STATE OF NEW JERSEY v. CRISTOBAL ORTIZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5592-07T45592-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CRISTOBAL ORTIZ AND

NOEMI TORRES,

Defendants-Respondents.

________________________________________

STATE OF NEW JERSEY, A-5613-07T4

Plaintiff-Appellant,

v.

ALLEN DE VITA AND

HECTOR ORTIZ,

Defendants-Respondents.

________________________________________________________________

 

Submitted October 6, 2008 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court, Law Division, Passaic County, Indictment Nos. 07-12-1543-I (A-5592-07T4) and 08-02-234-I (A-5613-07T4).

James F. Avigliano, Passaic County Prosecutor, attorney for appellant on A-5592-07T4 and A-5613-07T4 (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

Goodman Galluccio & Chessin, attorneys for respondents Cristobal Ortiz in A-5592-07T4 and Allen De Vita in A-5613-07T4 (Robert J. Galluccio, on the brief).

Matthew T. Priore, attorney for respondents Noemi Torres in A-5592-07T4 and Hector Ortiz in A-5613-07T4.

PER CURIAM

In these cases, which have been calendared back-to-back, and which we now consolidate for disposition in a single opinion, the State appeals, by leave granted, from orders suppressing evidence. In each case, the evidence was seized from residential premises upon the execution of a search warrant. The fact patterns in the two cases are very similar. The suppression motions were argued in the Law Division on the same day by the same attorneys before the same judge. The judge found that the veracity of the confidential informants (CI) was sufficiently established, but their basis of knowledge linking defendants' drug activity to the residences was vague and conclusory. The judge determined that, based on the information in the affidavits, the detectives failed to provide sufficient corroboration to establish probable cause that the residences contained evidence of criminal activity.

From our review of the affidavits in each case, considering the specific information provided, the totality of the circumstances involved, the presumption of validity of the search warrants, and the substantial deference that should be given to the determination of the judges who issued the warrants, we conclude that defendants failed to meet their burden of establishing a lack of probable cause. We therefore reverse.

Under Passaic County Indictment No. 07-12-1543-I, defendants Cristobal Ortiz and Noemi Torres were charged with (1) third-degree possession of a controlled dangerous substance (CDS), namely heroin, N.J.S.A. 2C:35-10a(1); (2) third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (3) third-degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and -5a; and (4) first-degree operating a CDS production facility, N.J.S.A. 2C:35-4 and N.J.S.A. 2C:2-6. We will refer to this case as "the Ortiz case."

Under Passaic County Indictment No. 08-02-0234-I, defendants Allen De Vita and Hector Ortiz were charged with (1) fourth-degree possession of a CDS, namely marijuana, in a quantity of less than one ounce, with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12); (2) third-degree possession of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and -5a; and (3) third-degree possession of marijuana with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 and -5a. We will refer to this case as "the De Vita case."

I

The sufficiency of the facts purportedly supporting a finding of probable cause, and thus the validity of the warrants, must be gleaned from within the four corners of the supporting affidavits. State v. Sheehan, 217 N.J. Super. 20, 24 (App. Div. 1987). We therefore recite the pertinent facts contained in the affidavit in each case.

A. The Ortiz Case

On July 18, 2007, Detectives David Cruz and Marla Saraciano executed an affidavit in support of their request for search warrants for the persons of Noemi Torres and John Doe, a/k/a "Papo" (later determined to be Cristobal Ortiz), a silver Toyota Rav4 SUV, and the basement apartment of 339 15th Avenue in Paterson. The affidavit was presented to a Superior Court judge, who issued the requested warrants on that date.

The affidavit, after setting forth in detail the extensive training and experience of both detectives, with particular reference to their drug detection activities, stated that they received information from a reliable CI in June 2007. The detectives stated that the CI was deemed reliable and that information the CI provided in the past resulted in the seizure of CDS and led to the arrest of individuals associated with those seizures. The CI "indicated" that a Hispanic male known to the CI as "Papo" and his girlfriend "were distributing cocaine within the cities of Passaic and Paterson, as well as from their residence 339 15th Avenue, basement apartment, Paterson, New Jersey." The affiants set forth the CI's physical description of Papo and his girlfriend, and indicated that Papo "operated a silver colored, Toyota Rav4, which he utilized to distribute cocaine and make deliveries, within the Cities of Passaic and Paterson, New Jersey."

