STATE OF NEW JERSEY v. JASON E. MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON E. MOORE,

Defendant-Appellant.

_______________________________________

June 12, 2014

Submitted May 27, 2014 Decided

Before Judges Ashrafi and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-04-00039.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Daniel I. Borstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jason Moore appeals from a denial of a motion to suppress evidence based upon a claim that there was no probable cause to support the issuance of a search warrant. We affirm.

On January 22, 2008, the New Jersey State Police executed a search warrant for defendant's residence. The police discovered a hydroponic marijuana production facility divided into three parts; a growing room, a cloning room, and a drying room. There were sixty-three actively-growing marijuana plants, twenty dead marijuana plants, and a quantity of loose marijuana vegetation.

Subsequent to the execution of the search warrant, defendant waived his Miranda1 rights and spoke with police both at his home and at headquarters. He admitted that he constructed, maintained, and operated the facility. He also stated that he was growing the marijuana for distribution, and that he had previously sold approximately six pounds of marijuana at $4,500 per pound.

Cumberland County Indictment 10-04-00039 charged defendant with three marijuana offenses. Three suppression motions were heard and decided. On November 19, 2010, defendant's motion to suppress physical evidence was denied on the basis that the search warrant was based on probable cause. On April 5, 2012, defendant's motion to suppress physical evidence was denied on the basis that the police had knocked and announced their presence prior to entering defendant's home. On June 6, 2012, defendant's motion to suppress statements was denied on the basis that defendant had waived his Miranda rights.

On October 3, 2012, defendant entered an open guilty plea to all counts of the indictment. On November 9, 2012, defendant was sentenced to concurrent sentences of ten years, with a one-third parole disqualifier (count one), and ten years (count three). Count two was merged with count one.

On appeal, defendant argues:

PROBABLE CAUSE DID NOT EXIST TO BELIEVE THAT MARIJUANA WOULD BE FOUND AT MOORE'S HOME BECAUSE A POT-DEALER'S TIP THAT MOORE WAS A GROWER WAS LARGELY BASED ON HEARSAY FROM ANOTHER POT-DEALER, AND THE POLICE DID NOT CORROBORATE THE TIP. U.S. Const. amends. IV, XIV; N.J. Const. art. I, 7.

The Fourth Amendment to the United States Constitution and the New Jersey Constitution protect individuals from unreasonable searches and seizures by the government. U.S. Const. amend. IV; N.J. Const. art. I, 7. A search warrant is not to issue except upon "probable cause, supported by oath or affirmation." State v. Macri, 39 N.J. 250, 256-57 (1963). Accordingly, no warrant is to be issued except upon a showing of probable cause. "[P]robable cause requires 'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." State v. Brown, 205 N.J. 133, 144 (2011) (internal citations omitted). New Jersey has adopted the totality of the circumstances test for determining whether warrants are based on probable cause iterated in Illinois v. Gates, 462 U.S. 213, 230-32, 103 S. Ct. 2317, 2328-39, 76 L. Ed. 2d 527, 543-44 (1983); State v. Novembrino, 105 N.J. 95, 113 (1987). Under the test, a court must therefore consider all relevant circumstances when determining the validity of a warrant. State v. Smith, 155 N.J. 83, 92, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998).

A "warrant is presumed valid and the burden of establishing its invalidity rests upon the defendant." State v. Singleton, 158 N.J. Super. 517, 525 (App. Div. 1978) (citing State v. Mark, 46 N.J. 262, 273 (1966)); State v. Gaudiosi, 97 N.J. Super. 565, 571 (App. Div. 1967). As a result, without proof that the warrant s issuance was improper, "the warrant-supported search ought to be regarded as cloaked with an aura of prima facie legality." State v. Kasabucki, 52 N.J. 110, 122-23 (1968).

Defendant argues that the informant who provided the basis for the issuance of the search warrant was unreliable. According to defendant, since the informant was recently arrested for possession of a distribution-level quantity of marijuana and was an "underworld" character, his tip had little to no veracity. Defendant also argues that the informant's information was premised upon hearsay, i.e., that a third party advised the informant that defendant was the ultimate source of the marijuana. Defendant avers that the information relating to the informant's observations while at defendant's residence was vague and baseless. Therefore, corroboration was required in order to provide probable cause sufficient for the issuance of a search warrant.

Probable cause may be based upon information received from informants, so long as there is substantial evidence in the record to support the informant's statement. State v. Keyes, 184 N.J. 541, 555 (2005); State v. Jones, 179 N.J. 377, 389 (2003) (internal citations omitted); State v. Sullivan, 169 N.J. 204, 212-13 (2001). The court "must consider the 'veracity and basis of knowledge' of the informant as part of its 'totality' [of the circumstances] analysis." Keyes, supra, 184 N.J. at 555 (internal citations omitted). "A deficiency in one of those factors 'may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." State v. Zutic, 155 N.J. 103, 110-11 (1998) (internal citations omitted).

