State v. Somick

STATE OF NEW JERSEY, Plaintiff-Appellant, v. WALTER J. SOMICK and ABRAHAM GARCIA, Defendants-Respondents.

DOCKET NO. A-3821-18T1

DOCKET NO. A-3822-18T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued August 5, 2019

August 21, 2019

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Sabatino, Rose and Mitterhoff.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 15-07-0107 and 15-07-0108.

Frank Muroski, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Frank Muroski, on the brief).

Brian J. Neary argued the cause for respondent Walter Somick (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel and on the brief; Jane M. Personette, on the brief).

John D. Lynch argued the cause for respondent Abraham Garcia (John D. Lynch, attorney, joins in the brief of respondent Walter Somick).

PER CURIAM

By leave granted, the State appeals from a March 11, 2019 order suppressing evidence seized from municipal premises pursuant to a search warrant. A Law Division judge granted the motion filed by defendants Walter J. Somick and Abraham Garcia, following a Franks hearing.¹ The State primarily contends the motion judge improperly concluded the detective's sworn affidavit, submitted in support of the warrant application, included multiple willfully false and misleading statements and omitted other material statements.

These appeals, which we consolidated for purposes of our opinion, essentially require us to decide whether the purported misstatements and omissions were material, thereby vitiating the issuing judge's finding of probable cause to support the warrant application. In particular, the State advances the following arguments on appeal:

[POINT I]

THE JUDGE'S SUPPRESSION OF THE FRUITS OF THE SEARCH WARRANT BASED ON HIS

SIGNIFICANT LEGAL AND FACTUAL ERRORS SHOULD BE REVERSED.

A. The judge erred in even granting defendants a Franks hearing to challenge the search-warrant affidavit.

B. The judge improperly shifted the burden to the State in finding that the affiant's alleged omission was a deliberate falsehood in the affidavit.

C. Not only were there no deliberate falsehoods in the affidavit, but the judge's misperceived omissions were immaterial in any event.

D. The judge grossly erred in naming in his ruling who[] defendants thought was the confidential informant.

E. Given the judge's manifest hostility toward the State's case and its witnesses and the pre-judgmental nature of the judge's handling of the matter from the beginning, this case should be returned to a different judge.

After reviewing the record in light of these contentions, and the applicable law, we reverse and vacate the order granting suppression, and remand the matter to the Law Division for further proceedings consistent with this opinion.

I.

Because we conclude the motion judge erred in his analysis, we commence our review with a summary of the relevant legal principles to givecontext to the judge's decision and the sufficiency of the search warrant application.

Ordinarily, we "must uphold a trial court's factual findings at a motion-to-suppress hearing when they are supported by sufficient credible evidence in the record." State v. Hathaway, 222 N.J. 453, 467 (2015) (citing State v. Elders, 192 N.J. 224, 244 (2007)). We owe no such deference, however, to the court's interpretation of the law. Ibid. Whether a search warrant was supported by adequate probable cause is a question of law, which we review de novo. See State v. Handy, 206 N.J. 39, 44-45 (2011).

A search executed pursuant to a warrant enjoys the presumption of validity. See State v. Marshall, 199 N.J. 602, 612 (2009). "Doubt as to the validity of the warrant 'should ordinarily be resolved by sustaining the search.'" State v. Keyes, 184 N.J. 541, 554 (2005) (quoting State v. Jones, 179 N.J. 377, 389 (2004)). The defendant, therefore, bears the burden of challenging the search, and must "prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Jones, 179 N.J. at 388 (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). Probable cause exists where there is "a reasonable ground for belief of guilt" based onfacts of which the officers had knowledge and reasonably trustworthy sources. Marshall, 199 N.J. at 610 (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).

Further, "[w]hen reviewing the issuance of a search warrant by another judge, the [motion judge] is required to pay substantial deference to the [issuing] judge's determination." State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2016), modified on other grounds, 189 N.J. 108 (2007) (citing State v. Kasabucki, 52 N.J. 110, 117 (1968)). Nonetheless, "under certain circumstances, a search warrant's validity may be questioned, in which case an evidential hearing may be afforded." Ibid. (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).

