On appeal from Superior Court of New Jersey, Law Division, Union County.
Fritz, Brody and Baime. The opinion of the court was delivered by Brody, J.A.D. Fritz, P.J.A.D. (concurring). Baime J.A.D. (concurring).
[210 NJSuper Page 19] A search of defendant's home pursuant to a warrant uncovered 108.6 grams of cocaine of which 38 grams were the pure free base. He pled guilty to possession with intent to distribute the cocaine, a crime punishable by imprisonment "for up to life, a fine of not more than $25,000.00, or both." N.J.S.A. 24:21-19b(2).
Pursuant to a plea agreement, the trial judge sentenced defendant to 10 years in prison, three to be served before parole eligibility. The points raised require us to consider whether certain sentencing guidelines of the Code of Criminal Justice (the Code) are applicable to a sentence imposed for a violation of the Controlled Dangerous Substances Act (the CDS Act) and to consider the appropriate appellate standard for reviewing a negotiated sentence.
Before reaching the sentencing issues, we address defendant's challenge to the search warrant. A law division judge had issued the warrant on the basis of statements in a police officer's affidavit. Defendant contends that the contents of that affidavit do not establish probable cause.*fn1
The officer relied heavily on the statements of a person he described as "[a] known citizen informant whose reliability need not be established. . . ." The allusion is to our holding in State v. Kurland, 130 N.J. Super. 110, 114-115 (App.Div.1974), where we said:
Probable cause for issuance of a search warrant may rest on reasonable trustworthy information from an informant. [Citation omitted.] When information is provided by a cooperative citizen, or an informant not from the criminal milieu, there is less need for establishing credibility of the informant. An ordinary citizen who reports a crime has been committed in his presence stands on a much different ground than a police informer. He is a witness to a crime who acts with an intent to aid the police in law enforcement because of his concern for society. He does not expect any gain or concession in exchange for his information. A citizen-informer of this type usually would not have more than one opportunity to supply information to the police, thereby precluding
proof of his reliability by pointing to previous accurate information which he had supplied. We hold that when information is provided by a citizen-informer his prior reliability need not be established as a prerequisite for issuance of a search warrant.
Defendant correctly observes that the officer does not recite any circumstances to support his conclusion that the informant was a cooperative citizen who expected neither gain nor concession in exchange for his information. Indeed, there is an inference to the contrary. The officer stated in his affidavit that the informant "turned over to me a quantity of white powdery substance" which the informant claimed he had "obtained" from defendant. The substance contained cocaine. The officer did not state whether the informant lawfully possessed the cocaine. If he did not, the informant would have been beholden to the police and his credibility could not be taken for granted.
However, the informant provided the officer with a detailed description of defendant's CDS activity, which was partly corroborated by the officer's own investigation. The officer observed at defendant's home an automobile that, according to the informant, defendant used to purchase cocaine in Florida. Further investigation revealed that the automobile was registered in Florida to someone other than defendant. Soon after the informant had told the officer that defendant was about to go to Florida in the automobile to purchase cocaine, the officer observed that the automobile was not at defendant's home for several days.
Even when an informant's inherent reliability has not been established in a search warrant affidavit, "the affidavit may nevertheless be sufficient if elsewhere in the application there is enough to 'permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed.'" State v. Ebron, 61 N.J. 207, 212 (1972) (quoting Spinelli v. United States, 393 U.S. 410, 418, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637, 645 (1969)). The United States Supreme Court recently emphasized that when an informant's
statement standing alone would be insufficient, the "totality of circumstances" may be considered to establish probable cause. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S. Ct. 2317, 2332-2333, 76 L. Ed. 2d 527, 548, reh. den., 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983).
An issuing judge must give weight to the expert judgment of an experienced police officer. State v. Kasabucki, 52 N.J. 110, 117 (1968). In his affidavit the officer described his extensive experience as an investigator of illegal CDS activity. He considered it significant that defendant kept at his home in New Jersey an automobile registered to someone else in Florida, a known source of cocaine. The informant's credibility was also enhanced by the absence of the automobile during the period when he predicted that defendant would be taking it to Florida to purchase cocaine. We stated in a similar case, "Thus the affidavit in toto detailed sufficient underlying facts and circumstances to establish probable cause" even though the informant's statement standing alone would not. State v. Medero, 95 N.J. Super. 209, 214 (App.Div.1967). Also, "[o]nce the judge has made a finding of probable cause on the proof submitted and issued the search warrant, a reviewing court, especially a trial court, should pay substantial deference to his determination." Kasabucki, 52 N.J. at 117. The trial judge here did not err when he denied defendant's motion to suppress.
The indictment in this case charged defendant and his wife with possession of one or more ounces of cocaine including "at least 3.5 grams of the pure free base" (N.J.S.A. 24:21-20a(2)) and possession of that cocaine with the intent to distribute it (N.J.S.A. 24:21-19b(2)). The State undertook in the plea agreement to move for dismissal of both counts against defendant's wife and dismissal of the simple possession count against defendant. The State also agreed to recommend a maximum
custodial sentence of 10 years with no recommendation, one way or the other, respecting a period of parole ineligibility.
The judge gave the following reasons for sentencing defendant to a prison term of 10 years with three ...