NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1196-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICARDO MOISE, a/k/a RICARDO B. MOISE,
Defendant-Appellant. _______________________
Submitted August 13, 2024 – Decided August 20, 2024
Before Judges Firko and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 15-10-1147, 21-08-0578, and Accusation No. 22-07-0157.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Theresa L. Hilton, Acting Mercer County Prosecutor, attorney for respondent (Erin C. McGlynn, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Ricardo Moise appeals from an October 18, 2016 Law Division
order denying his motion to suppress without first conducting a Franks1 hearing
based on factual inaccuracies he contends were contained in the affidavit in
support of the search warrants issued. Having considered the record in light of
the applicable law, we reject defendant's argument and affirm.
I.
We begin our discussion with the material facts distilled from Mercer
County Detective Jessica Plumeri's June 2, 2015 thirty-two-page affidavit filed
in support of the search warrants that led to the seizure of heroin and weapons
from residences and vehicles utilized by defendant. Following a four-month
narcotics investigation involving heroin distribution in Trenton, in February
2015, Plumeri obtained information from a "reliable" confidential informant
(CI) regarding the illegal distribution of heroin by an individual known to the
CI as "Jay," who was later identified as defendant.
Plumeri applied for search warrants for: the persons of defendant and co-
defendant Troy Singletary; the premises of 88 Evans Avenue and 320 Ardmore
Avenue, including a detached garage, in Trenton; 43 Western Avenue,
apartment number four, in Ewing Township (defendant's mother's residence);
1 Franks v. Delaware, 438 U.S. 154 (1978). A-1196-22 2 and four vehicles—a black Jeep Grand Cherokee, a Dodge Magnum, an Audi
Q7, and a Mercury Sable.
In her affidavit in support of the search warrants, Plumeri stated that the
CI worked for the Mercer County Prosecutor's Office, Special Investigat ions
Unit in the past, and provided information leading to the arrest of individuals
for drug offenses. According to Plumeri's affidavit, the CI advised her that
defendant was selling "large quantities of heroin" and using a residence in
Levittown, Pennsylvania, his mother's residence, and the garage at 320 Ardmore
Avenue to "stash" his heroin and firearms. Plumeri stated the CI described
defendant as a "black male," five-feet-nine inches tall, and weighing
approximately 160 pounds.
The CI gave Plumeri the cell phone number defendant used to
communicate with his customers to arrange drug transactions. The CI told
Plumeri that defendant used "runners" to obtain heroin from his stash locations
who delivered the heroin to customers at defendant's direction. The CI advised
Plumeri that the CI purchased heroin from defendant during the past year.
Plumeri also stated that the CI indicated to her that defendant used
vehicles, which are equipped with "traps"—secret compartments built into the
vehicles—to stash heroin and firearms. The CI identified the Jeep Grand
A-1196-22 3 Cherokee and Dodge Magnum as the vehicles defendant used for his drug
dealings. The Jeep Grand Cherokee is registered to defendant's mother at the
Ewing address and the Dodge Magnum is registered to an individual at
defendant's Levittown address.
In February 2015, Plumeri obtained a photograph of defendant from the
New Jersey Motor Vehicle Commission and showed it to the CI, who made a
positive identification of defendant. That month, Plumeri and the CI set up a
controlled heroin purchase from defendant. Mobile surveillance showed
defendant driving the Jeep Grand Cherokee from 88 Evans Avenue to the
driver's side window of the CI's vehicle and handing the CI an object. Defendant
returned to 88 Evans Avenue. The CI turned over the suspected heroi n to
Plumeri, which field tested positive for heroin.
With assistance from the CI, Plumeri arranged to purchase heroin from
defendant. The CI provided Plumeri with defendant's cell phone number. On
February 27, 2015, Plumeri sent a text message to defendant about meeting to
purchase a brick of heroin and confirming the price was $180. Defendant
responded to her by text message that the price was $200, but he would "let [her]
go dis time."
A-1196-22 4 Plumeri met defendant, recognized him, and purchased the heroin. The
transaction was videotaped. During the next three months, Plumeri made six
more undercover heroin purchases from defendant, as detailed in her affidavit.
According to Plumeri, defendant either drove the Jeep Grand Cherokee or the
Dodge Magnum when the drug transactions occurred. Her investigation
revealed defendant lived at 43 Western Avenue in Ewing.
