NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5558-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK A. BRANTLEY ,
Defendant-Appellant. ________________________
Submitted December 16, 2019 – Decided January 14, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 18-02- 0376.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret Ruth McLane, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney for respondent (Eric M. Snyder, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Following the trial court's denial of his motion to suppress physical
evidence seized from his apartment pursuant to a search warrant, defendant
Mark A. Brantley pleaded guilty to second-degree possession of a firearm while
possessing a controlled dangerous substance with intent to distribute, N.J.S.A.
2C:39-4.1(a), and second-degree possession of a controlled dangerous substance
with intent to distribute, N.J.S.A. 2C:39-5(a)(1) and -5(b)(2). In accordance
with the plea agreement, the court sentenced defendant to an aggregate sixteen -
year sentence with a six-and-one-half-year period of parole ineligibility.
Defendant appeals from the order denying his motion to suppress physical
evidence.
I.
On August 8, 2017, Detective Victor Delgado presented a Superior Court
judge with an affidavit supporting a request for a warrant authorizing the search
of defendant, a 1996 blue GMC van registered to defendant's girlfriend, and
defendant's Handy Street, New Brunswick apartment. The affidavit explained
Detective Delgado's training and his experience as a police officer and in his
current assignment in the New Brunswick Police Department's Narcotics
Intelligence Unit.
A-5558-17T3 2 The affidavit stated that during the prior "several weeks," Detective
Delgado received information from two confidential informants that defendant
was "selling quantities of heroin and cocaine" in New Brunswick from his
Handy Street apartment and from various vehicles, including "a blue GMC van,"
that he used to transport the heroin and cocaine. The informants identified three
New Brunswick street intersections "well known to the . . . Police Department
for the open use and sales of narcotics" where defendant made "street level
sales." The informants reported defendant used the GMC van to "hide his
narcotics when he makes [those] sales." According to Detective Delgado, the
confidential informants "provided information in the past that . . . led to
numerous arrest[s] and convictions for narcotics related offenses," and they
identified pictures of defendant as the individual engaged in street level sales of
narcotics.
In the affidavit, Detective Delgado also noted defendant provided the
Handy Street apartment address as his residence in prior interactions with the
police and while on parole following a federal conviction. The affidavit
explained defendant had prior arrests, convictions, and prison sentences for
narcotics-related offenses.
A-5558-17T3 3 Detective Delgado also detailed three controlled purchases of suspected
narcotics from defendant. The first controlled purchase occurred during the
third week of July 2017. Prior to the transaction, the first confidential informant
contacted defendant by cellphone and ordered a quantity of heroin. Defendant
instructed the informant to meet him at one of the intersections. The informant
was searched and found not to have any narcotics, and then he proceeded to the
intersection while observed at all times by Detective Delgado. The informant
met defendant at the designated intersection, and, after they spoke, defendant
entered and then exited a nearby parked van and handed suspected heroin to the
informant. The informant gave defendant currency that had been supplied by
Detective Delgado for the controlled purchase. The informant returned to a pre-
arranged location while under Detective Delgado's constant observation, turned
over the suspected heroin that he or she purchased, and advised Detective
Delgado he purchased the heroin from defendant.
The affidavit also described two controlled purchases of cocaine made by
the second confidential informant. Both purchases occurred during the last week
of July 2017. In each instance, the informant first contacted defendant by
telephone to arrange the purchase, and Detective Delgado searched the
informant with negative results for the possession of any narcotics, gave the
A-5558-17T3 4 informant currency for the purchase, and maintained constant surveillance of the
informant during the transactions with defendant and until the informant turned
over the purchased cocaine following the transaction.
During the first of the two controlled buys by the second informant,
defendant told the informant to meet him at the Handy Street apartment. The
informant went to the apartment, where defendant was observed by Detective
Delgado "exiting his residence and walk[ing] towards his driveway where he
met the . . . informant." Detective Delgado observed defendant engage in a brief
conversation with the informant and hand the informant suspected cocaine in
exchange for currency. The informant returned to a pre-arranged location,
provided the suspected cocaine to Detective Delgado, and reported purchasing
the cocaine from defendant at the Handy Street apartment.
