Date: 07-09-2016

Case Style: STATE OF NEW JERSEY VS. FREDERICK COLLAZO

Case Number: A-0307-14T3

Judge: Marianne Espinosa

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Richard T. Burke, Warren County Prosecutor; Kelly Anne Shelton, Assistant Prosecutor

Defendant's Attorney: Joseph E. Krakora, Public Defender; Al Glimis, Assistant Deputy Public Defender

Description: In November 2011, a confidential informant (CI) told
Detective James McDonald of the Phillipsburg Police Department
that defendant was "selling large quantities of ecstasy from his
residence," and provided defendant's street address. The CI
described defendant as "a thin Hispanic male, approximately
5'07" and walks with a distinct limp."
McDonald conducted a New Jersey license inquiry on
defendant, which confirmed that a Frederick Collazo Jr. resided
at the address provided by the CI and produced defendant's
driver's license photograph. A Criminal History Check revealed
defendant had a juvenile and adult record that included multiple
CDS offenses, among other charges.
Law enforcement officers arranged for the CI to make a
"controlled buy" of ecstasy from defendant at his residence on
three separate occasions, during the weeks of December 18, 2011,
December 25, 2011 and January 1, 2012. Each purchase was
carried out in an identical manner. The CI first prearranged to
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purchase a specific number of ecstasy pills from defendant.
McDonald and other officers then met with the CI at an
undisclosed location. The officers searched the CI to ensure
he/she did not possess any money or contraband, then provided
the CI with currency (which had previously been photocopied) for
the purchase, and drove the CI to defendant's residence. The CI
entered the residence and exited a short time later. The CI
then met with officers at a prearranged location.
The CI was kept "under constant surveillance" from drop off
at defendant's residence, entry into and exit from the
residence, until the meeting with law enforcement.
During the post-operational debriefing, the CI informed
officers that defendant "sold him/her the prearranged number of
ecstasy pills." A field test of the pills the CI purchased on
all three controlled buys tested positive for ecstasy.
Following the last controlled buy, McDonald prepared an
affidavit describing his initial communication with the CI and
the subsequent controlled purchases of ecstasy from defendant at
his residence. The affidavit also stated that McDonald had
"been involved in approximately 500 narcotics investigations"
during his career, and included defendant's criminal history.
Based on McDonald's affidavit, a judge issued a search
warrant for defendant's person and residence on January 4, 2012.
A-0307-14T3 4
Police executed the warrant at approximately 5:30 p.m. that same
day.
A search of the residence resulted in the seizure of: a .32
caliber revolver; six .32 caliber shell cartridges; a .177
caliber BB rifle; numerous empty plastic baggies; and ninety
nine pills of suspected ecstasy. The following items were
seized from defendant's person: nine-and-a-half pills of
suspected ecstasy; a plastic baggie containing what was later
confirmed as marijuana; and numerous empty plastic "dime"
baggies. The recovered pills later tested positive for 3,4
Methylenedioxymethcathinone (methylone), a Schedule I CDS.
N.J.S.A. 24:21-5; see 43 N.J.R. 1381(b) (June 6, 2011).
Following the search, defendant was arrested and indicted
on five counts of drug and weapons offenses. He filed a motion
to suppress all evidence seized pursuant to the search warrant
and a motion to compel the State to disclose the identity of the
CI. At oral argument on the motion, defense counsel also argued
that defendant was entitled to an evidentiary hearing to test
the veracity of McDonald's affidavit pursuant to Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
The trial judge denied defendant's motions and denied his
subsequent motion for reconsideration.
A-0307-14T3 5
Defendant pled guilty to two counts of the indictment,
pursuant to a plea agreement and received an aggregate sentence
of five years imprisonment with a five-year-period of parole
