STATE OF NEW JERSEY v. MARK KIEFER

NOT FOR PUBLICATION WITHOUT THE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.

MARK KIEFER,

Defendant-Appellant.
______________________________

July 31, 2014

Submitted July 21, 2014 Decided

Before Judges Harris and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 11-05-0183.

Daniel A. Colfax, attorney for appellant.

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

PER CURIAM

Defendant appeals from his convictions for fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3), and a disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a. He argues that the trial judge erred by denying his motion to suppress evidence. We affirm.

In May 2010, Trooper John Passarella travelled to an apartment building in Sussex Borough to question a man named Edwin Santos about the filing of a false accident report. Santos lived in Unit C of the building. When Trooper Passarella arrived, he knocked on Santos's door, received no response, and then knocked on the door for Unit A. Defendant came to the door, reported that he lived in Unit A, and stated that Santos lived in Unit C and would be home shortly. During the interaction with defendant, Trooper Passarella detected the odor of raw, non-burnt marijuana but left without asking defendant any questions about it. He then inquired with another officer, who informed him that a confidential informant had previously indicated that defendant stored marijuana in his home, grew marijuana in his home, stored it on the premises of the apartment building, and was involved in distributing cocaine, marijuana, and prescription pills. Trooper Passarella spoke with the informant, who informed him that defendant grew and stored marijuana on the premises of the apartment building and was involved in distributing cocaine, marijuana, and prescription pills. He then investigated defendant's criminal history and discovered defendant had previously been convicted of second- and third-degree distribution of controlled dangerous substances (CDS).

The court issued a search warrant for "[t]he basement and apartment A in the premises" of defendant's building "and the yard and curtilage thereof." Two days later, State Police and the Sussex County Narcotics Task Force executed it. Defendant arrived home during the search and threatened and swore at the executing officers. He then failed to get down on the ground when ordered, and the officers subdued him with "chemical force."

In May 2011, a Sussex County Grand Jury indicted and charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29-2a(3)(a) (count two); and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (count three). Defendant filed a motion to suppress, arguing that there was no probable cause to support the issuance of the warrant. The motion judge, the same judge who issued the warrant, held oral argument and denied the motion. He stated in relevant part:

I think the whole issue here really centers around . . . the evidence that was presented by [the Trooper] about the odor of raw marijuana.

. . . .

I know [defendant is] challenging the Officer's ability to give that testimony, but as noted by the State in its letter, you know, this Officer underwent the necessary training that's required of Troopers on the question of this nature, and what is significant to this [c]ourt anyway in terms of this issue of the odor of raw marijuana is the Trooper's testimony that when [defendant] approached where the Trooper was standing that odor increased in its intensity, and I think that's what gives support to the issue of whether there is a well[-]rounded suspicion as that phrase, probable cause, has been defined in . . . case law.

. . . .

[Defendant's] challenge would be to [the Trooper's] credibility, but it seems to me [the Trooper] certainly doesn't have a stake in the venture in terms of what he observed when he knocked on the door . . . . [The Trooper] had the experience in the detection of raw marijuana as the State notes.

. . . .

Now I know [the odor] wasn't contemporaneous with [the Trooper's] conversation with the [confidential informant], but we're not talking about months that elapsed. We're talking about less than a week if I understand correctly.

. . . .

[T]he point here is that with the freezer [where marijuana was reportedly stored] being in the back and the access to the basement dwelling being restricted to [defendant] and the description of the door [in the search warrant affidavit] that even though the [r]ider to the search warrant says, basement, that that is adequate to cover . . . whatever was seized from the basement area because it's consistent in terms of it being testified to that [defendant] had the access to this area exclusively. So I don't believe that there's an issue there.

. . . .

I'm satisfied that the description in the [r]ider is adequate here for them to have searched the basement. I don't think it has to be limited to the apartment.

. . . .

[A]nd to cover the point that . . . you also raised about the defendant's prior history I think that does provide corroboration in addition to the other evidence of the raw marijuana as well as the statement itself by the [confidential informant] with regard to the ongoing nature of the business.