The second informant's other controlled buy of cocaine was also arranged
in a telephone call with defendant during which he directed the informant to
meet him at a Handy Street intersection. Under Detective Delgado's constant
surveillance, the informant went to the designated intersection where defendant
was observed arriving in a blue GMC van. Defendant exited the van, spoke with
the informant, and "grabbed suspected cocaine from the front of his pants and
handed it over to the . . . informant" in exchange for currency. The informant
A-5558-17T3 5 returned to a pre-arranged location, where he or she relinquished the suspected
cocaine to Detective Delgado and reported purchasing the cocaine from
defendant.
The search warrant affidavit also described Detective Delgado's additional
investigation, which included surveillance of defendant "meeting with suspected
buyers" at his Handy Street apartment. More particularly, Detective Delgado
observed defendant briefly speaking with suspected buyers outside of the
apartment, then briefly enter and exit the apartment and hand suspected narcotics
to suspected buyers. Detective Delgado also observed defendant using the blue
GMC van and other rental vehicles at various intersections in areas "well known
for open use [and] sales of narcotics." Detective Delgado observed defendant
speak briefly with suspected buyers, briefly enter and exit the nearby vehicles,
and then engage in an exchange with a suspected buyer. Detective Delgado
represented that defendant "would continue this behavior during all hours of the
day," and that, within three days of the submission of the search warrant
affidavit, one of the informants "confirmed that [defendant] [was] still actively
selling heroin and cocaine out of his residence" at the Handy Street apartment.
Finding the affidavit established probable cause, the court issued sea rch
warrants for defendant, the blue GMC van, and defendant's Handy Street
A-5558-17T3 6 apartment. It appears that execution of the warrants resulted in the seizure of
cocaine, heroin, PCP, marijuana, synthetic marijuana, and a handgun from the
Handy Street apartment. 1
Defendant moved to suppress the physical evidence seized from his
apartment. In his letter brief in support of the motion, defense counsel argued
defendant was entitled to a Franks2 hearing because the search warrant affidavit
for the apartment "is clearly based on incredible facts." He also averred the
affidavit misstated that Detective Delgado observed the GMC van at different
locations and that it was used to facilitate various suspected narcotics
transactions, including when the third controlled buy was made, because an
August 11, 2017 police photograph of the van showed it was "incapacitated" and
"not drivable." Defense counsel asserted the first informant's claim that the first
1 The record on appeal does not include a list of the items seized by the police pursuant to the search warrants. Defendant moved for suppression of physical evidence seized only from his apartment, and his brief on appeal challenges only the seizure of items from his apartment. We therefore do not consider the propriety of the searches and seizures, if any, from defendant or the GMC van pursuant to the search warrants, and we limit our discussion to the search warrant for the apartment. An issue not briefed on appeal is deemed waived. Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011); Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008). 2 Franks v. Delaware, 438 U.S. 154 (1978). A-5558-17T3 7 controlled buy was arranged over defendant's cellphone was "not credible"
because the State had not provided any cellphone evidence. He also asserted
that during the requested Franks hearing, photographs would establish Detective
Delgado did not truthfully state the informant "was never out of [his] view"
when the second controlled buy was made at defendant's apartment. Defense
counsel's allegations were untethered to an affidavit or other competent evidence
and did not allege the search warrant affidavit included either a deliberate
falsehood or was made with a reckless disregard for the truth.
At oral argument on defendant's request for a Franks hearing, defendant
proffered photographs that his counsel asserted supported his claim the search
warrant affidavit contained false information. The court granted defendant's
request that he testify in support of his claim the search warrant contained
falsehoods sufficient to warrant a separate Franks hearing.