ineligibility.
Defendant appeals from his July 14, 2014 judgment of
conviction and raises the following argument for our
consideration:
POINT I
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING ON WHETHER DETECTIVE MCDONALD KNOWINGLY OR RECKLESSLY PROVIDED FALSE STATEMENTS IN HIS SEARCH WARRANT APPLICATION, AND BY FAILING TO CONDUCT AN IN CAMERA REVIEW OF THE EVIDENCE REGARDING THE CONTROLLED DRUG BUYS.[1] IN ANY EVENT, THE AFFIDAVITS FAILED TO PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT'S HOME AND PERSON.
In a pro se supplemental brief, defendant raises the following
arguments:
POINT I
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A FRANKS HEARING ON WHETHER OR NOT DET. MCDONALD
1 Although defendant identified the issue regarding an in camera review in the point headings in the brief submitted by counsel and in his supplemental pro se brief, the argument was never briefed. Accordingly, the issue is deemed waived. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2016).
A-0307-14T3 6
KNOWINGLY OR WITH RECKLESS DISREGARD FOR THE TRUTH PROVIDED FALSE STATEMENTS IN HIS APPLICATION FOR THE SEARCH WARRANT, AND BY FAILING TO CONDUCT AN IN CAMERA REVIEW OF THE EVIDENCE REGARDING THE CONTROLLED BUYS. IN ANY EVENT, THE AFFIDAVITS FAILED TO PROVIDE PROBABLE CAUSE TO SEARCH DEFENDANT'S HOME AND PERSON.
POINT II
IN REQUIRING A PARTICULAR DESCRIPTIONS [SIC] OF THE ARTICLES TO BE SIEZED [SIC] THE 4TH AMENDMENT MAKES GENERAL SEARCHES IMPOSSIBLE & "PREVENTS THE SIEZURE [sic] OF ONE THING UNDER A WARRANT DESCRIBING ANOTHER." AS TO WHAT IS TO BE TAKEN, "NOTHING IS LEFT TO THE OFFICER'S EXECUTING THE WARRANT." UNFETTERED DISCRETION BY THE EXECUTING OFFICERS IS ONE OF THE PRINCIPAL EVILS AGAINST WHICH THE 4TH AMENDMENT PROVIDES PROTECTION. AND THUS WARRANTS THAT LACK PARTICULARITY ARE PROHIBITED. THE FIREARM MUST BE SUPPRESSED BECAUSE IT FAILS TO MEET THE PARTICULARITY REQUIREMENT IN THE WARRANT CLAUSE.
POINT III
THE COURT ERRED IN DENYING DEFENDANTS MOTION TO COMPELL [sic] THE IDENTITY OF THE CONFIDENTIAL INFORMANT.
POINT IV
EVIDENCE AND STATEMENTS RECOVERED DURING SEARCH [sic] MUST BE HELD AS INADMISSIBLE AS THE "FRUITS OF
A-0307-14T3 7
THE POISONOUS TREE." NO PROBABLE CAUSE EXISTED TO SUPPORT SEARCH.
II.
Defendant argues that the motion to suppress should have
been granted because the search warrant was not supported by
probable cause. Namely, defendant contends that the warrant
affidavit provided insufficient background information
concerning the CI's past reliability, and failed to indicate
whether the CI "was addicted to drugs, was paid for [his/her]
information or [was] given consideration for pending criminal
charges." We do not agree.
"It is well settled that a search executed pursuant to a
warrant is presumed to be valid and . . . 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." State v. Jones, 179
N.J. 377, 388 (2004) (citation omitted). The evaluation of
probable cause involves consideration of the "totality of the
circumstances when assessing the reasonable probabilities that
flow from the evidence submitted in support of a warrant
application." State v. Chippero, 201 N.J. 14, 27 (2009).
"[S]ubstantial deference must be paid by a reviewing court to
the determination of the judge who has made a finding of
probable cause to issue a search warrant." State v. Evers,
A-0307-14T3 8
175 N.J. 355, 381 (2003). Any "[d]oubt as to the validity of
the warrant should ordinarily be resolved by sustaining the
search." State v. Keyes, 184 N.J. 541, 554 (2005) (citation
omitted).
"Information related by informants may constitute a basis
for probable cause, provided that a substantial basis for
crediting that information is presented." Jones, supra, 179
N.J. at 389. A controlled buy of narcotics based upon an
informant's tip "typically will be persuasive evidence in
establishing probable cause." State v. Sullivan, 169 N.J. 204,
217 (2001). While the fact that a controlled buy occurred may
not conclusively demonstrate the existence of probable cause for
the issuance of the warrant, "even one additional circumstance
might suffice." Jones, supra, 179 N.J. at 392; see Keyes,
supra, 184 N.J. at 556 ("[R]elevant corroborating facts may
