STATE OF NEW JERSEY v. AARON M. KYLE

NOT FOR PUBLICATION WITHOUT THE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.

AARON M. KYLE, a/k/a AARON M.

FELICIANO, a/k/a AARON KYLE,

Defendant-Appellant.

_____________________________________________

November 3, 2014

Submitted1 September 22, 2014 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-02-0373.

La Forge & La Forge, attorneys for appellant (Curtis J. La Forge, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress, defendant Aaron M. Kyle entered a guilty plea, pursuant to a negotiated agreement, to third-degree distribution of heroin in a school zone, N.J.S.A. 2C:35-7(a), and second-degree possession of a weapon while possessing heroin with intent to distribute, N.J.S.A. 2C:39-4.1(a). The court sentenced defendant to five-year terms on each count, with the sentences to run consecutively. The court stayed defendant's sentence pending his appeal.

The following facts are gleaned from the record. In September 2012, Detective Robert Gray of the Somers Point Police Department received information from a confidential source2 that defendant distributed heroin from his residence in Somers Point. Gray also learned from the informant that defendant kept two handguns, one loaded with hollow-point bullets, in a box under his bed. In Gray's presence, the informant called defendant and arranged to purchase heroin. Gray accompanied the informant to defendant's home twice, where two, separate controlled purchases of heroin were completed.

On October 9, 2012, Gray presented an affidavit and search warrant for defendant's residence to a municipal judge. Before signing the warrant, the judge crossed out the following paragraph on the second page of the warrant

YOU ARE FURTHER COMMANDED, to execute this Warrant within Ten (10) days if [sic] issuance hereof, between the hours of _____ and _____, and forthwith make return thereof to me with the report of the execution of this Warrant and written inventory of the property seized hereunder by you.

At a hearing on defendant's motion to suppress, Gray testified that he considered the municipal judge's action unusual, and asked him why he crossed out the paragraph. The judge explained to Gray that he considered the paragraph "redundant," as another paragraph in the warrant permitted execution at any hour of the day or night.

On October 12, 2012, police executed the warrant and seized heroin, pills, drug paraphernalia, and a .45 caliber handgun with ammunition. After defendant was charged in a ten-count indictment with drug and weapons charges, he moved to suppress the physical evidence recovered from his residence. After hearing brief testimony by Gray, the Law Division judge denied the motion. The judge noted that the municipal judge "should not have crossed . . . out [the paragraph,]" but determined that the deletion was not fatal; it was "a mere technical error not of a Constitutional dimension . . . ."

On appeal, defendant now argues

Point i

Failure to comply with the requirements of r.3:5-3(a) and r.3:5-5(a) renders the affidavit in support of search warrant and search warrant invalid.

Point ii

The municipal court judge had no authority to authorize a nighttime search of the defendant's residence.

Point iii

The search cannot be justified on the officer[']S good faith in executing the warrant.

Point iv

The issuance of a no-knock warrant should not implicitly authorize the police to execute the warrant at night.

In reviewing an order granting or denying a motion to suppress evidence, we are obliged to defer to the motion judge's factual findings, "so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). However, we accord no special deference to the motion judge's legal conclusions. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

"[O]ur courts have been reluctant to invalidate search warrants based on . . . issues that do not implicate probable cause or the neutrality of the issuing judge." State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff d, 201 N.J. 229 (2010). Absent "bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution." R. 3:5-7(g).

Defendant does not challenge the probable cause supporting the search warrant. Rather, he claims the warrant does not comply with the requirements of Rule 3:5-3(a) and Rule 3:5-5(a). We disagree.

Rule 3:5-3(a) provides in pertinent part

An applicant for a search warrant shall appear personally before the judge, who must take the applicant's affidavit or testimony before issuing the warrant . . . . If the judge is satisfied that grounds for granting the application exist or that there is probable cause to believe they exist, the judge shall date and issue the warrant identifying the property to be seized, naming or describing the person or place to be searched and specifying the hours when it may be executed.

Although the issuing municipal judge deleted a provision from the warrant requiring that it be executed within ten days of issuance, the police here complied fully with that requirement, and executed the warrant on October 12, 2012, three days after the warrant was signed. The deleted portion also contained a blank space that could be filled in, indicating the hours when the warrant could be executed, but another section of the warrant authorized execution at any hour of the day or night.

Even assuming the municipal judge's deletion was improper, it was, as the motion judge found, a mere technical error, which does not require suppression of the evidence uncovered in the search. See State v. Pointer, 135 N.J. Super. 472, 478-479 (App. Div.) (holding that failure to file the affidavit and warrant with the office of the county clerk, and failure to deliver a written copy of the search warrant to the party whose premises was searched until the following day, do not require suppression of the fruits of the search), certif. denied, 69 N.J. 79 (1975). The type of technical violation which occurred here does not provide a basis to invalidate an otherwise valid search based on abundant probable cause.

Defendant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only these brief comments.

Defendant argues that the municipal court judge lacked authority to authorize a nighttime search of defendant's residence. Relying on the forty-year-old dissent of Justice Douglas in Gooding v. United States, 416 U.S. 430, 459, 94 S. Ct. 1780, 1795, 40 L. Ed. 2d 250, 269 (1974), defendant urges us to adopt an "expansive rule of law," limiting the ability of police to obtain "a nighttime warrant without a specific request in the underlying affidavit."

Although Detective Gray's affidavit did not specifically request permission to execute a search of defendant's residence at any time of the day or night, it did seek a no-knock warrant, maintaining that a knock and announce warrant would forewarn defendant of the presence of the police officers, allow him time to access the firearms in the residence, and heighten the risk posed to those officers.

In State v. Johnson, 168 N.J. 608 (2001), our Court set forth the showing required to justify an unannounced entry

First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.

[Id. at 619.]

Hewing to this standard, as we must, we are satisfied that the facts included in Detective Gray's affidavit justified an unannounced entry. Gray and other officers observed the informant enter defendant's residence on two occasions where the informant purchased heroin from defendant. On the first occasion, the informant observed a .45 caliber handgun on the bed and a bowl of bullets nearby. On the second occasion, the informant did not observe a handgun but again observed the bowl of bullets.

In addition, Detective Gray's affidavit contained information concerning defendant's criminal history which included convictions for possession of a weapon, possession of drugs, and aggravated assault. The Court in Johnson recognized that an informant's observation of weapons might justify an unannounced entry. Id. at 624. Furthermore, information on the layout of the premises might also justify a no-knock warrant because it enables the issuing judge to assess whether the occupants could have destroyed evidence after officers announce their presence but before they enter the premises. Ibid. Lastly, information on the defendant's criminal history might support the conclusion that the defendant has a propensity for violence. Id. at 624-25. These same factors supported the issuance of a nighttime warrant.

Under these circumstances, we find no basis to disturb the motion judge's well-reasoned decision to uphold the no-knock warrant and deny defendant's motion to suppress. The stay of defendant's sentence is vacated, effective immediately. The trial court and counsel shall forthwith arrange for defendant's surrender.

Affirmed.

1 This matter was originally calendared for oral argument, however, the parties agreed to waive oral argument and submit.

2 Because defendant did not challenge Gray's probable cause to obtain the search warrant, the details of the investigation were not presented during the hearing on defendant's motion to suppress.