Defendant briefly testified on direct examination by his counsel. He
denied receiving a phone call "to set up [the] drug deal" that was described in
Detective Delgado's affidavit as the second controlled buy. He also denied
receiving any discovery materials from the State "that has [his] telephone
number in it." He also testified about photographs that he claimed supported his
contention Detective Delgado could not have seen the first controlled buy occur
A-5558-17T3 8 at his apartment. He further testified about photographs showing the GMC van
with a flat tire, which he asserted demonstrated the van could not have been used
in the manner described in the search warrant affidavit. 3
On cross-examination, the prosecutor asked defendant to provide the
telephone number he had in July 2017. Defense counsel objected, and the court
overruled the objection. 4 Defendant then refused to answer the question,
asserting his Fifth Amendment right against self-incrimination. The court
explained that it typically required an affidavit supporting a Franks hearing
request, but in this case it allowed defendant to testify "under oath . . . to lay a
proffer or to at least establish the need for a Franks hearing." Based on
defendant's refusal to respond to the State's question on cross-examination, the
3 The photographs were not moved into evidence during the proceeding and are not included in the record on appeal. 4 The court overruled defense counsel's objection, which was based on the assertion that the question sought irrelevant information. We reject defendant's argument the court abused its discretion by overruling the objection. The question called for information about defendant's phone number at the time of the second controlled buy. The question sought information that had "a tendency in reason to prove or disprove a fact of consequence to the determination of" whether defendant was entitled to a Franks hearing – whether defendant had a phone and whether his phone number was the same as that listed in the police report he had been provided during discovery. See N.J.R.E. 401. A-5558-17T3 9 court struck defendant's direct testimony. Defendant offered no other evidence
supporting his Franks hearing request.
In a detailed opinion issued from the bench, the court denied the request
for the Franks hearing. The court summarized the information contained in the
search warrant affidavit, including the details concerning the three controlled
buys, and explained that during execution of the search warrants on August 11,
2017, controlled dangerous substances and several firearms were seized from
defendant's apartment, and controlled dangerous substances were seized from
defendant.5
The court reasoned that defendant failed to establish entitlement to a
Franks hearing because he did not submit evidence supporting his claim the
search warrant affidavit contained false statements. Although it struck
defendant's testimony, the court also found defendant's direct testimony did not
establish Detective Delgado's affidavit contained any false statements. The
court further determined that even if the allegedly false statements were excised
from the affidavit, Detective Delgado presented sufficient facts establishing
5 The court noted defendant shared the apartment with his co-defendant. We again observe defendant does not challenge the court's finding he was not entitled to a Franks hearing based on any claim Detective Delgado's affidavit contained false statements establishing probable cause to search defendant's person. A-5558-17T3 10 probable cause to search defendant's apartment. The court rejected defendant's
claim the affidavit did not establish probable cause because there was no testing
of the items purchased during the three controlled buys establishing they were
controlled dangerous substances. The court concluded, even without such
testing, the affidavit established probable cause the items were controlled
dangerous substances. The court denied defendant's request for a Franks hearing
and his motion to suppress the physical evidence seized during the execution of
the search warrants.
Defendant pleaded guilty to possession of cocaine with intent to distribute
and possession of a firearm while possessing cocaine with intent to distribute.
The court sentenced defendant in accordance with his plea agreement with the
State. This appeal, challenging the court's order denying his motion to suppress
physical evidence, followed. See R. 3:5-7(d).
Defendant offers the following arguments for our consideration:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A FRANKS HEARING BECAUSE THERE WAS A SUBSTANTIAL PRELIMINARY SHOWING THAT THE SWEARING OFFICER ACTED IN RECKLESS DISREGARD OF THE TRUTH BY INCLUDING FALSE STATEMENTS IN THE WARRANT AFFIDAVIT.
A-5558-17T3 11 POINT II
THE SEARCH WARRANT AFFIDAVIT DID NOT PROVIDE PROBABLE CAUSE TO SEARCH BECAUSE THE VERACITY AND BASIS OF KNOWLEDGE OF THE ANONYMOUS INFORMANTS UPON WHICH THE AFFIDAVIT RELIED WERE NOT ESTABLISHED.
II.
Defendant argues the court erred by denying his request for a Franks
hearing. He claims he made a substantial preliminary showing Detective
Delgado's affidavit contained false information. He further asserts that because
he made a substantial preliminary showing the affidavit contained false
information and Detective Delgado "relie[d] almost exclusively on information
from the two alleged [confidential informants] . . . the [informants] must also
testify" at the Franks hearing. He also claims for the first time that this court
should reverse the court's denial of his request for a Franks hearing and remand
for the court to conduct an in camera hearing to determine the veracity of the
confidential informants.
