STATEOF NEW JERSEY v. TERREL L. HYMAN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2407-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
V.
TERREL L. HYMAN,
Defendant-Appellant.
Submitted January 29, 2018 - Decided February 28, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
15-05-0495.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Evgeniya Sitnikova, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Following denial of his motion to suppress evidence seized
pursuant to a search warrant, defendant Terrel L. Hyman pled guilty
to two counts of Morris County Indictment No. 15-05-00495: third-
degree possession with intent to distribute heroin,
N.J.S.A.
2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3) (count seven), and
second-degree possession of a firearm by a convicted felon,
N.J.S.A. 2C:39-7(b)(1) (count nine). He was sentenced to a three-
year term of imprisonment on count seven, and a concurrent ten-
year term of imprisonment, with five years of parole ineligibility
pursuant to the Graves Act,
N.J.S.A. 2C:43-6(c), on count nine.
The remaining charges were dismissed pursuant to a plea agreement.
The sole issue on appeal is whether the trial judge erred in
denying defendant's motion to suppress. Having reviewed
defendant's arguments in light of the record and applicable legal
principles, we reverse and remand.
I.
On December 18, 2014, a Law Division judge issued a warrant
to search defendant's residence on South 13th Street in Newark.
The judge simultaneously issued additional warrants to search
defendant's person, his automobile, the person of co-defendant
Lakeema Holifield, and Holifield's residence located in
Morristown.
The search warrants were supported by the sworn twenty-one-
page affidavit of a task force officer ("TFO") assigned to the
2 A-2407-16T1
Special Enforcement Unit of the Morris County Prosecutor's Office.1
In his affidavit, the TFO averred defendant and Holifield were
distributing heroin from Holifield's residence in Morristown based
on information provided from two reliable confidential informants
("CI"), three controlled purchases of heroin in Holifield's
residence, surveillance operations, and State agency records
checks.
Specifically, the TFO's affidavit sets forth information
provided by a CI indicating defendant was Holifield's source of
supply. During the week of November 30, 2014, defendant was
present inside Holifield's residence during a controlled purchase
of heroin. Law enforcement officers subsequently observed
defendant exit Holifield's residence and "engage in a hand to hand
transaction with an unknown white female." Defendant then entered
his vehicle, drove onto the highway, but surveillance was
terminated shortly thereafter.
The affidavit states further the CI participated in a
controlled drug transaction with defendant in Holifield's
1 On December 11, 2014, the TFO executed an affidavit supporting
the search only of Holifield's residence, but the warrant was held
in abeyance because the investigation was expanded to include
defendant as Holifield's supplier.
3 A-2407-16T1
apartment during the week of December 14, 2014. The CI continued
to identify defendant as Holifield's source of supply.
On December 17, 2014, law enforcement officers observed
defendant exit his residence, open the trunk of his vehicle, and
place "an unknown object" into the car. Defendant drove to a gas
station, parked behind a vehicle driven by an unknown black female
and placed a one gallon, red fuel can into the trunk of his
vehicle. Defendant drove to Holifield's residence in Morristown,
engaged in a brief conversation with a known drug dealer, entered
Holifield's residence and eventually drove back home. The
affidavit was silent as to whether defendant brought the fuel can
into Holifield's residence.
In his affidavit, the TFO detailed his training and
experience, the significant criminal history of defendant and
Holifield, and the residences and automobile the police sought
permission to search. The TFO further represented that based on
his training and experience, he believed controlled dangerous
substances, including heroin, and related storing, processing and
packaging materials, would be found in both residences. The
affidavit did not, however, contain any reference to drug activity
conducted at or near defendant's residence.
4 A-2407-16T1
On December 18, 2014, the warrants were executed at
Holifield's residence in Morristown and defendant's residence in
Newark. Officers seized suspected crack cocaine and heroin, drug
paraphernalia, and a Springfield XD302923 handgun loaded with six
bullets from defendant's residence.
The trial court denied defendant's motion to suppress
evidence seized from his apartment. Finding there was probable
cause to support issuance of the warrant, the motion judge cited
the officers' observations of defendant entering and exiting his
Newark apartment, defendant's sale of narcotics to the CI at the
Morristown apartment, defendant's criminal history, and the
information provided by the CI.
On appeal, defendant raises the following issue for our
consideration:
DEFENDANT'S MOTION TO SUPPRESS THE ITEMS
SEIZED SHOULD HAVE BEEN GRANTED; THERE WAS NOT
PROBABLE CAUSE FOR THE ISSUANCE OF THE SEARCH
WARRANT FOR DEFENDANT'S APARTMENT.
ALTERNATIVELY, THE GUN SEIZED FROM THE
BASEMENT STAIRS SHOULD HAVE BEEN SUPPRESSED
BECAUSE THAT PORTION OF THE SEARCH EXCEEDED
THE SCOPE OF THE SEARCH WARRANT.
Specifically, defendant contends the TFO's affidavit was fatally
flawed because it is devoid of any reference to criminal activity
observed at, or associated with, defendant's residence. Rather,
surveillance at that location merely established defendant left
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his residence, traveled to Holifield's residence in Morristown,
and entered that apartment empty-handed. All of the suspected
criminal activity centered around Holifield's apartment.2 We find
defendant's argument persuasive.
