On appeal from the Superior Court of New Jersey, Law Division, Morris County, 01-10-1252-I.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Parrillo and Gilroy.*fn1
We granted the State's leave to appeal, R. 2:2-3(b), from an order of the Law Division suppressing the post-arrest statement of defendant, Vincent Dispoto, and evidence, specifically a quantity of marijuana and drug paraphernalia, seized pursuant to a search warrant at defendant's office and residence. We now affirm.
On October 10, 2001, a Morris County Grand Jury indicted defendant with second-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a, while in the possession of a weapon, N.J.S.A. 2C:39-4.1 (Count One); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) (Count Two); fourth-degree degree possession of over fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(3) (Count Three).
We combine the procedural history and relevant facts. In April 2001, the Manhattan District Attorney's office contacted the New Jersey State Police regarding suspected criminal activity on the part of defendant. As a result, an informant advised Detective Vincent Sheridan of the State Police Narcotics and Organized Crime Bureau that defendant was associated with organized crime, supplemented his income with the sale of drugs, and was trying to hire someone to kill his wife with whom he was engaged in divorce proceedings. At the behest of the State Police, the informant agreed to be fitted with "a wire" and have a meeting with defendant. The informant met with defendant on April 25, 2001, at which time defendant made exculpatory statements when asked if he wanted his wife killed. Defendant advised the informant that he did not care what his wife did, to forget about her, and that he would be the first one suspected if anything happened to her. As a result of the information garnered by the informant, the State Police dropped the investigation into the murder for hire plot.
After Sheridan discussed the matter with his supervisor, it was decided that State Police detectives would nevertheless immediately meet with defendant's wife, Jacqueline Dispoto, and advise her of the potential threat on her life. Sheridan and two other officers met with Jacqueline. She became visibly upset when told of the possible murder for hire plot and advised them that defendant uses and sells drugs and had guns. She also told them that defendant had threatened to kill her in the past and that there was a history of domestic violence as a result of which she had obtained two Temporary Retraining Orders (TRO). The State Police then escorted Jacqueline to the Morris Plains Police Department where she applied telephonically for a third TRO. The written application indicated that a "confidential source provided information that victim is in danger of physical harm as a result of attempts being made by the defendant to hire someone to murder his wife, the above listed victim." A Municipal Court judge signed the TRO, which included a warrant to search for and seize weapons for safekeeping, listing specifically, a .38 special revolver, a silver .45 automatic, a .22 rifle with scope, and an unknown type of automatic pistol. N.J.S.A. 2C:25-28j.
In the early evening of April 25, 2001, at approximately 8:20 p.m., defendant was taken to the Morris Plains Police Department to be served with the TRO and search warrant for weapons. Shortly after 9:30 p.m., although not under arrest, defendant was given his Miranda*fn2 warnings, after which he signed the Miranda form. Defendant was then taken to his office accompanied by police who executed the search warrant. The police found marijuana in an employee's desk located in a cubicle. After finding the marijuana, the police secured the area pending application for a criminal search warrant. Defendant was still not placed under arrest.
At approximately 10:40 p.m., the police drove defendant to his residence. After entering his home with the officers, defendant took them upstairs and surrendered his Colt .38 revolver. After advising the police that he won the revolver in a poker game, the defendant was arrested for improper acquisition of a handgun. The police continued the weapons search, checked the pool cabana and then the garage. According to one of the officers, when they arrived at the garage, defendant went from a "George Hamilton tan to a Bella Lugosi gray." After some initial resistance, defendant provided the police with the code and they opened the garage door via an electronic key pad. A locked safe was found inside the garage. The police claimed that they could smell a strong odor of marijuana coming from the safe. As they entered the garage, the police asked defendant what was in the safe. Defendant essentially responded that there were two pounds of marijuana.*fn3 The police then stopped the search and secured the scene pending the application for a search warrant. Defendant was handcuffed and taken to headquarters.
An application for a search warrant to search the garage for CDS and drug paraphernalia was filed the following day with the Presiding Judge of the Criminal Division (Presiding Judge). In an affidavit in support of the application, Sheridan provided the background information. The information provided was essentially the same as set forth above. It, however, left out factual information as to when defendant was arrested. It explained what was provided by the informant and defendant's wife respecting defendant's drug activity and stated that defendant was "read rights as per Miranda" while he was at police headquarters. It did not disclose that defendant was not under arrest when he was served with the TRO and weapons search warrant. The criminal search warrant issued and the police opened the safe and seized the contraband contained inside.
Defendant initially filed a motion to dismiss the indictment and to suppress the gun, drugs, and drug paraphernalia, attacking the weapons search warrant and the criminal search warrant as being issued without probable cause. After holding a plenary hearing, the motion judge found: (1) the telephonic search warrant was valid; (2) procedural safeguards were followed; (3) there was sufficient cause to issue the weapons search warrant; and (4) exigent circumstances required immediate issuance of the weapons search warrant. The motion judge, however, suppressed evidence of the revolver in the criminal trial in accordance with our holding in State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003).*fn4 He also found that the odor of marijuana and defendant's admission that the safe contained two pounds of marijuana provided sufficient probable cause for the Presiding Judge to issue the criminal search warrant.
Prior to the commencement of trial, pursuant to defendant's motion, the motion judge held a Miranda hearing. Following the hearing, the judge on May 24, 2005, suppressed defendant's admission that there were drugs in the safe and then sua sponte suppressed the evidence of drugs and drug paraphernalia recovered from inside the safe, finding the officers' statements that they smelled the drugs not credible. In reaching his decision, the motion judge found that the Miranda warnings given at headquarters were a nullity because defendant was not under arrest. He concluded that defendant's drugs, found in the safe, were inadmissible as fruits of the poisonous tree because he was not Mirandized ...