STATE OF NEW JERSEY v. NAADIR I. MUHAMMAD, a/k/a CLAYTON JONES

Defendant was charged by an Atlantic County grand jury with

first-degree possession of ten grams or more of a controlled

dangerous substance (CDS) with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(6) (count one); second

degree conspiracy to possess ten grams or more of a CDS with intent

to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a), and N.J.S.A.

2C:35-5(b)(6) (count two); second-degree possession of a CDS with

intent to distribute within 500 feet of a public housing facility,

park or building, N.J.S.A. 2C:35-7.1 (count three); third-degree

possession of a CDS with intent to distribute in a school zone,

N.J.S.A. 2C:35-7 (count four); third-degree unlawful possession

of a CDS, N.J.S.A. 2C:35-10(a)(1) (count five); and fourth-degree

tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count six).

Co-defendant Michael J. Showell was also charged in counts one to

five.



Thereafter, defendant filed a motion to suppress, and the

trial court conducted an evidentiary hearing on the motion.

At the hearing, Lieutenant James A. Sarkos of the Atlantic

City Police Department (ACPD) testified that an informant had

reported CDS activity around a motel at a specific location on

Route 30 in the City. The informant told Sarkos that a man staying

in room twenty-three of the motel had been selling large quantities

of PCP in the area for a month. Detective Howard Mason also had

received confidential information attesting to similar activity.

On January 25, 2012, Sarkos and members of the New Jersey

State Police conducted a joint operation looking for criminal

activity in the area around the motel, which was known for high

drug/high-crime activity. Sarkos and the officers went to the

motel and asked the front-desk clerk who was staying in room

twenty-three. The clerk provided the officers with a copy of the

room registration card, which listed the name "Naadir Muhammad,"

as well as defendant's identification information.

Sarkos testified that when he saw defendant's name, he

immediately recalled that another division of the ACPD had received

information that someone by the name of "Naadir Muhammad," who is

also known as Clayton Jones, was distributing large quantities of

PCP in the City. Sarkos then used his "smart phone" to obtain a

photograph of defendant so he would recognize him on sight. Sarkos

spoke with an officer at the ACPD and asked the officer to conduct

a warrant check on defendant. The check revealed that defendant

had an outstanding warrant out of Cumberland County for unpaid

child support.

Sarkos and two officers then conducted surveillance of room

twenty-three at the motel from their vehicle. They observed two

persons leave the room and walk across the parking lot. The two

individuals walked directly towards the car. The officers were

concerned the individuals would see them.

The officers backed the car out of the parking spot and drove

out of the lot. Sarkos testified that in his rearview mirror, he

observed the two individuals stop abruptly and return to room

twenty-three. Sarkos was concerned that the individuals were

conducting counter-surveillance, and would alert others involved

in criminal activity of possible police presence.

The officers then drove around the block and parked in a

different location to continue their surveillance of the room.

Sarkos saw defendant exit the room with a trash can, dispose of

its contents into a dumpster, look around, observe the officers'

car, and reenter the room. Sarkos recognized defendant from the

photo on his phone.

The officers did not arrest defendant at this time because

they did not believe they could reach him before he reentered the

room. They called for backup. Seven other officers responded to

the scene. Sarkos parked the car near the room and noticed that

its door was wide open. He exited the car, holding his radio. He

was wearing a bulletproof vest with the words "POLICE" written

upon it in large letters. He displayed his badge.

Sarkos and the other officers approached the room. Sarkos

observed defendant standing in the doorway. According to Sarkos,

defendant had a "frantic expression on his face." Defendant slammed

the door shut. The officers ran up to the door and Sarkos yelled,

"police, open the door." Sarkos banged on the door and heard a

commotion from inside the room and the sound of running water.

After about thirty seconds, defendant opened the door. Sarkos

entered the room. Sarkos noticed that defendant was breathing

heavily, he was wearing a jacket that was wet from his elbow to

his wrist, and his shorts had water-splash marks on them. Co

defendant Showell also was in the room.