Pursuant to Franks and its progeny, the Fourth Amendment requires the court to hold a hearing at the defendant's request only if the defendant "makes a 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, 438 U.S. at 155-56; see also State v. Howery, 80 N.J. 563, 567-68 (1979). A misstatement is considered material if, when excised, the warrant affidavit "no longer contains facts sufficient to establish probable cause" in its absence. Howery, 80 N.J. at 568 (citing Franks,438 U.S. at 171). "If at such inquiry the defendant proves [a] falsity by a preponderance of the evidence, the warrant is invalid and the evidence seized thereby must be suppressed." Id. at 566.

Similarly, "[t]hese requirements 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. 1992). An omission is deemed material if the issuing judge likely would not have approved the warrant if the judge had been apprised of the omitted information. State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987). However, "[t]he test for materiality is whether inclusion of the omitted information would defeat a finding of probable cause; it is not . . . whether a reviewing magistrate would want to know the information." State v. Smith, 212 N.J. 365, 399 (2012).

If probable cause exists despite the errant information, the search warrant remains valid and an evidentiary hearing is unnecessary. See Sheehan, 217 N.J. Super. at 25. If the defendant meets the requisite threshold burden, however, the court must conduct a hearing. Ibid. In turn, "[i]f at such inquiry the defendant proves by a preponderance of the evidence that the affiant, deliberately or with reckless disregard for the truth, excluded material information from the affidavit which, had it been provided, would have causedthe judge to refuse to issue the warrant, the evidence must be suppressed." Id. at 25-26.

We pause to note the State did not move for leave to appeal from the judge's oral decision granting the Franks hearing, nor the ensuing orders denying the State's motion for reconsideration. We therefore decline to consider the State's Point IA on appeal. See Towpath Unity Tenants Ass'n v. Barba, 182 N.J. Super. 77, 81 (App. Div. 1981) (limiting appellate review of a specific interlocutory order for which leave to appeal has been granted); see also State v. King, 387 N.J. Super. 522, 528 n.1 (App. Div. 2006) (noting the defendant did not seek leave to appeal from a specific provision of a judge's order); State v. Rambo, 401 N.J. Super. 506, 520 (App. Div. 2008) ("It is a fundamental of appellate practice that we only have jurisdiction to review orders that have been appealed to us."). We therefore confine our review to the order granting suppression following the hearing.

II.

Applying the guiding principles stated above, we turn to the pertinent facts and procedural history from the record before the motion judge.

By way of background, the dispute over the veracity of the affidavit arose following defendants' separate State grand jury indictments for second-degreeofficial misconduct, N.J.S.A. 2C:30-2; third-degree theft by deception, N.J.S.A. 2C:20-4; third-degree tampering with public records or information, N.J.S.A. 2C:28-7(a)(1) and (2); and fourth-degree falsifying records, N.J.S.A. 2C:21-4(a).² The charges emanated from allegations that defendants "ma[de] and submit[ted] false and fraudulent time sheets to the Township of North Bergen" and "receive[d] paid compensation to which [they] were not entitled" during the course of their employment with the Township's Department of Parks and Recreation (DPR).

The affiant was the sole witness to testify at the three-day Franks hearing, which intermittently spanned ten months. Defendants did not testify nor present any witnesses on their behalf.³ Among other documents, the twenty-one-page affidavit supporting the search warrant was admitted in evidence.

The warrant authorizing the search of the DPR's administrative and clerical offices and a Township storage facility was issued on March 2, 2015. It was supported by the affidavit of a detective, who was assigned to the Division of Criminal Justice Corruption and Fraud Bureau (Division) for four years as of that date.

As set forth in the affidavit, the detective had extensive training and experience in investigative procedures, including surveillance, witness interviews, and "the writing and execution of numerous...