STATE OF NEW JERSEY v. LAMONT WOMACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3108-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMONT WOMACK,

Defendant-Appellant.

_____________________________________________

November 9, 2010

Submitted September 27, 2010 Decided

Before Judges Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1784.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Noelle V. Fiorentino, Assistant Prosecutor, on the brief).

PER CURIAM

After defendant Lamont Womack's motion to suppress evidence was denied, he entered into a negotiated plea of guilty to third degree possession of a controlled dangerous substance (cocaine) with intent to dispense or distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and second degree unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The State agreed to dismiss the remaining charge and all charges against co-defendants Charles Womack and Tawana Cooper at the time of sentencing. The agreement bound the State to: waive extended term sentencing; recommend a five-year term with a three-year parole disqualifier on the CDS conviction; and a five-year term with a five-year parole disqualifier on the weapons charge to run concurrent with each other.

The Honorable Barry P. Sarkisian, J.S.C., imposed the recommended sentence. In addition, Judge Sarkisian imposed the mandatory assessments, fees and penalties, and suspension of defendant's driving privilege for six months.

The following proofs were presented at a hearing on the motion to suppress. Jersey City Police Sergeant Anthony Scerbo testified that he was one of the officers involved in an investigation of defendant. Scerbo applied for a "no knock" warrant to search: defendant and apartment 455 at 569 Montgomery Street, Jersey City (the Montgomery Gardens Housing Complex). He prepared an affidavit in support of the application, indicating in pertinent part that:

The affiant [has been] assigned to the Jersey City Narcotics Squad for a period of approximately 5 years during [his] 13 years of Police work. The Undersigned has registered and worked with numerous Confidential Informants. Informants information was essential for the arrest and prosecution of numerous narcotics offenders. The Undersigned has also . . . seized large amounts of narcotics, paraphernalia, and monies associated with the distribution of narcotics. . . .

On 6/26/2007 the Undersigned received Information from a reliable Confidential Informant who will be referred to as CI. CI has provided valuable information on many prior occasions resulting in numerous CDS-related arrests. CI stated that at 569 Montgomery Street, a light skinned black male, approximately 20 years of age, 5'4" in height, approximately 125 pounds, sells cocaine and heroin from apartment #455 of 569 Montgomery Street. CI also stated that above male carries a .45 caliber black automatic handgun with rubber bands on the handle, which CI has seen above male with on many occasions. CI also stated that the above male told him/her that he also has a Glock 9mm handgun. Sgt. [Steven] Trowbridge, the site manager for the Montgomery Gardens Housing Complex, stated that he has reliable information to the fact that the male described above is named Lamont Womack of said location and is known to commonly carry a handgun.

On 6/29/2007, the Undersigned contacted CI and asked if He/She would attempt to purchase cocaine and heroin from above mentioned black male at 569 Montgomery Street apartment 455. CI agreed. CI was brought to a secure location, strip searched and found free of any contraband or money. CI was given two prerecorded five dollar bills (SN#cb20068930a, dl64130385b) and one prerecorded ten dollar bill (gl26678898a). CI was released in the area of 569 Montgomery Street. CI was under a constant surveillance. CI did immediately enter 569 Montgomery Street. CI exited above location after approximately 5 minutes. CI met the Undersigned in a predetermined meet location, again under a constant surveillance. CI immediately gave the Undersigned one white topped glass vial containing suspected CDS cocaine and one glassine bag containing suspected heroin. CI stated that He/She entered 569 Montgomery Street and immediately went to apartment 455. After knocking on the door, a black male, approximately 20 years of age, 5'4" in height, with braided hair and having light skin complexion, asked CI what He/She wanted. The male wore a red/yellow polo type shirt and black jean shorts. CI stated "One and one", which is a common street term for one bag $10.00 bag of heroin and one $10.00 vial of cocaine. CI then handed above male the prerecorded money. Above male closed his apartment door. After about one minute, the above male opened his apartment door and handed CI one white topped vial of cocaine and one glassine bag of heroin.