On October 14, 2015, defendant was charged under indictment number
15-10-1147 with two counts of third-degree possession of a controlled
dangerous substance ("CDS"), N.J.S.A. 2C:35-10(a)(1) (counts one and
thirteen); one count of second-degree possession of a CDS with intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); one count of third-
degree possession of a CDS with intent to distribute on or near school property,
N.J.S.A. 2C:35-7 and -5(a)(1) and (b)(2) (count three); one count of second-
degree possession of a CDS with intent to distribute on or near a public facility,
N.J.S.A. 2C:35-7.1(a) and -5(a)(1) and (b)(2) (count four); one count of second-
degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-
4.1(a) (count five); two counts of second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b) (counts six and seven); one count of fourth-degree
possession of hollow nose bullets, N.J.S.A. 2C:39-3(f)(1) (count eight); one
A-1196-22 5 count of fourth-degree possession of a large capacity ammunition magazine,
N.J.S.A. 2C:39-3(j) (count nine); two counts of fourth-degree possession of a
defaced firearm, N.J.S.A. 2C:39-3(d) (counts ten and eleven); one count of third-
degree theft by receiving stolen property, N.J.S.A. 2C:20-7 (count twelve); one
count of third-degree possession of a CDS with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and (b)(3) (count fourteen); one count of third-degree possession
of a CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7
and -5(a)(1) and (b)(3) (count fifteen); one count of second-degree possession
of a CDS with intent to distribute on or near a public facility, N.J.S.A. 2C:35 -
7.1(a) and -5(a)(1) and (b)(3) (count sixteen); one count of fourth-degree
possession of a CDS, N.J.S.A. 2C:35-10(a)(3) (count seventeen); one count of
third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and (b)(11) (count eighteen); one count of third-degree possession of a
CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7 and
-5(a)(1) and (b)(11) (count nineteen); one count of second-degree possession of
a CDS with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1(a)
and -5(a)(1) and (b)(11) (count twenty); seven counts of third-degree
distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts twenty-two,
twenty-three, twenty-four, twenty-seven, twenty-eight, thirty-one, and thirty-
A-1196-22 6 four); three counts of third-degree distribution of CDS on or near school
property, N.J.S.A. 2C:35-7 and -5(a)(1) and (b)(3) (counts twenty-five, twenty-
nine, and thirty-two); three counts of second-degree distribution of a CDS on or
near a public facility, N.J.S.A. 2C:35-7.1 and -5(a)(1) and (b)(3) (counts twenty-
six, thirty, and thirty-three); and one count of second-degree certain person not
to possess a firearm, N.J.S.A. 2C:39-7(b)(1) (count thirty-five).2
Defendant moved to suppress physical evidence and for a Franks hearing
pertaining to indictment number 15-10-1147. The court denied the motion in its
October 18, 2016 order and accompanying oral opinion. The court reasoned that
the discrepancies in defendant's height and weight were minor and insignificant
because "the difference between five-feet-seven and five-feet-nine could be
determined . . . [by] shoes one wears," and the twenty-pound weight discrepancy
was "subjective" and can "vary depending on when the person is viewed."
Regarding defendant's date of birth, the court noted it was only misstated once
in Plumeri's affidavit and was accurately stated in the search warrants.
In support of its findings, the court highlighted that Plumeri showed the
CI a known photo of defendant, and the CI identified that individual as the man
the CI "definitely" purchased drugs from. Therefore, the court found there was
2 Count twenty-one does not apply to this defendant. A-1196-22 7 no material falsity surrounding defendant's identification. In addition, the court
noted that Plumeri represented she personally purchased heroin from defendant
during her undercover investigation.
The court emphasized that Plumeri conducted approximately "seven or
eight undercover buys herself, hand-to-hand transactions with . . . defendant."
The court found it was "more than likely" that the warrant-issuing judge "gave
great weight to the affiant"—Plumeri—who personally conducted the stated
transactions with defendant "as opposed to relying solely upon the reliability of
the [CI]."
The court also rejected defendant's argument that the CI's reliability was
not established or demonstrated. Relying on Plumeri's affidavit, the court
determined she represented the CI "worked for the Mercer County Prosecutor's
Office Special Investigation[s] Unit in the past and ha[d] provided information
that has led to the arrest of individuals for [CDS] offenses." In addition, the
court noted that the CI provided "reliable" information in the instant case based
"on personal knowledge."