Sarkos testified that, once inside the room, he was

overwhelmed by a chemical odor. Based on his training and

experience, Sarkos recognized the odor to be PCP. The odor gave

him a headache and made him feel nauseous. Sarkos placed defendant

under arrest. He did a brief search of the room to ensure that no

one else was present, who could harm the officers. He said the

strongest odor emanated from the bathroom, where the door had been





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left wide open. The officers found that the water in the bathroom

sink had been left running, and there were bottle caps and red

funnels in the sink.

Sarkos testified that these items were consistent with

paraphernalia used to transfer liquid PCP from large to small

bottles. The officers found water all over the bathroom floor.

They also found four bottles in the trash, three of which contained

liquid. Sarkos believed the three bottles still contained PCP. He

took caps from the sink and sealed the bottles found in the trash.

According to Sarkos, defendant stated that "there's just

water in there," but Sarkos told defendant that he thought the

liquid was PCP or "wak," which is what PCP is commonly called in

the City. Defendant replied, "I ain't saying what used to be in

there. I'm just saying there's water in there."

Sarkos searched defendant. In his pocket, he found $381 in

small denominations, which Sarkos said was consistent with street

level distributions of PCP. Sarkos also seized a bottle that

smelled as if it might have contained PCP. The officers also

arrested Showell. Before leaving for the police station, Showell

asked to retrieve his "long-john underwear" from one of the drawers

in the dresser.

Sarkos noticed the drawer was filled with clothing and that

Showell had several forms of identification, which were scattered





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around the room. Sarkos believed that Showell had been staying in

the motel room with defendant. Defendant also asked to retrieve

his pants from a drawer before leaving, and Sarkos assisted him

in retrieving them. The officers did not conduct any further search

of the room.

Defendant testified that he had been chatting with members

of his family when eight or nine police officers pulled up in cars

and ran towards the room. He ran inside the room, slammed the door

closed, and disposed of all of the contraband he had. Defendant

testified that he let the officers into the room only after he was

satisfied that all of the contraband had been destroyed. Defendant

said the contraband he was referring to was PCP.

Defendant further testified that the police ran into the room

and immediately arrested him and Showell. He said the police

"raided" the room and seemed "stumped" and frustrated because they

did not find any contraband.

Defendant stated that after the officers had entered and

"turned the room upside down," they contacted the ACPD to determine

if defendant had any outstanding warrants. Defendant claims he

overheard the call while he was detained in the room. He said the

officer contacted the ACPD five minutes after he was placed under

arrest.





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After hearing arguments from the attorneys, the judge placed

an oral decision on the record. The judge found that "the balance

of credibility" weighed strongly in favor of Sarkos. The judge

stated that Sarkos's account of defendant's arrest made sense

under the circumstances, while defendant's version was not

credible.

The judge noted that defendant's testimony indicated that he

had "little regard for the laws of this State," since he had

readily admitted that he had possessed PCP and destroyed the

evidence before allowing the officers into the room. The judge

also stated that defendant's lawless behavior indicated that he

had "little incentive to meet his obligation to tell the truth

even under oath." The judge denied defendant's motion to suppress

the CDS and CDS-related paraphernalia.

On October 22, 2013, defendant pled guilty to count one of

the indictment, which charged him with possession with intent to

distribute ten grams or more of PCP. The judge sentenced defendant

on December 20, 2013, and later entered the judgment of conviction

signed on January 14, 2014.

Defendant's appeal followed. On appeal, defendant raises the

following arguments:











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POINT I



THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.



POINT II



THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.



II.

We turn first to defendant's contention that the trial court

erred by denying his motion to suppress. He contends the officers

violated his right under the New Jersey Constitution to be free

from unreasonable searches and seizures by obtaining his personal

information from the motel's front-desk clerk.

