NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1265-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND WADE,
Defendant-Appellant.
_________________________________
Submitted January 9, 2017 – Decided February 22, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
14-11-2652 and 15-06-1364.
Triarsi, Betancourt, Wukovits & Dugan, LLC,
attorneys for appellant (Howard P. Lesnik, on
the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Barbara
A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Raymond Wade is serving a seven-year prison
sentence for unlawfully possessing a handgun. Police found the
gun and other contraband while searching a hotel room after
obtaining a warrant authorizing the search. Defendant
unsuccessfully moved to suppress the gun and other contraband, and
pled guilty to the weapons offense. In an attempt to have his
conviction overturned, he argues these points on this appeal:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED THE DEFENDANT'S MOTION TO SUPPRESS.
POINT II
NO CONSENT WAS OBTAINED FROM THE DEFENDANT AND
THE ENSUING . . . SEARCH IS VOID.
POINT III
THE CONSENT WAS NOT VOLUNTARY AND IS VOID.
POINT IV
THE SEARCH WARRANT IS INVALID AND THEREFORE,
THE SEARCH IS ILLEGAL AND UNCONSTITUTIONAL.
We conclude the warrant is valid, so we affirm.
On November 3, 2014, an Essex County Grand Jury returned an
indictment charging defendant with second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b), fourth-degree
possession of hollow nose bullets, N.J.S.A. 2C:39-3(f), and
fourth-degree possession with intent to distribute drug
paraphernalia, N.J.S.A. 2C:36-3. On the same day, the grand jury
returned a second indictment charging defendant with second-degree
2 A-1265-15T3
certain persons not to have weapons, N.J.S.A. 2C:39-7(a). On June
16, 2015, the grand jury returned a superseding indictment charging
defendant with first-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(a).1
Defendant moved to suppress the handgun, evidence, and drug
paraphernalia. The trial court denied the motion. Defendant
later pled guilty to the amended charge of second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(a). In exchange,
the State agreed to dismiss the first three-count indictment, not
seek an extended-term sentence, and recommend a seven-year
custodial term with forty-two months of parole ineligibility. The
trial court sentenced defendant according to these terms and
ordered him to pay appropriate penalties and assessments.
Defendant appealed.
The trial court did not hold an evidentiary hearing on
defendant's suppression motion but instead decided the motion
after considering the parties' briefs and oral arguments. The
parties based the facts in their briefs on the indictments, a
police incident report, a municipal court document, and the search
warrant documents. These documents establish the following facts.
1
The parties apparently neither explained nor questioned the
indictment charging N.J.S.A. 2C:39-7(a) as a first-degree offense.
3 A-1265-15T3
On the morning of June 18, 2014, Newark Detective Richard
Weber applied to the court for a warrant to search defendant's
residence. In his affidavit, he detailed his training and
attested to the following facts. The previous day, June 17, 2014,
Narcotics and Gang Division Detectives met with a reliable
confidential informant (CI). In the past, the CI had given the
police information that led to numerous arrests and convictions.
During the June 17 meeting, the CI told detectives a black
male, identified as defendant, was selling marijuana from a four-
door silver Buick Century bearing a New Jersey registration. The
CI said Wade was approximately six feet tall, weighed more than
200 pounds, and resided at a hotel in Newark (the hotel). The CI
identified the hotel by name. According to the CI, defendant used
a room at the hotel to package and store large amounts of
marijuana. The CI also said defendant was known to carry a
firearm, and if he did not possess the firearm while selling
marijuana on South 20th Street, the firearm might be in his hotel
room.
To confirm what the CI had told them, detectives drove by the
hotel and observed a vehicle that matched the CI's description.
The detectives checked the registration and confirmed the vehicle
was a four-door 2001 silver Buick owned by defendant.
4 A-1265-15T3
Later, the detectives set up surveillance of the hotel, but
the Buick was no longer there. Some of the detectives drove to
South 20th Street between Springfield Avenue and 19th Avenue. Upon
their arrival, "several suspicious males . . . quickly dispersed
due to [the detectives'] presence." At approximately 2:00 p.m.,
Detective Weber spotted the unoccupied silver Buick parked on the
east side of South 20th Street.
Detective Weber and Sergeant Nunez set up surveillance at a
location where they had a clear view of both sides of South 20th
Street from Springfield Avenue to 19th Avenue. They also had a
clear view of the silver Buick. The other detectives left the
area and positioned themselves for immediate response, if
required.
Almost immediately thereafter, heavy vehicle traffic began
accumulating on 20th Street — a distance from the parked Buick —
and several suspicious males engaged in conversations and made
suspicious transactions. Moments later, the officers saw a black
male wearing a v-neck t-shirt, blue jeans, and white sneakers,
with a white hand towel over his head, later identified as
defendant, at the location where they had observed the suspicious
transactions. The officers observed defendant make several
transactions with various vehicles. In each instance, the vehicles
would stop and pull over near defendant's location. He retrieved
5 A-1265-15T3
unknown objects from a grass and dirt area elevated by a retaining
wall. He would then return to the pulled over vehicles and
exchange the unknown items for what appeared to be currency.
According to Detective Weber's affidavit, "[a]fter conducting
several similar transactions, [defendant] apparently needed to
replenish his 'stash' (street terminology for a temporary
concealed location to store narcotics for the purpose of
distributing and/or selling C.D.S.)." The officers observed him
walk to the silver Buick and enter the driver's door. Defendant
tampered with the glove compartment, and after a brief moment,
exited the Buick holding multiple items in both hands. As
defendant got closer to the location of the previous transactions,
the detectives recognized the items as bags of suspected marijuana.