We reject defendant's claim the court erred by denying his request for a
Franks hearing. We review a court's decision regarding the need for an
evidentiary hearing for an abuse of discretion. State v. Broom-Smith, 406 N.J.
Super. 228, 239 (App. Div. 2009). A court abuses its discretion when its
A-5558-17T3 12 "decision [is] made without a rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis." United States v.
Scurry, 193 N.J. 492, 504 (2008) (citing Flagg v. Essex Cty. Prosecutor, 171
N.J. 561, 571 (2002)).
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).
To obtain a Franks hearing, a defendant's allegations should be supported
by affidavits or other reliable statements; "[a]llegations of negligence or
innocent mistake are insufficient." Broom-Smith, 406 N.J. Super. at 241
(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
A-5558-17T3 13 lacks sufficient facts to establish probable cause. Ibid. 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.
Here, the court correctly denied defendant's request for a Franks hearing.
Defendant failed to provide an affidavit or any other reliable statements
constituting a substantial showing that Detective Delgado's affidavit contained
deliberate falsehoods or statements made in reckless disregard for the truth.
Defendant's motion was initially based only on the arguments of his counsel ,
and, although defendant ultimately sought to support his motion by testifying on
his own behalf, the court properly struck his testimony due to his refusal to
answer questions during cross-examination by the State. See State v. Feaster,
184 N.J. 235, 248 (2005) ("When a witness's direct testimony concerns a matter
at the heart of a defendant's case, the court should strike that testimony if the
witness relies on the privilege against self-incrimination to prevent cross-
examination."); see also State v. Bogus, 223 N.J. Super. 409, 422 (App. Div.
1988) ("It is well-settled that a defendant who voluntarily takes the stand and
offers testimony in his own behalf exposes himself to cross-examination and the
possibility of being compelled to testify against himself.").
A-5558-17T3 14 "The limitations imposed by Franks are not insignificant." Howery, 80
N.J. at 567. A defendant's burden is substantial because "a Franks hearing is not
directed at picking apart minor technical problems with a warrant application[,]"
but rather, "it is aimed at warrants obtained through intentional wrongdoing by
law enforcement agents[.]" Broom-Smith, 406 N.J. Super. at 240. Defendant's
refusal to answer questions on cross-examination, and the court's proper striking
of his direct testimony, resulted in a record devoid of any evidence or
information satisfying his burden for a Franks hearing. See Id. at 240-41.
Defendant failed to make a substantial showing—indeed, any showing—
Detective Delgado's affidavit included deliberate falsehoods or was made with
reckless disregard for the truth, see Howery, 80 N.J. at 567, and defendant's
refusal to participate in the State's cross-examination made it impossible for the
court to determine if his direct testimony established by a preponderance of the
evidence that the affidavit contained knowing falsehoods, see State v. Branch,
182 N.J. 338, 348 (2005) (explaining direct testimony generally cannot be
considered reliable unless tested in the "crucible of cross-examination"). The
A-5558-17T3 15 motion court therefore correctly determined defendant failed to establish his
entitlement to the requested Franks hearing.6
"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.
Watts, 223 N.J. 503, 513-14 (2015) (citation omitted)). Defendant did not make
a sufficient showing that Detective Delgado's affidavit contained deliberate
falsehoods or statements made with reckless disregard for the truth so as to
warrant the requested Franks hearing.
