NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3139-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS T. JONES,
Defendant-Appellant. ____________________________
Submitted April 5, 2017 – Decided July 25, 2017
Before Judges Fuentes and Simonelli.
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 (Mark H. Friedman, Assistant Deputy Attorney General, of counsel and on the brief).
Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
PER CURIAM
Following the denial of his motion for reconsideration of an
order denying his motion to suppress evidence found in the trunk of his vehicle, defendant Thomas T. Jones pled guilty to second-
degree unlawful possession of a firearm, N.J.S.A. 2:39-5(b). The
trial court imposed a seven-year term of imprisonment 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 remand for further
proceedings.
The following facts are pertinent to our review. After
stopping defendant's vehicle, Police Officer Matthew Ambrosi of
the Mendham Township Police Department (MTPD) detected the odor
of burnt marijuana emanating from the vehicle's interior. As a
result, Ambrosi asked defendant for consent to search the vehicle.
After defendant read and signed a consent to search form, Ambrosi
searched the interior of the vehicle and found marijuana shake1 in
the center console area and on the floorboard. Ambrosi then
"popped the trunk" lever and went to the rear of the vehicle to
search the trunk. As he approached the rear of the vehicle,
defendant put his hands on top of the trunk lid, shut it, and said
there was nothing in the trunk and he wanted to stop the search.
1 "Marijuana shake" is a colloquial term use to describe the small pieces of cannabis flower that break off of larger buds, generally as the result of regular handling.
2 A-3139-15T4 Ambrosi stopped the search and called for a K-9 unit to respond
to the scene.
Detective Walter Rawa of the Morris County Sheriff's Office
and K-9 Officer Reno, a trained narcotics dog, arrived at the
scene to attempt to locate the odor of a controlled dangerous
substance (CDS) around the exterior and interior of defendant's
vehicle. In his March 18, 2014 investigation report, Rawa wrote
that K-9 Reno "positively indicated [the presence of a CDS] two
times at the partially open driver window of the vehicle."
(Emphasis added). The police advised defendant of the findings
and afforded him the option to either consent to search the vehicle
or have the vehicle impounded while the police applied for a search
warrant. After defendant declined to consent, the police impounded
the vehicle.
The police obtained a warrant to search the entire vehicle
based on the affidavit of a MTPD detective, who stated there was
probable cause to believe a CDS would be found in the vehicle.
The affiant stated that Rawa "conducted a cursory search of the
exterior of the vehicle which yielded a positive hit by K-9 Reno
where K-9 Reno signaled to his handler the presence of a [CDS]."
The court issued a warrant to search the entire vehicle based on
3 A-3139-15T4 the affidavit. The police searched the trunk of the vehicle and
found a loaded defaced handgun and under fifty grams of marijuana.
Defendant filed a motion to suppress the evidence found in
the trunk and requested a Franks2 hearing to determine whether the
affidavit in support of the search warrant for the entire vehicle
omitted material facts that tended to show the police lacked
probable cause to search the trunk. Defendant argued that the
affiant omitted the material facts that K-9 Reno's two positive
hits were limited to the front passenger area and the dog did not
detect a CDS on the vehicle's exterior or trunk.
The motion judge rejected defendant's reliance on State v.
Patino, 83 N.J. 1 (1980), finding that the Supreme Court in that
case only barred a warrantless search of the trunk of a vehicle
based on the discovery of small amounts of marijuana in a vehicle's
interior. In this case, the judge found the presence of marijuana
shake coupled with the smell of burnt marijuana in the interior
of defendant's vehicle provided probable cause for a warrant to
search the entire vehicle. The judge denied defendant's motion
and request for a Franks hearing.
2 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
4 A-3139-15T4 On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS WITHOUT HOLDING A FRANKS HEARING CONCERNING THE CRITICAL ISSUE OF WHETHER THE AFFFIDAVIT IN SUPPORT OF THE WARRANT TO SEARCH THE ENTIRE VEHICLE OMITTED FACTS THAT TENDED TO SHOW THAT THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH THE TRUNK.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
The primary purpose of a Franks hearing is to "determine
whether the police made material misrepresentations and/or
omissions in seeking a search warrant and if so, whether the
evidence gather from a defective warrant must be suppressed."
