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State v. Rodriguez

Decided: February 6, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MARTO RODRIGUEZ AND ROLANDO RODRIGUEZ, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Union County.

Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Defendants, indicted for possession of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 24:21-20a(2) and possession of cocaine with intent to distribute in violation of N.J.S.A. 24:21-19a(1) and N.J.S.A. 24:21-19b(2), moved to suppress

evidence seized as a result of the execution of a search warrant. Defendant Marto Rodriguez also moved "for a hearing to determine and resolve the issue of the truthfulness of the warrant affidavit" and for disclosure of "the identity of the informers referred to in the warrant affidavit." The motion judge found that "the search warrant issued was too general in that it did not describe the actual premises. . . ." We granted the State leave to appeal the suppression order and we now reverse.

Officer Geddes of the Elizabeth Police Department applied for the search warrant based upon his affidavit that he had received information from a reliable informant that controlled dangerous substances were being distributed from the second floor apartment at 438 Broadway, Elizabeth, New Jersey, by a Spanish male who resided there. This informant made a controlled buy from that individual at the apartment. A second reliable informant stated he had personal knowledge that a Spanish male was distributing controlled dangerous substances from the premises of 438 Broadway, Elizabeth, New Jersey, and that he "believes the premises of 438 Broadway, Elizabeth is distributing quantities of controlled dangerous substances to such an extent that the premises is heavily guarded by six (6) large dogs." Geddes further inserted in the affidavit that he personally conducted surveillances of the premises on four occasions and observed a male who fit the description given by the informant. Geddes believed this male to be Marto Rodriguez.

The affiant stated that information from the City Tax Office showed "the premises of 438 Broadway is owned by a Marto Rodriguez"; information received from the "Elizabeth Gas and Public Service Electric & Gas Company" indicated "the second floor apartment is occupied by Marto Rodriguez and that the first floor apartment has been vacant since December 5, 1983," and information received from "a check of the telephone listing for 438 Broadway, Elizabeth, New Jersey reveals that there is

telephone service in the same residence listed to Marto Rodriguez."

The search warrant authorized the search of an "unidentified Spanish male" and the premises at "438 Broadway, Elizabeth, New Jersey." This was in keeping with the last paragraph of the affidavit which stated:

[b]ased upon the foregoing and upon my training, education and experience, I have probable cause to believe and I do believe that located upon the person of a Spanish male, name unknown, whose description has been set forth, and within the premises located at 438 Broadway, Elizabeth, New Jersey, there will be found controlled dangerous substances. . . .

Execution of the search warrant resulted in controlled substances being found in the first floor apartment.

In support of the motion to suppress defendant Rolando Rodriguez offered the affidavit of his mother Zeida Rodriguez which stated:

3. The first floor apartment to the premises, where my son resided and still resides, is a separate apartment independent from the second floor apartment where Marto Rodriguez lives. It has a separate gas meter. It has a ...


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