June 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FRANKLIN D. VOGUES, a/k/a FRANKLIN D. WAYE VOGUE, FRANK VOGUES, FRAKLIN D. VOGUES and FRANKLIN VOQUES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-1727.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas,
Deputy Attorney General, of counsel and on the brief).
Before Judges Sabatino and Maven.
Defendant Franklin Vogues appeals from an order dated October 7, 2010, denying his suppression motion and request for an evidentiary hearing to challenge the validity of the search warrant, and denial of reconsideration on December 20, 2010. We affirm.
On December 10, 2008, members of the Camden High Intensity Narcotics Trafficking Area (HIDTA) Narcotics Task Force conducted a buy/bust operation in the City of Camden. Undercover officers assigned to the task force approached well-known open-air drug distribution rings in Camden, posed as drug buyers, and attempted to purchase narcotics from drug dealers.
At approximately 7:45 p.m., two undercover officers, Investigator Terry King and Detective Sean Miller, were traveling in the area of North 29th Street and High Street when they observed two males. Investigator King exited his undercover vehicle and met with the two males, later identified as defendant and co-defendant Aaron Lofland. Defendant asked the officer "what [he] needed, " and the officer replied, "four dimes." Defendant told Investigator King to speak with Lofland, and then asked the officer if he was a "cop." Investigator King ignored defendant's question. While Investigator King continued talking with Lofland, defendant approached Detective Miller and asked him if he was "cop." When defendant returned to the conversation with Investigator King and Lofland, both Lofland and defendant advised King to return to his car and drive around the block. Investigator King complied.
After circling the block, the undercover officers returned to North 29th Street and High Street. At approximately 8:00 p.m., Lofland approached the officers' vehicle and sold four bags of cocaine to Investigator King in exchange for forty dollars. After completing the transaction, Detective Miller broadcasted a description of defendant and Lofland to the arrest team, who responded to the area. The team quickly arrested Lofland while riding his bicycle on the 2900 block of North 29th Street.
Investigator Robert Ferris, of the Camden County Prosecutor's Office, approached defendant in the doorway of 2900 North 29th Street. The front door of the residence was open, and defendant was standing in the second doorway. As Investigator Ferris placed defendant under arrest, he detected the distinctive and noticeable odor of PCP,  which he recognized based on his training and experience.
Investigator Ferris and Investigator Michael Rhoads, also of the Camden County Prosecutor's Office, spoke with defendant inside the residence after he was arrested. Defendant informed the officers that he lived at that location. Investigator Ferris then orally advised defendant of his Miranda rights, which defendant waived. Defendant then told the officers that he smokes "wet" and that he had a couple of jars of "wet" in the freezer inside of the residence.
Investigator Ferris asked defendant whether he would sign a consent form to allow the officers to search his home. At first, defendant verbally agreed to permit the search. But while waiting for the officers to obtain a consent-to-search form, defendant changed his mind and withdrew his consent. Defendant informed the officers that he wanted to speak with an attorney and would not sign the form.
Investigator Ferris informed defendant that the officers would apply for a search warrant to search the residence. Other officers then secured defendant's residence pending the application for the search warrant. At some point, Investigator King and Detective Miller returned to the scene and identified defendant and Lofland as the two men who sold them crack cocaine.
Investigators Ferris and Rhoads presented an affidavit and search warrant to the Honorable Angelo DiCamillo, J.S.C., at approximately 11:50 p.m. that evening. Judge DiCamillo approved and signed the search warrant, which permitted a search of 2900 North 29th Street between the hours of 10:00 p.m. and 5:00 a.m. Investigator Rhoads radioed the officers stationed at the secured residence, informed them of the search warrant, and told them to search the residence for narcotics or narcotics-related paraphernalia. The search of defendant's residence revealed 127 bottles of "wet" in the freezer, two bottles of PCP, and various other evidentiary items.