State v. Smith, 212 N.J. 365, 413 (2012), cert. denied, 568 U.S.
1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). The Fourth
Amendment3 requires the court to hold a hearing at the defendant's
request where the defendant "makes 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 v. Delaware,
3 U.S. Const. amend. IV.
5 A-3139-15T4 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672
(1978); see also State v. Howery, 80 N.J. 563, 568, cert. denied,
444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). "These
requirements also apply where the allegations are that the
affidavit, though facially accurate, omits material facts." State
v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. denied,
130 N.J. 396 (1992). In Howery, supra, 80 N.J. at 567-68, the
Court noted that the limitations imposed by Franks are not
insignificant.
In view of the above authority, we remand for a Franks
hearing. In State v. Keaton, 222 N.J. 438, 448-49 (2015), our
Supreme Court reaffirmed that a search of a car must be limited
in scope to where the items can reasonably be expected to be
located. "Therefore, a search for registration in the rear of the
vehicle would not be permissible." Ibid. (citing Patino, supra,
83 N.J. at 12).
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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-3139-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS T. JONES,
Defendant-Appellant. ____________________________
Submitted April 5, 2017 – Decided July 25, 2017
Before Judges Fuentes and Simonelli.
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 (Mark H. Friedman, Assistant Deputy Attorney General, of counsel and on the brief).
Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
PER CURIAM
Following the denial of his motion for reconsideration of an
order denying his motion to suppress evidence found in the trunk of his vehicle, defendant Thomas T. Jones pled guilty to second-
degree unlawful possession of a firearm, N.J.S.A. 2:39-5(b). The
trial court imposed a seven-year term of imprisonment 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 remand for further
proceedings.
The following facts are pertinent to our review. After
stopping defendant's vehicle, Police Officer Matthew Ambrosi of
the Mendham Township Police Department (MTPD) detected the odor
of burnt marijuana emanating from the vehicle's interior. As a
result, Ambrosi asked defendant for consent to search the vehicle.
After defendant read and signed a consent to search form, Ambrosi
searched the interior of the vehicle and found marijuana shake1 in
the center console area and on the floorboard. Ambrosi then
"popped the trunk" lever and went to the rear of the vehicle to
search the trunk. As he approached the rear of the vehicle,
defendant put his hands on top of the trunk lid, shut it, and said
there was nothing in the trunk and he wanted to stop the search.
1 "Marijuana shake" is a colloquial term use to describe the small pieces of cannabis flower that break off of larger buds, generally as the result of regular handling.
2 A-3139-15T4 Ambrosi stopped the search and called for a K-9 unit to respond
to the scene.
Detective Walter Rawa of the Morris County Sheriff's Office
and K-9 Officer Reno, a trained narcotics dog, arrived at the
scene to attempt to locate the odor of a controlled dangerous
substance (CDS) around the exterior and interior of defendant's
vehicle. In his March 18, 2014 investigation report, Rawa wrote
that K-9 Reno "positively indicated [the presence of a CDS] two
times at the partially open driver window of the vehicle."
(Emphasis added). The police advised defendant of the findings
and afforded him the option to either consent to search the vehicle
or have the vehicle impounded while the police applied for a search
warrant. After defendant declined to consent, the police impounded
the vehicle.
The police obtained a warrant to search the entire vehicle
based on the affidavit of a MTPD detective, who stated there was
probable cause to believe a CDS would be found in the vehicle.
The affiant stated that Rawa "conducted a cursory search of the
exterior of the vehicle which yielded a positive hit by K-9 Reno
where K-9 Reno signaled to his handler the presence of a [CDS]."
The court issued a warrant to search the entire vehicle based on
3 A-3139-15T4 the affidavit. The police searched the trunk of the vehicle and
found a loaded defaced handgun and under fifty grams of marijuana.
Defendant filed a motion to suppress the evidence found in
the trunk and requested a Franks2 hearing to determine whether the
affidavit in support of the search warrant for the entire vehicle
omitted material facts that tended to show the police lacked
probable cause to search the trunk. Defendant argued that the
affiant omitted the material facts that K-9 Reno's two positive
hits were limited to the front passenger area and the dog did not
detect a CDS on the vehicle's exterior or trunk.
