Opinion
DOCKET NO. A-4201-15T3
01-26-2017
STATE OF NEW JERSEY, Plaintiff-Appellant, v. MARK W. WOODALL and TARIQ L. TALIAFERROHOLT, Defendants-Respondents, and JAMIL K. GERALD, Defendant.
John J. Lafferty, IV, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Diane Ruberton, Acting Atlantic County Prosecutor, attorney; Mr. Lafferty, of counsel and on the briefs). Scott E. Becker argued the cause for respondent Mark W. Woodall. Joseph E. Krakora, Public Defender, attorney for respondent Tariq Taliaferroholt, joins in the brief of respondent Mark W. Woodall.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Leone and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 15-03-0847. John J. Lafferty, IV, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Diane Ruberton, Acting Atlantic County Prosecutor, attorney; Mr. Lafferty, of counsel and on the briefs). Scott E. Becker argued the cause for respondent Mark W. Woodall. Joseph E. Krakora, Public Defender, attorney for respondent Tariq Taliaferroholt, joins in the brief of respondent Mark W. Woodall. PER CURIAM
We granted the State's motion for leave to appeal a February 16, 2016 Law Division order granting defendants' motion to suppress and an April 25, 2016 order denying the State's motion for reconsideration. For the reasons that follow we reverse and remand for further proceedings.
I.
On Sunday, August 24, 2014, Pleasantville Police Officer Matthew Laielli and Detective Miguel Lugo presented a municipal court judge with an affidavit in support of a request for the issuance of a search warrant for a motor vehicle. The factual assertions in the affidavit were prefaced with the following: "I, Detective Miguel Lugo, of full age, being duly sworn on oath [a]ccording to law, depose and say . . . ." The affidavit related the experience of Lugo and stated that it sought a search warrant for the vehicle "[b]ased on a police investigation conducted b[y] Officer Matthew Laielli."
The affidavit detailed the following:
On Sunday August 24, 2014[,] at approximately [2:37 a.m.], Officer Matthew Laielli along with other patrol units responded to [a residence on] East Adams Avenue . . . in reference to a male subject in possession of a handgun within the area of the residence. The male observed was described as a black male wearing a black shirt. . . . Laielli stated a 2014 Ford Edge black in color bearing [a] Pennsylvania registration . . . was observed parked in front of [the residence] occupied by three subjects. All subjects within the vehicle were ordered to raise their hands for officer safety. The driver identified as [defendant] Mark Woodall and front passenger identified as [defendant] Tariq L. [Taliaferroholt] complied with the orders instructed by . . . Laielli. It should be noted that both [] Woodall and . . . [Taliaferroholt] were wearing black shirts at the time of the incident. . . . Laielli explained that the rear passenger identified as [defendant] Jamil K. Gerald did not comply with the instructions given and was observed reaching to and from the rear of the driver and front passenger seats. Sergeant Stacey Williams ordered [] Gerald several times to keep his arms raised. . . . Gerald would raise his hands and quickly lower them and continued to reach for the rear of the driver and passenger seats. . . . Gerald was ordered to exit the vehicle. As patrol units on scene attempted to detain . . . Gerald, he continuously pulled away patrol units. . . . Woodall and . . . [Taliaferroholt] were removed
from the vehicle and detained without incident. . . . Laielli advised that he detected a strong odor of burnt marijuana emitting from the interior of the vehicle. . . . Laielli observed in plain view a large bulge in the rear seat compartment behind the front passenger seat. . . . Laielli requested . . . Woodall for consent to search the vehicle who immediately stated ["No."] K-9 Officer Brandon Stocks and his partner Ciko conducted a narcotics sniff of the motor vehicle. It should be noted that K-9 Officer Brandon Stocks' partner Ciko is a certified narcotics detecting police canine. K-9 Officer Brandon Stocks' partner Ciko gave a positive indication of a controlled dangerous substance within the area of the rear passenger side of the vehicle. Ciko is trained to show positive indications of controlled dangerous substances by scratching, barking or biting within the area suspected. Ciko was observed scratching and barking at the rear passenger side door of the vehicle. The vehicle was then towed to the Pleasantville Police Department after advising the driver . . . Woodall that a search warrant would be applied for the vehicle due to the positive indications given by K-9 Officer Brandon Stocks' partner Ciko.
