STATE IN THE INTEREST OF L.Y.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4971-08T4

STATE IN THE INTEREST OF

L.Y.

________________________________________________________________

September 22, 2010

Submitted September 14, 2010 - Decided

Before Judges Carchman and Graves.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1005-09.

Yvonne Smith Segars, Public Defender, attorney for appellant L.Y. (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent State of New Jersey (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following unsuccessful motions to compel discovery and to suppress evidence seized pursuant to a "no-knock" search warrant, L.Y., a juvenile, entered a plea to an act of delinquency, which if committed by an adult, would constitute third-degree possession of a controlled dangerous substance (CDS), crack cocaine, N.J.S.A. 2C:35-10a(1). The juvenile was placed on a probationary term of one-year and assessed statutory fees and penalties. The juvenile now appeals from the orders denying the motions to suppress and for discovery. We affirm.

These are the relevant facts. At approximately 8:48 p.m. on January 21, 2008, Detective Scott Samis of the Monmouth County Prosecutor's Office obtained a no-knock search warrant. Judge Chaiet granted the no-knock warrant based on the affidavit prepared by Detective Samis, a member of the Prosecutor's Office Narcotic Strike Force. The target of the search warrant was a residence located in Asbury Park New Jersey.

Detective Samis' affidavit set forth an extensive recitation of facts in support of the warrant. First, on January 19, 2008, a confidential informant (CI) advised the Asbury Park Police that Rondell Coger was "selling handguns out of [Asbury Park]." Then the CI purchased an Intratech 9mm Automatic Pistol (Tech-9) from Coger1 in Asbury Park during a controlled purchase. The Tech-9 had a defaced serial number.

The affidavit next related that on January 21, 2008, at approximately 6:02 a.m., Coger and Charles Mitchell were arrested by the Tinton Falls Police Department for assaulting each other at a hotel in Tinton Falls New Jersey. During a consent search of Mitchell's vehicle, the Tinton Falls Police discovered a handgun with a defaced serial number.

Mitchell cooperated with the Tinton Falls officers and advised that he had been purchasing narcotics from Coger for the past two weeks. He further stated that he drove Coger around the area while Coger made narcotic sales; in exchange for the transportation, Coger gave Mitchell crack cocaine. Mitchell also told police that on January 19, 2008, he drove Coger to Asbury Park to retrieve a handgun. When they arrived at the residence, Coger entered the building and returned to Mitchell's car with crack cocaine and the handgun police had just recovered from Mitchell's vehicle.

Later in the day, on January 21, 2008, at approximately 4:00 p.m., Detective Samis drove Mitchell to Asbury Park; Mitchell positively identified the subject residence as the location where he had driven Coger two days prior and where Coger had retrieved the handgun and crack cocaine.

Detective Samis also spoke with Coger on January 21, 2008; Coger confirmed that he was providing Mitchell with crack cocaine in exchange for his driving services. Additionally, Coger confirmed that Mitchell had driven him to Asbury Park on January 19, 2008, and that he spent time in Asbury Park because his cousins lived there. However, he denied knowledge that weapons or drugs were present at the residence and further denied living there. Coger could not provide Detective Samis with an address for his present residence and "hesitated numerous times when the address [in Asbury Park] was mentioned."

Detective Samis also received information from other members of the Asbury Park Street Crimes Unit that several potential CIs had provided weapons and/or narcotics intelligence about the residence in Asbury Park. Asbury Park Police Sergeant Jeffrey White stated that he had personally observed Coger depart from the residence in Asbury Park numerous times in a taxi, to return to the residence several hours later. After conducting a criminal history check, Detective Samis confirmed that Coger had six criminal convictions at the time, including several convictions for CDS.

At approximately 10:44 p.m. on January 21, 2008, Detective Samis and several other officers executed the no-knock search warrant at the Asbury Park address. The officers searched the residence and seized various items within the scope of the warrant, including green vegetation suspected to be marijuana, a rock-like substance suspected to be crack cocaine, a partially smoked marijuana cigarette, and steel razorblades from the juvenile's bedroom.

In providing the factual basis for his plea, L.Y. confirmed that the rock-like substance recovered from his bedroom was crack cocaine.