The court highlighted Plumeri attesting to the CI purchased heroin from
defendant "on several occasions during the last year," and that the CI observed
defendant "in possession of a handgun, specifically in his waistband on several
A-1196-22 8 occasions." During a controlled buy in February 2015 between defendant and
Plumeri, officers observed defendant operating a black Jeep Grand Cherokee
exiting and returning to 88 Evans Avenue. The court noted there was "ample
probable cause to connect defendant" to the addresses listed in the search
warrants. The court concluded the CI's information was therefore
"corroborated."
The court also concluded a Franks hearing was unnecessary as defendant
did not establish that the statements in Plumeri's affidavit were willfully false,
intentionally misleading, or made in reckless disregard of the truth. The court
rejected defendant's assertion that he did not use the stated properties as stash
houses or sell drugs from there because these claims were stated in defendant's
counsel's certification in support of the motion. The court determined defense
counsel did not have "firsthand knowledge" of the facts and only provided
"conclusionary statements" in support of defendant's contentions.
The court found defendant only presented "sheer conjecture" in support of
his motion for a Franks hearing and did not supply any "reliable statements from
witnesses attesting to firsthand knowledge" of the facts. In addition, the court
noted defendant did not supply an affidavit or clarification indicating his height
or weight. A memorializing order was entered.
A-1196-22 9 On August 6, 2021, defendant was charged under indictment number 21-
08-0578 with one count of second-degree conspiracy to possess a CDS with
intent to distribute, N.J.S.A. 2C:5-2(a)(1), 2C:35-5(a)(1), (b)(1), and (b)(4)
(count fifty-seven).3 Defendant was also charged under accusation number 22-
07-0157 with one count of third-degree financial facilitation of criminal activity,
N.J.S.A. 2C:21-25(c).
At his plea hearing, defendant pled guilty to count two of indictment
number 15-10-1147, count fifty-seven of indictment number 21-08-0578, and
the one count charged in accusation number 22-07-0157. The court considered
the applicable aggravating and mitigating factors and sentenced defendant to an
aggregate ten-year term of imprisonment, which was four years less than the
State recommended in accordance with the plea agreement. The remaining
counts of the indictments as to defendant were dismissed. This appeal followed.
On appeal, defendant raises the following sole contention for our
consideration:
THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY FRANKS HEARING BECAUSE DEFENDANT HAS MADE A SUBSTANTIAL PRELIMINARY SHOWING THAT THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT
3 The other counts of indictment number 21-08-0578 charged co-defendants and are not germane to this appeal. A-1196-22 10 CONTAINED MATERIAL FALSITIES NECESSARY TO THE FINDING OF PROBABLE CAUSE.
II.
Defendant maintains the police improperly searched him, the properties,
and vehicles, contrary to the Fourth Amendment of the United States
Constitution and Article I, Paragraph 7 of the New Jersey Constitution. In
support, defendant argues Plumeri failed to include sufficient corroborative facts
to establish the CI's reliability and the basis of the CI's knowledge.
Specifically, defendant contends Plumeri's affidavit contained "numerous
factual inaccuracies" that "undermine" the finding of probable cause to justify
the searches conducted. Defendant asserts the CI's description of him was
incorrect because the CI described defendant as "[five-feet-nine inches] and 160
pounds" when he is actually "[five-feet-seven inches] and 140 pounds."
Defendant argues the CI claimed defendant was known as "Jay," but he does not
use that name.
Defendant contends that Plumeri incorrectly attested to his date of birth
in her affidavit. Defendant also maintains Plumeri's affidavit mistakenly
describes the alleged transactions with the CI. According to defendant, he never
used the addresses set forth in Plumeri's affidavit as "stash houses," never sold
A-1196-22 11 drugs from these locations, and never invited individuals to these locations.
Defendant contends the court erred in denying his motion for a Franks hearing.
We employ a deferential standard when reviewing a trial court's ruling on
a motion to suppress. State v. Zalcberg, 232 N.J. 335, 344 (2018). The trial
court's factual and credibility findings will be set aside "only when [the] court's
findings of fact are clearly mistaken . . . [and] the interests of justice require the
reviewing court to examine the record, make findings of fact, and apply the
governing law." Ibid. (alterations in original) (quoting State v. Hubbard, 222
N.J. 249, 262-63 (2015)). That deferential standard is extended to encompass
"factual findings based on . . . documentary evidence." State v. S.S., 229 N.J.
