August 4, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WARREN UNKERT, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREN UNKERT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-10-00146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 9, 2010
Before Judges C.L. Miniman and Fasciale.
Defendants, Warren and Karen Unkert, appeal from the denial of their application to withdraw their guilty pleas prior to sentencing. Defendants contend that there was no probable cause for the issuance of the search warrant because the warrant affidavit contained deliberate falsehoods. We reverse and remand for the court to perform an analysis under prong two of Slater.*fn2 On remand the court should decide whether a Franks*fn3 hearing is warranted, and if so, to conduct it.
On November 11, 2004, the New Jersey State Police conducted surveillance of a store known to law enforcement as a supplier of sophisticated cultivation equipment commonly used by growers of marijuana for indoor marijuana cultivation facilities. Defendants arrived driving a cargo van and were seen departing the store allegedly carrying a "large tube," which they placed into the van. The police followed the van to defendants' home.
Knowing that cultivating marijuana indoors increases electrical consumption, the police undertook to compare electrical consumption of "neighboring homes of similar size." The police learned that their home used more than three times the electricity when compared to two "comparable neighboring dwellings."
Thereafter, the police conducted a thermal scan of the outbuildings located on defendants' property to determine if a marijuana cultivation facility was being operated. The thermal scan revealed no heat anomalies that would be consistent with such a facility.
On January 19, 2006, Officer Erik Carricarte responded to a "911 hang[-]up" at defendants' home. While standing in the front doorway, Carricarte smelled a strong odor of burnt marijuana. Warren Unkert admitted to Carricarte that he was smoking marijuana.
On January 26, 2006, Detective Dean Carnival prepared an affidavit on which the court relied to issue a search warrant for their premises. In the affidavit, Carnival references a "large tube," "neighboring homes," and a "911 hang[-]up." Specifically, he averred that a white couple driving a van patronized "Indoor Gardens," a known supplier of equipment for marijuana production, on November 11, 2004. When they left the store, they "proceeded to load a large tube into the van." They were then followed by the surveillance team to their home. Carnival also certified that a comparison of defendants' electrical usage revealed that defendants "had for several months been utilizing more than three times the electricity when compared to two comparable neighboring dwellings." Last, he certified that Carricarte responded to defendant's home "to investigate a '911 hang[-]up'" and during the investigation, the officer detected the odor of burnt marijuana. Defendants contend that these three references constitute deliberate falsehoods by Carnival. The search warrant was issued on January 28, 2006.
On January 31, 2006, the police executed the search warrant. Upon entering the home, the police detected a strong odor of burnt marijuana. In the bedroom, the police located six plastic Tupperware containers of marijuana, a digital scale, a .22 caliber pistol, a fully loaded nine-millimeter, semi-automatic pistol, and $31,440 in cash. In the kitchen freezer, they located a clear plastic bag of marijuana wrapped in tin foil. In an adjoining outbuilding, they located two separate "grow rooms" containing a sophisticated marijuana cultivating facility. Twenty actively growing, four-foot-tall marijuana plants were growing in the first room, and in the second room, twenty-seven actively growing marijuana plants were located. Special lighting and equipment were found in both rooms.
On January 31, 2006, both defendants were arrested and gave taped statements. Warren Unkert admitted to growing marijuana from October to mid-April, so that they would have "plenty of weed for the summer." He explained that he "got all the equipment and . . . did all the research on how to grow it . . . ." Regarding Karen Unkert, he said that "[s]he went out and bought stuff [and] . . . did some watering and clipping once in a while." He explained how he grew the plants and used special lighting. Karen Unkert admitted that "there [were] twenty [plants] that were budding . . . ." Defendants insisted that they did not sell marijuana, but rather, grew it for personal use.
On October 29, 2007, defendants were indicted and charged with first-degree maintaining or operating a controlled dangerous substance (marijuana) production facility, in violation of N.J.S.A. 2C:35-4 and N.J.S.A. 2C:2-6 (Count One); second-degree manufacturing a controlled dangerous substance (marijuana), in violation of N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(10)(b), and N.J.S.A. 2C:2-6 (Count Two); second-degree possession with intent to distribute a controlled dangerous substance (marijuana), in violation of N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(10)(b), and N.J.S.A. 2C:2-6 (Count Three); fourth-degree unlawful possession of a controlled dangerous substance (marijuana), in violation of N.J.S.A. 2C:35-10a(3) and 2C:2-6 (Count Four); and second-degree possession of a weapon (a nine-millimeter, semi-automatic handgun) during the commission of certain drug crimes, in violation of N.J.S.A. 2C:39-4.1a and N.J.S.A. 2C:2-6 (Count Five).
