On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-01-0076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Alvarez.
Defendant, Peter J. Rogers, appeals from his conviction following the entry of a guilty plea to Count Fourteen, as amended, conspiracy to possess a controlled dangerous substance with intent to distribute, a second-degree crime. N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and 2C:35-5(b)(2). In exchange for the guilty plea, the State recommended a seven-year custodial term and the dismissal of the remaining counts of the indictment. On appeal, defendant contends "the municipal court erred in its determination of probable cause; [and] the warrant was therefore invalid and the seizure of the contraband was unconstitutional." We disagree and affirm.
The controlled dangerous substances at issue were seized from defendant's residence following the execution of a search warrant issued by a Lakewood Municipal Court judge on December 2, 2004. At that time, Investigator Michael Korpon of the Ocean County Narcotic Strike Force (OCNSF) sought the issuance of a search warrant from the municipal judge for a residence located at 213 Lakewood Court, Little Egg Harbor, and a vehicle, specifically, a 1989 silver Honda Accord with a vehicle registration number of RVF-11Y.
In support of the application, Korpon submitted an affidavit in which he set forth the basis for the search warrant. Of significance to this opinion are the statements by the affiant relative to a confidential informant (CI). According to Korpon, the CI was personally familiar with an individual named Pete, who police later identified as defendant. According to the CI, Pete was distributing cocaine in the Little Egg Harbor Township area. The CI had Pete's cellular phone number and, at the behest of the police, contacted Pete to arrange the purchase of cocaine. Police searched the CI and his vehicle before the CI met with Pete and found no contraband or money. The CI was given previously recorded OCNSF Confidential Funds and then placed under surveillance as he traveled directly to Pete's residence. The CI entered the residence and exited a few minutes later. He then entered his vehicle and returned, still while under surveillance, to a prearranged location where he turned over to police a white powdery substance which was believed to be cocaine. The CI made one additional purchase from Pete at the same location during the week of November 14. Police followed the same search procedures before the CI entered the residence. Once the CI exited the premises, he was again surveilled as he drove directly to a prearranged location to meet police. Once again, he handed police a white powdery substance suspected to be cocaine.
The affiant stated further that during the week of November 28, the C.I., at the request of OCNSF, contacted Pete to arrange to purchase cocaine. This time, however, the purchase was to be made at a mutually agreeable location. Before traveling to the location, police searched the CI and his vehicle and, once sure that there were no drugs or money on the C.I. or in his vehicle, they provided him with an amount of money from the previously recorded OCNSF Confidential Funds. Police maintained surveillance of the entire incident and observed Pete arrive at the location in a silver Honda bearing registration number RVF-11Y. Pete stopped his vehicle alongside the C.I.'s vehicle. He exited the Honda and walked over to the C.I., who was still seated in his vehicle, at which time the police observed a hand-to-hand exchange take place. Once the transaction was completed, the C.I. returned to a location previously arranged by police where he turned over a white powdery substance of suspected cocaine.
The court issued a search warrant for the premises, with a no-knock provision. The court also issued a search warrant for the silver Honda. On December 7, police executed the search warrant at the 213 Lakewood Court residence from which suspected cocaine and narcotics paraphernalia were seized. Defendant was present at the time of the search and was arrested at that time. There were seven juveniles present at the residence at the time of the execution of the search warrant, and they were also taken into custody.
At the suppression hearing, defendant's trial counsel argued: (1) the affidavit lacked probable cause on its face; (2) a Franks*fn1 hearing was required; and (3) there was no basis for the no-knock provision contained in the warrant. The court rejected all of defendant's arguments. Specifically, as to the reliability of the confidential informant, the court stated:
In the affidavits in support of the warrant there are, as [the assistant prosecutor] points out, not one controlled buy, not two controlled buys, but three controlled buys through a confidential informant.
While it is argued that the CI in this case is unsubstantiated and uncorroborated, even if that were true, that this was a brand-new CI and that had never been used or relied upon in the past or proven to be a reliable confidential informant in the past, the fact is that in this case there were three controlled purchases by this confidential informant in a two-week period of time.
Likewise, with respect to defendant's contention that the search warrant was stale, the court found:
And [defense counsel] argues that - -one of the arguments he makes is that the execution - - the information in the search warrant was stale because the warrant was executed on December 2nd, and [this] confidential informant or ...