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State v. Nunez

July 13, 2000

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
SIMON NUNEZ, ROBERTO A. ALMONTE AND RUBEN GOMEZ, DEFENDANTS-RESPONDENTS,



Before Judges Kestin, Wefing and Steinberg.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 10, 2000

On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

The State of New Jersey appeals, pursuant to leave granted, from the trial court's order granting defendants' motion to suppress. We reverse and remand for further proceedings.

On October 30, 1998, members of the Paterson Police Department arrested defendants Simon Nunez, Ruben Gomez and Roberto Almonte in Paterson, New Jersey. Nunez and Gomez were later indicted for possession of a controlled dangerous substance, possession with intent to distribute, possession with intent to distribute within 1,000 feet of school property, distribution of a controlled dangerous substance and distribution within 1,000 feet of school property; the only charge asserted against Almonte was possession of a controlled dangerous substance.

On October 28, 1998, Paterson Detectives Bailey and Robinson applied for a search warrant for 103 Mill Street in Paterson and submitted an affidavit detailing a controlled buy of a controlled dangerous substance that a reliable confidential informant had made at that address from a Hispanic male known as Ruben. Within their affidavit, the detectives requested that the warrant be issued on a "no- knock" basis "for the safety of the officers involved and due to the easy destruction of evidence."

Municipal Court Judge Philip Fenster reviewed the affidavit and concluded there was probable cause to issue a warrant. He did so, but did not include a "no-knock" provision. The warrant was limited to the second floor apartment.

The building itself is somewhat small; it contains three separate apartments, one on each of the building's three floors. The property on which the building sits slopes slightly upward to the rear; when viewed from the rear, the first, or lower, floor apartment appears as if it could be described as a basement apartment. The front door opens immediately onto Mill Street; there are three separate mailboxes on the front door but no indication on the rear door of separate apartments. After walking up the driveway's incline, one must still go up four steps to reach a small porch or landing and the rear entry door.

On entering through the front door, one steps into a small hallway. The door to the first floor apartment is immediately to the left while straight ahead is a narrow stairway leading to the second floor. If one enters through the rear door, the door to the second floor apartment is immediately to the right. To the left is the stairway to the first floor, while straight ahead is a narrow hall leading to the stairs to the third floor apartment.

The warrant was executed on October 30, 1998 under the supervision of Detective Bailey, who observed from a nearby surveillance point. From his vantage point, Bailey did not have a view of the rear door. Four other detectives entered the building from the rear. The testimony about the manner in which the police executed this warrant was contradictory. Detective Bailey, who did not leave his surveillance point while the warrant was being executed, testified that Detective Formentin "breached" the rear door with a battering ram and that seconds later, defendant Gomez fled the building through the front door. Detective Daniel Rooney, however, who was a member of the entry team, testified that the rear entry door was unlocked and may have been ajar; he said Detective Rodriguez simply opened that door and the team entered the building. Rooney testified twice during this motion. On his second time as a witness, he reiterated that the rear entry door was unlocked but said that Rodriguez had to push the door open to enter the building.

According to Detective Rooney, he and Rodriguez saw defendants Gomez and Almonte in the first floor hallway engaging in a drug sale and the two detectives headed downstairs toward the two defendants. Gomez escaped through the front door and was subsequently captured. Almonte was arrested in the hall. The door to the first floor apartment was open; Detective Rooney looked into the apartment to make sure no one else was present who would pose a danger to the officers. When he did so, he saw a table on which a quantity of narcotics was sitting. It is those narcotics, which Rooney observed from the hallway, that form the basis of the charges lodged against Gomez and Nunez.

Rooney also testified that Detective Formentin had indeed used a battering ram, as Bailey had testified earlier, but that he had used the ram on the door of the second floor apartment, for which the warrant had been issued, not the rear entry door as Bailey had described. There was no one present in the second floor apartment when the officers forced the door. They searched the apartment but did not recover any narcotics.

Detective Rodriguez also testified in connection with the motion to suppress. He was the first officer to enter the building. He testified that the rear door was ...


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