In July 2008, defendants argued a motion to suppress. No material connected with that motion was included in the record on appeal.
On September 8, 2008, defendants pled guilty. Warren Unkert pled guilty to first-degree maintaining or operating a controlled dangerous production facility (Count One). Karen Unkert pled guilty to second-degree manufacturing a controlled dangerous substance (Count Two).
Warren Unkert testified that he pled guilty because he was guilty. He explained that no one forced him to plead guilty and that he did so voluntarily. He pled guilty knowing that he would waive his right to a jury trial, his right to be silent, and his right to cross-examine witnesses. He explained that he reviewed with counsel, read, understood, and signed the plea forms. He gave the following factual basis:
Q: [D]id you knowingly maintain or operate or aid, promote, finance or otherwise participate in the maintenance or operation of a premises . . . used for the manufacture of marijuana in an amount greater than ten plants?
A: Yes, sir.
Q: Mr. Unkert, on January 31, 2006, were you propagating or growing or producing more than ten marijuana plants?
Q: Did you know they were marijuana plants? A: Yes.
Q: Did you know that you were maintaining or operating a controlled dangerous substance production facility?
After this testimony, the judge found that Warren Unkert's plea was entered freely and voluntarily.
Karen Unkert testified that she pled guilty because she was guilty. She explained that no one forced her to plead guilty and that she did so voluntarily. She pled guilty knowing that she would waive her right to a jury trial, her right to be silent, and her right to cross-examine witnesses. She explained that she reviewed with counsel, read, understood, and signed the plea forms. She gave the following factual basis:
Q: [D]id you knowingly or purposefully manufacture a controlled dangerous substance, that is marijuana, in a quantity of ten or more marijuana plants?
A: Yes, for personal use.
Q: Did you know it was marijuana at the time?
A: Yes, I did.
Q: [H]ow many plants did you have in your possession?
Q: Okay. And this was in a growing room or something on your premises, is that right?
A: Yeah, a closet-sized room in the garage. Q: Okay. And pots and lights and all and that sort of thing?
A: Yes, just pots with dirt.
A: And a 1,000-watt light[ ]bulb.
After this testimony, the judge found that Karen Unkert's plea was entered freely and voluntarily.
Pursuant to the negotiated plea agreement, the State recommended that Warren Unkert be sentenced to five years in State prison, with nine months of parole ineligibility, and Karen Unkert be sentenced to probation.
On October 31, 2008, counsel for Warren Unkert wrote the deputy attorney general (DAG) and said:
As you are aware, both defendants have entered guilty pleas . . . and are awaiting sentencing.
Despite this, I still have nagging reservations with regard to the "911 hang [-]up" call set forth in paragraph nine of the affidavit used to secure the search warrant. I would like to listen to this 911 tape as quickly as possible in order to satisfy myself that all bases have been covered.
The DAG responded in writing on May 5, 2009, that no tape exists because the police department taped over it. The DAG explained that, at the time of the 911 hang-up call, the police kept tapes of 911 calls for thirty days and then taped over them.
Warren Unkert filed a motion dated March 2, 2009, to withdraw his plea, schedule a Franks hearing, dismiss the indictment, and obtain attorneys' fees.*fn4 He attached an unsigned certification and filed a signed supplemental certification dated March 31, 2009. In his certifications, Warren Unkert argued that Carnival's search warrant affidavit "perpetrat[ed] a fraud on the court (emphasis omitted)." Specifically, he claimed that three paragraphs of the affidavit contained lies. First, paragraph five mentioned that defendants loaded their van with a "large tube." He claimed he purchased a twelve-inch tube that was in a bag and not visible. As a result, they could not have raised the issue before they pled guilty. Second, paragraph seven mentioned electrical consumption of "neighboring homes." The homes studied were seven and a half and twenty-six miles away from his home. He claimed there were no neighboring homes of similar size. Third, paragraph nine mentions the "911 hang[-]up" call. He claimed that there was no call because no tape of the call existed.
