On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 01-07-0456.
Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2003
A nine-count indictment charged defendant, Arthur Jay Jones, *fn1 with third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count one); third-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35- 5b(3), and N.J.S.A. 2C:5-2 (count two); second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a(1) (count three); second-degree conspiracy to possess cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:5-2 (count four); fourth-degree possession of drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 (count five); fourth-degree conspiracy to possess drug paraphernalia with intent to distribute, N.J.S.A. 2C:36-3 and N.J.S.A. 2C:5-2 (count six); second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count seven); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count eight), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count nine).
After denial of his motion to suppress evidence obtained pursuant to a search warrant, defendant pled guilty to third- degree possession of a controlled dangerous substance (count eight). In return for his guilty plea, the State agreed to dismiss the remaining counts of the indictment and recommended that defendant be sentenced to a four-year term of imprisonment consecutive to any violation of probation defendant was then serving.
On March 11, 2002, defendant was sentenced, in accordance with the terms of the plea bargain, to a four-year term. Appropriate penalties were also imposed.
On appeal defendant raises the following arguments:
POINT I: THE JUDGE BELOW ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE SINCE THE OFFICER FAILED TO ARTICULATE A REASONABLE SUSPICION IN THIS PARTICULAR CASE THAT ISSUANCE OF THE NO-KNOCK SEARCH WARRANT WAS NECESSARY TO PREVENT DESTRUCTION OF EVIDENCE OR TO PROTECT THE OFFICERS' SAFETY.
POINT II: THE JUDGE BELOW ERRED IN DENYING THE MOTION TO SUPPRESS SINCE PROBABLE CAUSE COULD NOT BE DETERMINED FROM THE FACTS ALLEGED IN THE WARRANT APPLICATION BECAUSE THE INFORMANT WAS ADMITTED TO BE OF UNKNOWN RELIABILITY AND DID NOT ALLEGE FACTS WITH SPECIFICITY. POINT III THE JUDGE BELOW ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE WARRANT AUTHORIZING THE SEARCH OF DEFENDANT-APPELLANT ARTHUR J. JONES WAS OVERBROAD AND NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY THE SEARCH.
POINT IV: THE JUDGE BELOW INCORRECTLY WEIGHED THE AGGRAVATING AND MITIGATING FACTORS, THEREBY IMPOSING A LONGER SENTENCE THAN WARRANTED BY THE OFFENSE.
We agree that the search in question was unlawful for both of the reasons stated in defendant's Points I and II, absence of probable cause for the warrant and insufficient facts supporting the "no-knock" entry provision in the warrant.
The facts elicited during the suppression motion were as follows. During the week of June 18, 2001, members of the Cape May County Prosecutor's Office Narcotics Task Force received information from a confidential informant of "unknown reliability," asserting that Darryl Jones, Kenneth Powell, and Stephanie Williams were distributing drugs from a single- family residence located at 4009 Park Boulevard. The informant also stated that Jones, Powell, and Williams were selling drugs from the Sportsmen's Tavern at 3711 New Jersey Ave., in Wildwood.
The police, with the aid of the informant, conducted three controlled purchases of cocaine from individuals at the premises at 4009 Park Boulevard. During these controlled buys, officers would photocopy and record serial numbers of money to be used in the buy. They would search the informant to make sure that he *fn2 had neither drugs nor money on him when he entered the premises. The police then would provide the informant with the marked, "buy" money. The informant would then proceed directly to 4009 Park Boulevard, which was constantly under surveillance by Narcotics Task Force Agents. While inside, the informant would allegedly purchase rock cocaine from Darryl Jones and Williams. When the informant exited the building, he immediately reported to an undercover officer, who again searched him to make sure that the money- drug exchange had been made. The controlled purchase was repeated twice using the same procedure *fn3 . The informant identified Darryl Jones and Powell as the men who sold the cocaine to him, and also identified Williams as being present during at least one of the controlled sales.
Task Force members performed criminal background checks on Powell and Darryl Jones, and found that Powell had three prior drug convictions and Jones had been arrested twice previously for distribution of narcotics and distribution of drugs within 1000 feet of a school. Jones had also been previously ...