The motion judge rejected defendant's reliance on State v.
Patino, 83 N.J. 1 (1980), finding that the Supreme Court in that
case only barred a warrantless search of the trunk of a vehicle
based on the discovery of small amounts of marijuana in a vehicle's
interior. In this case, the judge found the presence of marijuana
shake coupled with the smell of burnt marijuana in the interior
of defendant's vehicle provided probable cause for a warrant to
search the entire vehicle. The judge denied defendant's motion
and request for a Franks hearing.
2 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
4 A-3139-15T4 On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS WITHOUT HOLDING A FRANKS HEARING CONCERNING THE CRITICAL ISSUE OF WHETHER THE AFFFIDAVIT IN SUPPORT OF THE WARRANT TO SEARCH THE ENTIRE VEHICLE OMITTED FACTS THAT TENDED TO SHOW THAT THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH THE TRUNK.
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
The primary purpose of a Franks hearing is to "determine
whether the police made material misrepresentations and/or
omissions in seeking a search warrant and if so, whether the
evidence gather from a defective warrant must be suppressed."
State v. Smith, 212 N.J. 365, 413 (2012), cert. denied, 568 U.S.
1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). The Fourth
Amendment3 requires the court to hold a hearing at the defendant's
request where the defendant "makes 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 v. Delaware,
3 U.S. Const. amend. IV.
5 A-3139-15T4 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672
(1978); see also State v. Howery, 80 N.J. 563, 568, cert. denied,
444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). "These
requirements also apply where the allegations are that the
affidavit, though facially accurate, omits material facts." State
v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. denied,
130 N.J. 396 (1992). In Howery, supra, 80 N.J. at 567-68, the
Court noted that the limitations imposed by Franks are not
insignificant.
In view of the above authority, we remand for a Franks
hearing. In State v. Keaton, 222 N.J. 438, 448-49 (2015), our
Supreme Court reaffirmed that a search of a car must be limited
in scope to where the items can reasonably be expected to be
located. "Therefore, a search for registration in the rear of the
vehicle would not be permissible." Ibid. (citing Patino, supra,
83 N.J. at 12). The legal question in Keaton was whether a police
officer has a legal right to enter an overturned vehicle in order
to obtain registration and insurance information for the vehicle
without first requesting permission, or allowing the defendant an
opportunity to retrieve the documents himself. Id. at 442.
Here, the State conceded that without defendant's consent,
the police had no legal right to search the trunk. The area of
6 A-3139-15T4 defendant's vehicle that caused K-9 Reno's reaction is therefore
extremely significant. Thus, we remand for the court to conduct
a Franks hearing to determine whether the discrepancies between
the affiant's and Rawa's versions of K-9 Reno's search are
sufficient to question the legality of the search.
In the event defendant does not succeed on remand, we address
his sentence. At sentencing, the judge found aggravating factor
N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior
criminal record and the seriousness of the offenses of which he
has been convicted[,]" based on defendant's prior conviction for
the same offense. The judge also found aggravating factor N.J.S.A.
2C:44-1(a)(9), "[t]he need for deterring the defendant and others
from violating the law[,]" based on the need to deter defendant
and others from unlawfully possessing weapons. The judge rejected
defendant's request to find mitigating factor N.J.S.A. 2C:44-
1(b)(1), "[t]he defendant's conduct neither caused nor threatened
serious harm," and mitigating factor N.J.S.A. 2C:44-1(b)(2) "[t]he
defendant did not contemplate that his conduct would cause or
threaten serious harm[.]" The judge found that carrying a loaded
defaced handgun in the trunk contemplated that someone might get
harmed at some point, and defendant had no legitimate reason to
have a loaded defaced handgun in his trunk.
7 A-3139-15T4 We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We have considered defendant's contention that his sentence
is manifestly excessive and punitive in light of the record and
applicable legal principles and conclude it is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We are satisfied that the judge did not violate the sentencing
guidelines and the record amply supports his findings on
aggravating and mitigating factors. The sentence is clearly
reasonable, does not shock our judicial conscience, and is
affirmed.
Remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
8 A-3139-15T4