. . . The Undersigned obtained a picture of Lamont Womack. CI positively identified Mr. Womack as the person that had just sold Him/Her narcotics. CI also stated that Mr. Womack often carries a .45 automatic handgun with rubber bands on the handle. CI stated that he/she observed Mr. Womack carrying above handgun and as stated before by CI, Mr. Womack claims that he also has a 9mm Glock handgun.

. . . Further, please note that on a prior occasion, Mr. Womack was arrested in possession of a handgun, and possession of a handgun for an unlawful purpose.

Judge Sheila A. Venable issued the search warrant.

Scerbo executed the search warrant on July 6, 2007 at 9:57 a.m., using a battering ram and rabbit tool. There were three people in the apartment: defendant; his father Charles Womack; and Tawana Cooper. Charles Womack is sixty-three years old.

The search revealed the following contraband: three vials of cocaine; a Smith & Wesson .357 caliber handgun; four rounds of bullets (two rounds were hollow point bullets); and drug paraphernalia (empty vials, black vial tops, and small zip-lock bags) in a hallway closet inside the apartment. Neither a .45 caliber handgun with rubber bands nor a 9MM handgun were found. In addition, Scerbo conceded at the hearing that he did not have defendant under the "constant surveillance" during the controlled purchase of CDS, as he stated in the affidavit.

Scerbo testified that the CI had informed him that the seller was approximately twenty years old. Defendant was in fact twenty-three years old. Moreover, Scerbo testified that the height and physical description provided by the CI also generally fit defendant's description.

Investigator John Hogan testified for defendant. He photographed 569 Montgomery Street. According to Hogan, the apartment complex is a ten-story building with eight apartments on each floor.

Judge Sarkisian denied the motion to suppress. He found that "defendant has not met his burden of proof that . . . there was a lack of probable cause for the issuance of this search warrant." He further found that "there is no material or fictitious false statement or material fact in the affidavit in question."

Defendant appeals contending that:

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE [U.S. CONST. AND ART. 1, PAR. 7 OF THE N.J. CONST.] WAS VIOLATED BY THE ILLEGAL SEARCH AND SEIZURE.

We disagree.

Specifically, defendant argues that Scerbo's affidavit in support of the search warrant included materially false statements and omissions, and as a result, Scerbo's affidavit lacked probable cause to support the issuance of a search warrant for defendant's home. Defendant points to the following alleged material defects in Scerbo's affidavit: (a) Scerbo's false statement that the CI had made "two controlled narcotics purchases in the presence of the Undersigned"; (b) that Scerbo failed to sufficiently establish the reliability of the CI; (c) that Scerbo failed to point out that the substances obtained from the CI were never field tested; and (d) that Scerbo did not provide Trowbridge's basis of knowledge that defendant lived in the target apartment. We are not persuaded.

"[A] search executed pursuant to a warrant is presumed valid." State v. Marshall, 199 N.J. 602, 612 (2009) (citing State v. Jones, 179 N.J. 377, 388 (2004)). However, a defendant may challenge the facts underlying a finding of probable cause for the issuance of a search warrant. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978); State v. Howery, 80 N.J. 563 (1979).

"The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable." State v. Valencia, 93 N.J. 126, 133 (1983) (citing State v. Kasabucki, 52 N.J. 110 (1968)). A defendant may challenge the sufficiency of an affidavit by making "'a substantial preliminary showing' of falsity." Howery, supra, 80 N.J. at 567 (citing Franks, supra, 438 U.S. at 681, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681). However, "the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit." Howery, supra, 80 N.J. at 567. Rather, a 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"; and prove such allegations by a preponderance of the evidence. Id. at 567-68. "Finally, 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).

