STATE OF NEW JERSEY v. THOMAS MERRITT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0660-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS MERRITT A/K/A MERRIT,

MERITT, JONES,

Defendant-Appellant.

____________________________

November 12, 2010

Submitted: October 14, 2010 - Decided:

BeforeJudges Fisher, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-1825.

Yvonne Smith Segars, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Assistant Prosecutor, on the brief).

PER CURIAM

After pleading guilty to certain drug and weapons offenses, defendant appealed, arguing that the trial judge erroneously denied his motion to suppress evidence. Even though the search warrant failed to particularize which apartment in a multi-unit dwelling was to be searched, we affirm because a detailed affidavit upon which the warrant was based -- that clearly defined the unit to be searched -- was also served with the warrant and the police searched only the unit referred to in the affidavit. The judge sentenced defendant to five years in state prison with three years of parole ineligibility on second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b, and imposed concurrent terms of four years in prison on third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, and eighteen months in prison on fourth-degree unlawful possession of a weapon (hand grenade), N.J.S.A. 2C:39-5d. Appropriate penalties and fines were assessed.

Defendant filed a motion to suppress twelve items recovered after the police searched his first floor apartment in a three-family house.1 Although defendant agreed that there was probable cause to search, he contended that the search warrant was deficient because it did not state that he lived on the first floor. The State argued that the search warrant was valid because a search warrant affidavit that specifically identified defendant's first floor apartment was served with the warrant. The motion judge concluded that the search was valid because the affidavit, which was specific, was served with the warrant. This appeal followed.

On appeal, defendant raises the following points:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE TWELVE ITEMS SEIZED BECAUSE THE WARRANT WAS DEFECTIVE IN THAT IT DID NOT DESCRIBE WITH PARTICULARITY THE PREMISES TO BE SEARCHED WITHIN A MULTI-FAMILY DWELLING.

POINT TWO

THE COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution contain similar language requiring that a search warrant describe with particularity the place to be searched. State v. Marshall, 199 N.J. 602, 610 (2009). The particularity requirement prevents wide-ranging exploratory searches. Id. at 611.

"While a search warrant must describe the premises to be searched with reasonable accuracy, pin-point precision is not demanded." State v. Wright, 61 N.J. 146, 149 (1972) (citing State v. Bisaccia, 58 N.J. 586 (1971); State v. Daniels, 46 N.J. 428 (1966)). The requirement that a search warrant describe the place to be searched with particularity "mandates that 'the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.'" Marshall, supra, 199 N.J. at 611 (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)). When a multi-unit building is involved, a search warrant affidavit must exclude units for which the police do not have probable cause. Ibid.

Here, the police sought the search warrant after Detective Stanley Garnes from the Essex County Sheriff's Department, Bureau of Narcotics, personally observed defendant sell cocaine to two different confidential informants from his first floor apartment. Detective Garnes submitted a detailed affidavit identifying defendant's first floor apartment as the location to be searched. Unlike in Marshall, on which defendant mistakenly relies, Detective Garnes certified that he observed confidential informants knock on defendant's "first floor door located on the right side of the porch," and defendant resided on the first floor of the building.

The warrant judge also reviewed a certification submitted by the assistant prosecutor that specifically identified the first floor as the location of the intended search. After the judge issued the search warrant to search the premises, the police only searched defendant's first floor apartment.

On appeal, defense counsel admits that the affidavit of Detective Garnes accompanied the search warrant. Accordingly, we conclude that the warrant and search of defendant's apartment were valid.

Defendant's argument that his sentence was excessive is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

1 The police recovered: (1) one clear plastic bag containing crack cocaine; (2) one Rite-Weight digital black scale; (3) one USN-150 digital black scale; (4) one white envelope addressed to defendant; (5) one New Jersey state identification card and social security card; (6) one plate with cocaine residue and a razor blade; (7) one black high-point model C9 9mm loaded handgun; (8) eight-ball rounds; (9) one black 9mm magazine and live grenade; (10) defendant's Essex County Jail identification band; (11) $1,751; and (12) one gray Century safe.