We note that defendant did not raise this issue at the

suppression hearing. There, defendant only argued that the

officers unlawfully entered his motel room because, at the time

they did so, they allegedly did not know that he had an outstanding

warrant in Cumberland County.

The State contends that because defendant did not assert at

the hearing that the officers unlawfully obtained personal

information about him from the motel clerk, we should not consider

this argument on appeal.

Generally, 'the points of divergence in proceedings before a trial court define the





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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. 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 presentation is available.'



[State v. Witt, 223 N.J. 409, 419 (2015) (internal citation omitted) (quoting State v. Robinson, 200 N.J. 1, 19-20 (2009)).]



In Witt, the Court refused to consider one of defendant's

constitutional arguments because the issue had not been raised at

the suppression hearing, thereby depriving the State of the

opportunity to elicit testimony that might have resolved the issue.

Ibid. Here, however, defendant is raising a legal issue based on

essentially undisputed facts. We therefore elect to address

defendant's argument.

Article I, Paragraph 7 of the New Jersey Constitution protects

citizens from unreasonable searches and seizures. To invoke these

protections, a defendant must show that he or she has a reasonable

expectation of privacy, which was violated by the government's

action. State v. Evers, 175 N.J. 355, 368-69 (2003) (citations

omitted). Ordinarily, a person "surrenders a reasonable

expectation of privacy to information revealed to a third-party."

Ibid.





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Indeed, we have held that hotel guests do not have a right

of privacy under the New Jersey Constitution to information in a

hotel registry. State v. Lopez, 395 N.J. Super. 98, 106 (App.

Div.), certif. denied, 192 N.J. 596 (2007). In Lopez, we stated

that:

[n]o violation of defendant's constitutional rights occurred in the police investigation that disclosed his identity, particularly in the inquiry to a hotel employee for the room number and name of the occupant who had placed a telephone call . . . As a matter of law, defendant had no reasonable expectation of privacy as to his identity when he registered as a guest of the hotel. See N.J.S.A. 29:4-1. The police had engaged in a perfectly valid investigation to discover defendant's identity and location.



[Id. at 106.]



The statute referenced in Lopez requires hotel registries to

contain the names and addresses of hotel guests, and the rooms

that the guests are occupying. N.J.S.A. 29:4-1. The statute

provides that the hotel's register "shall be available to all duly

authorized peace officers upon request." Ibid. The statute does

not apply to hotels that have more than ten sleeping rooms.

N.J.S.A. 29:4-2.

However, the court's conclusion in Lopez that citizens do not

have a reasonable expectation of privacy in the information in a

hotel or motel registry, did not turn on the application of





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N.J.S.A. 29:4-1. The court did not suggest that persons who stay

in hotels with more than ten sleeping rooms have a reasonable

expectation of privacy in the information in the hotel registry,

while persons who stay in hotels or motels with less than ten

sleeping rooms do not. Lopez stands for the broad principle that

hotel guests do not have a recognized privacy interest in the

information about them in the hotel's registry. Id. at 106.

Defendant cites several cases in which the court has

recognized privacy interests in certain personal information that

was provided to third parties. See State v. Reid, 194 N.J. 386,

389 (2008) (holding that New Jersey Constitution protects a

citizen's privacy interest in subscriber information given to an

internet service provider); State v. McCallister, 184 N.J. 17, 32

33 (2005) (finding that New Jersey Constitution protects bank

account holder's expectations of privacy in their banking

records); and State v. Hunt, 114 N.J. 329, 341-42 (1989) (finding

that persons have a strong expectation of privacy in their

telephone billing records).

In Reid, the Court noted that the records of internet service

providers "share much in common with long distance billing

information and bank records." Reid, supra, 194 N.J. at 398. The

Court observed that all of these records relate to activities





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"integrally connected to essential activities of today's society."

Ibid.