We reject defendant's argument that if a Franks hearing was not required,
the court should have otherwise conducted an in camera hearing to determine
the veracity of the confidential informants in accordance with a procedure
6 Because the court correctly determined the record did not include sufficient evidence to require a Franks hearing, it is unnecessary to address in detail the court's findings that defendant's direct testimony, which the court struck, did not establish the search warrant affidavit contained deliberate falsehoods necessitating a Franks hearing; and, even if the statements in the affidavit defendant alleged were false were excised, the affidavit nonetheless established probable cause to search defendant's apartment. We observe only that those findings are supported by the evidence, including defendant's direct testimony, and we therefore would otherwise find no basis in those findings to reverse the court's order denying the suppression motion. A-5558-17T3 16 established by the Washington Supreme Court in State v. Casal, 699 P.2d 1234
(Wash. 1985). We do not consider the merits of the argument because it was
not raised before the motion court, does not pertain to the court's jurisdiction,
and does not involve an issue of great public interest. See State v. Robinson,
200 N.J. 1, 20 (2009).
Defendant also contends the search warrant affidavit did not establish
probable cause for the issuance of the search warrants because it failed to
demonstrate the reliability and basis of knowledge of the two informants.
Defendant, however, ignores the affidavit explained the informants had
previously provided information leading to arrests and convictions for narcotics
related offenses, and Detective Delgado's personal observations of the three
controlled buys made by the informants and his independent observations of
defendant's participation in suspected narcotics transactions established
probable cause for the search warrants.
Information provided by a confidential informant may support a finding
of probable cause for a search warrant where the information is corroborated by
a police officer. State v. Keyes, 184 N.J. 541, 556 (2005). "[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
A-5558-17T3 17 informant's description of the target location, the suspect's criminal history, and
the experience of the officer who submitted the supporting affidavit." Ibid.
Although no fact by itself establishes probable cause, "a successful controlled
drug buy 'typically will be persuasive evidence in establishing probable cause.'"
Ibid. (quoting State v. Sullivan, 169 N.J. 204, 217 (2001)).
Here, probable cause was not founded solely on the information supplied
by the confidential informants. As described by Detective Delgado, probable
cause was supported by his observations of three separate controlled buys of
narcotics from defendant; his observations of defendant's participation in other
suspected narcotics transactions at defendant's apartment and at street locations
known for narcotics sales; defendant's prior criminal record; and Detective
Delgado's training and experience as a law enforcement officer. Contrary to
defendant's contention, and as correctly found by the motion court, the search
warrant affidavit included ample evidence supporting "a practical, common
sense determination [that], given all of the circumstances, there [was] a fair
probability that contraband or evidence of a crime [would] be found in [the]
particular place[s]" for which the search warrants were issued. State v.
Marshall, 199 N.J. 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612
(2007)); see also State v. Jones, 179 N.J. 377, 389 (2004) (noting the court must
A-5558-17T3 18 consider "the totality of the circumstances" in determining if there is probable
cause for a search).
We also reject defendant's claim that probable cause was not established
because there was no evidence the items purchased in the three controlled buys
were tested to confirm they were controlled dangerous substances. A positive
test for suspected narcotics is not essential to a finding of probable cause that
items are controlled dangerous substances. See Jones, 179 N.J. at 394
(explaining that testing an item purchased during a controlled buy to confirm it
is a controlled dangerous substance is not essential to a probable cause finding
where the totality of the circumstances establish probable cause to believe the
item is a controlled dangerous substance). The totality of the facts presented
here—including the telephone calls with defendant arranging the purchases of
heroin and cocaine from him, the circumstances under which the controlled buys
were made, and Detective Delgado's training and experience—established
probable cause to believe the purchases items were illicit narcotics. Although
the items purchased during the three controlled buys were not tested, "[t]he
circumstances detailed in the warrant application plainly indicated that the sole
purpose of the [controlled buys] between the informant[s] and [defendant] . . .
was to exchange money for drugs." Id. at 395.
A-5558-17T3 19 To the extent we have not expressly addressed any of defendant's
remaining arguments, they are without sufficient merit to warrant discussion in
a written opinion.7 R. 2:11-3(e)(2).
Affirmed.
7 In his criminal case information sheet and notice of appeal, defendant asserts that he appeals from his sentence, which he indicates is "excessive." We do not consider the issue because it is not addressed in defendant's brief on appeal and is therefore deemed waived. See Drinker Biddle & Reath LLP, 421 N.J. Super. at 496 n.5; Jefferson Loan Co., Inc., 397 N.J. Super. at 525 n.4. A-5558-17T3 20