STATE OF NEW JERSEY v. WILLIE H. MONTAGUE

NOT FOR PUBLICATION WITHOUT THE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.

WILLIE H. MONTAGUE, a/k/a

BIG WILLIE, WILLIE MONTAGUE,

WILLIE A. MONTAGUE,

Defendant-Appellant.

April 30, 2014

Submitted March 25, 2014 Decided

 
Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-06-1079.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and 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 William H. Montague entered a guilty plea to two counts of Hudson County Indictment No. 12-06-1079: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four), and second-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count nine). The remaining eight counts of the indictment were dismissed. The State agreed to recommend five years imprisonment with a one-year period of parole ineligibility on count four, concurrent to five years on count nine. Sentence was imposed as called for by the plea agreement on November 16, 2012, along with appropriate fines and penalties. Defendant appeals the denial of his motion to suppress. We affirm.

The contraband at issue was found in defendant's apartment during the execution of a search warrant. Defendant now contends that the facts alleged in the search warrant affidavit did not establish probable cause. We do not agree, and affirm for the reasons stated by Judge John A. Young, Jr., in rendering his decision from the bench on September 18, 2012. We add the following brief comments, summarizing the circumstances as described in the affidavit.

Jersey City Patrol Officer Anthony Goodman, a twelve-year veteran of the force, as well as another officer, were contacted on July 8, 2011, by "a [c]onfidential [i]nformant that has been used in the past which resulted in the arrests and prosecution of CDS offenders." The informant told the officers he had been in the apartment of a man he knew as "Willie," and that Willie was selling cocaine for $5 a vial. While in the apartment, the confidential informant saw three handguns. When he was later shown a photo of defendant, he positively identified him as Willie.

A third officer contacted another confidential informant "that has been used in the past which resulted in arrests and convictions of CDS offenders," and arranged for him to make a controlled buy from defendant. During the controlled buy, the informant purchased three vials, and reported to the officers that he saw a black revolver next to a bag of drugs. This confidential informant also identified defendant, and told the officers that the "vials were going fast because there [were] numerous buyers waiting." The issuing magistrate found the information established sufficient probable cause for the issuance of a search warrant.

In State v. Keys, 184 N.J. 541 (2005), the Supreme Court determined that an affidavit describing a controlled buy performed by one confidential informant was sufficient where the informant had previously supplied information that resulted in the recovery of proceeds from drug sales and the arrest of numerous suspects, even if the number was unspecified. In Keys, the drugs were field tested, the defendant had a prior criminal history involving the distribution of drugs, and many complaints were received from nearby residents about drug activity on that street. Id. at 559.

It is well-established that warrants are issued by a neutral magistrate only upon a sufficient showing of probable cause. Id. at 553. Probable cause "is generally understood to mean 'less than legal evidence necessary to convict though more than mere naked suspicion.'" Ibid. (internal citations and quotations omitted). In reviewing probable cause determinations, we balance the need for government to enforce its criminal laws against the individual's right to privacy. Ibid. A search warrant is presumed valid, and the defendant bears the burden of demonstrating a lack of probable cause. Id. at 554.

A search warrant can issue from tips provided by a confidential informant if adequate indicia of reliability are included, so that the veracity of those statements can be assessed by the magistrate. Id. at 555. Past reliability is a factor to be taken into account, although more detail is preferable than the generalities contained in both the affidavit in Keys and the affidavit in this case. See ibid. One controlled buy can constitute reasonable corroboration making the information reliable. Id. at 556-57. "[A] successful controlled drug buy is generally very persuasive evidence." Id. at 559.

In this case, the initial tip was corroborated by other information that supported the confidential informant's veracity. Another confidential informant successfully completed a controlled buy in the apartment. That controlled buy resulted in not only corroboration as to defendant's ongoing sale of drugs and possession of at least one handgun, it included the detail that the vials were going quickly, adding a ring of truth and note of urgency to the statements. In our view, therefore, the circumstances included in the affidavit constituted "very persuasive evidence," thus establishing adequate probable cause.

Affirmed.