RAHSAAN RIDDICK, JR. VS. TOWNSHIP OF JACKSON(L-728-14, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 26, 2017
• Docket: A-1225-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1265-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND WADE,

Defendant-Appellant.

_________________________________

Submitted January 9, 2017 – Decided February 22, 2017

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 14-11-2652 and 15-06-1364.

Triarsi, Betancourt, Wukovits & Dugan, LLC, attorneys for appellant (Howard P. Lesnik, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raymond Wade is serving a seven-year prison

sentence for unlawfully possessing a handgun. Police found the gun and other contraband while searching a hotel room after

obtaining a warrant authorizing the search. Defendant

unsuccessfully moved to suppress the gun and other contraband, and

pled guilty to the weapons offense. In an attempt to have his

conviction overturned, he argues these points on this appeal:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS.

POINT II

NO CONSENT WAS OBTAINED FROM THE DEFENDANT AND THE ENSUING . . . SEARCH IS VOID.

POINT III

THE CONSENT WAS NOT VOLUNTARY AND IS VOID.

POINT IV

THE SEARCH WARRANT IS INVALID AND THEREFORE, THE SEARCH IS ILLEGAL AND UNCONSTITUTIONAL.

We conclude the warrant is valid, so we affirm.

On November 3, 2014, an Essex County Grand Jury returned an

indictment charging defendant with second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b), fourth-degree

possession of hollow nose bullets, N.J.S.A. 2C:39-3(f), and

fourth-degree possession with intent to distribute drug

paraphernalia, N.J.S.A. 2C:36-3. On the same day, the grand jury

returned a second indictment charging defendant with second-degree

2 A-1265-15T3 certain persons not to have weapons, N.J.S.A. 2C:39-7(a). On June

16, 2015, the grand jury returned a superseding indictment charging

defendant with first-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(a).1

Defendant moved to suppress the handgun, evidence, and drug

paraphernalia. The trial court denied the motion. Defendant

later pled guilty to the amended charge of second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(a). In exchange,

the State agreed to dismiss the first three-count indictment, not

seek an extended-term sentence, and recommend a seven-year

custodial term with forty-two months of parole ineligibility. The

trial court sentenced defendant according to these terms and

ordered him to pay appropriate penalties and assessments.

Defendant appealed.

The trial court did not hold an evidentiary hearing on

defendant's suppression motion but instead decided the motion

after considering the parties' briefs and oral arguments. The

parties based the facts in their briefs on the indictments, a

police incident report, a municipal court document, and the search

warrant documents. These documents establish the following facts.

1 The parties apparently neither explained nor questioned the indictment charging N.J.S.A. 2C:39-7(a) as a first-degree offense.

3 A-1265-15T3 On the morning of June 18, 2014, Newark Detective Richard

Weber applied to the court for a warrant to search defendant's

residence. In his affidavit, he detailed his training and

attested to the following facts. The previous day, June 17, 2014,

Narcotics and Gang Division Detectives met with a reliable

confidential informant (CI). In the past, the CI had given the

police information that led to numerous arrests and convictions.

During the June 17 meeting, the CI told detectives a black

male, identified as defendant, was selling marijuana from a four-

door silver Buick Century bearing a New Jersey registration. The

CI said Wade was approximately six feet tall, weighed more than

200 pounds, and resided at a hotel in Newark (the hotel). The CI

identified the hotel by name. According to the CI, defendant used

a room at the hotel to package and store large amounts of

marijuana. The CI also said defendant was known to carry a

firearm, and if he did not possess the firearm while selling

marijuana on South 20th Street, the firearm might be in his hotel

room.

To confirm what the CI had told them, detectives drove by the

hotel and observed a vehicle that matched the CI's description.

The detectives checked the registration and confirmed the vehicle

was a four-door 2001 silver Buick owned by defendant.

4 A-1265-15T3 Later, the detectives set up surveillance of the hotel, but

the Buick was no longer there. Some of the detectives drove to

South 20th Street between Springfield Avenue and 19th Avenue. Upon

their arrival, "several suspicious males . . . quickly dispersed

due to [the detectives'] presence." At approximately 2:00 p.m.,

Detective Weber spotted the unoccupied silver Buick parked on the

east side of South 20th Street.

Detective Weber and Sergeant Nunez set up surveillance at a

location where they had a clear view of both sides of South 20th

Street from Springfield Avenue to 19th Avenue. They also had a

clear view of the silver Buick. The other detectives left the

area and positioned themselves for immediate response, if

required.

Almost immediately thereafter, heavy vehicle traffic began

accumulating on 20th Street — a distance from the parked Buick —

and several suspicious males engaged in conversations and made

suspicious transactions. Moments later, the officers saw a black

male wearing a v-neck t-shirt, blue jeans, and white sneakers,

with a white hand towel over his head, later identified as

defendant, at the location where they had observed the suspicious

transactions. The officers observed defendant make several

transactions with various vehicles. In each instance, the vehicles

would stop and pull over near defendant's location. He retrieved

5 A-1265-15T3 unknown objects from a grass and dirt area elevated by a retaining

wall. He would then return to the pulled over vehicles and

exchange the unknown items for what appeared to be currency.