. . . [O]ne can infer from that that this was an operation that was, in effect, that it was continuing, and in my judgment everything that's been presented with regard to the observations of the Trooper, the statement, the information the Trooper received from another Trooper who had contact with the [confidential informant], and then Trooper Pas[s]arella himself spoke to the [confidential informant], and then the prior history of [defendant]. It's all consistent, and in my view more than satisfies the concept of probable cause to justify the issuance of the warrant.

In January 2013, defendant pled guilty to count three and the disorderly persons offense. The judge sentenced him to an aggregate term of sixty days in prison.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT/APPELLANT WAS ENTITLED TO HAVE A SEPARATE COURT/JUDGE REVIEW THE PROPRIETY OF THE SEARCH WARRANT'S PROBABLE CAUSE DETERMINATION.

POINT II

THE COURT ERRED IN ISSUING A SEARCH WARRANT IN THIS MATTER BASED UPON INSUFFICIENCY OF RELIABLE FACTS TO ESTABLISH PROBABLE CAUSE FOR SAME.

POINT III

PROBABLE CAUSE FOR THE SEARCH WARRANT ISSUED IN THIS MATTER WAS ISSUED ON FALSE/MISLEADING STATEMENTS WHICH WAS EVIDENT AT THE HEARING FOR SAME AND THEREFORE MUST [BE] SUPPRESSED.

POINT IV

THE SEARCH EXECUTED IN THIS MATTER BY THE STATE POLICE WENT BEYOND THE REASONABLE SCOPE OF SAME AS IDENTIFIED WITHIN THE PROPONENT TROOPER'S TESTIMONY AND THE COURT ERRED IN ISSUING A GENERAL REFERENCE TO "BASEMENT" WITHIN THE SEARCH WARRANT; AS SUCH, EVIDENCE ADDUCED FROM THE "BASEMENT" AREAS SHOULD HAVE BEEN SUPPRESSED.

As an initial matter, we disagree with defendant's contention that the motion judge should have disqualified himself because he issued the warrant. We have allowed a judge who issued a search warrant to rule on a defendant's motion to suppress evidence taken under that warrant. See, e.g., State v. Smith, 113 N.J. Super. 120, 137-38 (App. Div.), certif. denied, 59 N.J. 293 (1971).

We also disagree that there was insufficient evidence to support issuance of the warrant. "[S]earch warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). We have adopted a totality-of-the-circumstances test for determining whether probable cause exists, State v. Novembrino, 105 N.J. 95, 122 (1987), and "have consistently held that 'a search executed pursuant to a warrant is presumed to be valid'" unless defendant proves there was no probable cause or that the search was otherwise unreasonable. Keyes, supra, 184 N.J. at 554 (quoting State v. Jones, 179 N.J. 377, 388 (2004)).

Here, there existed sufficient evidence to support the issuance of the warrant. Trooper Passarella gave testimony that the smell of raw marijuana became stronger when defendant approached him, the confidential informant informed police that defendant stored and distributed CDS,1 and defendant had a criminal history involving CDS.

After examining the record and the briefs, we are satisfied that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by the judge.

1 We also disagree with defendant's contention that the alleged inaccuracies in the confidential informant's tip undermine the warrant. As the Supreme Court has stated:

[E]ven if the informant's tip fails to demonstrate sufficient veracity or basis of knowledge, a search warrant issued on the basis of the tip may still pass muster if other facts included in a supporting [police] affidavit justify a finding of probable cause. The degree of corroboration that the police must present to the issuing court depends on a qualitative analysis of the unique facts and circumstances presented in each case. Nonetheless, relevant corroborating facts may include . . . records confirming the informant's description of the target location, the suspect's criminal history, and the experience of the officer who submitted the supporting affidavit.

[Keyes, supra, 184 N.J. at 556 (second alteration in original) (citations and internal quotation marks omitted).]