STATE OF NEW JERSEY VS. MICHAEL C. BATTISTA(14-08-2155, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5201-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL C. BATTISTA,
Defendant-Respondent.
____________________________
Argued June 6, 2017 – Decided July 14, 2017
Before Judges Yannotti and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Indictment
No. 14-08-2155.
Peter M. O'Mara argued the cause for
appellant.
Shiraz Imran Deen, Assistant Prosecutor,
argued the cause for respondent (Joseph D.
Coronato, Ocean County Prosecutor, attorney;
Mr. Deen, of counsel and on the brief).
PER CURIAM
Following the denial of his motion to suppress his arrest
warrant, defendant Michael C. Battista pled guilty to second-
degree possession of psilocin with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and -5(b)(4). In accordance with the plea agreement,
defendant was sentenced in the third-degree range to three years
in prison, but that sentence was stayed pending this appeal.
Defendant now appeals the February 10, 2015 order denying his
motion to suppress the arrest warrant. We affirm.
I.
The material facts are established in the record, which
includes the arrest warrant and the affidavit filed in support of
the application for the arrest warrant.
In 2013, the Ocean County Prosecutor's Office/Special
Operations Group (SOG) was conducting an investigation of a
suspected drug distribution network. The SOG believed that the
network centered around co-defendant Jeremy Zahn and was operated
out of an automobile repair shop. As part of that investigation,
the SOG obtained a wiretap order and a data communication warrant.
On February 28, 2013, a detective intercepted two text
messages between Zahn and defendant. The text messages read:
[Zahn:] Kk I have the hash for ya and maybe
one or two well have to see I haven't been
able to get that cheap out door for u yet but
ill talk to u tom
[Defendant:] Cool thanks for tryin.
That same day, the SOG set up surveillance of Zahn's
automobile repair shop. The detective who conducted the
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surveillance observed a man, later identified as defendant, drive
up to the automobile shop, park, and meet with Zahn in the parking
lot. Defendant and Zahn then went inside the shop. Shortly
thereafter, defendant left the shop and drove home.
Based on the information obtained in the investigation, a
detective assigned to the SOG submitted an affidavit requesting
an arrest warrant for defendant. The affidavit asserted that
defendant had conspired with Jeremy Zahn and others to possess
marijuana in an amount of five pounds or more with the intent to
distribute, which is a crime of the second-degree. N.J.S.A. 2C:35-
5(b)(10)(b).
To support that assertion, the detective detailed that there
was an ongoing investigation of Jeremy Zahn, defendant, and others.
The detective explained that he had intercepted the texts between
Zahn and defendant on February 28, 2013. The detective went on
to explain that based on his training and experience, along with
knowledge of the investigation, he believed that Jeremy Zahn was
a large-scale marijuana dealer, selling in one to ten pound
increments. He stated that Zahn and defendant would use words
like "one" or "two" to refer to pound quantities of marijuana. In
addition to the February 28, 2013 texts, the detective referred
to other intercepted communications and stated his belief that the
one or two pounds of marijuana that defendant conspired to buy
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from Zahn was an amount defendant would possess with the intent
to distribute. The detective also certified that he had probable
cause to believe that, during the course of the conspiracy, Jeremy
Zahn, defendant, and others, had conspired to distribute marijuana
in a quantity of five pounds or more.
A Superior Court judge reviewed the affidavit and then
authorized an arrest warrant for defendant on the charge of
conspiring with Zahn and others to possess with intent to
distribute a quantity of marijuana in an amount of five pounds or
more, in violation of N.J.S.A. 2C:35-5(b)(10)(b). On April 3,
2013, members of the SOG executed the arrest warrant. When
defendant was arrested at his residence, the officers also
discovered and seized a substantial quantity of marijuana, LSD,
MDMA, hashish, and psilocin.
Defendant was initially charged with seven third-degree and
fourth-degree drug offenses. Thereafter, he was indicted,
together with a group of co-defendants. The indictment charged
defendant with eight drug offenses, including second-degree
possession of psilocin with intent to distribute.
