On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-04-00281-I and 07-07-00606-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Sabatino and Newman.
Defendant Shawn A. Reason appeals from an order denying his motion to suppress evidence seized pursuant to a search warrant. Twenty-five bricks of heroin and $53,285 were found in the washing machine in the basement of a multi-family building on Louisa Avenue in Elizabeth, New Jersey. Pursuant to a plea agreement, the trial court sentenced defendant to an aggregate term of nineteen-years imprisonment with eight years of parole ineligibility. Defendant reserved his right to appeal the denial of the suppression motion. We now affirm.
The relevant facts may be summarized as follows.
Defendant occupied the second floor apartment in this two-and- one-half story building with his girlfriend, co-defendant Walesca Echevarria. The same premises were the subject of a search warrant on December 1, 2006. The search warrant at issue was executed on March 7, 2007. The warrant provided for a search of the second floor apartment, a 1998 Mercury Sable, and a 1993 Ford Probe. The search was limited to the second floor apartment and "all common areas of ingress, egress, and access associated with that apartment . . . ."
In the transcript before Judge Scott J. Moynihan who issued the search warrant, Assistant Prosecutor Julie Peterman asked Officer James Diorio of the Elizabeth Police Department the following question:
And you are seeking then to search only the second floor apartment of [the] Louisa Street [building] and the detached two-door garage of that address, as well as all common areas of ingress, egress and access, associated with that apartment, including the basement. Correct?
Officer Diorio responded: "Correct".
In granting the search warrant, Judge Moynihan granted access based on probable cause for everything except the garage.
Unfortunately, the tape skipped when Judge Moynihan stated that he "definitely finds probable cause for the second floor apartment and . . . (Tape Skip)." Nonetheless, the subsequent colloquy reveals Judge Moynihan's surprise when he learns that there was no door leading to the basement. Inferentially, it suggests he had extended the search warrant to cover the basement area and did not even realize when he did so that there was no barrier to entering that area.
When the search warrant was originally issued in December of 2006, the police chose not to search the basement. However, when a similar warrant was issued in March of 2007, the police did go into the basement, after speaking with the owner of the premises. The owner told the police that the second floor tenant had access to the basement, that there was not any door separating the basement from the upstairs, and that the tenant did use the basement for storage.
In denying the motion to suppress, Judge Heimlich found that the basement area was included within the four corners of the ...