STATE OF NEW JERSEY VS. THOMAS T. JONES (14-04-0385, MORRIS COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2019
• Docket: A-5871-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5871-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS T. JONES,

Defendant-Appellant. ________________________

Submitted October 8, 2019 - Decided November 21, 2019

Before Judges Accurso and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 14-04- 0385.

Joseph E. Krakora, Public Defender, attorney for appellant (David J. Reich, Designated Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Cristina Jordao, Assistant Prosecutor, on the brief).

PER CURIAM Following the denial of his motion to suppress evidence seized in a

warrantless car search, defendant Thomas T. Jones pleaded guilty to second-

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

sentenced to seven years in State prison with a three-and-one-half year period

of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). We

affirmed defendant's sentence on appeal but remanded for a Franks1 hearing to

address defendant's contention that the affidavit in support of the search

warrant, which police applied for after defendant revoked his consent to search

his trunk, omitted facts tending to show police did not have probable cause to

search beyond the car's interior. State v. Jones, No. A-3139-15 (App. Div.

July 25, 2017) (slip op. at 6-7).

As we explained in our prior opinion, the affidavit supporting the

warrant failed to note that the dog conducting a sniff of the car after the police

officer smelled burnt marijuana, only alerted at defendant's partially opened

driver's window. Id. at 2-3. Although walked around the entire car, the dog

did not alert at the trunk. Id. at 3. Police were obviously interested in

searching the trunk after a consent search of the car's interior revealed nothing

more than marijuana shake on the floor and center console, and defendant

1 Franks v. Delaware, 438 U.S. 154 (1978). A-5871-17T4 2 would not permit them to search the trunk. Ibid. After obtaining the warrant,

police found the handgun in the trunk. Id. at 4.

On remand, Judge Enright took testimony from the sheriff's officer who

conducted the canine sniff, the police officer who made the stop and the

detective who submitted the affidavit on the application for the search warrant,

all called by defendant. The sheriff's officer testified that he and his dog,

Reno, were dispatched to the stop where he met with the arresting officer and

had the dog perform an exterior sniff of the car. He explained that Reno was a

"passive-trained" dog who would sit when he detected an odor of narcotics.

The officer explained the dog was trained to go where the odor was strongest,

and, in this case, he went twice to the open window of the driver's door. The

officer testified he let the arresting officer know there was a positive indication

on the exterior of the car and departed.

The police officer testified he was monitoring defendant and his

passenger and did not watch the canine sniff. He also testified he had never

had any canine training and "wouldn't even know what an exact hit would look

like." After concluding his walk around the car, the sheriff's officer simply

told him there was a hit, indicating the presence of drugs. The two did not

discuss where the dog had alerted. The officer stated he wrote his report of the

A-5871-17T4 3 stop between 4:00 to 5:00 a.m., noting "a positive indication on the exterior of

the vehicle," and left it for the detective who would apply for the search

warrant.

The detective testified he used the report to prepare his affidavit in

support of the application for the search warrant. He did not recall speaking

with the officer who prepared it. He explained he stated in the affidavit that

the dog hit on the exterior of the car because that was what was in the report,

nothing more specific. The detective claimed no one told him the dog had hit

twice on the open driver's window before he prepared the affidavit. He

testified he did not intentionally omit the information, he simply was not aware

of it.

In her cogent and comprehensive twenty-four page written opinion,

Judge Enright described the testimony of all three officers as "candid, direct

and unwavering," on both direct and cross-examination. Finding the officers

"highly credible," the judge concluded she could not find the failure to have

noted where the dog "hit on defendant's vehicle was a deliberate or reckless

omission." The judge noted defendant did not dispute that the sheriff officer's

report noting the exact location of the dog's alert was not prepared until three

weeks after the detective submitted his affidavit for the warrant. The only

A-5871-17T4 4 report available to the detective was the police officer's, which provided only

the general statement that "the dog hit on the 'exterior of the vehicle.'"

Judge Enright acknowledged that although the affidavit did not contain

any false statements, it did omit material information as to where the dog

alerted to the odor of drugs. The judge found, however, "after listening to the

credible testimony of all three officers" that defendant did not establish "the

omission was intentional or made with reckless disregard for the truth." See

Franks, 438 U.S. at 171. Instead, she found

it appear[ed] each officer provided specific, albeit, limited, information he thought was appropriate either during the incident, or when preparing a report of the incident, applying for a search warrant or when [the sheriff's officer] prepared his final report. Moreover, given the undisputed facts surrounding the incident . . . a reading of the search warrant affidavit itself does not lead this court to conclude its content were tainted by a deliberate or reckless omission.

On appeal, defendant raises two issues, arguing:

POINT I

THE TRIAL COURT ERRED IN CONCLUDING THAT THE POLICE OFFICERS' WITHHOLDING OF CRITICAL MATERIAL INFORMATION FROM THE JUDGE HEARING THE WARRANT APPLICATION WAS NOT DELIBERATE OR RECKLESS.

POINT II

A-5871-17T4 5 THE WARRANT JUDGE WOULD NOT HAVE APPROVED OF THE SEARCH WARRANT APPLICATION HAD SHE BEEN APPRISED OF THE MATERIAL INFORMATION THE POLICE IMPROPERLY OMITTED FROM THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT APPLICATION.

We reject his arguments as without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2). Defendant's arguments reduce to

quarrels with the trial judge's factual findings. Those findings, however,

which were obviously "substantially influenced by [her] opportunity to hear

and see the witnesses and to have the 'feel' of the case, which a reviewing court

cannot enjoy," State v. Johnson, 42 N.J. 146, 161 (1964), have ample support

in the record and are thus binding on appeal. See State v. Gamble, 218 N.J.

412, 424 (2014). Defendant has offered us no good reason to second-guess the

judge's conclusion that he failed to establish "by a preponderance of the

evidence that the affiant, deliberately or with reckless disregard for the truth,

excluded material information from the affidavit which, had it been provided,

would have caused the judge to refuse to issue the warrant." State v. Sheehan,

217 N.J. Super. 20, 26 (App. Div. 1987).

Accordingly, we affirm the denial of defendant's Franks motion, thus

affirming his conviction, substantially for the reasons expressed in Judge

A-5871-17T4 6 Enright's statement of reasons accompanying the order of June 18, 2018. We

have nothing to add to her thoughtful and thorough analysis.

Affirmed.

A-5871-17T4 7