The municipal court judge administered the oath to Laielli and Lugo, read the affidavit and the proposed search warrant, and asked "on whose behalf" the search warrant was being executed. Laielli said, "well, it's on mine, but Detective Lugo prepared it." The judge instructed Laielli to sign the affidavit. Laielli executed the affidavit in the presence of the municipal court judge and the judge signed the affidavit, attesting to Laielli's execution of it. The judge signed the search warrant authorizing the search of the vehicle.
A handgun was recovered during the search. Defendants, who were charged with possession of the weapon, moved to suppress the handgun. They claimed their initial interaction with the officers was the result of an illegal motor vehicle stop. They further asserted that the affidavit supporting the issuance of the warrant was based on events following the illegal stop and therefore it could not provide a valid basis for the issuance of the warrant.
The Law Division conducted an evidentiary hearing concerning defendants' challenge to the legality of what they alleged was the illegal stop. Laielli and Stocks testified about their interactions with defendants on August 24, 2014. During the hearing, the court observed that the affidavit supporting the search warrant was "given by Lugo" but was "sworn to" by Laielli. The parties subsequently stipulated that Laielli was "the affiant on the affidavit."
At the conclusion of the testimony, the court noted the hearing's original purpose was to determine the validity of what defendants argued was the warrantless stop of the vehicle and that an issue had arisen concerning the validity of the affidavit because it had been signed by Laielli. The court indicated it required research "on the issue of the sufficiency of the affidavit when the person on the affidavit is one person" and "[t]he person who signs it is another person." The court also questioned whether the affidavit's validity was affected by the fact that it included a description of Lugo's qualifications and not Laielli's. The court provided the parties with an opportunity to file supplemental briefs to address the issues.
The Law Division subsequently granted the motion to suppress. The court found Laielli signed the affidavit in the presence of the municipal court judge after having been duly sworn. The court further found that Laielli's execution of the affidavit constituted a deficiency that went "to the heart of the very process by which a judicial officer makes the determination whether to issue a search warrant" because he was not the officer "whose name is at the start of and in the body of the affidavit" and the affidavit included Lugo's background and training, and not Laielli's. The court found the municipal court "judge relied upon a fundamentally flawed affidavit in issuing the search warrant" and entered an order granting defendants' motion to suppress.
The court did not reach defendants' claim that the alleged stop of the motor vehicle was unlawful and required the suppression of the evidence. The court also did not make any findings concerning whether the affidavit, if properly executed, alleged sufficient facts supporting the municipal judge's finding there was probable cause for the issuance of the warrant.
The State filed a motion for reconsideration. The court heard testimony from Laielli and Lugo concerning their presentation of the affidavit and search warrant to the municipal court judge, and Laielli's execution of the affidavit. The court denied the reconsideration motion, finding it was "integral to the process" that the judge issuing the warrant have knowledge of the "training and qualifications of the actual person who signed the affidavit," the "oath supporting" the affidavit was "basic and fundamental to the process," and Laielli's execution of the affidavit resulted in an "insufficiency of the process by which the warrant was obtained."
The court entered orders granting defendants' motion to suppress the handgun and denying the State's motion for reconsideration. We granted the State's motion for leave to appeal the orders.
II.
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)). However, we do not owe deference to a trial court's "interpretation of the law," and such issues are reviewed de novo. Ibid. "[A] defendant challenging a warrant 'has the burden to prove that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Marshall, 199 N.J. 602, 612 (2009) (quoting State v. Jones, 179 N.J. 377, 388 (2004)).