Defense counsel argued that when he read the warrant affidavit, he "assumed, as did [his] clients[,] . . . that the residences on Pine Street [were on] the Pine Street behind their house. It was only when they did a lot of independent research they found out the one Pine Street home was in a different township, seven miles away and the other Pine Street home was in a different county, twenty-six miles away." Defendants realized that the "neighboring homes" were not behind defendants' home. He said that "[the defense] didn't pick that up prior to the suppression hearing." Defense counsel assumed that the neighboring dwellings on Pine Street were located behind defendant's home, but "when [defendants received] the information later about the electric bills, [they] found out [their assumption] wasn't correct."
Defendants argued that they made a plausible showing of a valid defense that the warrant affidavit is defective because it contained falsified information, and that they had a good faith basis to make such an argument after they pled guilty.
In addressing defendants' request for a Franks hearing, the judge said, "I view this as a functional equivalent of seeking a new trial based on newly discovered evidence."
On April 3, 2009, the sentencing judge denied the motion to withdraw their pleas.*fn5 The judge found that there was "no denial of guilt." He said that "[t]he reasons for wanting to take back the plea[,] I think[,] have been amply discussed and, in my view, they've not given the reasons." The State argued that by entering a guilty plea, defendants waived all constitutional claims. The judge agreed and found that the "the information [defendants] claim to now have[,] previously existed . . . ."
He said, under Slater, "there is not . . . grounds for allowing them to withdraw their plea. . . . There is not an interest of justice standard, in my view, that has been reached." After finding that the State and court were entitled to finality, he sentenced defendants in accordance with the negotiated pleas.
On May 12, 2009, defendants filed this appeal.*fn6
On appeal, defendant raises the following points:
Mr. Unkert is entitled to withdraw his guilty plea in the interests of justice on the specific grounds that there was no probable cause for the indictment, it having been procured by fraud, deception, perjury and falsified evidence by agents of the State.
Mr. Unkert is entitled to withdraw his guilty plea in the interests of justice on the specific grounds that it was not entered knowingly, voluntarily and intelligently.
POINT 3: Mr. Unkert is entitled to withdraw his guilty plea in the interests of justice on the specific grounds that the indictment was fatally defective.
POINT 4: It is the law of the land that a search warrant[,] the probable cause of which was based on false swearing (as in this case)[,] must be voided and its fruits excluded. In this case, the fruits include the Unkerts' arrest, indictment, conviction, sentence and THE FORFEITURE ACTION PRESENTLY PENDING AGAINST THEIR VERY HOME.
POINT 5: Mr. Unkert is entitled to a dismissal of the indictment against him with prejudice because it is manifestly deficient and palpably defective.
POINT 6: Mr. Unkert is entitled to a dismissal of the indictment against him with prejudice on the grounds that it violates the Doctrines of Fundamental Fairness and Due Process.
Judges have the inherent power to guarantee the proper administration of justice by dismissing indictments that subvert justice.
They are the guardians of the Constitution, standing between us and totalitarianism.
In evaluating a motion to withdraw a defendant's guilty plea prior to sentencing, the trial court must consider the following factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)). The trial court must balance these factors within the context of the defendant's motion to withdraw a guilty plea. Id. at 162. No factor of the four is mandatory, and relief is not disqualified or dictated based on their presence or absence. Ibid.
"[A] guilty plea is the final relinquishment of the most cherished right - to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt." State v. Smullen, 118 N.J. 408, 414 (1990). The New Jersey Court Rules assure that a guilty plea contains a factual basis, and is given with an understanding of the nature of the charge and the consequences of the plea. State v. Barboza, 115 N.J. 415, 420-21 (1989). Rule 3:9-2 governs the taking of pleas, and provides in relevant part:
The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
Such procedural safeguards ensure that courts can be "satisfied from the lips of the defendant that he committed the acts which constitute the crime." Slater, supra, 198 N.J. at 155 (internal quotations omitted).
Despite the finality of the plea process, defendants are entitled to "'fairness and protection of basic rights.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)). To ensure that the rights of defendants are preserved, the Rules provide a standard applicable to pre-sentencing motions to withdraw a plea. Id. at 156. Motions filed at or before the time of sentencing will be granted in the "interests of justice." R. 3:9-3(e). Rule 3:9-3(e) provides as follows:
If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel[,] . . . the court may vacate the plea or the defendant shall be permitted to withdraw the plea.