A grand jury charged defendant with the following offenses: third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5 (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count three); third-degree possession of PCP, contrary to N.J.S.A. 2C:35-10(a)(1) (count four); first-degree possession of PCP with intent to distribute, contrary to N.J.S.A. 2C:35-5 (count five); third-degree possession of PCP with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count six); and first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, contrary to N.J.S.A. 2C:35-4 (count seven).
Defendant moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to support his motion to suppress the evidence seized from his residence. He argued that the search warrant contained either a misstatement or omission that was material to Judge DiCamillo's authorization of the warrant. Specifically, defendant alleged that the officers failed to inform Judge DiCamillo that they had searched the premises before securing the warrant. To support his claim, defendant relied on the time the PCP complaint-warrants were issued and the time those warrants were faxed from the police department to the Deputy Court Administrator at the Camden municipal court. Defendant claimed that a dispute of material fact existed to warrant a Franks hearing.
In response, the prosecutor argued there was no proof that the police searched defendant's residence before securing the warrant. Even if police drafted the complaint-warrants and faxed them to the Deputy Court Administrator before the search warrant was issued, they did not search the premises until after securing the search warrant.
In this regard, the prosecutor maintained that the officers had probable cause to issue complaints against defendant for PCP-related offenses at the time they arrested him at 8:00 p.m., based on the PCP odor emanating from defendant's residence and defendant's own admission that he had jars of PCP in his freezer. Thus, the processing team -- one of the many groups of officers involved in the buy/bust operation -- had authority to prepare the complaint-warrants in anticipation of what the subsequent search would reveal. Once the search warrant was secured and defendant's residence searched, the officers then amended the PCP-related complaint-warrants to reflect the time the PCP was discovered in defendant's home.
Honorable Gwendolyn Blue, J.S.C., denied defendant's motions to suppress and for a Franks hearing. Judge Blue found that defendant failed to demonstrate, or specifically allege, that the affidavit contained information that was intentionally, knowingly, and recklessly false. As such, the judge concluded that defendant had failed to satisfy his burden of showing that a Franks hearing was warranted. The judge also found that Investigator Ferris had probable cause to arrest defendant on PCP-related charges after smelling the PCP emanating from defendant's residence. Her ruling denying the Franks hearing stated:
The defendant's argument is based on nothing more than mere speculation and conjecture and appears to be motivated by a desire to conduct a [c]ross-examination. Defendant Vogues has not provided any evidence which demonstrates that the search warrant was obtained subsequent to the search of his home.
For purposes of a [Franks] [h]earing, the defendant has failed to meet his burden of establishing that a hearing is warranted. Not only has the defendant failed to demonstrate or even specifically allege that the affidavit contains knowingly or false information, the defendant also fails to demonstrate whether the police had insufficient . . . probable cause to ascertain the search warrant.
After denying the Franks evidentiary hearing, the judge considered whether to suppress the evidence seized. She first noted that the affidavit supporting the search warrant contained defendant's own admission that he possessed PCP in his residence, yet defendant did not contend that the admission was obtained in violation of Miranda. In addition, the judge noted that the police had sufficient probable cause for the warrant, based on their observations, even without defendant's statement. Ultimately, the judge ruled that
[b]ased on the totality of the circumstances contained in the affidavit, the [c]ourt concludes that there was sufficient probable cause for the issuance of the arrest warrant. Since the arrest warrant is supported by a valid affidavit of probable cause, the search was reasonable and therefore the fruits of the search are admissible at this defendant's trial.
The [c]ourt finds that for the [foregoing] . . . reasons the defendant . . . has failed to meet his burden . . . and the defendant's motion to suppress and motion for a [Franks] [h]earing are hereby denied.
On December 20, 2010, Judge Blue heard argument regarding defendant's motion for reconsideration. In support of that motion, defendant produced two affidavits: one unsworn from co-defendant Lofland and one sworn from Lofland's cousin, LaVon Laughlin. Both affidavits claimed that defendant was not involved in the undercover drug transaction that took place at North 29th Street and High Street on December 10, 2008. Defendant alleged that those affidavits show that the officers included a false statement in their affidavit in support of the search warrant.