Following the receipt of discovery from the State, the juvenile moved for discovery of additional information.2 Specifically, the juvenile focused on the names of others involved in criminal activity. One specific demand stated:

Any and all additional information tending to show that other persons, excluding the accused juvenile, were involved in the crime including but not limited to the police reports of the Asbury Park Street Crime Unit, of Sergeant Jeffrey White where he provided Detective Samis with narcotics and/or weapons intelligence where several other potential confidential informants provided information on the target location [in Asbury park], and of the dates and time Sergeant White informed Detective Samis of his observations of Mr. Cog[e]r leaving the target location numerous times via taxicab and return to the same location several hours later.

The thrust of the juvenile's demands were to ascertain the names of informants as well as to review the investigation files related to Coger and Mitchell. The motion judge denied the relief concluding that much of the requested information had been provided but as specifically related to informants, the requested information was privileged. See N.J.S.A. 2A:84A-27, N.J.R.E. 515.

The judge further denied the motion to suppress, concluding, among other things, that there was sufficient probable cause to support the search warrant. Finally, the judge further determined that the juvenile was not entitled to a Franks3 hearing as he found that Detective Samis did not make "any intentional misrepresentations in . . . his affidavit or that he acted recklessly in making his affidavit in reckless disregard of the truth."

This appeal followed.

On appeal, the juvenile raises the following issues:

POINT I

Since Det. Samis's premise affidavit did not provide probable cause to believe that Coger was selling drugs from the target location, the search was invalid insofar as it authorized a search for drugs, drug-related records and paraphernalia. Hence, the seizure of the drug contraband was unconstitutional and that evidence should have been suppressed. U.S. Const., Amend. IV; N.J. Const., Art.I, 7 (1949) (Partially raised below)

POINT II

The trial judge should have at least partially granted L.Y.'s motions for discovery and a Franks hearing.

A. L.Y. was entitled to the information requested about the potential informants of the Asbury Park Police.

B. Based on L.Y.'s affidavit, the juvenile court should have held a Franks hearing.

Addressing Point II, we conclude that the judge did not abuse his discretion in denying L.Y.'s motion to compel discovery as this motion impermissibly aimed at searching for information that could provide a basis for a Franks hearing.

We recently restated the standard of review on this issue in State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff d, 201 N.J. 229 (2010), where we said:

[C]oncerning discovery for purposes of a Franks hearing, we review the judge's discovery ruling for abuse of discretion. See State v. Gilchrist, 381 N.J. Super. 138, 147 (App. Div. 2005). Significantly, although defendants are entitled to broad discovery under Rule 3:13-3, they are not entitled to turn the discovery process into a fishing expedition.

A defendant should not be allowed to "transform the discovery process into an unfocused, haphazard search for evidence." Another significant limitation on a defendant's right to discovery is "the chilling and inhibiting effect that discovery can have on material witnesses who are subjected to intimidation, harassment, or embarrassment."

[Gilchrist, supra, 381 N.J. Super. at 146 (quoting State v. DRH, 127 N.J. 249, 256 (1992).]

As in Broom-Smith, the motion judge here recognized the discovery application as an attempt to secure the identity of confidential informants. Although focusing, as well, on Samis' failure to indicate that a search had been conducted two days earlier and no drugs or weapons were found, the judge rejected the claim noting that there was no indication that Samis was involved in the search, the juvenile's certification failed to identify Samis, and the juvenile did not establish that there was any willful omission of information from the affidavit. We conclude that the judge did not abuse his discretion in denying the application.

We reach a similar result regarding discovery for the purpose of uncovering an informant's identity. We also review such a decision under the abuse standard previously noted. Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), cert. denied, 185 N.J. 296 (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997)).

Where a confidential informant is involved, that informant's identity is privileged and will generally not be disclosed in pre-trial discovery. See N.J.R.E. 516; State v. Florez, 134 N.J. 570, 578-81 (1994); Broom-Smith, supra, 406 N.J. Super. at 234, 240. The Court has precluded the production of information provided by an informant where discovery of that information will likely reveal the identity of the informant. See State v. Spivey, 179 N.J. 229, 241 (2004); Grodjsek v. Faghani, 104 N.J. 89, 96 (1986).

