State v. Sheehan

• Decision Date: 15 April 1987
• Citation: 524 A.2d 1265,217 N.J.Super. 20
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. James J. SHEEHAN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 20

217 N.J.Super. 20

524 A.2d 1265

STATE of New Jersey, Plaintiff-Respondent, v. James J. SHEEHAN, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted March 24, 1987.

Decided April 15, 1987.

Alfred A. Slocum, Public Defender, for defendant-appellant (Sara K. Walsh, designated counsel, Princeton, and on the brief).

W. Cary Edwards, Atty. Gen., for plaintiff-respondent (Julie Davidson, Deputy Atty. Gen., of counsel, and on the letter-brief).

Before Judges PRESSLER, GAULKIN and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Following the denial of his motion to suppress evidence, defendant entered a retraxit plea of guilty to possession of cocaine ( N.J.S.A. 24:21-20a(1)). The trial judge imposed a probationary term of two years and fined defendant $250. In addition, defendant was assessed a penalty of $25 payable to the Violent Crimes Compensation Board. The sole argument advanced on appeal is that a warrant authorizing the search of the entire house in which defendant resided was unconstitutionally broad. We disagree and affirm.

The affidavit upon which the search warrant was issued was prepared by Detective George L. Arroyo, a highly experienced member of the narcotics bureau of the New Jersey State Police. The affidavit recited the following facts. Detective Arroyo received information from a confidential informant, who had proved reliable in the past, that drugs were being distributed from a house located at 674 Hamilton Street in the City of Rahway. Based upon the receipt of this information, the police established a surveillance of the premises during which they observed the informant conduct a drug transaction with an individual identified as Jeffrey Till. According to Detective Arroyo, the informant entered the house and emerged shortly thereafter with approximately one gram of cocaine. Ten days later, the detective, while acting undercover, entered the premises and purchased additional drugs from Till. Further investigation revealed that the house was owned by Florence M. Sheehan. Although the affidavit is devoid of any statement disclosing whether the premises constituted a single or multi- family dwelling, a fair reading of the detailed description contained therein supports the thesis that the house was a single-family residence. In any event, based upon his experience Detective Arroyo concluded that controlled dangerous substances and various types of drug paraphernalia could be found in the house.

Predicated upon these facts, a Superior Court judge issued a warrant authorizing the search of the entire premises. During the ensuing search, the police confiscated cocaine and other drugs from Till's bedroom, a bedroom occupied by defendant and the kitchen.

Following his indictment, defendant filed a motion to suppress evidence pursuant to R. 3:5-7. The trial judge granted defendant's request for an evidentiary hearing to present facts which were allegedly omitted from the affidavit. At the hearing, Detective Arroyo amplified the affidavit by testifying that the house in which the drug purchases took place was a single-family, two-story residence with entranceways in the front and back. The second floor consisted of three bedrooms and a bathroom separated by a narrow hallway. According to the detective, both drug transactions had occurred in a bedroom occupied by Till. Detective Arroyo testified that Till kept the illicit drugs in a nightstand immediately adjacent to his bed. The doors to the other two bedrooms were open both when the detective purchased the cocaine and when he entered the premises to execute the search warrant. According to Detective Arroyo, he did not know that the other two bedrooms were occupied until the day of the search. At that time, the detective first became aware of the fact that defendant and his sister resided in the house along with Till and that each had a separate bedroom.

In denying defendant's motion to suppress, the trial judge determined that the facts recited in the affidavit were sufficient to establish probable cause to search the entire house. The judge rejected the argument that the warrant was overly broad and that the search should have been confined to Till's bedroom. The fact that the drug purchases had occurred in the bedroom occupied by Till was found to be immaterial. The judge concluded that it was not incumbent upon Detective Arroyo to set forth these facts in his affidavit.

I

Before turning our attention to the merits of the arguments advanced, we are constrained to note certain procedural problems which, although not raised directly by the parties, cause us considerable concern. Specifically, we question whether defendant should have been permitted to challenge the legal efficacy of the search warrant based upon information known to the affiant but not set forth in the supporting affidavit and hence not considered by the issuing judge.

