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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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?
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 ...