During the first week of July 2007, arrangements were made for the CI to make a controlled purchase of cocaine from Papo. The CI called Papo. Cruz conducted an overhear of the entire conversation. The CI ordered an amount of cocaine and a meet location was agreed upon. Before sending the CI to the meet location, members of the Passaic County Prosecutor's Office established a stationary surveillance at 339 15th Avenue and at the meet location. The CI was searched, with no money or contraband found. The CI was then issued currency and sent to the meet location. The CI was kept under constant visual surveillance at all times. A short time after the CI contacted Papo, a Hispanic male fitting the description previously furnished by the CI was observed exiting 339 15th Avenue with a Hispanic female fitting the description given of Papo's girlfriend. They exited "through the side alleyway of the dwelling," entered a silver Toyota Rav4 SUV, and drove directly to the meet location, being followed by the surveilling officers.

At the meet location, the CI and Hispanic male engaged in a brief conversation and hand-to-hand transaction, after which they went their separate ways. The male and female were followed and drove directly back to 339 15th Avenue. They got out of the vehicle and were observed "entering said location, through the side alleyway of the dwelling."

The CI was kept under continual visual surveillance and returned from the meet location to a prearranged location, where he met with the affiants. He said that the Hispanic male he met with was the person he knew as Papo and that the female was Papo's girlfriend. He further said that Papo sold him cocaine in exchange for the currency he was provided. The suspected cocaine was field tested and found positive for cocaine.

A motor vehicle inquiry revealed that the Rav4 was registered to Noemi Torres of 53 Center Street in Clifton. A photograph of Torres obtained through the Division of Motor Vehicles confirmed that the female involved in the witnessed transaction was Torres.

A Public Service Gas and Electric inquiry of 339 15th Avenue revealed that the premises is a multi-family dwelling, with three separate utility customers on the first, second and third floors, and no utilities listed in the basement apartment. The affiants swore that based on their training and experience they "know that individuals involved in the distribution of narcotics often rent basements and attics because the apartments are often illegal and the utilities are usually included, therefore the individual can conceal their identity within the residence."

In the next two weeks, the detectives arranged for three more controlled buys by the CI from Papo. Each followed the same procedure as the first, which we have described in detail. In each, the same surveillance was established at 339 15th Avenue and of the CI. In the second controlled buy, as in the first, after the CI contacted Papo, Papo and Torres were observed leaving 339 15th Avenue and driving in the Rav4 directly to the meet location. A transaction was conducted, after which Papo and Torres drove directly back to 339 15th Avenue and entered the building through the same entrance.

In the third and fourth controlled buys, however, after the CI called Papo to arrange for a sale, Papo and Torres were not seen leaving 339 15th Avenue, but they arrived at the meet location at the arranged time. After making a sale to the CI on each of those occasions, Papo and Torres drove directly to 339 15th Avenue and entered the building through the same entrance.

After each of the three succeeding controlled buys, the CI informed the defendants that he purchased cocaine from Papo and Torres in exchange for the currency he was provided. The CI turned over the suspected drugs, which on each occasion tested positive for cocaine.

The detectives stated in the affidavit that the exact dates, times and arrangements pertaining to the controlled buys were not specified in order to protect the CI's identity, anonymity and safety.

B. The De Vita Case

On November 28, 2007, Detectives Edgar Taylor and Evelyn Gonzalez executed an affidavit in support of their application for search warrants for the person of Allen De Vita, a black Plymouth Voyager, and a one-family dwelling at 9 Martin Street in Paterson. The affidavit was presented to a municipal court judge from the City of Paterson, who issued the warrants on that date.

The affidavit set forth the affiants' extensive training and experience, with particular reference to narcotics investigations. The detectives then stated that in October 2007 they received information from a confidential and reliable informant that Taylor had known for approximately one year and who had provided him with information that resulted in arrests and seizures of drugs and drug proceeds. The CI "related" that he or she had information that a white male named Allen De Vita was selling marijuana "from a Black Plymouth Voyager with NJ registration WDL82K and lives in the area of Martin St and 20th Ave." A look up of the registration revealed a 1995 black Plymouth Voyager registered to Ana M. Ortiz of 9 Martin Street in Paterson. A look up in the Paterson Police narcotic data base provided a picture of De Vita from a 2002 arrest, and revealed a criminal history that included five arrests, resulting in four felony convictions for manufacture or distribution of CDS, criminal mischief, aggravated assault with bodily injury, and possession of a handgun. The other arrest was for simple assault.

