STATE OF NEW JERSEY v. DONALD J. CARTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1367-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD J. CARTER,
 

Defendant-Appellant.

______________________________________

December 3, 2010

Submitted November 15, 2010 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 07-03-0246 and 07-06-0501.

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

Paula T. Dow, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of a motion to suppress, defendant, Donald J. Carter, pled guilty to second-degree possession of a controlled dangerous substance (CDS) with intent to distribute and related offenses. Pursuant to the plea agreement, the court sentenced defendant to an aggregate five-year term with a two- year period of parole ineligibility. Defendant appeals from the order denying the motion to suppress. We affirm.

During a three-month period from July to October 2006, the Millville Police Department conducted surveillance of defendant and his various drug dealing activities at 300 and 302 East Broad Street in Millville. A confidential informant made five controlled buys of crack cocaine from another individual at defendant's direction, and from defendant himself, who told the informant that he lived in the second-floor apartment at 302 East Broad Street and sold his drugs from both that apartment and the first-floor apartment at that address. The controlled buys involved purchases from both street addresses 300 and 302 East Broad Street. The observations made were detailed by Detective Michael Lee of the Millville Police Department, who had extensive experience in narcotics training and investigation. Defendant was observed using 300 East Broad Street as a contact point and the 302 East Broad Street address as the likely supply location for his distribution activities.

Finding sufficient probable cause for the issuance of a warrant to search the second-floor apartment of 302 East Broad Street, the motion judge, in denying the suppression motion, provided the following analysis:

[T]he description of the residence indicates that the entrance to the second floor apartment was the door on the "front porch" of 302, as opposed to the "side entrance" or "side door," which was the entrance to the first floor apartment. On August 6 and 13, 2006, the CI informed Det. Lee that "Black" lived at 302 E. Broad Street, which the CI described as "the front door of the property facing E. Broad St. and that is the upstairs of the residence." On October 1, 2006, the CI entered and exited the "front door" of 302, having returned with purchased crack cocaine. Thus, the information provided by the CI and confirming observations by Det. Lee gave sufficient reason to believe that "Black" lived at or at least used 302, second floor for the sale of CDS.

The CI made a total of five controlled buys from "Black." Before each sale, the CI was searched for contraband with negative results. Each time, he returned with CDS that field-tested positive for crack cocaine. The police observed at least some interaction between the CI and "Black" on each occasion, several times witnessing what in their experience they concluded to be "hand to hand" transactions. Additionally, Det. Lee observed several "hand to hand" transactions between "Black" and other unidentified buyers during the week of July 23, 2006.

A review of the totality of the circumstances reveals that probable cause was established. While the CI's past reliability was not made known in the affidavit that alone is not dispositive. His five controlled buys from "Black" during the investigation established his reliability and corroborated his initial tip to the police. His reliability was further bolstered by the police surveillance of the controlled buys and other sales, the positive field tests for crack cocaine.

The court also rejected the contention that a Franks/Howery1 hearing was necessary because the affiant allegedly omitted material facts in acquiring the warrant. According to the motion judge, there was "no preliminary showing that any misleading or false statements were made, or that any material facts were omitted." The motion judge rejected the request for a hearing.

The motion judge also found that the "warrants sufficiently and particularly described the places, things, and persons to be searched." Defendant was described as "a black male[,] approximately 5'10'' tall[,] with a stocky build." Detective Lee had "observed 'Black' repeatedly during his surveillance and during the controlled buys" and recognized him "when the warrant was executed." Indeed, defendant was arrested, along with co-defendant Destine M. Colvin, in the second-floor apartment at 302 East Broad Street. Approximately forty-eight grams of crack cocaine were found in the apartment, along with packaging material and other paraphernalia in the apartment on the first floor.

On appeal, defendant raises the following issue for our consideration:

POINT I

BECAUSE THE POLICE WERE AWARE THAT THE PROPERTY IN QUESTION CONTAINED TWO APARTMENTS WITH SEPARATE ENTRANCES AND PROBABLE CAUSE TO SEARCH FOR COCAINE WAS ESTABLISHED ONLY FOR THE FIRST FLOOR APARTMENT, THE SEARCH WARRANTS FOR BOTH APARTMENTS DID NOT PARTICULARLY DESCRIBE THE PLACE TO BE SEARCHED, IN VIOLATION OF DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART. I, PAR. 7.

Our detailed review of the record satisfies us that the motion to suppress the search pursuant to the warrant was properly denied. We affirm substantially for the reasons expressed by Judge Geiger in his comprehensive written opinion of October 30, 2007.

1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v. Howery, 80 N.J. 563 cert. denied, 444 U.S. 94, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).