STATE OF NEW JERSEY v. HUGHLEE HALEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3943-04T33943-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUGHLEE HALEY,

Defendant-Appellant.

________________________________________________________________

 

Argued March 29, 2006 - Decided May 3, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Ind. No. 03-10-3545.

Thomas R. Ashley argued the cause for appellant.

Karen Fiorelli, Deputy Attorney General, argued

the cause for respondent (Zulima V. Farber,

Attorney General, attorney; Ms. Fiorelli, of

counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence and pursuant to a negotiated plea agreement, defendant Hughlee Haley pled guilty to third-degree possession with intent to distribute cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count five).

On March 28, 2005, defendant was sentenced to a three-year prison term, with eighteen months of parole ineligibility on count three. He received a concurrent three-year prison term on count five. On April 1, 2005, the trial court entered a consent order permitting defendant to remain free on bail pending appeal.

Defendant presents the following arguments for our consideration:

POINT I

THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE SEARCH WARRANT IS NOT SUPPORTED BY PROBABLE CAUSE; THUS, THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE WAS VIOLATED WHEN HIS HOME WAS SEARCHED BASED UPON THE WARRANT. (U.S. Const., Amends. IV and XIV; N.J. Const. (1947) Art. I. par 7).

POINT II

THE STATE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE WHEN HIS HOME WAS SEARCHED BASED UPON A WARRANT ISSUED UPON THE AFFIANT'S MATERIAL MISREPRESENTATION AND OMISSION OF FACTS ABOUT WHETHER VEHICLES ACTUALLY WERE CONTINUALLY APPROACHING THE HALEY HOUSE TO RETRIEVE DRUGS; THEREBY, SHOWING PURPOSEFUL AND/OR RECKLESS DISREGARD FOR THE TRUTH OF FACTS BEARING DIRECTLY UPON THE VERACITY OF THE MAIN, UNTESTED INFORMANT, AND THE NEED FOR ISSUING THE WARRANT. (U.S. Const., Amends. IV and XIV; N.J. Const. (1947) Art. I. par 7).

A. THE AFFIANT WAS RECKLESSLY MISLEADING BECAUSE HE ASSERTED FACTS THAT CREATED AN INFERENCE THAT CARS CONTINUOUSLY APPROACHED THE HALEY HOUSE TO BUY DRUGS, AND OMITTED [sic] TO INCLUDE NON-INCULPATORY FACTS OF HIS INVESTIGATION THAT DEMONSTRATED THE COMPLETE OPPOSITE.

B. THE COURT MUST CORRECT THE AFFIDAVIT BY STRIKING FALSE ASSERTIONS AND SUPPLYING OMITTED FACTS, AND THEN DETERMINE WHETHER PROBABLE CAUSE COULD STILL BE FOUND.

POINT III

THE COURT SHOULD SUPPRESS THE EVIDENCE BECAUSE THE AFFIANT SUPPORTED THE AFFIDAVIT FOR THE SEARCH WARRANT BASED UPON EVIDENCE SEIZED FROM MICHAEL THOMAS WHICH WAS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE. (U.S. Const., Amends. IV and XIV; N.J. Const. (1947) Art. I. par 7).

A. THE EVIDENCE OBTAINED FROM MICHAEL THOMAS WAS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE.

1. THE WARRANTLESS CHECK OF ELECTRICAL UTILITY INFORMATION WAS ALSO ILLEGAL.

B. THE WARRANT TO SEARCH THE HALEY HOUSE SHOULD NOT BE UPHELD BECAUSE IT IS BASED IN SUBSTANTIAL PART ON THE EVIDENCE SEIZED FROM THOMAS WHICH WAS OBTAINED IN FLAGRANT VIOLATION OF LAW; OR, AT LEAST THE COURT SHOULD STRIKE THE REFERENCES TO THE THOMAS EVIDENCE FROM THE WARRANT AND DETERMINE IF PROBABLE CAUSE WOULD STILL BE PRESENT.

C. HALEY HAS STANDING TO CONTEST THE THOMAS EVIDENCE BECAUSE THAT EVIDENCE WAS USED TO OBTAIN A SEARCH WARRANT OF HALEY'S HOME IN WHICH HALEY CLEARLY HAS A LEGITIMATE EXPECTATION OF PRIVACY, AND THE ONLY RELEVANCE OF THAT INFORMATION WAS THAT HALEY HAD A POSSESSORY OR PARTICIPATORY INVOLVEMENT IN THE NARCOTICS FOUND ON THOMAS, EVEN IF THE INDICTMENT RETURNED WAS ONLY BASED ON THE EVIDENCE SEIZED FROM HALEY'S HOUSE.