II.
Pursuant to Rule 3:5-7(d), the denial of a motion to suppress
evidence may be reviewed on appeal even though the judgment of
conviction is entered following a guilty plea. Further, our
Supreme Court has recently reaffirmed the principles by which our
review here is governed:
An appellate court reviewing a motion to
suppress evidence in a criminal case must
uphold the factual findings underlying the
trial court's decision, provided that those
findings are "supported by sufficient credible
evidence in the record." State v. Scriven,
226 N.J. 20, 40 (2016). The suppression
motion judge's findings should be overturned
"only if they are 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)). However, we owe no
deference to conclusions of law made by lower
courts in suppression decisions, which we
2 Pursuant to Rule 2:6-11(d), defendant filed a supplemental
response, citing the Court's recent decision in State v. Boone,
___ N.J. ___, ___ (2017) (slip op. at 1), to further support his
argument the affidavit did not contain specific reasons supporting
the search of his residence. The State responded Boone was
inapplicable, but did not challenge its retroactive application.
Because we are satisfied Boone did not announce "a new rule of
law," State v. Alfanador,
151 N.J. 51, 57 (1997), defendant's
reliance on Boone is proper.
6 A-2407-16T1
instead review de novo. State v. Watts, 223
N.J. 503, 516 (2015).
. . . .
The application for a warrant must
satisfy the issuing authority "that there is
probable cause to believe that a crime has
been committed, or is being committed, at a
specific location or that evidence of a crime
is at the place sought to be searched." State
v. Jones,
179 N.J. 377, 388 (2004)(emphasis
added) (quoting State v. Sullivan,
169 N.J.
204, 210 (2001). . . .
A search that is executed pursuant to a
warrant is "presumptively valid," and a
defendant challenging the issuance of that
warrant has the burden of proof to establish
a lack of probable cause "or that the search
was otherwise unreasonable." Watts,
223 N.J.
at 513-14 (quoting State v. Keyes,
184 N.J.
541, 554 (2005)). Reviewing courts "accord
substantial deference to the discretionary
determination resulting in the issuance of the
[search] warrant." Jones,
179 N.J. at 388
(quoting Sullivan,
169 N.J. at 211 (alteration
in original)). Courts consider the "totality
of the circumstances" and should sustain the
validity of a search only if the finding of
probable cause relies on adequate facts. Id.
at 388-89.
[Boone, ___ N.J. at ___ (slip op. at 9-11.]
The Court's decision in Boone kept intact the totality-of-
the-circumstances test in determining the validity of a search.
The State maintains the test was satisfied here, arguing it was
reasonable for the TFO to infer, based on his training and
experience, a person observed selling drugs at one location would
7 A-2407-16T1
have evidence of drug activity in his own residence. The TFO's
affidavit, however, is devoid of any such opinion.
Moreover, the State contends the Court's "common-sense
approach" recognized in State v. Boyd,
44 N.J. 390 (1965), includes
the inference that evidence of drug activity will be found in a
drug dealer's residence. The federal cases cited by the State to
support this argument, while not binding on us, undermine the
State's position. See, e.g., United States v. Feliz,
182 F.3d 82,
88 (1st Cir. 1999). In Feliz, the First Circuit upheld a
magistrate judge's probable cause determination for the issuance
of a warrant to search the appellant’s residence, even though
police did not observe any drug dealing from that address because
the agent's affidavit agent stated, "I know that, where, as here,
an individual is demonstrated to be trafficking in drugs, it is
not uncommon for there to be evidence of [his] drug trafficking
activities . . . kept at the trafficker's residence." Id. at 85.
The court noted the inference was supported by additional facts
in the affidavit, including the fact that this suspect was
confirmed as a long-time and successful drug trafficker. Id. at
87.
Conversely, here the TFO's affidavit does not state, for
example, that based on his training and experience, through
conversations with confidential informants, or with other
8 A-2407-16T1
officers, suppliers of controlled dangerous substances are likely
to store drugs and weapons in their residences. Perhaps equally
as likely, without such a statement, is the inference a drug dealer
might use a "stash house," separate from his own residence to
store drugs. Thus, in this case, we agree with defendant that
there was no evidence linking any drug activity to his residence.
Compare State v. Myers,
357 N.J. Super. 32, 39-40 (App. Div. 2003)
(finding police officers had sufficient probable cause to believe
drug evidence would be found at the defendant's residence because
on the same day the officers observed drug transactions at a nearby
location, they observed the defendant leaving his residence and
giving a brick of suspected heroin to one of the dealers at the
nearby location, and police found drugs, a weapon, and ammunition
at the nearby location). Further, like the affidavit in Boone,
there was nothing in the TFO's affidavit to indicate how
defendant's "apartment was connected to his drug dealing." Boone,
___ N.J. at ___ (slip op at 15). Thus, the TFO's affidavit was
deficient because it did not contain information linking the drug
deals in Morristown, or any other illegal activity, to defendant's
apartment in Newark.
We conclude there was no probable cause to issue the search
warrant for defendant's residence. As such, the evidence seized
from that location should have been suppressed. Accordingly, the
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trial court's denial of defendant's motion to suppress is reversed.
In light of our decision, we need not reach defendant's remaining
claim.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
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