"Before sentencing, courts are to exercise their discretion liberally to allow plea withdrawals." Slater, supra, 198 N.J. at 156.
While there are procedural safeguards in place to protect the liberty interests of a defendant, the burden still remains with a defendant "'to present some plausible basis for his request [to withdraw a plea], and his good faith in asserting a defense on the merits . . . .'" Smullen, supra, 118 N.J. at 416 (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.) certif. denied, 66 N.J. 312 (1974)). "That approach logically flows from the entry of a guilty plea because a defendant's representations and the trial court's findings during a plea hearing create a 'formidable barrier' the defendant must overcome in any subsequent proceeding." Slater, supra, 198 N.J. at 156 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed. 2d 136, 147 (1977); State v. Simon, 161 N.J. 416, 444 (1999)). A "whimsical change of mind" by the defendant is not an adequate basis to set aside a plea.
Huntley, supra, 129 N.J. Super. at 18 (citing State v. Thomas, 61 N.J. 314, 321-23 (1972); State v. Wall, 36 N.J. 216, 218 (1961)).
The first factor focuses on whether defendant has asserted a colorable claim of innocence. "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Slater, supra, 198 N.J. at 158. In weighing such motions, trial courts must consider whether a defendant has asserted his or her innocence of the offenses charged. Ibid. "A bare assertion of innocence is insufficient to justify withdrawal of a plea." Ibid. Defendants asserting claims of innocence must present "specific, credible facts" and, where possible, point to facts in the record in support of that claim. Ibid; see also State v. Phillips, 133 N.J. Super. 515, 519 (App. Div. 1975) (explaining that "a protestation of innocence must be more than a mere assertion of non-guilt" and newly asserted defenses may invite skepticism if "factually unclothed"). "Courts are not to conduct a mini-trial at this juncture"; however, "[t]hey should simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Slater, supra, 198 N.J. at 159. The longer the defendant delays in asserting a claim of innocence, the greater the level of scrutiny to be employed by the court in weighing the claim. Id. at 160.
The second factor focuses on the basic fairness of enforcing a guilty plea. It requires that the court ask "whether defendant has presented fair and just reasons for withdrawal," and considers the effectiveness of those reasons. Id. at 159. Case law has identified a number of reasons that warrant withdrawal of a plea. Those reasons include whether:
(i) "the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea"; (ii) "the defendant was not informed and[,] thus[,] did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea"; (iii) the "defendant's reasonable expectations under the plea agreement were not met"; and (iv) "the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense was forgotten or missed at the time of the plea." Id. at 159-60 (internal quotations omitted).
The third factor focuses on the existence of a plea bargain. The defendant bears a higher burden in moving to withdraw a plea of guilty entered pursuant to a plea bargain. Id. at 160-61 (citing Smullen, supra, 118 N.J. at 416-17; Huntley, supra, 129 N.J. Super. at 18). "We recognize that the vast majority of criminal cases are resolved through plea bargains and do not suggest that this factor be given great weight in the balancing process." Id. at 161.
The fourth factor focuses on whether withdrawal would "result in unfair prejudice to the State or unfair advantage to the accused[.]" Ibid. "There is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea." Ibid. "[C]courts must examine this factor by looking closely at the particulars of each case." Ibid. Slater describes facts that demonstrate prejudice, including "the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence." Ibid. The trial court must inquire into these factors, as well as others, to determine whether "the passage of time has hampered the State's ability to present important evidence." Ibid.
The crux of defendants' argument requires us to focus on the second prong of Slater, namely, "[w]hat are the nature and strength of defendant's reasons for withdrawal?" Id. at 159. Specifically, have the defendants "not only made a plausible showing of a valid defense against the charges, but also [have defendants] credibly demonstrated why that defense was forgotten or missed at the time of the plea[?]" Id. at 160 (internal quotation omitted). "This second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. The motion judge did not make specific findings of fact regarding prong two of Slater.
On appeal, defendants argue that they satisfied prong two and were entitled to a Franks hearing. We agree that they have at least articulated facts tending to satisfy the second prong. The right to have evidence suppressed because the search warrant was based on a false or fraudulent affidavit is certainly a valid defense to the charges as the State could not successfully prosecute without the evidence seized. Defendant also provided three reasons for why the defense of fraud in securing the warrant "was forgotten or missed," id. at 160 (internal quotation omitted), at the time of the plea.