As a general rule, questions concerning the validity of a search warrant hinge upon the information contained within the four corners of the supporting affidavit. See, e.g., State v. Novembrino, 105 N.J. 95, 128, 519 A.2d 820 (1987); State v. Howery, 80 N.J. 563, 567, 404 A.2d 632 (1979), cert. den. 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979); State v. Fariello, 71 N.J. 552, 564, 366 A.2d 1313 (1976); State v. Meighan, 173 N.J.Super. 440, 449, 414 A.2d 576 (App.Div.1980), certif. den. 85 N.J. 122, 425 A.2d 280 (1980). In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), however, the United States Supreme Court held that as a matter of federal constitutional law a criminal defendant under certain circumstances must be allowed to challenge the validity of a search warrant on the basis of alleged false statements contained in a supporting affidavit. 438 U.S. at 155-156, 98 S.Ct. at 2676, 57 L.Ed.2d at 672. Mindful of the substantial impact that its decision would otherwise have on already over-burdened criminal trial calendars, see State v. Petillo, 61 N.J. 165, 177-178, 293 A.2d 649 (1972), cert. den. 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973), the Court stated that a defendant must make a "substantial preliminary showing of falsity" in the affidavit in order to be entitled to a hearing. Franks v. Delaware, supra, 438 U.S. at 170, 98 S.Ct. at 2684, 57 L.Ed.2d at 681. In keeping with the overall objective of the exclusionary rule as a judge-made device to deter insolence in office, the Court emphasized that the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. Rather, he must allege "deliberate falsehood or ... reckless disregard for the truth." Id. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. These allegations should be supported by an offer of proof including reliable statements by witnesses, and they must be proved by a preponderance of the evidence. Ibid. Finally, the statements challenged as false must be material to the extent that when they are excised from the affidavit, whatever remains no longer establishes the requisite probable cause to support issuance of the search warrant. 438 U.S. at 171-172, 98 S.Ct. at 2684, 57 L.Ed.2d at 682.

In State v. Howery, supra, our Supreme Court held that State constitutional requirements are coterminous with those of their federal counterparts. 80 N.J. at 568, 404 A.2d 632. Hence, "New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware, supra." Ibid.

While our research discloses no reported New Jersey opinion dealing with the precise issue, we have no hesitancy in holding that these principles apply with equal force to constitutional attacks upon search warrants based upon the claim that the supporting affidavits while facially sufficient nevertheless omit material facts. We hold that essentially the same factual predicate must be established in order to entitle the defendant to an evidentiary hearing. More specifically, the defendant must make a substantial preliminary showing that the affiant, either deliberately or with reckless disregard for the truth, failed to apprise the issuing judge of material information which, had it been included in the affidavit, would have militated against issuance of the search warrant. Cf. State v. Meighan, supra, 173 N.J.Super. at 448-449, 414 A.2d 576. Once a defendant satisfies this threshold burden, he must be afforded an evidentiary hearing. If 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 caused the judge to refuse to issue the warrant, the evidence must be suppressed.

Applying these principles we find that defendant's request for an evidentiary hearing was materially deficient. At best, defendant claimed that the affidavit did not set forth all of the relevant information known by the affiant because it failed to disclose precisely where in the house the drug sales had occurred. Defendant never expressly alleged that the affiant, either deliberately or with reckless disregard for the truth, withheld vital information from the issuing judge. In light of this deficiency, we are of the view that the judge should not have accorded the defendant an evidentiary hearing. The validity of the search warrant should have been determined upon the information contained in the affidavit.

We have nevertheless decided to review defendant's arguments in light of the entire record including the evidence presented by the parties at the hearing. Although the State has made oblique reference to State v. Howery, supra, in its brief, both parties have chosen to argue the matter upon the common factual assumption that the drug sales described in the affidavit occurred in Till's bedroom and that defendant occupied a...