According to Detective Weber's affidavit, "[a]fter conducting

several similar transactions, [defendant] apparently needed to

replenish his 'stash' (street terminology for a temporary

concealed location to store narcotics for the purpose of

distributing and/or selling C.D.S.)." The officers observed him

walk to the silver Buick and enter the driver's door. Defendant

tampered with the glove compartment, and after a brief moment,

exited the Buick holding multiple items in both hands. As

defendant got closer to the location of the previous transactions,

the detectives recognized the items as bags of suspected marijuana.

Defendant walked to the location where the previous

transactions had occurred and placed the bags under a piece of

concrete in the elevated grass and dirt area. The detectives

watched defendant as he made several more transactions and

retrieved additional items from the Buick. Based on these

observations, detectives ordered the backup units to arrest

defendant. A search incident to his arrest uncovered a remote

key, a room key with a brass tag number of "332," and hotel

receipts reflecting his name, room number 332, and a Visa credit

card.

6 A-1265-15T3 While backup units were arresting defendant, Sergeant Nunez

retrieved from beneath the piece of concrete in the elevated grass

and dirt area eleven blue-tinted Ziploc bags of suspected

marijuana.

Detective Weber stated in his affidavit that defendant

acknowledged his Miranda2 rights, "which were read to him." When

asked where he lived, defendant said he "stayed with a girl at

[the hotel] in room [#]322." After being informed his Buick would

be "towed for forfeiture process," defendant granted the officers

permission to retrieve the registration and insurance card for the

purpose of a tow. Upon retrieving these documents, the officers

found twenty-two Ziploc bags of suspected marijuana in the glove

compartment, consistent with the eleven bags of suspected

marijuana recovered from beneath the concrete on 20th Street.

Police transported defendant to be processed and had the

Buick towed to headquarters pending forfeiture proceedings.

Detectives Weber and J. Cosgrove drove to the hotel, where they

spoke to the manager. The manager confirmed defendant rented room

332 and had been staying at the hotel since April 2014. Defendant

was scheduled to stay through June 20, 2014. The manager produced

documentation, told the detectives there was only one key for the

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

7 A-1265-15T3 room, and said he was unaware of anyone else residing in the room

with defendant.

Detective Weber provided detailed information about the hotel

as well as other information concerning matters not relevant to

the issues presented on appeal.

The incident report contained essentially the same

information as the affidavit submitted with the request for the

search warrant. Defendant does not appear to dispute the facts

in the affidavit, though he challenges the validity of the "search"

of his car's glove compartment based on the facts set forth in the

warrant and incident report.3

Before the trial court, defendant asserted the detectives did

not read him his Miranda rights and he did not consent to the

search of his car. He also argued he was never presented with any

Miranda or consent forms. Moreover, even if police had presented

such forms, defendant alleged he was already in custody, rendering

his consent coerced and invalid. Based on those assertions,

defendant argued the affidavit submitted in support of the warrant

"sets forth facts gleaned during the unconstitutional and illegal

3 Defendant does not appear to dispute the facts found by the court. In fact, with the exception of the identity of the man with whom defendant was conversing when the detectives first spotted him, the statement of facts in defendant's appellate brief are based on the trial court's findings of fact and the affidavit.

8 A-1265-15T3 search of [his] vehicle. Therefore, as the facts and evidence set

forth in the affidavit . . . were illegally obtained, the search

warrant accordingly is invalid."

Judge Alfonse J. Cifelli rejected defendant's arguments. In

an oral decision delivered June 8, 2015, the judge determined

defendant failed to demonstrate the search authorized by the

warrant was unlawful. After carefully reviewing the facts and the

law, Judge Cifelli explained that for allegedly false statements

in an affidavit supporting a warrant to be material, the affidavit

must no longer contain facts sufficient to establish probable

cause when the allegedly false statements are excised. Judge

Cifelli concluded that, contrary to defendant's arguments,

probable cause for the issuance of the search warrant was clearly

not provided from the interrogation of the defendant and/or from

the search of defendant's automobile, but rather from the other

information set forth in the affidavit.

We affirm, substantially for the reasons given by Judge

Cifelli in his opinion. We add only the following. A defendant

who seeks to overcome the presumption of validity accorded an

affidavit supporting a search warrant must demonstrate the

affidavit contains materially false information:

There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary

9 A-1265-15T3 hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient . . . . Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.

[Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85, 57 L. Ed. 2d 667, 682 (1978) (footnote omitted).]

A defendant must make this showing by a preponderance of the

evidence. State v. Howery, 80 N.J. 563, 567-68, cert. denied, 444

U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

Here, as Judge Cifelli explained, even if the detectives'

questioning of defendant and search of his car's glove compartment

are excised, the remaining content of Detective Weber's affidavit

amply established probable cause for the issuance of the warrant.

10 A-1265-15T3 Because the material facts are largely undisputed, the judge did

not abuse his discretion in denying defendant's motion to suppress

without an evidentiary hearing. State v. Frank, 280 N.J. Super.

25, 43 (App. Div. 1995). Defendant's arguments are without

sufficient merit to warrant further discussion in a written

opinion. R. 2:11-3(e)(2).

Affirmed.

11 A-1265-15T3