STATE OF NEW JERSEY VS. THOMAS T. JONES(14-04-0385, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3139-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS T. JONES,

Defendant-Appellant.
____________________________

Submitted April 5, 2017 – Decided July 25, 2017

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 14-04-0385.

Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Attorney General, of counsel and on the
brief).

Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his motion for reconsideration of an

order denying his motion to suppress evidence found in the trunk
of his vehicle, defendant Thomas T. Jones pled guilty to second-

degree unlawful possession of a firearm, N.J.S.A. 2:39-5(b). The

trial court imposed a seven-year term of imprisonment with a three-

and-one-half year period of parole ineligibility pursuant to the

Graves Act, N.J.S.A. 2C:43-6(c). We remand for further

proceedings.

The following facts are pertinent to our review. After

stopping defendant's vehicle, Police Officer Matthew Ambrosi of

the Mendham Township Police Department (MTPD) detected the odor

of burnt marijuana emanating from the vehicle's interior. As a

result, Ambrosi asked defendant for consent to search the vehicle.

After defendant read and signed a consent to search form, Ambrosi

searched the interior of the vehicle and found marijuana shake1 in

the center console area and on the floorboard. Ambrosi then

"popped the trunk" lever and went to the rear of the vehicle to

search the trunk. As he approached the rear of the vehicle,

defendant put his hands on top of the trunk lid, shut it, and said

there was nothing in the trunk and he wanted to stop the search.

1
"Marijuana shake" is a colloquial term use to describe the small
pieces of cannabis flower that break off of larger buds, generally
as the result of regular handling.

2 A-3139-15T4
Ambrosi stopped the search and called for a K-9 unit to respond

to the scene.

Detective Walter Rawa of the Morris County Sheriff's Office

and K-9 Officer Reno, a trained narcotics dog, arrived at the

scene to attempt to locate the odor of a controlled dangerous

substance (CDS) around the exterior and interior of defendant's

vehicle. In his March 18, 2014 investigation report, Rawa wrote

that K-9 Reno "positively indicated [the presence of a CDS] two

times at the partially open driver window of the vehicle."

(Emphasis added). The police advised defendant of the findings

and afforded him the option to either consent to search the vehicle

or have the vehicle impounded while the police applied for a search

warrant. After defendant declined to consent, the police impounded

the vehicle.

The police obtained a warrant to search the entire vehicle

based on the affidavit of a MTPD detective, who stated there was

probable cause to believe a CDS would be found in the vehicle.

The affiant stated that Rawa "conducted a cursory search of the

exterior of the vehicle which yielded a positive hit by K-9 Reno

where K-9 Reno signaled to his handler the presence of a [CDS]."

The court issued a warrant to search the entire vehicle based on

3 A-3139-15T4
the affidavit. The police searched the trunk of the vehicle and

found a loaded defaced handgun and under fifty grams of marijuana.

Defendant filed a motion to suppress the evidence found in

the trunk and requested a Franks2 hearing to determine whether the

affidavit in support of the search warrant for the entire vehicle

omitted material facts that tended to show the police lacked

probable cause to search the trunk. Defendant argued that the

affiant omitted the material facts that K-9 Reno's two positive

hits were limited to the front passenger area and the dog did not

detect a CDS on the vehicle's exterior or trunk.

The motion judge rejected defendant's reliance on State v.

Patino, 83 N.J. 1 (1980), finding that the Supreme Court in that

case only barred a warrantless search of the trunk of a vehicle

based on the discovery of small amounts of marijuana in a vehicle's

interior. In this case, the judge found the presence of marijuana

shake coupled with the smell of burnt marijuana in the interior

of defendant's vehicle provided probable cause for a warrant to

search the entire vehicle. The judge denied defendant's motion

and request for a Franks hearing.

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

4 A-3139-15T4
 On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS WITHOUT HOLDING A FRANKS
HEARING CONCERNING THE CRITICAL ISSUE OF
WHETHER THE AFFFIDAVIT IN SUPPORT OF THE
WARRANT TO SEARCH THE ENTIRE VEHICLE OMITTED
FACTS THAT TENDED TO SHOW THAT THE POLICE DID
NOT HAVE PROBABLE CAUSE TO SEARCH THE TRUNK.

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE.

The primary purpose of a Franks hearing is to "determine

whether the police made material misrepresentations and/or

omissions in seeking a search warrant and if so, whether the

evidence gather from a defective warrant must be suppressed."

State v. Smith, 212 N.J. 365, 413 (2012), cert. denied, 568 U.S.

1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). The Fourth

Amendment3 requires the court to hold a hearing at the defendant's

request where the defendant "makes substantial preliminary showing

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[.]" Franks v. Delaware,

3
U.S. Const. amend. IV.

5 A-3139-15T4
438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672

(1978); see also State v. Howery, 80 N.J. 563, 568, cert. denied,

444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). "These

requirements also apply where the allegations are that the

affidavit, though facially accurate, omits material facts." State

v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. denied,

130 N.J. 396 (1992). In Howery, supra, 80 N.J. at 567-68, the

Court noted that the limitations imposed by Franks are not

insignificant.

In view of the above authority, we remand for a Franks

hearing. In State v. Keaton, 222 N.J. 438, 448-49 (2015), our

Supreme Court reaffirmed that a search of a car must be limited

in scope to where the items can reasonably be expected to be

located. "Therefore, a search for registration in the rear of the

vehicle would not be permissible." Ibid. (citing Patino, supra,

83 N.J. at 12). The legal question in Keaton was whether a police

officer has a legal right to enter an overturned vehicle in order

to obtain registration and insurance information for the vehicle

without first requesting permission, or allowing the defendant an

opportunity to retrieve the documents himself. Id. at 442.

Here, the State conceded that without defendant's consent,

the police had no legal right to search the trunk. The area of

6 A-3139-15T4
defendant's vehicle that caused K-9 Reno's reaction is therefore

extremely significant. Thus, we remand for the court to conduct

a Franks hearing to determine whether the discrepancies between

the affiant's and Rawa's versions of K-9 Reno's search are

sufficient to question the legality of the search.

In the event defendant does not succeed on remand, we address

his sentence. At sentencing, the judge found aggravating factor

N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior

criminal record and the seriousness of the offenses of which he

has been convicted[,]" based on defendant's prior conviction for

the same offense. The judge also found aggravating factor N.J.S.A.

2C:44-1(a)(9), "[t]he need for deterring the defendant and others

from violating the law[,]" based on the need to deter defendant

and others from unlawfully possessing weapons. The judge rejected

defendant's request to find mitigating factor N.J.S.A. 2C:44-

1(b)(1), "[t]he defendant's conduct neither caused nor threatened

serious harm," and mitigating factor N.J.S.A. 2C:44-1(b)(2) "[t]he

defendant did not contemplate that his conduct would cause or

threaten serious harm[.]" The judge found that carrying a loaded

defaced handgun in the trunk contemplated that someone might get

harmed at some point, and defendant had no legitimate reason to

have a loaded defaced handgun in his trunk.

7 A-3139-15T4
 We review a judge's sentencing decision under an abuse of

discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).

As directed by the Court, we must determine whether:

(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.

[Ibid. (quoting State v. Roth, 95 N.J. 334,
364-65 (1984)).]

We have considered defendant's contention that his sentence

is manifestly excessive and punitive in light of the record and

applicable legal principles and conclude it is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We are satisfied that the judge did not violate the sentencing

guidelines and the record amply supports his findings on

aggravating and mitigating factors. The sentence is clearly

reasonable, does not shock our judicial conscience, and is

affirmed.

Remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

8 A-3139-15T4