360, 381 (2017). We use a de novo standard to review legal issues. Id. at 380.
As our Court stressed in State v. Andrew, "reviewing courts 'should pay
substantial deference' to judicial findings of probable cause in search warrant
applications." 243 N.J. 447, 464 (2020) (quoting State v. Kasabucki, 52 N.J.
110, 117 (1968)).
"A search that is executed pursuant to a warrant is 'presumptively valid,'
and a defendant challenging the issuance of that warrant has the burden of proof
to establish a lack of probable cause 'or that the search was otherwise
unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v.
A-1196-22 12 Watts, 223 N.J. 503, 513-14 (2015)). "[A]n appellate court's role is not to
determine anew whether there was probable cause for issuance of [a] warrant,
but rather, whether there is evidence to support the finding made by the warrant -
issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). Reviewing courts
"accord substantial deference to the discretionary determination resulting in the
issuance of [a] warrant." State v. Marshall, 123 N.J. 1, 72 (1991).
"Courts consider the 'totality of the circumstances' and should sustain the
validity of a search only if the finding of probable cause relies on adequate
facts." Boone, 232 N.J. at 427 (quoting State v. Jones, 179 N.J. 377, 388-89
(2004)). "[T]he probable cause determination must be . . . based on the
information contained within the four corners of the supporting affidavit, as
supplemented by sworn testimony before the issuing judge that is recorded
contemporaneously." Ibid. (alteration in original) (quoting State v. Marshall,
199 N.J. 602, 611 (2009)).
As noted, defendant challenges the search of the locations and vehicles
resulting in the seizure of heroin and weapons based on his claim that Plumeri's
affidavit supporting the search warrants failed to demonstrate the CI's reliability
and basis of the CI's knowledge. We disagree.
A-1196-22 13 Information related by informants may constitute a basis for probable
cause, provided sufficient support for crediting that information is presented.
State v. Sullivan, 169 N.J. 204, 212 (2001); State v. Smith, 155 N.J. 83, 92
(1998). "'[T]he issuing court must consider the "veracity and basis of
knowledge" of the informant[,]'" State v. Keyes, 184 N.J. 541, 555 (2005)
(quoting Jones, 179 N.J. at 389), as well as law enforcement's ability to
corroborate the tip, id. at 556.
Under the first factor, although not conclusive, an informant's past
reliability can be probative of veracity. Sullivan, 169 N.J. at 213. Under the
second factor, we consider whether the informant can demonstrate that he or she
received the information in a reliable way, and in the absence of such disclosure,
whether the informant's tip is sufficiently detailed. Ibid.
If there is a deficiency as to either factor, such deficiency may be
overcome by a "strong showing as to the other, or by some other indicia of
reliability." State v. Zutic, 155 N.J. 103, 111 (1998). Even "if the informant's
tip fails to demonstrate sufficient veracity or basis of knowledge, a search
warrant issued on the basis of the tip may still pass muster if other facts included
in a supporting [police] affidavit justify a finding of probable caus e." Jones,
179 N.J. at 390.
A-1196-22 14 Our Supreme Court has stated that "past instances of reliability may
establish the informant's veracity." State v. Ebron, 61 N.J. 207, 212-13 (1972).
Indeed, an informant's veracity can be supported by information that the
informant has "proven reliable in several investigations (with the information he
[or she] supplied)." State v. Novembrino, 105 N.J. 95, 123 (1987). Our Court
has cautioned, however, that "[a] few past instances of reliability do not
conclusively establish an informant's reliability." Smith, 155 N.J. at 94.
A CI's "basis of knowledge is relevant to a determination that the
information was obtained in a reliable way." Ibid. The CI must provide
sufficient details such that the warrant-issuing judge knows he or she is "relying
on something more substantial than a casual rumor circulating in the underworld
or an accusation based merely on an individual's general reputation."
Novembrino, 105 N.J. at 113 (quoting Spinelli v. U.S., 393 U.S. 410, 416
(1969)). Where police lack such detailed information however, "[i]ndependent
corroboration is necessary to ratify the informant's veracity and validate the
truthfulness of the tip." Smith, 155 N.J. at 95. Moreover, "[b]ecause the
information contained in a tip is hearsay, police corroboration of that
information 'is an essential part of the determination of probable cause.'"
Sullivan, 169 N.J. at 213.