include a controlled drug buy performed on the basis of the tip,
positive test results of the drugs obtained, records confirming
the informant's description of the target location, the
suspect's criminal history, and the experience of the officer
who submitted the supporting affidavit.").
We find no basis to second-guess either the judge who
issued the search warrant or the motion judge. Significantly,
there were three separate controlled buys of pills that were
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field tested and found to be ecstasy over a three-week period.
The number of purchases over this period of time was potent
support for finding probable cause that defendant was engaged in
selling drugs and that there were drugs at his residence. While
the CI may have been assisting the police for the first time,
the affidavit established that the very specific information
provided - namely the house from which the drugs were being
sold, defendant's identity, and his description - were confirmed
by Detective McDonald. McDonald's extensive experience in
narcotics investigations and defendant's criminal history were
additional factors supporting the issuance of the warrant.
We therefore conclude that there was probable cause to
issue the search warrant and sufficient evidence in the record
to support the denial of defendant's motion to suppress. As a
result, we need not address the argument raised in Point IV of
defendant's supplemental pro se brief.
III.
Defendant also claims that an evidentiary hearing on his
motion to suppress was required because "the police did not
adhere to their own established procedures for the preservation
of drugs allegedly purchased by the CI." We disagree.
Under Franks, supra, a defendant is entitled to an
evidentiary hearing to challenge the veracity of a warrant
A-0307-14T3 10
affidavit. However, in order to necessitate a Franks hearing,
the defendant must make "a substantial preliminary showing" that
specific statements contained in the affidavit were "knowingly
and intentionally" false or made with "reckless disregard for
the truth." Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at
2676, 57 L. Ed. 2d at 672. In addition, the defendant must show
that without these material misstatements, the search warrant
fails for lack of probable cause. Ibid.
"The requirement of a substantial preliminary showing" is
intended "to prevent the misuse of a veracity hearing for
purposes of discovery or obstruction." Id. at 170, 98 S. Ct. at
2684, 57 L. Ed. 2d at 681. Accordingly, the defendant's "attack
must be more than conclusory and must be supported by more than
a mere desire to cross examine." Id. at 171, 98 S. Ct. at 2684,
57 L. Ed. 2d at 681. "[A]llegations of deliberate falsehood or
of reckless disregard for the truth . . . must be accompanied by
an offer of proof." Id. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d
at 682. The defendant must provide "[a]ffidavits or sworn or
otherwise reliable statements of witnesses," or satisfactorily
explain their absence. State v. Broom-Smith, 406 N.J. Super.
228, 240-41 (App. Div. 2009) (quoting Franks, supra, 438 U.S. at
171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682), aff'd, 201 N.J.
229 (2010).
A-0307-14T3 11
We are satisfied that defendant failed to establish
entitlement to a Franks hearing. Defendant does not identify
any specific false statement. Rather, he argues the police did
not follow proper procedures in maintaining the chain of custody
for the ecstasy purchased during the second controlled buy,2 and
suggests this casts doubt upon the veracity of the statements
provided by McDonald in the warrant affidavit. However,
"whether the police maintained an adequate chain of custody in
getting the drugs to the laboratory [is] irrelevant to the
validity of the warrant." Id. at 240.
Franks refused "to extend the rule of exclusion beyond
instances of deliberate misstatements, and those of reckless
disregard," and made clear that it does not encompass "instances
where police have been merely negligent in checking or recording
the facts relevant to a probable-cause determination." Franks,