It is a core constitutional principle that "'no warrant shall issue except upon probable cause, supported by oath or affirmation. . . .'" Marshall, supra, 199 N.J. at 610 (quoting N.J. Const. art. I, P 7). "Probable cause 'eludes precise definition.'" Sullivan, 169 N.J. 204, 210 (2001) (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000)). "In general terms, it 'means less than legal evidence necessary to convict though more than mere naked suspicion.'" Id. at 210-11 (quoting State v. Mark, 46 N.J. 262, 271 (1966)). "Probable cause exists if at the time of the police action there is 'a "well grounded" suspicion that a crime has been or is being committed.'" Id. at 211 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).

Our standard of review is well settled. "An appellate court reviewing a motion to suppress 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). A trial court's findings of fact should be disturbed only when "they are so clearly mistaken that 'the interests of justice demand intervention and correction.'" State v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008), aff d, 201 N.J. 100 (2010) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Locurto, 157 N.J. 463 (1999).

Judged against the governing case law and the standard of review, we conclude that Judge Sarkisian was correct. We reject defendant's arguments.

The affidavit is not false or misleading. It details exactly how Scerbo conducted the surveillance and obtained the information about the CI's purchase of heroin and cocaine. Scerbo explained that he searched the CI, watched the CI enter and leave the apartment building through the front door and met him when he returned with the drugs. The CI then told Scerbo what happened inside the building. Defendant's claim of falsehood is based on his reading of select phrases in isolation and without reference to context, and his interpretation is neither fair nor reasonable. A reasonable person reading this affidavit could not infer that Scerbo kept the CI in sight at all times or that was present when the CI purchased the drugs from defendant.

Moreover, the information included in the affidavit is sufficient to establish probable cause. Contrary to defendant's claim, the State established a basis for Trowbridge's knowledge that defendant resided at the target apartment. Trowbridge was a fellow police officer in charge of security at Montgomery Gardens Housing Complex. Thus, it is inferable that the information he provided to Scerbo was gained in the performance of his duties.

We also reject the argument that there was insufficient information to establish the reliability of the CI. Although defendant argues that Scerbo could not recall whether the CI had ever provided unreliable information. This argument mischaracterizes Scerbo's testimony. At the hearing on defendant's motion to suppress, defense counsel asked Scerbo: "[H]ad there been any times when the CI provided unreliable information?" Scerbo responded: "Not that I recall." The more plausible interpretation of this statement is that Scerbo did not remember the CI ever having provided unreliable information; and not that he was not sure if CI had provided unreliable information in the past.

In Jones, the Court noted that "[t]he corroborating factors that may be considered by a court making a probable-cause determination on the basis of an informant's tip depend on the unique facts and circumstances presented in each case." 179 N.J. at 390. "Some relevant factors may include controlled drug purchases performed on the basis of the informant's tip, the positive test results of narcotics obtained during a controlled purchase, and records corroborating an informant's account of the location of suspected drug activity." Ibid. (citing Sullivan, supra, 169 N.J. at 215-17). In addition the Court noted that "[t]he experience that an officer submitting a supporting affidavit has in investigating and apprehending drug dealers constitutes another factor that a court should consider." Ibid. (citing Novembrino, 105 N.J. 95, 126 (1987)). In Sullivan, the Court held "two controlled drug purchases, as well as the additional police corroboration of the informant's tip, sufficiently demonstrated probable cause." 169 N.J. at 217.

Here, the CI provided the following information: an accurate description of the defendant; location of defendant's residence; seeing defendant carrying a handgun and hearing him brag about owning another; and knowing that defendant sold cocaine and heroin. This information was partially confirmed by the controlled buy of cocaine and heroin. After purchasing cocaine and heroin, the CI identified the defendant as the seller. Moreover, the CI's information was corroborated by Trowbridge's statement that defendant lived at the location given by the CI.

We also reject defendant's argument that the narcotics purchased by the CI were never field tested and therefore can not serve as a basis for a finding of probable cause. In Jones, the Court found that the absence of field test results of narcotics purchased in controlled buys, within an application for a warrant, "does not undermine the probable-cause determination that was made on the facts presented." 179 N.J. at 394.

A