saez was sentenced to a presumptive 50 year prison term with a 17 year parole disqualifier and the same fine. Orlando Navarro was sentenced to a 15 year prison term with a 5 year parole disqualifier and a $50,000 fine. Appropriate DEDR penalties, VCCB penalties and laboratory fees were imposed as to all defendants.
On appeal, the following issues are presented for resolution.
For the reasons stated herein, we affirm the convictions of all three defendants, and the sentence imposed as to defendants Luis Saez and Orlando Navarro. 4
On May 15, 1990, Investigators Cassidy and West, affiliated with the Monmouth County Narcotics Strike Force, met with a citizen-informant, who at the time was living at 111A Fifth Avenue in Asbury Park, New Jersey. During the meeting, the informant related that she had observed narcotic activity several times over the last month, occurring in the basement of the adjoining residence, 111B Fifth Avenue. The building containing 111A and 111B Fifth Avenue is a one-story ranch type house with two separate entrances. The basement of the building is divided by a wooden wall constructed, as the trial judge observed, in a "somewhat slap-dash [method] in that certain types of wood are used in one part, other types used in the area in question, vertical slats in one part, horizontal slats in another." The informant stated that she was able to observe the activity through holes or gaps in the wood partition. 5 The informant identified the occupant of the adjacent premises as defendant Eddie Saez. She said that Saez was accompanied by at least one other hispanic male, and that the activities usually took place around dinner time, although not on a daily basis. The informant had supplied information to the Task Force in the past, in connection with other apparently successful undercover investigations. She invited the investigators to observe the activity.
Based on the information received from the informant, a decision was made to set up an undercover investigation of the property. On May 16, 1990, Cassidy drove by the premises and made observations as to cars in the driveway, as well as the physical condition of the property. He also investigated into Eddie Saez's background, and discovered that Eddie Saez had previously been involved in narcotics related incidents.
On May 17, 1990, at approximately 5:40 p.m. Cassidy arrived at 111A Fifth Avenue, and was admitted to the basement by the tenant-informant. Cassidy testified at the suppression hearing that he was able to observe activity in the basement almost immediately upon his entry. He observed Eddie and Luis Saez, and another unknown hispanic male, in the process of "rerocking" cocaine. The process described is one of adding filler to cocaine and then adding water, thereafter compressing it until it becomes hard or rock-like. After the substance was formed into a rock-like appearance, the unidentified hispanic male cut the rocks into smaller pieces and placed them into small plastic bags.
Cassidy was able to make these observations through little holes and through horizontal cracks in the wooden wall. He also testified that he used a piece of broken mirror that he had found in the basement, and, while holding it over his head, he could see the activity in the adjoining basement through a gap in the wall located above a furnace. Cassidy admitted that this activity could not have been seen through basement windows located in the adjoining basement because they had been painted over and covered with cloth material.
Approximately thirty minutes into his observations, Cassidy saw a dark colored Toyota Celica enter the driveway of 111B. The vehicle was driven by a person later identified as defendant Navarro. Navarro entered the basement and assumed the duties of the unidentified participant who then left the premises. 6
During his observations of the activities, Cassidy would occasionally leave his point of observation so that he could transmit information to other members of the Task Force by radio. Upon returning to the basement wall after making one of those transmissions, Cassidy observed that the rerocking activity had ceased, and that Luis Saez and Orlando Navarro were leaving the premises, carrying an aerosol can and a package of aluminum foil. He immediately radioed that information to the surveillance team. 7
After Cassidy's transmission, the investigation was taken over by members of the Task Force outside of the premises. The Toyota Celica was followed to a location in Asbury Park which was later determined to be the residence of defendant Luis Saez. Sergeant Campbell of the Task Force, and a uniformed Asbury Park police officer, approached the vehicle. Campbell testified that Luis Saez opened the door and attempted to run from the scene. Campbell apprehended him and obtained a small tin foil package from his hand. Campbell inferred from his observation that the package in all likelihood contained cocaine and placed Saez under arrest. Navarro was also secured and arrested, and Asbury Park police officer Kirschenbaum was directed to take custody of the vehicle and drive it the impoundment area of the Asbury Park police station.
Kirschenbaum testified that as soon as he entered the vehicle, he could see an aerosol can on the floor on the passenger side of the car. At police headquarters, Kirschenbaum commenced a search of the vehicle, including the aerosol can. He noted that the can was a rather worn old can of Gunk, with a bottom which looked as though it had been cut. He shook the can, and determining it to be dead weight rather than sounding like an aerosol can, proceeded to remove the bottom. Inside the can, he found rock cocaine, as well as bags of heroin.
Although Luis Saez and Orlando Navarro were arrested on the evening of May 17, 1990, defendant Eddie Saez was not. Apparently the reason for not arresting him was so that further observations of his conduct...
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