During the week of November 4, 2007, the detectives established a surveillance at 9 Martin Street and observed the Plymouth Voyager parked in front of the house. They observed De Vita (readily identified from his photo) walk out of the front door and drive away in the Voyager. They followed him to the area of 21st Avenue and Lewis Street where he met with an unknown male, who entered the vehicle as a passenger. De Vita drove around the block and discharged the male at the same location where he had picked him up. De Vita drove back to 9 Martin Street, parked in front of the house, and entered the front door, unlocking it with a set of keys in his possession.

During the week of November 11, 2007, the detectives arranged for the CI to make a controlled buy from De Vita. The CI was searched, with no money or contraband found. The CI was furnished with money and transported to a prearranged location in Paterson, where he or she was kept under constant surveillance by Taylor. Gonzalez "responded to the area of 9 Martin St in a separate vehicle." After about ten minutes, Gonzalez advised Taylor that De Vita "was on the move" in the Voyager. She followed him. He drove to the prearranged location and met with the CI, who entered the passenger side door. After about ten seconds, the CI got out of the vehicle and De Vita drove off. Gonzalez followed him, and he returned to 9 Martin Street and entered the house.

Without ever losing sight of the CI, Taylor picked him or her up, and the CI handed Taylor a quantity of suspected marijuana, which was field tested and yielded a positive result for THC, the active ingredient in marijuana.

During the week of November 11, 2007, the detectives arranged for another controlled buy. While Taylor surveilled the CI, Gonzalez again "responded to the area of 9 Martin St in a separate vehicle," and, "[a]fter a brief period of time Det Gonzalez observed De Vita leave the front door of 9 Martin St," get into the car and drive to the prearranged location. The transaction occurred similar to that in the first controlled buy. The suspected marijuana the CI turned over to Taylor tested positive for marijuana. Gonzalez followed De Vita back to 9 Martin Street, where he parked the Voyager and entered the front door, after opening it with a set of keys in his possession.

Gonzalez continued to surveil 9 Martin Street. After about fifteen minutes, De Vita came out of the front door, entered the Voyager, and drove to the area of 21st Avenue and East 19th Street, where he met with an unknown male, who engaged in a brief conversation with De Vita, after which the male walked into the dead-end of East 19th Street. De Vita drove to that spot, and the male entered the passenger seat for about one minute, then got out and walked away. De Vita drove back to 9 Martin Street, parked the Voyager and entered the house with a set of keys in his possession.

II

In each case, the warrants were executed on the same day they were issued. Heroin and other evidence of drug distribution activity was found and seized in the basement apartment of 339 15th Avenue. Marijuana and other evidence of drug distribution activity was found and seized in 9 Martin Street.

Defendants filed motions to suppress the evidence seized from those residences. Defendants did not challenge the warrants for the vehicles or individuals.

In granting suppression, the motion judge found that the affidavit in each case sufficiently established the veracity of the CI. However, the judge found that neither CI provided a basis for the information furnished and that the investigation conducted to substantiate the information, as described in the affidavit, was insufficient to establish probable cause that evidence of criminal activity would be found in either residence.

In ruling on the Ortiz case, the judge said:

Here a full reading of his affidavit does not indicate the C.I. basis of knowledge involved in this basement apartment. They don't have specificity relating to that aspect of the informant's tip.

You don't have a level of detail contained in the informant's tip to discern that there's a sufficient basis of knowledge about this apartment. There is no surveillance conducted of this building to see whether or not the pedestrian trafficking in and out of the building would seem to corroborate drug dealing somehow occurring within that particular structure.

Again, what is contained in the four corners of the affidavit does not in my view provide sufficient basis of knowledge that the Defendants were using the basement apartment at 339 Fifteenth Avenue to distribute cocaine.

In elaborating on his findings, the judge first criticized the affidavit's description of how the CI merely "indicated" that the targets were distributing cocaine "from their" basement apartment. He noted that the affidavit offered "absolutely nothing . . . that establishes how this C.I. obtained this information or reached this conclusion," and that it would have been "equally reasonable to infer that the C.I.'s belief about this apartment was based on mere rumor or some conclusory belief." The judge correctly recognized the necessity for independent police corroboration of the tip, but again found the affidavit lacking:

But what do we have here? We have independent corroboration of the informant's tip involving drug sales on the streets of Paterson. There's no question about that. And clearly Defense counsel accept that because their motion is not directed towards the vehicle.

So mind you this is an attempt in this affidavit to shortcut or bootstrap. And because it established P.C. about the van on the street, ab initio. It means the apartment has to be involved and there has to be contraband and sales going on. That's not the state of the law.