First, defendants and defense counsel assumed, at the time they read the warrant affidavit, that the references to "neighboring homes" on Pine Street related to homes on the Pine Street behind defendants' home, not one on a Pine Street several miles away and another on a Pine Street in a different county. Defense counsel assumed "when the affidavit said they were neighboring dwellings on Pine Street, it was the Pine Street behind their residence." Defendants argued that when they received "the information later about the electric bills, [they] found out it wasn't correct." Although defendants most likely know the size of homes on the Pine Street behind their home, they had no such knowledge about homes on distant Pine Streets and thus had no basis to challenge comparative electrical usage. Defense counsel said that he did not recall, prior to the suppression hearing, seeing the actual electric bills and addresses on them.
Second, defendants contended that it took time for them to get records to dispute the length of the tube they purchased. They argued that they purchased a tube that was small enough to carry in a bag, not a "large tube," as stated in the affidavit. Obviously, if the item they purchased was hidden in a bag, the basis for even reasonable suspicion might not have existed.
Third, in defense counsel's October 31, 2008, request for a copy of the "'911 hang[-]up' call," he states "I still have nagging reservations with regard to the "'911 hang[-]up' call set forth in paragraph nine of the affidavit." They later found out that no tape existed, which provided fertile ground to challenge the veracity of the claimed 9-1-1 hang-up call.
Thus, defendants have articulated why the defense was missed prior to the plea. They have also articulated a valid defense. However, that defense is one governed by Franks, where the United States Supreme Court said:
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient . . . . Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. [Franks, supra, 438 U.S. at 171-72, 98 S.Ct. at 2684-85, 57 L.Ed. 2d at 682 (1978).]
Thus, to determine whether defendants have a valid defense, the motion judge must analyze the alleged false and fraudulent statements by applying the Franks criteria and make a threshold determination as to whether "there remains sufficient content in the warrant affidavit to support a finding of probable cause" after the allegedly false statements are stricken. Ibid. If so, then no Franks hearing is required and defendants have failed to prove Slater's second prong as a matter of law. "On the other hand, if the remaining content in the warrant is insufficient, then the defendant is entitled, under the Fourth and Fourteenth Amendments, to [a Franks] hearing." Id. at 172, 98 S.Ct. at 2684-85, 57 L.Ed. 2d at 682. Whether defendants will succeed at that hearing is another issue.
Our Supreme Court recognized that "[t]he limitations imposed by Franks are not insignificant." State v. Howery, 80 N.J. 563, 567, certif. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed. 2d 424 (1979). First, the defendant "must allege 'deliberate falsehood or reckless disregard for the truth,' pointing out with specificity the portions of the warrant that are claimed to be untrue." Ibid. (quoting Franks, supra, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed. 2d at 682). Here, defendants did that. Second, "the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Id. at 568 (citing Franks, supra, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed. 2d at 682). In determining whether there is a valid defense, that is, whether defendants' reasons for withdrawal "have any force," Slater, supra, 198 N.J. at 159, the judge must undertake a Franks analysis.
On remand, the judge should specifically determine whether defendants made a "plausible showing of a valid defense," and whether they "credibly demonstrated why that defense was forgotten or missed at the time of the plea." Slater, supra, 198 N.J. at 160 (internal quotation omitted). If they have demonstrated the latter proposition, the judge should determine whether, under prong two of Slater, defendants' defense of a falsified warrant affidavit "ha[s] any force." Id. at 159. In performing that analysis, the judge should determine if a Franks hearing is warranted. The judge should first assume the three specific allegations of deliberate falsehood are true. Then the judge must excise the allegedly false statements from the affidavit and determine whether "there remains sufficient content in the warrant affidavit to support a finding of probable cause." Franks, supra, 438 U.S. at 172, 98 S.Ct. at 2684-85, 57 L.Ed. 2d at 682 (1978). If so, then no Franks hearing is necessary. "On the other hand, if the remaining content in the affidavit is insufficient," then a hearing is necessary. Ibid. At the hearing, the judge will address the merits of defendants' allegations. At that point, the judge can decide (1) whether there is a basis, under Slater, to grant defendants' request to withdraw their pleas, and (2) whether to grant or deny the remaining relief sought in defendants' motion.
Reversed and remanded. We do not retain jurisdiction.