The first prong of veracity may be shown by demonstrating that the informant has proven reliable by providing other dependable information in previous police investigations. Keyes, supra, 184 N.J. at 555; Jones, supra, 179 N.J. at 389; Sullivan, supra, 169 N.J. at 213. The second prong of the basis of the informant's knowledge considers whether the informant obtained his information in a reliable manner. Keyes, supra, 184 N.J. at 555; Smith, supra, 155 N.J. at 94. Generally, an informant's basis of knowledge will be deemed sufficient "if the tip itself relates expressly or clearly how the informant knows of the criminal activity." Jones, supra, 179 N.J. at 389 (quoting Sullivan, supra, 169 N.J. at 213). The informant's knowledge may be demonstrated implicitly if "the nature and details revealed in the tip may imply that the informant's knowledge of the alleged criminal activity is derived from a trustworthy source." Smith, supra, 155 N.J. at 94 (citing Novembrino, supra, 105 N.J. at 113).

Even if the informant's tip does not demonstrate veracity or basis of knowledge, a judge may still issue a search warrant if other facts in the officer's affidavit justify a finding of probable cause. Keyes, supra, 184 N.J. at 556 (internal citations omitted). The court, in its determination, must also consider the extent to which the police have corroborated the information in the tip through their own investigation. See ibid.; Smith, supra, 155 N.J. at 95-96.

In this case, the affidavit was prepared by Detective Darren Pulman, a six-year veteran of the New Jersey State Police with training and experience in the area of narcotics. From our review of the affidavit we discern the following facts.

The police received a tip from a confidential, reliable informant that led to the issuance of a search warrant, resulting in the seizure of distribution-level marijuana. As a result of the search, Eric Mann was arrested on possession and distribution charges. After Mann's arrest, he provided police with information about the supplier of the seized "high-quality, hydroponically indoor-grown" marijuana. Mann purchased the marijuana from an individual known as Donald Robinson, Jr. Robinson was the "go-between" for the grower of the marijuana named "Jason." It is common for narcotic traffickers to use a "go-between." Mann met Jason on a few occasions and was at Jason's residence within the prior month and a half. While inside this residence, Mann observed what he believed to be "grow lights" and a marijuana production facility. Mann provided a physical description of Jason, the location of the residence by street and municipality, and a physical description of the residence ("a mansion").

Mann advised that the marijuana was secured in a large garage on the property. Three days earlier, Mann purchased marijuana from Jason's marijuana growing facility. The police conducted a limited surveillance of the residence, which confirmed both the physical description and location of the residence provided by Mann. The officers obtained public tax records which confirmed that the owner of the property was "Jason Moore." Upon presentation of the photograph obtained from the Division of Motor Vehicles in the file name of "Jason Moore," Mann confirmed the individual in the photograph was Jason.

We find that the facts supplied in the affidavit amply support the finding that Mann, though untested as an informant, provided reliable information. Mann provided information that was confirmed by law enforcement by independent means through surveillance and through a search of public records. The public records confirmed the location of the alleged marijuana distribution and also matched the physical description of Jason provided by Mann. See State v. Davis, 50 N.J. 16, 25 (1967) (the physical resemblance of an individual to the perpetrator, as described by a witness or victim, is an appropriate factor in determining probable cause). This corroboration was sufficient indicia of Mann's reliability.

Defendant argues that Mann's information was largely based upon hearsay. We disagree. Mann dealt with the "go-between" Robinson because Jason did not trust anyone else. However, Mann had personal contact with defendant. Thus, the information Mann supplied to law enforcement was not largely based upon hearsay. Rather, the details provided by Mann were sufficiently specific as to have come from his personal knowledge. Succinctly, Mann knew of the criminal activity because he was involved in that activity. Moreover, to the extent that Mann's tip was the product of hearsay, there was independent corroboration that ratified his "veracity and validate[d] the truthfulness of the tip." Smith, supra, 155 N.J. at 95.

[T]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

[Id. at 93 (internal citations omitted).]

Our review of a search supported by a warrant is limited. A reviewing court must give "substantial deference" to the judge whose discretionary determination resulted in the issuance of the warrant. Keyes, supra, 184 N.J. at 554 (internal citations omitted). Any doubt as to the validity of the warrant should ordinarily be construed in favor of sustaining the search. Ibid. (internal citations omitted).

Upon consideration of the record and the standard of review, we conclude that the affidavit provided sufficient facts to demonstrate probable cause and supported the issuance of the search warrant.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).