STATE OF NEW JERSEY v. WARREN UNKERT

NOT FOR PUBLICATION WITHOUT THE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.

WARREN UNKERT,

Defendant-Appellant.

________________________________

Submitted May 21, 2014 Decided June 4, 2014

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-10-146.

William J. Jeffery, attorney for appellant.

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

PER CURIAM

Defendant Warren Unkert appeals from an order entered on remand (1) denying his motion to vacate his guilty plea to first-degree maintaining or operating a controlled dangerous substance (CDS) (marijuana) facility, N.J.S.A. 2C:35-4; and (2) rejecting defendant's allegation of a Franks1 violation regarding a search warrant affidavit. Defendant had pled guilty after the court denied his motion to suppress evidence. The court decided to sentence defendant within the second-degree range and imposed a five-year prison term with nine months of parole ineligibility. We affirm the order and uphold the conviction.2

In back-to-back prior appeals, defendant and Karen Unkert challenged the court's initial denial of their applications to vacate their guilty pleas. They maintained that the search warrant contained intentionally misleading information and alleged that the local police were involved in a conspiracy with the State police. In an unpublished opinion, we remanded for the judge to conduct a Franks hearing, and we directed the judge to resolve whether the Unkerts were entitled to withdraw their guilty pleas pursuant to Slater.3 State v. Unkert, Nos. A-4863-08 and A-0001-09 (App. Div. Aug. 4, 2010) (slip op. at 23-24).

The Unkerts operated an elaborate marijuana facility in a building adjoining their home. The police appeared at the Unkerts' home in response to a dropped 9-1-1 call. The responding officer allegedly smelled burnt marijuana while standing at the entrance of the home. In response to the officer inquiry, defendant acknowledged he smoked marijuana to help him sleep. After linking this information to other suspicious behavior discovered through surveillance operations, the police concluded the Unkerts were likely engaged in illegal drug-related activity and obtained a search warrant. The police executed the search warrant and located two "grow rooms" containing special sophisticated lighting equipment and approximately forty-seven actively growing marijuana plants, as well as marijuana stored in various containers, weapons, $31,440 in cash, and a digital scale.

Following our instructions on remand, Judge Max A. Baker carefully conducted a Franks hearing over a four-day period between October and December 2011, taking testimony from Warren and Karen Unkert, Corporal Eric Carricarte, and Detective Dean Carnival. The judge rejected the Unkerts' testimony, found the testimony from the officers to be credible, and issued a comprehensive oral opinion stating, in part, that

[the Unkerts] only have to prove by a preponderance of the evidence . . . that the information contained in the certification in support of the search warrant was intentionally false and had an utter disregard for the truth.

[The] search warrant . . . comes down, quite frankly, to one fact: and that is[,] did this 911 hang-up call occur or did it not occur? The Unkerts are particularly suspicious because in their minds, the arrival of the police officer so close to the time that the call allegedly occurred gives them reason to believe that they were set up.

. . . .

With all due respect to the Unkerts, I find that theory to be preposterous and I reject it.

Officer Carricarte was a credible witness. . . . [The municipality is] a small township. It is not unusual . . . for an officer to get a dispatch from the dispatcher that there was a 911 hang-up call at a certain address and the officer to appear there fairly quickly. First of all, it wouldn't[ have] taken them very long to get there. And second of all, there would've been some urgency.

. . . So the fact that the officer got there within a matter of minutes does not leave this [c]ourt to believe [the local police] were in . . . a conspiracy with the state police.

The judge concluded that defendant failed to show any Franks violation. Judge Baker then conducted a Slater analysis, rejected defendant's request to withdraw his guilty plea, and entered the order under review.

On appeal, defendant raises the following points:

POINT I

The search warrant for the Unkert home should not have issued because the officer who swore to the affidavit had no personal knowledge of events and also because the affidavit was riddled with false/misleading statements.

POINT II

Without inserting into the affidavit presented to the search warrant judge the patently false and fictitious sham of a 911 hang-up call incident and the related falsehoods to which this ruse gave support, there would have been no probable cause for a search warrant of the Unkert home.