The judge first found defendant's reconsideration motion procedurally barred under Rule 1:7-4(b) because defendant failed to file his motion within twenty days of the final order. The judge, however, relaxed the application of the rule and addressed the merits of the motion. The judge found "absolutely no evidence" to show that the police searched defendant's residence before securing a search warrant. In that regard, the judge found that the affidavits from Lofland and his cousin were not credible and unreliable, especially given that Lofland implicated defendant in the drug transaction when Lofland pled guilty under oath, and the cousin's affidavit merely stated that defendant was present at the scene of the drug transaction. The judge found that the issues raised by defendant went to the credibility of the officers and witnesses to be presented at trial, rather than the truthfulness of the officers' statements in the affidavit.
After the denial of defendant's motion for reconsideration, defendant pled guilty to first-degree possession with intent to distribute CDS (count five). This appeal followed.
On appeal, defendant raises only one claim:
I. THE TRIAL COURT ERRONEOUSLY RULED THAT [DEFENDANT] WAS NOT ENTITLED TO A FRANKS v. DELAWARE, 438 U.S 154, 98 S.Ct. 2674 (1978), EVIDENTIARY HEARING; HENCE, A REMAND FOR A FRANKS HEARING MUST BE ORDERED.
After a review of the record in light of all of the arguments presented, it is apparent that defendant's contention lacks sufficient merit to warrant discussion in a written opinion beyond a brief explanation of our reasons for reaching that conclusion. R. 2:11-3(e)(2).
Pursuant to Franks, supra, 438 U.S. at 170, 98 S.Ct. at 2684, 57 L.Ed.2d at 681, and its progeny, a challenge to a search warrant on the grounds of warrant contamination requires that a defendant must make a "substantial preliminary showing" that the law enforcement officer seeking the search warrant made misleading or false statements in the supporting affidavit. A "'defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard of 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. Dispoto, 383 N.J.Super. 205, 216 (App. Div. 2006) (quoting State v. Sheehan, 217 N.J.Super. 20, 25 (App. Div. 1987)), aff'd in part and modified in part, 189 N.J. 108 (2007); see also Franks, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed.2d at 672 (holding that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, . . . a hearing [should] be held at the defendant's request.").
However, if probable cause exists despite the errant information, the search warrant remains valid and no hearing need be conducted. Franks, supra, 439 U.S. at 171-72, 98 S.Ct. at 2685, 57 L.Ed.2d at 682; see State v. Howery, 80 N.J. 563, 568 cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979). Additionally, statements in the affidavit alleged to be false "must be material to the extent that when they are excised . . ., that document no longer contains facts sufficient to establish probable cause." Howery, supra, 80 N.J. at 568.
Viewed in this light, defendant's arguments that he was entitled to an evidentiary hearing or that the search warrant was defective are unpersuasive. Defendant alleged that the officers failed to inform the warrant judge that the search of his home had occurred before securing the warrant. He based this claim on the inaccurate timestamps on the various facsimile machines located at the Camden City Police Department and the Camden Municipal Court offices. Defendant also argued that thirty minutes was an insufficient amount of time following the search warrant authorization to travel back to the premises, conduct the search, and inventory the seized items. Lastly, in his motion for reconsideration, defendant presented statements from his co-defendant and co-defendant's cousin purporting to disprove his involvement in the CDS sale transactions.
Judge Blue thoroughly considered each of these claims analyzing the facts with the applicable law before denying defendant's motions Our review is conducted pursuant to the well-known standard that "an appellate court must uphold the factual findings underlying the trial court's decision so long as those findings are supported by 'sufficient credible evidence in the record'" State v Elders 192 N.J. 224 243 (2007) (citing State v Locurto 157 N.J. 463 474 (1999)) Based our review of the record we affirm Judge Blue's rulings for the reasons set forth in her comprehensive oral opinions