The United States and New Jersey Constitutions provide that search warrants shall not issue except upon a finding of probable cause supported by oath or affirmation. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Probable cause exists where there is "a reasonable ground for belief of guilt" based on facts of which the officers had knowledge and reasonably trustworthy sources. Marshall, supra, 199 N.J. at 610 (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).
To determine probable cause for a search warrant, the decision "must be made based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously." Id. at 611 (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). "[S]earch warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005).
"Courts in this State consistently have maintained that strict adherence to the protective rules governing search warrants is an integral part of the constitutional armory safeguarding citizens from unreasonable searches and seizures." State v. Valencia, 93 N.J. 126, 134 (1983). A failure to comply with the rules will "be tolerated only if it is insubstantial. Thus, as long as the objectives underlying the procedural requirements that govern the application, issuance, execution, filing and return of the search warrants are not fundamentally compromised, a slight departure from strict compliance with the rules will not invalidate the search." Ibid.
Here, the Law Division judge granted the suppression motion based in part on a finding there were issues with the sufficiency of the "oath supporting" the affidavit. The judge did not, however, identify any departure from "the protective rules governing search warrants." Ibid. We discern no fundamental departure from the rules because the affidavit was signed by the officer who conducted the investigation and provided all of the factual information relied upon to establish probable cause.
In pertinent part Rule 3:5-3(a) provides that "[a]n applicant for a search warrant shall appear personally before the judge, who must take the applicant's affidavit or testimony before issuing the warrant." Although the introductory language of the affidavit indicated it was made by Lugo, the evidence showed, and the parties stipulated, that Laielli was the affiant. The evidence further demonstrated that Laielli personally appeared before the municipal court judge, was administered the oath, and signed the affidavit. Cf. State v. Goie, 401 N.J. Super. 331, 344 (App. Div. 2008) (finding under the circumstances presented that suppression of evidence was not required where the affiant failed to personally appear before the judge issuing the warrant), certif. denied, 199 N.J. 129 (2009).
To be sure, the introductory language of the affidavit indicated that Lugo was the affiant, but as it turned out that was in error. We reject the court's conclusion that the error, or the description of Lugo's qualifications and absence of Laielli's, constituted a departure from any rule or constitutional requirement that rendered the affidavit "fundamentally flawed" and therefore insufficient to support a finding of probable cause.
Rule 3:5-7(g) provides that "[i]n the absence of bad faith, no search or seizure made with a search warrant shall be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers or proceedings to obtain it, or in its execution." Here, the error in the affidavit was not in its execution by Laielli. He was properly sworn and signed the affidavit as the affiant in the presence of the municipal court judge, thereby satisfying the fundamental requirements of the rules and the state and federal constitutions.
The error instead was in the provision stating the affidavit was being made by Lugo, when in fact it was made by Laielli. "[O]ur courts have been reluctant to invalidate search warrants based on confusion over . . . issues that do not implicate probable cause or the neutrality of the issuing judge." State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff'd, 201 N.J. 229 (2010); see also State v. Bisaccia, 58 N.J. 586, 592 (1971) (finding an affidavit that included an accurate description of a building but erroneously listed its incorrect street did not invalidate the issuance of the search warrant); State v. Gillman, 113 N.J. Super. 302, 306 (App. Div.) (finding under Rule 3:5-7(g) that false statements in an affidavit that are not material to the basis for the issuance of the search warrant do not require invalidation of the warrant), certif. denied, 58 N.J. 340 (1971).
At the time Gillman was decided, current Rule 3:5-7(g) was designated as Rule 3:5-7(d). Section (d) was redesignated as (g) on "January 28, 1977 to be effective immediately." Pressler & Verniero, Current N.J. Court Rules, Source Note on R. 3:5-7 (2017).