POINT III

In upholding the patently false, fabricated and fictitious sham of a 911 hang-up call and the related falsehoods to which this ruse gave support, so obviously manufactured by the police to supply the needed probable cause for a search warrant of the Unkert home that was so glaringly wanting at the time, the court seriously abused its discretion, condoned the violation of the Unkerts' sacred constitutional right to be free from unlawful searches, condoned and thus promoted police misconduct/dirty tricks in their work, made a mockery of justice, and brought the judiciary into disrepute.

POINT IV

Judge Baker abused his discretion in holding that the police qua police do not lie nor engage in unlawful conduct. In so believing, Judge Baker made credibility findings using an inappropriate and unfairly prejudicial standard favoring the police over the population at large. Because he came to the proceeding with the closed mind that police do not lie and do not engage in unlawful conduct, Judge Baker prejudged the case and therefore denied the Unkerts a fair hearing.

POINT V

Mr. Unkert is entitled to withdraw his guilty plea in the interests of justice on the specific grounds that there was no probable cause for the indictment, it having been procured by fraud, deception, perjury and falsified evidence by agents of the state.

POINT VI

Mr. Unkert is entitled to withdraw his guilty plea in the interests of justice on the specific grounds that it was not entered knowingly, voluntarily, and intelligently.

POINT VII

Mr. Unkert is entitled to withdraw his guilty plea in the interests of justice on the specific grounds that the indictment was fatally defective.

POINT VIII

It is the law of the land that a search warrant the probable cause of which was based on false swearing (as in this case) must be voided and its fruits excluded. In this case, the fruits include the Unkerts' arrest, indictment, conviction, sentence AND THE FORFEITURE ACTION MOUNTED AGAINST THEIR VERY HOME.

POINT IX

Mr. Unkert is entitled to a dismissal of the indictment against him with prejudice because it is manifestly deficient and palpably defective.

POINT X

Mr. Unkert is entitled to a dismissal of the indictment against him with prejudice on the grounds that it violates the Doctrines of Fundamental Fairness and Due Process. Judges have the inherent power to guarantee the proper administration of justice by dismissing indictments that subvert justice. They are the guardians of the Constitution, standing between us and TOTALITARIANISM.

POINT XI

This case which is now its second appeal must be disposed of by the Appellate Division once and for all and not returned to the Law Division with instructions. The Unkerts have waited too long and spent too much money to have justice denied. The Appellate Division to its credit should therefore on its own vacate the judgments of conviction of the Unkerts and dismiss the indictment against them with prejudice. Period.

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons thoroughly expressed by Judge Baker. We add the following brief remarks.

In our opinion remanding the matter for a Franks hearing, we acknowledged that a defendant has a right to seek suppression of evidence if in fact the police procured a search warrant relying on a false or fraudulent affidavit. Unkert, supra, slip op. at 19. A defendant who seeks to overcome the "presumption of validity" accorded affidavits supporting search warrants must prove that

a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

[Franks, supra, 438 U.S. at 155-56, 171, 98 S. Ct. at 2676, 2684, 57 L. Ed. 2d at 672, 682).]

A defendant must make this showing by a preponderance of the evidence. State v. Howery, 80 N.J. 563, 567-68, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).

Here, Judge Baker conducted the Franks hearing and believed Corporal Carricarte's testimony that the dropped 9-1-1 call occurred. The judge rejected the Unkerts' conspiracy theory as "preposterous." We review the factual findings of the trial court narrowly, "and will not 'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" State v. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (alteration in original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We reverse only when the trial court was "so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Additionally, we give deference to those findings of the trial court which are substantially influenced by its "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. As a result, we have no reason to disturb the judge's findings.

Affirmed.

1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

2 The order under review also denied a motion filed by defendant's wife, Karen Unkert, in a related case, seeking to withdraw her plea to second-degree manufacturing a CDS, N.J.S.A. 2C:35-5a(1) and -5b(10)(b). In an unpublished opinion issued today as to Karen Unkert, we also affirmed the order and upheld her conviction. See State v. Karen Unkert, No. A-3699-11 (App. Div. June 4, 2014).

3 State v. Slater, 198 N.J. 145 (2009).