POINT IV

THE STATE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE WHEN HIS HOME WAS SEARCHED BASED UPON A FATALLY STALE WARRANT. (U.S. Const., Amends. IV and XIV; N.J. Const. (1947) Art. I. par 7).

After reviewing the record and applicable law, we conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm the order denying defendant's motion to suppress substantially for the reasons stated by Judge Kennedy in his comprehensive ten-page written decision on October 7, 2004.

On April 16, 2003, based on his affidavit, Investigator Morrison of the Essex County Prosecutor's Office, Narcotics Task Force, obtained a search warrant for defendant's residence at 211 Brighton Avenue, East Orange. Later that day, when the search warrant was executed, the police seized approximately thirty-one grams of cocaine, "[o]ne digital scale and cutting agent," $1,003 in currency, a loaded nine-millimeter handgun with a defaced serial number, and forty rounds of ammunition.

In support of his motion to suppress, pursuant to R. 3:5-7, defendant submitted a signed statement from Thomas Hoffler and an affidavit from Michael Thomas that contradicted information contained in Morrison's affidavit in support of the search warrant. Because the statements from Hoffler and Thomas contradicted facts that were relevant to a probable cause determination, the trial court conducted a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); see also State v. Howery, 80 N.J. 563, 566 ("[W]here a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he must be afforded an opportunity to inquire further into the veracity of the affidavit."), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

Neither Hoffler nor Thomas testified at the Franks hearing held by Judge Kennedy on September 24, 2004. The only two witnesses to testify, Christian Harden, an investigator employed by the New Jersey Division of Criminal Justice, and James Morrison, an investigator with the Essex County Prosecutor's Office, were called by the State. Although Thomas was in the courtroom, defendant elected not to call him as a witness. The trial court's findings and conclusions included the following:

The testimony of the officers was credible and consistent and in all material respects tracked the statements made by Investigator Morrison in his affidavit. The only divergence was that the investigator did not see people "continuously" approaching the Haley house to buy drugs, as suggested in his affidavit. However, he explained that that statement was a belief based on information he had received from Hoffler and his confidential informant.

Nothing in the testimony or demeanor of the officers even suggests that anything contained in Investigator Morrison's affidavit was either a knowing lie or a falsehood offered in reckless disregard of the truth. Accordingly, defendant has not met his burden to establish by a preponderance of the evidence that the affidavit was false in any material respect. As to the statement in the affidavit about persons "continuously" approaching the house for drugs, the [c]ourt is constrained to observe that it is concerned only with the veracity of the affiant officer and not with that of any non-governmental informant. Franks v. Delaware, supra, 438 U.S. at 170. The officer's testimony is that this conclusion was predicted upon information received from Hoffler and the confidential informant.

. . . .

Here, the affidavit clearly supported a finding of probable cause. Hoffler told the officers he bought drugs from Mr. Haley at 211 Brighton Avenue in East Orange and then accompanied the office[r]s to that location where he identified the house and the defendant. A criminal record check revealed that defendant had prior convictions and arrests for drug offenses and a PSE&G check revealed that the premises was a one-family home with service registered to defendant. The officer applying for the warrant has broad experience and training in drug interdiction and testified that dealers warehouse illicit drugs in their homes or apartments. Given that, and given the deference this [c]ourt owes to the original determination by the [j]udge who approved the warrant, the [c]ourt finds that probable cause existed to justify issuance of the warrant.

. . . .

In the case at bar, Hoffler's identification of defendant and his information about defendant's residence were given to the officer approximately six weeks before the warrant was sought. Defendant was identified as a dealer in illegal narcotics using his home to warehouse his products. Hoffler explained to the officers that his purchase from defendant was not isolated but rather that he had purchased drugs from defendant at defendant's home on "numerous occasions."

Using common sense, it is unrealistic to suggest that probable cause to search defendant's premises vanished after just six weeks. The information from Hoffler is consistent with the belief that defendant continued to practice his unlawful trade and would have had unlawful drugs on his premises on the date the warrant was issued. A dealer's success depends upon his access and availability and it is simply fatuous to suggest that defendant changed his method of operation in a six week period.

The scope of our review is limited. Our obligation is to determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999) (internal quotation marks omitted) (alteration in original). Based on our review of the record, we are satisfied that the trial court's findings are firmly supported by sufficient credible evidence, and its conclusions predicated on those findings are legally sound. We agree that the police did not violate defendant's right to be free from unreasonable searches and seizures, and we affirm the order denying defendant's motion to suppress substantially for the reasons stated by Judge Kennedy on October 7, 2004.

Affirmed.

 

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A-3943-04T3

May 3, 2006