On appeal from the Superior Court, Law Division, Passaic County, Indictment Nos. 07-12-1543-I (A-5592-07T4) and 08-02-234-I (A-5613-07T4).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2008
Before Judges Lisa and Reisner.
In these cases, which have been calendared back-to-back, and which we now consolidate for disposition in a single opinion, the State appeals, by leave granted, from orders suppressing evidence. In each case, the evidence was seized from residential premises upon the execution of a search warrant. The fact patterns in the two cases are very similar. The suppression motions were argued in the Law Division on the same day by the same attorneys before the same judge. The judge found that the veracity of the confidential informants (CI) was sufficiently established, but their basis of knowledge linking defendants' drug activity to the residences was vague and conclusory. The judge determined that, based on the information in the affidavits, the detectives failed to provide sufficient corroboration to establish probable cause that the residences contained evidence of criminal activity.
From our review of the affidavits in each case, considering the specific information provided, the totality of the circumstances involved, the presumption of validity of the search warrants, and the substantial deference that should be given to the determination of the judges who issued the warrants, we conclude that defendants failed to meet their burden of establishing a lack of probable cause. We therefore reverse.
Under Passaic County Indictment No. 07-12-1543-I, defendants Cristobal Ortiz and Noemi Torres were charged with (1) third-degree possession of a controlled dangerous substance (CDS), namely heroin, N.J.S.A. 2C:35-10a(1); (2) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (3) third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and -5a; and (4) first-degree operating a CDS production facility, N.J.S.A. 2C:35-4 and N.J.S.A. 2C:2-6. We will refer to this case as "the Ortiz case."
Under Passaic County Indictment No. 08-02-0234-I, defendants Allen De Vita and Hector Ortiz were charged with (1) fourth-degree possession of a CDS, namely marijuana, in a quantity of less than one ounce, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12); (2) third-degree possession of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and -5a; and (3) third-degree possession of marijuana with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 and -5a.*fn1 We will refer to this case as "the De Vita case."
The sufficiency of the facts purportedly supporting a finding of probable cause, and thus the validity of the warrants, must be gleaned from within the four corners of the supporting affidavits. State v. Sheehan, 217 N.J. Super. 20, 24 (App. Div. 1987). We therefore recite the pertinent facts contained in the affidavit in each case.
On July 18, 2007, Detectives David Cruz and Marla Saraciano executed an affidavit in support of their request for search warrants for the persons of Noemi Torres and John Doe, a/k/a "Papo" (later determined to be Cristobal Ortiz), a silver Toyota Rav4 SUV, and the basement apartment of 339 15th Avenue in Paterson. The affidavit was presented to a Superior Court judge, who issued the requested warrants on that date.
The affidavit, after setting forth in detail the extensive training and experience of both detectives, with particular reference to their drug detection activities, stated that they received information from a reliable CI in June 2007. The detectives stated that the CI was deemed reliable and that information the CI provided in the past resulted in the seizure of CDS and led to the arrest of individuals associated with those seizures. The CI "indicated" that a Hispanic male known to the CI as "Papo" and his girlfriend "were distributing cocaine within the cities of Passaic and Paterson, as well as from their residence 339 15th Avenue, basement apartment, Paterson, New Jersey." The affiants set forth the CI's physical description of Papo and his girlfriend, and indicated that Papo "operated a silver colored, Toyota Rav4, which he utilized to distribute cocaine and make deliveries, within the Cities of Passaic and Paterson, New Jersey."
During the first week of July 2007, arrangements were made for the CI to make a controlled purchase of cocaine from Papo. The CI called Papo. Cruz conducted an overhear of the entire conversation. The CI ordered an amount of cocaine and a meet location was agreed upon. Before sending the CI to the meet location, members of the Passaic County Prosecutor's Office established a stationary surveillance at 339 15th Avenue and at the meet location. The CI was searched, with no money or contraband found. The CI was then issued currency and sent to the meet location. The CI was kept under constant visual surveillance at all times. A short time after the CI contacted Papo, a Hispanic male fitting the description previously furnished by the CI was observed exiting 339 15th Avenue with a Hispanic female fitting the description given of Papo's girlfriend. They exited "through the side alleyway of the dwelling," entered a silver Toyota Rav4 SUV, and drove directly to the meet location, being followed by the surveilling officers.
At the meet location, the CI and Hispanic male engaged in a brief conversation and hand-to-hand transaction, after which they went their separate ways. The male and female were followed and drove directly back to 339 15th Avenue. They got out of the vehicle and were observed "entering said location, through the side alleyway of the dwelling."
The CI was kept under continual visual surveillance and returned from the meet location to a prearranged location, where he met with the affiants. He said that the Hispanic male he met with was the person he knew as Papo and that the female was Papo's girlfriend. He further said that Papo sold him cocaine in exchange for the currency he was provided. The suspected cocaine was field tested and found positive for cocaine.
A motor vehicle inquiry revealed that the Rav4 was registered to Noemi Torres of 53 Center Street in Clifton. A photograph of Torres obtained through the Division of Motor Vehicles confirmed that the female involved in the witnessed transaction was Torres.
A Public Service Gas and Electric inquiry of 339 15th Avenue revealed that the premises is a multi-family dwelling, with three separate utility customers on the first, second and third floors, and no utilities listed in the basement apartment. The affiants swore that based on their training and experience they "know that individuals involved in the distribution of narcotics often rent basements and attics because the apartments are often illegal and the utilities are usually included, therefore the individual can conceal their identity within the residence."
In the next two weeks, the detectives arranged for three more controlled buys by the CI from Papo. Each followed the same procedure as the first, which we have described in detail. In each, the same surveillance was established at 339 15th Avenue and of the CI. In the second controlled buy, as in the first, after the CI contacted Papo, Papo and Torres were observed leaving 339 15th Avenue and driving in the Rav4 directly to the meet location. A transaction was conducted, after which Papo and Torres drove directly back to 339 15th Avenue and entered the building through the same entrance.
In the third and fourth controlled buys, however, after the CI called Papo to arrange for a sale, Papo and Torres were not seen leaving 339 15th Avenue, but they arrived at the meet location at the arranged time. After making a sale to the CI on each of those occasions, Papo and Torres drove directly to 339 15th Avenue and entered the building through the same entrance.
After each of the three succeeding controlled buys, the CI informed the defendants that he purchased cocaine from Papo and Torres in exchange for the currency he was provided. The CI turned over the suspected drugs, which on each occasion tested positive for cocaine.
The detectives stated in the affidavit that the exact dates, times and arrangements pertaining to the controlled buys were not specified in order to protect ...