The purpose of the privilege is to encourage "citizens to perform their civic duty to communicate knowledge of wrongdoing to law enforcement officials" without the fear of retaliation from those against whom they are providing information. See Grodjsek, supra, 104 N.J. at 97; State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003). In order to pierce this privilege and compel discovery likely to disclose the identity of an informant, defendant must make a "strong showing of need" for the disclosure, such as a demonstration that the informant's identity will be material to the defendant's case. State v. Williams, 364 N.J. Super. 23, 39 (App. Div. 2003); see also State v. Florez, supra, 134 N.J. 578-79 (1994); State v. Adim, 410 N.J. Super. 410, 434-35 (App. Div. 2009).

We are satisfied that the juvenile has failed to establish any basis for overcoming the privilege; moreover, his intention to utilize the information as a basis for pursuing a Franks hearing is unavailing. The judge did not abuse his discretion in denying the requested relief.

Finally, we conclude that there was sufficient probable cause to support the issuance of the search warrant.4

"Once issued, '[a] search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause or that the search was otherwise unreasonable." State v. Chippero, 201 N.J. 14, 26 (2009) (citing State v. Evers, 175 N.J. 355, 381 (2003)); see also State v. Jones, 179 N.J. 377, 388 (2004); State v. Sullivan, 169 N.J. 204, 211 (2001); State v. Valencia, 93 N.J. 126, 133 (1983). In considering the validity of a search warrant, a judge "'accord[s] substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" Sullivan, supra, 169 N.J. at 211-12 (citing State v. Marshall, 123 N.J. 1, 72 (1991)), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); see also State v. Keyes, 184 N.J. 541, 554 (2005). Any '[d]oubt as to the validity of the warrant[,] 'should ordinarily be resolved by sustaining the search.'" Keyes, supra, 184 N.J. at 554 (citing State v. Jones, 179 N.J. 377, 388-89 (2004)) (internal quotations omitted).

A valid search "must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." Keyes, supra, 184 N.J. at 553 (citing State v. Novembrino, 105 N.J. 95, 120 124 (1987)); see also Evers, supra, 175 N.J. at 381; Sullivan supra, 169 N.J. at 210-11.

Here, Samis' affidavit contained information that Mitchell drove Coger to Asbury Park and that Coger emerged from the residence with crack cocaine and a handgun. These facts support the well-grounded suspicion that Coger retrieved CDS from the Asbury Park location where he had been storing it. The affidavit further indicated that Mitchell advised that he had been driving Coger around for the prior two weeks so Coger could deliver crack cocaine and that Mitchell received payment for this service in the form of crack cocaine. This information suggested that Coger was a drug dealer. It further suggested that, because Coger was distributing from Mitchell's car, his stash of cocaine was stored elsewhere. Not only had Mitchell provided information demonstrating that Coger maintained a stash at the Asbury Park residence, Asbury Park Police Officer Jeffrey White also observed Coger depart and return many times from that location. These facts, taken together, support a well-grounded suspicion Coger was selling crack cocaine and that he was storing his stash in the Asbury Park residence. See Evers, supra, 175 N.J. at 380.

Additionally, although Coger denied knowledge of drugs and weapons at the Asbury Park location, he confirmed that Mitchell drove him to that address on January 19, 2008 and further stated that he spent time at that residence because his cousins lived there. Detective Samis also learned that Coger had several prior narcotics-related convictions. When viewed in their totality, these facts supported the well-grounded suspicion that Coger was distributing crack cocaine and utilizing the Asbury Park residence to store his CDS. See Jones, supra, 179 N.J. at 390-91; Novembrino, supra, 105 N.J. at 127; State v. Ebron, 61 N.J. 207, 213 (1972).

We are satisfied that there was sufficient probable cause for the issuance of the warrant. We reject without further comment the suggestion that the seizure of the drugs was outside the scope of the warrant. We discern little distinction between searching for weapons that may have been secreted and discovering drugs that can be secreted in the same location.

In sum, we reject the juvenile's attack on the bona fides of the warrant and affirm the determination of Judge McGann denying the juvenile's application.

1 The parties differ in their spelling of Coger's name. For ease of reference, we use the spelling "Coger."

2 The motion was captioned as a Notice of Motion for Bill of Particulars.

3 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

4 Although the State argues that the juvenile failed to raise this issue before the Law Division, we address the merits of the propriety of the warrant.