supra, 438 U.S. at 170, 98 S. Ct. at 2683, 57 L. Ed. 2d at 681;
see Broom-Smith, supra, 406 N.J. Super. at 240 ("[A] Franks
hearing is not directed at picking apart minor technical
problems with a warrant application; it is aimed at warrants
obtained through intentional wrongdoing by law enforcement
2 In July 2013, McDonald discovered a department evidence bag containing the ecstasy from the second controlled buy "locked in the bottom right drawer of [his] desk." He "immediately notified" his supervisor and the Warren County Prosecutor's Office Narcotics Task Force.
A-0307-14T3 12
agents and requires a substantial preliminary showing.").
Because defendant failed to make the necessary "substantial
preliminary showing," a Franks hearing was not required.
IV.
In Point III of his supplemental pro se brief, defendant
argues that the identity of the CI should have been disclosed
because the CI was "substantially active in providing
information to law inforcement [sic] and effectuating the
'controoled [sic] buys' that were the main substance of Det.
McDonald's Affidavit." We again disagree.
The State "has a privilege to refuse to disclose the
identity of a person who has furnished information purporting to
disclose a violation . . . of the law[]." N.J.R.E. 516;
N.J.S.A. 2A:84A-28. The privilege is not absolute and will not
apply "where the defendant can show that the testimony of the
informer is essential to preparing his defense or to assuring a
fair determination of the issues." State v. Milligan,
71 N.J. 373, 390 (1976); N.J.R.E. 516(b). To warrant
disclosure, the defendant must demonstrate the materiality of
the informer's identity or testimony. Milligan, supra, 71 N.J.
at 383-84. In order to do so, the defendant must provide
"[s]omething more than speculation," and courts "should not
honor frivolous demands for information on unsubstantiated
A-0307-14T3 13
allegations of need." Id. at 393. Absent such a strong
showing, "courts will generally deny a request for disclosure."
State v. Florez, 134 N.J. 570, 578 (1994).
Disclosure is also required when "the informer is an active
participant in the crime for which [the] defendant is
prosecuted." State v. Foreshaw, 245 N.J. Super. 166, 180-81
(App. Div.) (citation omitted), certif. denied, 126 N.J. 327
(1991). However, unless there is, again, "a strong showing of
need, courts generally deny disclosure where the informer plays
only a marginal role, such as providing information or 'tips' to
the police or participating in the preliminary stage of a
criminal investigation." Id. at 181 (quoting Milligan, supra,
71 N.J. at 387). The mere fact that an informant was active in
providing information to police, setting up and completing the
buy is not, by itself, sufficient reason to disclose the
informant's identity. See State v. Brown, 170 N.J. 138, 148-50
(2001).
Here, defendant has not made a strong showing of need as
the CI only played a role in the "preliminary stages" of the
criminal investigation. The CI's participation was limited to
providing the initial tip to law enforcement and participating
in the three controlled buys, before the seizure of the CDS and
weapons on January 4, 2012, in which the CI did not participate.
A-0307-14T3 14
Any claimed need by defendant for the CI's identity to test his
or her reliability is speculative, and speculation simply does
not rise to the level of a "strong showing of need" necessary to
overcome the presumption of confidentiality and compel
disclosure.

Outcome:

We do not reach the merits of the numerous additional
arguments regarding McDonald's affidavit and the search warrant
presented in defendant's brief and supplemental pro se brief
that were not raised below. See State v. Robinson, 200 N.J. 1,
20-22 (2009). "[A]ppellate courts will decline to consider
questions or issues not properly presented to the trial court
when an opportunity for such a presentation [was] available
unless the questions so raised on appeal go to the jurisdiction
of the trial court or concern matters of great public interest."
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
(citation omitted). The issues raised by defendant for the
first time on appeal3 do not fall within those exceptions.

Affirmed.