Defendant walked to the location where the previous
transactions had occurred and placed the bags under a piece of
concrete in the elevated grass and dirt area. The detectives
watched defendant as he made several more transactions and
retrieved additional items from the Buick. Based on these
observations, detectives ordered the backup units to arrest
defendant. A search incident to his arrest uncovered a remote
key, a room key with a brass tag number of "332," and hotel
receipts reflecting his name, room number 332, and a Visa credit
card.
6 A-1265-15T3
While backup units were arresting defendant, Sergeant Nunez
retrieved from beneath the piece of concrete in the elevated grass
and dirt area eleven blue-tinted Ziploc bags of suspected
marijuana.
Detective Weber stated in his affidavit that defendant
acknowledged his Miranda2 rights, "which were read to him." When
asked where he lived, defendant said he "stayed with a girl at
[the hotel] in room [#]322." After being informed his Buick would
be "towed for forfeiture process," defendant granted the officers
permission to retrieve the registration and insurance card for the
purpose of a tow. Upon retrieving these documents, the officers
found twenty-two Ziploc bags of suspected marijuana in the glove
compartment, consistent with the eleven bags of suspected
marijuana recovered from beneath the concrete on 20th Street.
Police transported defendant to be processed and had the
Buick towed to headquarters pending forfeiture proceedings.
Detectives Weber and J. Cosgrove drove to the hotel, where they
spoke to the manager. The manager confirmed defendant rented room
332 and had been staying at the hotel since April 2014. Defendant
was scheduled to stay through June 20, 2014. The manager produced
documentation, told the detectives there was only one key for the
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
7 A-1265-15T3
room, and said he was unaware of anyone else residing in the room
with defendant.
Detective Weber provided detailed information about the hotel
as well as other information concerning matters not relevant to
the issues presented on appeal.
The incident report contained essentially the same
information as the affidavit submitted with the request for the
search warrant. Defendant does not appear to dispute the facts
in the affidavit, though he challenges the validity of the "search"
of his car's glove compartment based on the facts set forth in the
warrant and incident report.3
Before the trial court, defendant asserted the detectives did
not read him his Miranda rights and he did not consent to the
search of his car. He also argued he was never presented with any
Miranda or consent forms. Moreover, even if police had presented
such forms, defendant alleged he was already in custody, rendering
his consent coerced and invalid. Based on those assertions,
defendant argued the affidavit submitted in support of the warrant
"sets forth facts gleaned during the unconstitutional and illegal
3
Defendant does not appear to dispute the facts found by the
court. In fact, with the exception of the identity of the man
with whom defendant was conversing when the detectives first
spotted him, the statement of facts in defendant's appellate brief
are based on the trial court's findings of fact and the affidavit.
8 A-1265-15T3
search of [his] vehicle. Therefore, as the facts and evidence set
forth in the affidavit . . . were illegally obtained, the search
warrant accordingly is invalid."
Judge Alfonse J. Cifelli rejected defendant's arguments. In
an oral decision delivered June 8, 2015, the judge determined
defendant failed to demonstrate the search authorized by the
warrant was unlawful. After carefully reviewing the facts and the
law, Judge Cifelli explained that for allegedly false statements
in an affidavit supporting a warrant to be material, the affidavit
must no longer contain facts sufficient to establish probable
cause when the allegedly false statements are excised. Judge
Cifelli concluded that, contrary to defendant's arguments,
probable cause for the issuance of the search warrant was clearly
not provided from the interrogation of the defendant and/or from
the search of defendant's automobile, but rather from the other
information set forth in the affidavit.
We affirm, substantially for the reasons given by Judge
Cifelli in his opinion. We add only the following. A defendant
who seeks to overcome the presumption of validity accorded an
affidavit supporting a search warrant must demonstrate the
affidavit contains materially false information:
There is, of course, a presumption of validity
with respect to the affidavit supporting the
search warrant. To mandate an evidentiary
9 A-1265-15T3
hearing, the challenger's attack must be more
than conclusory and must be supported by more
than a mere desire to cross examine. There
must be allegations of deliberate falsehood
or of reckless disregard for the truth, and
those allegations must be accompanied by an
offer of proof. They should point out
specifically the portion of the warrant
affidavit that is claimed to be false; and
they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses
should be furnished, or their absence
satisfactorily explained. Allegations of
negligence or innocent mistake are
insufficient . . . . Finally, if these
requirements are met, and if, when material
that is the subject of the alleged falsity or
reckless disregard is set to one side, there
remains sufficient content in the warrant
affidavit to support a finding of probable
cause, no hearing is required. On the other
hand, if the remaining content is
insufficient, the defendant is entitled, under
the Fourth and Fourteenth Amendments, to his
hearing. Whether he will prevail at that
hearing is, of course, another issue.
[Franks v. Delaware, 438 U.S. 154, 171-72, 98
S. Ct. 2674, 2684-85, 57 L. Ed. 2d 667, 682
(1978) (footnote omitted).]
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, as Judge Cifelli explained, even if the detectives'
questioning of defendant and search of his car's glove compartment
are excised, the remaining content of Detective Weber's affidavit
amply established probable cause for the issuance of the warrant.
10 A-1265-15T3
Because the material facts are largely undisputed, the judge did
not abuse his discretion in denying defendant's motion to suppress
without an evidentiary hearing. State v. Frank, 280 N.J. Super.
25, 43 (App. Div. 1995). Defendant's arguments are without
sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
11 A-1265-15T3
RAHSAAN RIDDICK, JR. VS. TOWNSHIP OF JACKSON(L-728-14, OCEAN COUNTY AND STATEWIDE)
Combined Opinion