On appeal from Superior Court of New Jersey, Law Division, Burlington County, No. 2003-11-1544.
The opinion of the court was delivered by: Wefing, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2005
Before Judges Wefing, Fuentes and Graves.
Defendant was indicted for two counts of possession of a controlled dangerous substance with intent to distribute, a crime of the third degree, N.J.S.A. 2C:35-5a(1); two counts of possession of a controlled dangerous substance, a crime of the third degree, N.J.S.A. 2C:35-10a(1); and one count of fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:10a(3). After the trial court denied his motion to suppress, defendant entered a negotiated plea of guilty to one count of possession of a controlled dangerous substance with intent to distribute. The trial court sentenced defendant to four years on probation, conditioned on serving 364 days in the county jail. The trial court specified in its sentence that the period of incarceration be served at the end of the probationary term and that if defendant had successfully completed probation, the sentence of incarceration would be vacated. Defendant has appealed from the denial of his motion to suppress. R. 3:5-7(d). After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
On July 9, 2003, Officer Stephen Wenger of the Burlington Township Police Department applied for a search warrant to search defendant's residence at 18 Pinewald Lane in Burlington Township. Officer Wenger supported his application with a detailed six-page affidavit, which included the following information. He noted that defendant had been arrested twenty-one times; eleven of these were for narcotics violations.
Defendant had four criminal convictions, including one for aggravated assault upon a police officer.
His affidavit included a detailed physical description of the premises and its surrounding structures, including such details as defendant's pool containing a Harley Davidson logo on the bottom. It noted that Wenger was familiar with defendant through prior contacts and that he had observed defendant in the company of motorcycle club members, including the club "Breed."
Wenger's affidavit set forth the following factual background. On or about May 18, 2003, a "concerned citizen" contacted Wenger. The individual told Wenger that he/she wished to remain anonymous because the individual feared retaliation. The individual told Wenger that the traffic into and out of defendant's residence had increased. This individual also told Wenger that defendant had told neighbors that he had lost his business and was selling drugs to replace the income he had lost. This individual also told Wenger that defendant had a new girlfriend.
During the weekend of June 1, 2003, Wenger spoke with another "concerned citizen" who also wished to remain anonymous because of the fear of retaliation. This individual told Wenger that she was concerned about her husband, who had, in the past, had a drug problem. She told Wenger that she was familiar with the signs of methamphetamine use because of her husband's prior drug use and that her husband had recently displayed symptoms indicating such use. She said that she had confronted her husband, who admitted purchasing a gram of methamphetamine from defendant and consuming it.
On June 22, 2003, Police Officer Carey met with defendant's new girlfriend, Rebecca Sternotti. Ms. Sternotti told Officer Carey that she and defendant had recently returned from a trip to Florida and that defendant had a large quantity of methamphetamine and marijuana stored in the house, the garage and his automobile, a Cadillac Escalade. She supplied the name, address and phone number of Michael Schoppe of Philadelphia, with whom she said defendant was dealing in narcotics. Officer Wenger was familiar with Schoppe through prior narcotics investigations. Schoppe had been arrested five times in New Jersey for narcotics violations and had been convicted in Pennsylvania on a narcotics charge. Officer Wenger's follow-up investigation confirmed Schoppe's address supplied by Sternotti, but not the telephone number.
Two days later, on June 24, Wenger was again contacted by the concerned citizen who had initially contacted him in May. This individual told Wenger that defendant had recently returned from a trip to Florida and that the traffic in and out of defendant's residence had increased significantly, at all hours of the day and night.
Wenger also set forth the location and physical layout of defendant's residence and why those made it difficult, if not impossible, to place the premises under surveillance. Wenger also noted that because defendant would only sell narcotics to people close to him, it was not possible to set up an undercover buy.
Wenger specifically requested in his affidavit the authority to execute the warrant at any hour and without the necessity for the police to knock and announce their presence.
In addition to the material contained in the balance of his affidavit, Wenger included the following information in support of a "no-knock" warrant.
It is virtually impossible to approach the house without being observed by occupants of the house. There is a driveway that is approximately 50 yards long leading from the street to the gate. In addition, the house is located some 50 feet from the gate. The gate is closed and must be opened by someone in the house or by a pass code. A tall fence surrounds the house and this fence would inhibit access to the house. In addition to the house, there is also a pool house and a detached garage that may possibly contain additional persons and must be simultaneously secured.
Wenger also noted that, although he had probable cause to believe a search would reveal a large quantity of narcotics, it was being sold in small amounts, facilitating its quick destruction.
After reviewing Officer Wenger's affidavit, the trial court issued the requested warrant. It included authorization to execute the warrant without the necessity of the police first knocking and announcing their presence, noting "assaultive background; multiple involvement with criminal justice system" as the basis. The ...