July 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOCELIN A. REEVES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-06-1321.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant appeals the order denying her motion to suppress evidence of drugs seized pursuant to the execution of a "no knock" warrant. We affirm.
Defendant and co-defendant Tyrone Bailey shared a residence in Neptune. On January 7, 2009, Detective Christopher Camilleri, a member of the Narcotics Strike Force (NSF) in the Monmouth County Prosecutor's Office, obtained a "no knock" warrant to search those premises. In his supporting affidavit, Camilleri averred that: (1) a confidential informant (CI) informed him and other members of the NSF that defendant and Bailey were distributing drugs from their residence; and (2) on four occasions between November 19, 2008 and January 2, 2009, the CI made "controlled purchase[s]" of crack cocaine from Bailey and defendant at that address.
Camilleri further averred that Bailey "currently has eight (8) felony convictions on his" record and "had numerous previous arrests for CDS related offenses including possession with intent to distribute . . . [CDS], weapons possession and assault." Camilleri also asserted that defendant "has been arrested multiple times for CDS violations including possession with the intent to distribute . . . [CDS] and for possession of a handgun."
In support of his request for a "no knock" warrant, Camilleri stated:
Based on the concern for the safety of the officers executing the [s]earch [w]arrant, as well as preventing the destruction of any evidence, your deponent respectfully requests that a no knock warrant be issued.
To knock and announce our presence under this application would be futile, based on the fact that both targets have previous arrests for weapons offenses and more specifically [defendant] for possession of a handgun. Such announcement could put officers in danger and would inhibit the effective investigation of the criminal activities occurring at this location.
Based upon the evidence obtained from the execution of the search warrant, defendant and Bailey were indicted for third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1.*fn1
On November 25, 2009, defendant filed a Notice of Motion to Suppress Evidence. Her attorney's certification in support of that motion, however, addressed only the issue of severance of defendant and Bailey for trial. The "no knock" warrant was not discussed.
On March 9, 2010, the judge heard oral argument on defendant's motion to suppress. Defendant contended that Camilleri presented a false record of both Bailey's and her prior criminal histories, and that the detective "knew it wasn't true . . . ." Bailey asserted that he had no prior weapons possession offense as Camilleri had stated;*fn2 he had been arrested for simple assaults, one of which had been dismissed. The prosecutor acknowledged that Bailey did not have a prior conviction for weapons possession, but did for assault.
Defendant had a prior arrest for drugs and possession of a handgun in 1995, which had been dismissed. Defendant asserted that no judge would have authorized a "no knock" warrant had the true facts been presented regarding these criminal histories. Defendant did not, however, elaborate upon or provide support for her assertion that Camilleri "knew" his statements were false.
The judge denied defendant's motion to suppress pursuant to the standards articulated in State v. Johnson, 168 N.J. 608, 619, 623 (2001). Noting that exceptions to the "knock and announce" warrant have been justified where there is a need to protect evidence, ensure officer safety or ensure the success of the search/seizure, the judge held that a police officer requesting a "no knock" warrant must: (1) "have a reasonable, particularized suspicion that a no-knock entry is required"; (2) articulate "the reasons for that suspicion"; and (3) assess circumstances "not . . . based on a mere hunch," but on "a minimal level of objective justification."
Citing State v. Jones, 179 N.J. 377, 401-02 (2004), the judge noted that a suspect's criminal history can "give rise to a reasonable suspicion that knocking and announcing the police presence in the circumstances . . . would increase the risk to officer safety." Reviewing Camilleri's affidavit, the judge noted that the officer's failure to include the dispositions of defendant's prior convictions was not fatal under Jones, id. at 404, which, the judge held, "only suggests that this should be done; it does not mandate that officers put all dispositions in the affidavit and it does not make failure to do so an automatic invalidation of the search warrant."
The judge concluded:
These prior instances of violence and weapons possession on the part of the defendants sufficiently meet the "minimal level of objective justification" required for the grant of no-knock warrants. The age of some of the arrests and convictions [is] countered by the fact that they continued to occur throughout the years. Courts have noted that many things often go into the dismissal of charges and plea agreements. Arrests are considered equally probative when determining whether a search warrant should be issued. Although this [c]court agrees that when dispositions are known they should not be left out of an affidavit, it is the opinion of the [c]court that failure to do so does not constitute a fatal error in this case.
Regarding Camilleri's reference to Bailey's prior weapons offense, the judge found that since "all of the other information was accurate and would have been sufficient for granting the no-knock warrant[,]" inclusion of this information was not fatal. Relying on State v. Chaney, 318 N.J. Super. 217, 221 (App. Div. 1999), the judge held that "if an affidavit . . . contains lawfully obtained information . . . , evidence obtained pursuant to the warrant will not be suppressed on the ground that the affidavit also contains false . . . information." In sum, the judge was satisfied that, had the judge issuing the warrant known that the "weapons offense attributed to . . . Bailey was not accurate," even if that information "was not in there at all," the warrant judge "still would have issued the no-knock warrant based on the information . . . presented . . . ."
On appeal, defendant contends that "[t]he motion judge erred in denying [her] motion to suppress." The gravamen of defendant's argument is that the judge misinterpreted the controlling case law, specifically Johnson and Jones. Having reviewed defendant's contention in light of the record and the controlling legal principles, we are satisfied it is "without sufficient merit to warrant discussion in a written decision [,]" R. 2:11-3(e)(2), other than the following brief comments.
Where, as here, defendant seeks relief on the ground that a material misrepresentation led to the issuance of the warrant, defendant was required to make "a substantial preliminary showing that [Camilleri], either deliberately or with reckless disregard for the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant." [State v. Marolda, 394 N.J. Super. 430, 441 (App. Div.) (quoting State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987)), certif. denied, 192 N.J. 482 (2007).]
Defendant has failed to make such a showing with respect to the "no knock" provision in the warrant. We, therefore, affirm substantially for the reasons stated in Judge Anthony J. Mellaci, Jr.'s oral opinion rendered from the bench on March 9, 2010, in which he properly analyzed and applied the controlling legal principles to the circumstances in this case.