However, information in hotel and motel registries is not

comparable. Persons who use the internet, make phone calls, or

engage in banking transactions "have reason to expect that their

actions are confidential." Ibid. Persons who register in motels

or hotels do not have similar expectations of privacy. The registry

merely records basic personal information, such as the guest's

name and the room in which the guest is staying.

We therefore conclude that under Lopez, the officers did not

violate defendant's rights under Article I, Paragraph 7 of the New

Jersey Constitution when they obtained his personal information

from the motel's desk clerk.

Defendant further argues that the motion judge erred in

assessing his credibility. Defendant asserts that the judge

improperly discredited his testimony because he admitted that

before he allowed the officers into the motel room, he had

possessed PCP and destroyed it. Defendant contends his statement

could not be used to assess his credibility because he had not yet

been convicted of possessing PCP or destroying evidence.

When reviewing the trial court's decision on a motion to

suppress, we must uphold the court's factual findings if they are

"supported by sufficient credible evidence in the record." State





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v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386

N.J. Super. 208, 228 (2006)). We must give deference to the

findings which are "substantially influenced" by the judge's

"opportunity to hear and see the witnesses and to have the 'feel'

of the case, which a reviewing court cannot enjoy." Id. at 244

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

We reject defendant's contention that the judge erred in

assessing his credibility. The judge had the opportunity to see

and hear Sarkos and defendant testify. The judge found Sarkos's

testimony more credible than defendant's testimony. The judge

rejected defendant's assertion that the officers did not know of

his outstanding warrant until after they entered the room, arrested

defendant, and seized the evidence. The judge properly considered

defendant's admission that he had possessed the PCP and destroyed

it in determining whether his testimony was credible.

III.

Defendant also argues that his sentence is excessive. He

contends the court did not properly balance the aggravating and

mitigating factors. We disagree.

Here, defendant pled guilty and the State agreed to recommend

a ten-year custodial sentence, with fifty-one months of parole

ineligibility. At sentencing, the judge observed that he had

reviewed the pre-sentence report, and was satisfied that the





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negotiated plea agreement was fair to the State and defendant. The

judge stated that, in the interest of justice, he would follow the

recommendations in the plea agreement.

The judge noted that defendant was then forty-three years

old, and soon to be forty-four. He had three prior disorderly

convictions and three indictable convictions, the most serious of

which was for attempted murder in 1990, for which he had received

a twenty-year sentence. Defendant also had been arrested eleven

times in the previous twenty-two years.

The judge found aggravating factors three, N.J.S.A. 2C:44

1(a)(3) (risk that defendant will commit another offense); six,

N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record and the

seriousness of the offenses of which he has been convicted); and

nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others

from violating the law.). The judge found no mitigating factors.

As noted, the judge sentenced defendant to ten years of

incarceration, with fifty-one months of parole ineligibility.

On appeal, defendant argues that other than his conviction

in this matter and his prior criminal record, there was no support

for the court's conclusion that there was a risk that he would

commit another offense. He contends the court impermissibly used

his prior record to support the risk factor, thereby erroneously

double-counting aggravating factors.





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Defendant further argues that the judge gave too much weight

to the need to deter, since that factor applies to all crimes. He

also contends that the judge should have found mitigating factor

eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's incarceration will

result in excessive hardship). He notes that he has one minor

child, and his incarceration will prevent him from making his

previously owed child-support payments.

An appellate court's review of the trial court's "sentencing

decisions is relatively narrow and is governed by an abuse of

discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010).

An appellate court should not set aside a sentence unless (1) the

trial court did not follow the sentencing guidelines; (2) the

court's findings of aggravating and mitigating factors were not

based upon sufficient credible evidence in the record; or (3) the

court's application of the sentencing guidelines to the facts of

the case "shock[s] the judicial conscience." State v. Bolvito, 217

N.J. 221, 228 (2014) (alteration in original) (quoting State v.

Roth, 95 N.J. 334, 364-65 (1984)).