We are persuaded the affidavit's erroneous identification of Lugo as the affiant was a technical irregularity that did not implicate the municipal judge's finding of probable cause. Laielli and Lugo appeared before the municipal judge and were both sworn, but Laielli signed the affidavit at the judge's direction after being sworn. Regardless of the language identifying Lugo as the affiant, the municipal judge was fully aware that Laielli, and not Lugo, was the affiant. We therefore find no support in the record for the Law Division's conclusion that Laielli's execution of the affidavit constituted a fundamental flaw resulting in an invalid search warrant. Under the circumstances presented, there was no showing of bad faith and the error was an irregularity in the papers supporting the issuance of the warrant that did not require or permit the suppression of the evidence. R. 3:5-7(g).
The Law Division did not find the error was made in bad faith, defendants do not argue the error was made in bad faith, and the record does not support a finding of bad faith. Lugo and Laielli were present before the municipal judge and Laielli signed the affidavit at the judge's direction.
We are also satisfied that even if Laielli's execution of the search violated Rule 3:5-3, the affidavit could properly be considered by the court to determine if there was probable cause to search the vehicle. In Gioe, supra, 401 N.J. Super. 331 , a municipal court judge receiving a late-night call instructed the affiant to fax the warrant and affidavit to his residence, and the judge issued the warrant after swearing in the affiant over the phone. Id. at 337. We determined this violated Rule 3:5-3(a)'s requirement that "[a]n applicant for a search warrant shall appear personally before the judge." Id. at 341-42.
Nonetheless, we held that in the absence of a constitutional violation, "suppression of evidence would only be required if: '(1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if [the rule] had been followed, or (2) there is evidence of intentional and deliberate disregard of [the rule].'" Id. at 343 (quoting United States v. Johnson, 641 F.2d 652, 656 (9th Cir. 1980)). First, we found, "had the procedural requirements of Rule 3:5-3(a) been explicitly followed," that "the same affidavit would have been produced, based upon the same evidence establishing probable cause, and the search warrant would undoubtedly have been issued." Ibid. Second, we found that the rule was "not intentionally or deliberately disregarded" because the affiant "merely carried out the instructions he received from the issuing judge." Id. at 344. Accordingly, we ruled that suppression was not required. Id. at 343-44.
Here, there was no constitutional violation. The affidavit satisfied the oath or affirmation requirements of the United States and New Jersey constitutions. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The municipal judge signed the affidavit confirming it was "[s]worn and subscribed" by Laielli on August 24, 2014. "Absent evidence to the contrary" an affidavit bearing the signature of the affiant and showing it was sworn to satisfies the oath or affirmation requirements of the United States and New Jersey constitutions. Id. at 341.
Moreover, defendants were not prejudiced. If the municipal judge had Detective Lugo sign the affidavit, the search warrant would undoubtedly have been issued based on the same affidavit and the same evidence allegedly establishing probable cause. Finally, Rule 3:5-3(a) was not intentionally or deliberately disregarded because Laielli merely carried out the instructions he received from the municipal judge.
Independent of its determination that Laielli's execution of the affidavit rendered the search warrant invalid, the court also concluded that the failure to include Laielli's background and qualifications was fatal to the proper issuance of the warrant. We disagree that the mere failure to include Laielli's background and qualifications required a rejection of the affidavit as the basis for a probable cause finding. Under certain circumstances, consideration of an affiant's background and qualifications may be pertinent to a probable cause determination. See, e.g., State v. Nishina, 175 N.J. 502, 517 (2003) (finding an officer who "rel[ied] on his training and experience" in detecting an odor of marijuana on the defendant's clothing had probable cause to believe defendant possessed illegal drugs); State v. Judge, 275 N.J. Super. 194, 197 (App. Div. 1994) (finding detection of the smell of marijuana "by a trained and experienced" officer supported a finding of probable cause a crime was being committed). There is, however, no constitutional requirement or rule mandating that an affidavit supporting a request for a search warrant include the background and qualifications of the affiant. See Valencia, supra, 93 N.J. at 133 (finding that a search warrant obtained in accordance with the procedural rules permits a presumption of validity of the warrant, leaving only a determination as to whether the supporting affidavit was sufficient to establish probable cause). We therefore reject the Law Division's conclusion that the failure to include Laielli's background and qualifications alone rendered the affidavit insufficient to support a finding of probable cause.