In the De Vita case, the judge also found the information in the affidavit lacking as to the affiants' basis of knowledge. In the De Vita affidavit, the CI "related" that De Vita sold marijuana from the black Plymouth Voyager and "lives in the area of Martin St and 20th Ave." Due to that phrasing, the judge concluded that the De Vita affidavit contained even less of a basis of knowledge than the Ortiz affidavit, in which the CI alleged the drugs were being sold "from" a basement apartment. And, in the De Vita affidavit, with respect to the first controlled buy, the affiants did not expressly state that De Vita was seen coming out of 9 Martin Street, but that he "was on the move" in the Voyager.

As to independent police corroboration in the De Vita case, the judge found:

The corroboration in this case is merely to the fact that this Defendant DeVita made drug sales allegedly from his vehicle. . . .

. . . .

Clearly, given the I think more than assumption or inferences are required. . . .

Here there's no reference at all that sales were being made from the subject home. There's no reference here at all that drugs were being kept there. Where was the basis of knowledge that there be contraband found inside? What's the PC of that conclusion? I don't find any from the affidavit submitted.

. . . .

Here, I believe this is no more than bootstrapping, which I believe is clearly not permissible in our jurisprudence involving search and seizure. An exception or an inference even one that makes sense does not in my view in these circumstances give rise to probable cause to search the subject premises.

On appeal, the State argues that the motion judge failed to give substantial deference to the determinations made by the judges issuing the warrants. The State urges that those judges could have reasonably concluded in both cases that, based upon the facts contained within the four corners of the affidavits, defendants were "probably storing their stash of drugs within that apartment." In essence, the State argues that the motion judge read the affidavits too technically and too narrowly, and concluded that because they did not provide a basis upon which probable cause could be found that defendants were selling drugs to customers inside the premises, the affidavits were deficient to establish probable cause that drugs would be found in the premises.

III

Both the United States and New Jersey constitutions provide for the right to be secure in one's home from unreasonable searches and seizures and that no warrant shall issue except upon probable cause. U.S. Const. amend. IV; N.J. Const. art. I, 7. Therefore, prior to searching a person's home, police must first obtain a warrant from a neutral judicial officer, unless the search falls within one of the recognized exceptions to the warrant requirement. State v. Sullivan, 169 N.J. 204, 210 (2001). Before issuing a warrant, the judge must be satisfied that probable cause exists to support the belief that a crime has been or is being committed at a specific location or that evidence of a crime will be found at the place to be searched. Ibid.

The concept of probable cause "eludes precise definition." Ibid. (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000). Courts generally accept it to mean "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 is "consistently characterized . . . as a common-sense, practical standard" for testing a warrant's validity, State v. Novembrino, 105 N.J. 95, 120 (1987), which is met when police have a well grounded suspicion that a crime is being committed. Sullivan, supra, 169 N.J. at 211.

In identifying the competing policy concerns behind the probable cause requirement, our Supreme Court has said:

Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other.

[State v. Kasabucki, 52 N.J. 110, 116 (1968).]

Probable cause is a "practical, non-technical conception." Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983).

In cases involving police informants, the information provided by such persons can support probable cause if it provides a substantial basis for crediting the information when viewed under the totality of the circumstances. Novembrino, supra, 105 N.J. at 122 (adopting the "totality of circumstances" test previously articulated by the U.S. Supreme Court in Gates). Two important factors for consideration in the totality of the circumstances analysis are the informant's veracity and the informant's basis of knowledge for the information supplied. State v. Smith, 155 N.J. 83, 93, cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998) (citing Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed 2d. at 548).

The two factors need not each be strictly present, and a deficiency in one "may be compensated for, in determining the overall reliability of the 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). As to the first factor, past instances of reliability may establish the informant's veracity and are to be accorded weight in the determination of probable cause depending on the circumstances of each case. Smith, supra, 155 N.J. at 93-94.

The second factor focuses on the informant's underlying basis of knowledge, which proves relevant to the determination that the information was obtained in a reliable way. Ibid. The judge must "know that he [or she] is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Ibid. The informant may expressly convey how he or she knows of the criminal activity or, in the absence of such disclosure, the detailed or hard-to-know nature of the tip may imply that the informant's knowledge of the activity derives from a trustworthy source. Ibid. In either case, because the tip is hearsay, police corroboration of the information is essential to the determination of probable cause. Id. at 95.

If inadequately demonstrated by the information provided by the informant, either the veracity prong or basis of knowledge prong can be bolstered by a corroborative investigation which lends them independent weight. Id. at 98; Sullivan, supra, 169 N.J. at 213-14.

The totality of the circumstances is, by definition, very fact sensitive. An infinite number of scenarios may arise. Many factors have been considered relevant in evaluating the proposed corroborating evidence supporting a CI's tip. These include, for example, controlled drug purchases, positive test results of narcotics obtained in a controlled purchase, records corroborating a CI's account of the location of drug activity, the experience of the officers in drug investigations, and the suspect's criminal record. State v. Jones, 179 N.J. 377, 390 (2004).

A probable cause determination based on the totality of the circumstances requires consideration of probabilities. Id. at 389. No specific quantity of corroboration of a CI's tip is required. The degree of corroboration needed in a given case depends on a qualitative analysis of the unique facts and circumstances in that case. State v. Keyes, 184 N.J. 541, 556 (2005). In the end, the analysis comes down to a "practical, common-sense decision." Jones, supra, 179 N.J. at 390. Whether probable cause exists "involves no more than a value judgment upon a factual complex rather than an evident application of a precise rule of law, and indeed a value judgment which inevitably reflects the seasoning and experience of the one who judges." Schneider v. Simonini, 163 N.J. 336, 362 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001) (quoting State v. Funicello, 60 N.J. 60, 72-73 (Weintraub, C.J., concurring), cert. denied, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972)).

For these reasons, a reviewing judge should pay "substantial deference" to the discretionary determination of the judge who issued the warrant. Sullivan, supra, 169 N.J. at 211; Kasabucki, supra, 52 N.J. at 117. Review of a warrant's efficacy "is guided by the flexible nature of probable cause and by the deference shown to issuing courts that apply that doctrine." Sullivan, supra, 169 N.J. at 217. Warrant applications "should be read sensibly rather than hypercritically and should be deemed legally sufficient so long as they contain[ ] factual assertions which would lead a prudent [person] to believe that a crime [has] been committed and that evidence . . . of the crime [is] at the place sought to be searched." Ibid. (quoting State v. Laws, 50 N.J. 159, 173 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968)).

If the information in the affidavit could have reasonably led the issuing judge to find probable cause, that judge's determination should not be second guessed upon review. When the adequacy of the facts supporting probable cause in a search warrant affidavit is challenged, "and their adequacy appears to be marginal, the doubt should ordinarily be resolved by sustaining the search." Jones, supra, 179 N.J. at 388-89 (quoting Kasabucki, supra, 52 N.J. at 116). It is therefore well settled that a search executed pursuant to a warrant is presumed valid, and the defendant bears the burden of proving lack of probable cause in the warrant application. Sullivan, supra, 169 N.J. at 211.

For the purposes of this court's appellate review, a Law Division judge's review of whether a search warrant was supported by adequate probable cause is a question of law. The trial court's interpretation of the law is not entitled to any special deference and our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

IV

We now apply these principles to the cases before us. Initially, we note our agreement with the Law Division judge that the veracity of the CI in each case was adequately demonstrated. In each case, the affiants swore that the CI had provided reliable information in the past which led to arrests and seizures of CDS. This is more than a bare conclusory statement of reliability. Evidence that convictions resulted is not required. Keyes, supra, 184 N.J. at 557.

In each case, the CI provided no basis of knowledge that drugs were maintained at either premises. In the Ortiz case, the CI provided information that the individuals known to him as Papo and Papo's girlfriend "were distributing cocaine within the cities of Passaic and Paterson, as well as from their residence 339 15th Avenue, basement apartment, Paterson, New Jersey." The affidavit went on to say that the CI further advised that Papo was using the Toyota Rav4 "to distribute cocaine and make deliveries." In the De Vita case, the CI made no reference to a specific premises, but merely informed that De Vita was selling marijuana from a black Plymouth Voyager "and lives in the area of Martin St and 20th Ave." It was police investigation that identified the location of De Vita's apparent residence at 9 Martin Street.

Thus, in both cases, there was a need for police investigation to corroborate the information provided by the CI, particularly with reference to any effort to support a probable cause determination with respect to the suspected residences. In each case, police investigation revealed that the person or persons identified by the CI lived in the particular residence specified by the CI (in the Ortiz case), or at a residence in the area of drug distribution identified by the CI (in the De Vita case). In the Ortiz case, a multi-family dwelling was involved, thus necessitating the check by the police of utility records. By doing so, the police were able to rule out the first, second and third floor apartments as the residence of Ortiz and Torres. In the De Vita case, a single-family home was implicated, thus making it unnecessary to conduct similar inquiries.

In each case, police observations confirmed the goings and comings of the individuals from the specified residences with sufficient frequency and regularity over the several weeks involved in the investigation to establish that the individuals lived in those premises or at least had unbridled access to them.

We decline to find fault, as did the trial court, with the affidavits for using such terms as "indicated" (in the Ortiz case) and "related" (in the De Vita case). It is plain to us that these verbs were used by the affiants to express what the CIs told them. Similarly, with respect to the first controlled purchase in the De Vita case, the affidavit does not expressly state that De Vita was seen walking out of the house, but instead relates the words of the surveilling detective that he "was on the move" in the Voyager. However, looking at the remaining relevant portions of the affidavit, we note that Detective Gonzalez had been surveilling 9 Martin Street for approximately ten minutes before announcing that De Vita was on the move, and that after the controlled purchase, De Vita "returned" to 9 Martin Street and entered the house. A sensible, common sense reading of this account leads to a reasonable conclusion that De Vita had been in the house and departed from it to drive in the Voyager to the location of the controlled purchase. That is also consistent with the other comings and goings of De Vita with respect to 9 Martin Street.

Along these same lines, we do not take issue with the wording in the Ortiz affidavit repeatedly describing the police observations of Ortiz and Torres exiting and entering "through the side alleyway of the dwelling." We decline to conclude that the use of this terminology was insufficient to establish that these individuals were actually coming out of and then reentering the building, as opposed to an alleyway. In context, it is clear that they were indeed going in and out of the building through an entrance near the side alleyway.

We address these points to illustrate the need to avoid a hypercritical reading of a search warrant affidavit. In our view, these affidavits provide a reasonable narrative of individuals who were selling drugs on the streets, delivering the drugs in their vehicles to the buyers at a designated time and place by appointment, after the purchaser called and placed a specific order. The affidavits further establish that on two occasions in each case, the sellers left from their premises immediately after receiving the order from the CI and drove to the designated location to complete the sale. On two other occasions in the Ortiz case, the sellers came from elsewhere. In all cases, after completion of the sale, the sellers drove back to their designated premises.

This narrative could reasonably have led the issuing judge in each case to form a reasonable, well grounded suspicion that the sellers maintained an inventory, known in street parlance as a "stash," in their respective premises. See, e.g., State v. Myers, 357 N.J. Super. 32, 40 (App. Div. 2003) (observation of the defendant leaving his home and giving a brick of suspected heroin to a drug dealer, under all of the circumstances, made it reasonable "to conclude that [the] defendant . . . stored drugs in his apartment," which "information was more than sufficient to satisfy probable cause for issuance of the search warrant for [the] defendant's apartment."). Applying the common sense and flexible standard of probable cause, deference should be given to that determination in each case.

Contrary to the arguments proffered by defendants and the reasoning of the motion judge, these were not cases in which it was alleged that sales were being made to customers on the premises. The manner in which the investigations were conducted, as described in the affidavits, demonstrated that off-premises sales were the method of operation employed by the sellers in both cases. The State argues that it was not feasible to attempt to send the CI in either case into the premises because it might have jeopardized the anonymity and safety of the CI or exposed the police investigation. That information, with a factual basis, should have been included in the affidavits. Likewise, as noted by the motion judge, additional investigation could have been conducted and would have strengthened the probable cause showing. While these matters would have been helpful and should have been included, we do not find their absence fatal in the totality of the circumstances.

The issuing judges relied upon a number of factors to corroborate information provided by the CI in each case. This included the experience of the affiants in drug investigations, information to establish the residence or ready access of the individuals to the respective residences (which included utility records in the Ortiz case, the use of keys by De Vita, and in both cases repeated police observations of the individuals coming and going from the premises), the successful completion of controlled purchases, the field testing of the purchased substances revealing positive results, and, in De Vita's case, a significant criminal record (including a conviction for drug distribution). Further, the police investigation corroborated that deliveries were being made in the areas and with the vehicles identified by the CIs.

We conclude that, applying the flexible, qualitative, and deferential standard for reviewing a probable cause determination by an issuing judge, defendants have not carried their burden of proving an absence of probable cause in these cases.

Reversed and remanded for further proceedings.

De Vita was also charged in count four with fourth-degree possession of a police scanner, N.J.S.A. 2C:33-22. This item was not seized from the residence and is not implicated in this appeal.

(continued)

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A-5592-07T4

November 5, 2008