A-1196-22 15 "[R]elevant [corroborating] factors may include controlled drug purchases
performed on the basis of the informative tip, the positive test results of
narcotics obtained . . . [,] the experience of the officer who submitted the
supporting affidavit, and the suspect's criminal history." Jones, 179 N.J. at 390-
91. While no one corroborating fact conclusively establishes probable cause, a
successful controlled buy "typically will be persuasive evidence in establishing
probable cause." Keyes, 184 N.J. at 556 (quoting Jones, 179 N.J. at 392). If the
police have conducted a successful controlled buy, our Supreme Court has held
"even one additional circumstance might suffice, in the totality of the
circumstances, to demonstrate probable cause." Jones, 179 N.J. at 392.
Where, as here, a defendant challenges the veracity of a search warrant
affidavit, a Franks hearing is required only "where the defendant makes a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and if the allegedly false statement is necessary to the
finding of probable cause[.]" Franks, 438 U.S. at 155-56. The defendant "must
allege 'deliberate falsehood or reckless disregard for the truth,' pointing out with
specificity the portions of the warrant that are claimed to be untrue." State v.
Howery, 80 N.J. 563, 567 (1979) (quoting Franks, 438 U.S. at 171).
A-1196-22 16 Further, a defendant's allegations should be supported by affidavits or
other reliable statements; "[a]llegations of negligence or innocent mistake are
insufficient." State v. Broom-Smith, 406 N.J. Super. 228, 241 (App. Div. 2009)
(quoting Franks, 438 U.S. at 171). The allegations "must be proved by a
preponderance of the evidence." Howery, 80 N.J. at 568.
A defendant must also demonstrate that absent the alleged false
statements, the search warrant lacks sufficient facts to establish probable cause.
Ibid. ("[T]he misstatements claimed to be false must be material to the extent
that when they are excised from the affidavit, that document no longer contains
facts sufficient to establish probable cause."); see also State v. Goldberg, 214
N.J. Super. 401, 406 (App. Div. 1986) ("[B]efore a defendant is entitled to an
evidentiary hearing to challenge the veracity of the contents of a police officer's
affidavit or . . . testimony given in support of a search warrant, it must be
demonstrated, among other things, that the allegedly false statements were
essential to support a probable cause determination."); State v. Desir, 245 N.J.
179, 196 (2021) (citing Franks, 438 U.S. at 155-56). If a search warrant affidavit
contains sufficient facts establishing probable cause even when the alleged false
statements are excised, a Franks hearing is not required. Franks, 438 U.S. at
171-72.
A-1196-22 17 Here, the court correctly concluded a Franks hearing was not required.
The court's finding that the discrepancy in defendant's physical characteristics—
height and weight—in Plumeri's affidavit from the description provided by the
CI were not significantly different and did not rise to the level of "materially
false information." Defendant does not challenge the reliability or veracity of
the CI on appeal. Moreover, the court concluded Plumeri showed the CI a
photograph of defendant, and the CI confirmed defendant was the person he had
purchased CDS from. Thus, defendant offered no proof that any discrepancy in
the affidavit was "deliberate" or the result of a "reckless disregard for the truth,"
despite his arguments to the contrary. Howery, 80 N.J. at 567 (quoting Franks,
438 U.S. at 171).
Nor was a Franks hearing required because page three of the affidavit
misstated defendant's date of birth. The court duly pointed out the State
conceded the error, which was limited to that one page. In any event, the court
correctly concluded the one mistake regarding defendant's date of birth was
immaterial and did not rise to the level of material falsity because there was still
ample probable cause to support the issuance of the search warrants. See
Howery, 80 N.J. at 568; Franks, 438 U.S. at 171-72.
A-1196-22 18 We are satisfied there was no credible evidence presented to support
defendant's argument that he was entitled to a Franks hearing. Defendant only
submitted a four-page certification from his counsel in support of his Franks
motion, which was not based on first-hand personal knowledge, and failed to
establish a substantial preliminary showing of falsity. See id. at 172.
As the court aptly noted, defendant's allegations were "bald, self-serving
denials," unsupported by an offer of proof and "reliable statements by
witnesses." Howery, 80 N.J. at 567 (citing Franks, 438 U.S. at 172). Thus, we
conclude the court did not abuse its discretion in denying defendant's motion for
a Franks hearing, the search warrants were properly issued, and the fruits of the
ensuing searches need not be suppressed.
To the extent we have not specifically addressed any remaining
arguments, it is because we find them to be without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1196-22 19