As noted, however, the lack of Laielli's background and qualifications in the affidavit may be pertinent to the resolution of an issue the Law Division judge did not reach; whether the affidavit established probable cause for the issuance of a warrant. Ibid. The court recognized that a determination of probable cause may be dependent on the qualifications of the affiant but, because it found Laielli's execution of the affidavit was improper, it did not address whether the facts asserted in the affidavit were sufficient to support a finding of probable cause.
We reject defendants' contention that the failure to include Laielli's background and qualifications requires a finding of no probable cause. In State v. Fariello, 71 N.J. 552, 565 (1976), the Court found that an affidavit was insufficient because the source of the facts essential to the probable cause determination was not identified. The Court determined the affidavit did not "reasonably suggest" that the facts were within the "personal knowledge of the affiant or investigating officers." Id. at 565. Although we offer no opinion on the sufficiency of the affidavit here, we are convinced it reasonably suggests that many of the facts are within the knowledge of Laielli because, as stated in the affidavit, he was the investigating officer and was the source of the information about the incident involving defendants.
The affidavit includes a description of Laielli's actions and observations concerning the events supporting the request for the warrant. The court, however, did not determine whether the validity of the factual assertions is dependent on Laielli's background and qualifications, if his identification in the affidavit as a police officer sufficiently qualified him to provide facts supporting a finding of probable cause, or otherwise whether his factual assertions supported a probable cause finding. In addition, the court did not consider whether there are sufficient facts in the affidavit, the validity of which may not be dependent upon Laielli's background and qualifications, that independently support a probable cause finding. As the Court noted in State v. Guerra, 93 N.J. 146, 152 (1983), "if the validity of a search can be sustained independently on objective grounds demonstrating reasonableness, the existence of other defects that do not derogate from the overall objective reasonableness of the search or impugn the integrity of the judicial process should not be relied upon to invalidate [a] search."
For example, and not by way of limitation, the court did not consider whether the description of Stock's actions and those of his canine Ciko, who positively indicated for the presence of drugs in the vehicle and whose qualifications are described in the affidavit and detailed in an annexed exhibit, are sufficient to establish probable cause independent of the lack of a description of Laielli's background and qualifications. --------
If the court finds that Laielli could not swear to Detective Lugo's experience and training as related in the affidavit, the court should disregard the allegations concerning Lugo's training and experience in determining whether the affidavit stated probable cause. Even "if a police officer makes 'material misstatements in a search warrant affidavit' with knowledge of the falsity of those statements or with reckless disregard for the truth," a warrant is invalid only "if excision of the untruthful statements would leave the affidavit without probable cause for the issuance of the warrant." State v. Smith, 212 N.J. 365, 420 (2012) (quoting State v. Howery, 80 N.J. 563, 566-68 (1979)); see also Franks v. Delaware, 438 U.S. 154, 155, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978). We see no reason to apply a more stringent rule here.
The Law Division also heard testimony about, but never addressed, defendants' claim the search warrant was invalid because the information contained in the affidavit was garnered as the result of an alleged unlawful stop of the vehicle. That issue may be determinative.
We offer no opinion on the merits of any issues concerning the legality of the alleged stop or whether the affidavit established probable cause. The parties are entitled in the first instance to have the trial court decide defendant's motion to suppress based on the alleged unlawful stop. If the court determines the stop was lawful, it must determine if the affidavit supports the municipal judge's finding of probable cause.
We reverse the court's orders suppressing the evidence and denying the State's motion for reconsideration, and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION