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State v. Novembrino

Decided: April 11, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
OTTAVIO NOVEMBRINO, DEFENDANT-RESPONDENT



Antell,*fn1 J. H. Coleman and Simpson. The opinion of the court was delivered by J. H. Coleman, J.A.D. Simpson, J.A.D., concurring.

Coleman

[200 NJSuper Page 231] The novel issue raised on this appeal is whether New Jersey should adopt a good faith exception to the exclusionary rule where evidence is seized pursuant to a search warrant issued without probable cause. On April 9, 1984, the Law Division ordered suppression of evidence seized on June 2, 1983 because probable cause to issue the warrant had not been established. We now affirm that determination. Subsequent to the entry of the suppression order, a good faith exception to the Fourth

Amendment exclusionary rule was created on July 5, 1984, by United States v. Leon, 468 U.S. , 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The State urges reversal of the suppression order based on the good faith exception. We hold that N.J. Const. (1947) Art. I, para. 7 precludes a good faith exception to the exclusionary rule where probable cause is not established. Hence, the order of suppression is affirmed.

Defendant was charged under Hudson County Indictment No. 1075-83 with possession of cocaine, phentormine, Diazepam, hashish and marijuana on June 2, 1983, contrary to N.J.S.A. 24:21-20a(1) and (4) and possession of cocaine, phentormine and Diazepam with intent to distribute on the same date, contrary to N.J.S.A. 24:21-19a(1). A motion to suppress evidence pursuant to R. 3:5-7 was filed. Defendant argued that the search warrant relied upon by the State lacked probable cause and was issued after the evidence had been seized. The Law Division judge chose not to rule on whether the warrant was issued after the seizure. Instead, he ordered suppression of the evidence because the affidavit relied upon for issuance of the warrant failed to establish probable cause. We granted the State leave to appeal and remanded the matter for a determination of whether the seizure occurred before the warrant was issued. The remand hearing was conducted on November 14 and 15, 1984. At that hearing it was decided that the warrant was issued before the seizure. We now affirm that finding; the record contains sufficient credible evidence to support that determination. State v. Johnson, 42 N.J. 146 (1964).

On this appeal, the State argues that the affidavit of Det. Higgins established probable cause to believe defendant was illegally dealing in controlled dangerous substances from his Gulf Gasoline Station, located at 827 Broadway, Bayonne, New Jersey. That affidavit provided:

2. The facts tending to establish grounds for issuance of a Search Warrant are as follows:

I received information from an informant who has proven reliable in several investigations (with the information he supplied), that 'Otto' above description,

is engaged in the illegal sales of cocaine and marijuana. My informant stated that Otto usually keeps the drugs in his gas station at above location. He (informant) also stated that he witnessed 'Otto' dealing drugs from his gas station. I, along with Det. Ralph Scianni, conducted a surveillance of subject and his station on Thurs., 6/2/83, between the hours of 3:00 PM and 7:00 PM, and observed Otto meeting with several persons, after leaving his station and making what we believed to be drug transactions. During the surveillance, we observed one person making a transaction with Otto and checked on his vehicle and called the narcotics squad to inquire on his relationship with drugs. They told us that said person has been arrested for cocaine and other violations and they felt that Otto and the other person are involved in drug activity. From the information received from our informant and from our observations, we do feel that a search of Otto's gas station should be conducted for illegal contraband. We checked on ownership of the station and it belongs to Otto who we have presently in headquarters on this investigation. Otto was advised of his rights and refused a search of his station but appeared to be very nervous.

Based on the foregoing affidavit, the Municipal Court Judge of the Bayonne Municipal Court issued a warrant to search the Gulf Gasoline Station and the person of the defendant for evidence of violations of Title 24.

I

PROBABLE CAUSE TO SEARCH

In determining whether the affidavit established probable cause, the Law Division judge stated that he considered the meaning of probable cause as defined in State v. Macri, 39 N.J. 250 (1963). He concluded the affidavit in question was defective under both the two-pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), as well as the totality of the circumstances standard announced in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).*fn1 The judge correctly observed that the affidavit contains no information about Det. Higgins' education,

training or experience in the investigation of illegal drug activities. He found this was Det. Higgins' first affidavit which did not state (1) when the information was received from the informant, (2) sufficient information to establish past reliability of the informant, (3) facts which would permit the issuing magistrate to determine the basis for the informant's conclusion that he "witnessed Otto dealing drugs from his gas station," and (4) any facts obtained during the surveillance tending to support the conclusion that defendant was dealing drugs from his gas station. Hence, the Law Division judge found the affidavit did not establish probable cause and ordered suppression of the evidence seized.

We agree with the Law Division judge that probable cause was not established. Probable cause is defined as a well grounded suspicion that a crime has been or is being committed. State v. Burnett, 42 N.J. 377, 387 (1964). Here, "the common and specialized experience and work-a-day knowledge of policemen," State v. Contursi, 44 N.J. 422, 431 (1965), could not be considered in determining whether probable cause was established because none was stated in the affidavit. In deciding whether probable cause existed, the Law Division judge utilized a common sense approach in analyzing the totality of the circumstances described in the affidavit. In so doing, he followed the standard approved in State v. Contursi, supra; State v. Schumann, 156 N.J. Super. 563, 566 (App.Div.1978) and later approved by Illinois v. Gates, supra and reinforced by Massachusetts v. Upton, 466 U.S. , 104 S. Ct. 2085, 80 L. Ed. 2d 721 (1984). The judge concluded that his common sense evaluation of the affidavit and the totality of circumstances presented therein persuaded him to conclude that the informant's veracity, reliability and basis of knowledge had not been established. He further concluded that the results of the surveillance reported in the affidavit only corroborated innocent details rather than alleged criminal conduct. He regarded the two-pronged test of Aguilar and Spinelli as being intertwined

with the determination of probable cause in light of the totality of the circumstances.

In view of our careful study of the record in the light of the controlling legal principles, we are also persuaded that probable cause was not established. The sum total of the informant's tip consisted of his assertion that he had witnessed defendant dealing drugs from the gas station without giving any indication of whether the information was stale, State v. Blaurock, 143 N.J. Super. 476, 479 (App.Div.1976), or just how he concluded defendant was dealing drugs. State v. Fariello, 71 N.J. 552 (1976). That information could be months old and he could have seen a person giving defendant money for petroleum products sold at the gas station, given the nature of that business. State v. Sims, 75 N.J. 337, 350 (1978).

Even more significantly, the affidavit contained mere conclusions with respect to the surveillance which was intended to independently verify what the informant reported. Illinois v. Gates, 462 U.S. at 240, 103 S. Ct. at 2333, 76 L. Ed. 2d at 550. The State concedes, and we think correctly, that defendant's nervousness after apprehension was immaterial. The affidavit does not state a single fact to support the conclusion that defendant was engaged in "drug transactions." None of the details of the so called drug transaction were given. The fact that one of the persons who visited the gas station had been arrested for cocaine and other drug violations does not suggest drug transactions were taking place absent more factual details. Former drug offenders as well as saints are entitled to buy lawful goods and services from a Gulf gasoline station. We appreciate the fact that Det. Higgins made his affidavit in haste, but defendant was already in police custody. Also, the issuing judge was called away from his family on a festive occasion to review the application in the parking lot of the City Line Shopping Plaza. Gates nevertheless requires a reviewing court to conscientiously review the sufficiency of the affidavit to insure that wholly conclusory assertions are not countenanced. Proper performance of the role of a neutral and

detached magistrate requires more than "a mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. at 239, 103 ...


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