Following his indictment, defendant filed a motion to
suppress his arrest warrant arguing that the warrant included
false statements. The trial court heard oral argument on that
motion and denied it without an evidentiary hearing. The court
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ruled that defendant had failed to meet the burden of proving that
the arrest warrant was not supported by probable cause. The court
also found that defendant had failed to show that any statement
made by the detective who filed the affidavit in support of the
arrest warrant was false.
II.
Defendant appeals and makes two arguments:
POINT I – THE ARREST WARRANT WAS INVALID
BECAUSE IT WAS BASED ON FALSE STATEMENTS THAT
WERE RELIED UPON FOR THE ISSUANCE OF THE
WARRANT.
POINT II – THE AFFIDAVIT DID NOT [ESTABLISH
PROBABLE CAUSE FOR A CHARGE OF SECOND-DEGREE
CONSPIRACY TO POSSESS MARIJUANA WITH THE
INTENT TO DISTRIBUTE].
We give deference to the factual findings of a trial court
when supported by sufficient credible evidence in the record.
State v. Gonzales, 227 N.J. 77, 101 (2016). Ordinarily, "factual
findings are entitled to deference because the motion judge, unlike
an appellate court, has the 'opportunity to hear and see the
witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J.
146, 161 (1964)). Here, the trial court did not conduct an
evidentiary hearing. Instead, the court reviewed the affidavit
and arrest warrant and considered the arguments of the parties.
We have also reviewed the affidavit and arrest warrant. Our
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review, however, is not de novo because "a standard of deference
to a trial court's factfindings, even factfindings based solely
on video or documentary evidence [equally available to the
appellate court], best advances the interests of justice in a
judicial system that assigns different roles to trial courts and
appellate courts." State v. S.S., ___ N.J. ___, ___ (June 21,
2017) (slip op. at 25).
Having evaluated the record using our standard of review, we
agree with the trial court. That is, there was no showing that
the affidavit contained false statements. Moreover, the affidavit
established probable cause for the issuance of an arrest warrant
based on a second-degree charge of conspiracy to distribute five
or more pounds of marijuana.
"An arrest warrant is issued by a magistrate upon a showing
that probable cause exists to believe that the subject of the
warrant has committed an offense." State v. Miller, 342 N.J.
Super. 474, 488 (App. Div. 2001) (quoting Steagald v. United
States, 451 U.S. 204, 212-13, 101 S. Ct. 1642, 1648, 68 L. Ed. 2d
38, 46 (1981)). Probable cause means "a suspicion of guilt that
is well grounded; a reasonable basis for a belief that a crime has
been or is being committed." State v. Goldberg, 214 N.J. Super.
401, 406 (App. Div. 1986) (quoting State v. Kasabucki, 52 N.J.
110, 116 (1968)), certif. denied, 107 N.J. 118 (1987).
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Once issued, a warrant is presumed valid and a defendant
challenging the validity of a warrant has the burden to prove that
there was no probable cause supporting the issuance of the warrant.
State v. Jones, 179 N.J. 377, 388 (2004). "Accordingly, courts
'accord substantial deference to the discretionary determination
resulting in the issuance of [a] warrant.'" State v. Keyes, 184
N.J. 541, 554 (2005) (quoting Jones, supra, 179 N.J. at 388).
Deference to a judge's issuance of a warrant, however, is
"not boundless." United States v. Leon, 468 U.S. 897, 914, 104
S. Ct. 3405, 3416, 82 L. Ed. 2d 677, 693 (1984). The warrant
cannot be based on an affidavit that does not "provide the
magistrate with a substantial basis for determining the existence
of probable cause." Illinois v. Gates, 462 U.S. 213, 239, 103 S.
Ct. 2317, 2332, 76 L. Ed. 2d 527, 549 (1983). Further, "probable
cause is not established by a conclusory affidavit that does not
provide a magistrate with sufficient facts to make an independent
determination as to whether the warrant should issue." State v.
Novembrino, 105 N.J. 95, 109 (1987).
When a defendant challenges the veracity of an affidavit
supporting the issuance of a warrant, the defendant is entitled
to an evidentiary hearing upon a "'substantial preliminary
showing' of falsity in the warrant." State v. Howery, 80 N.J.
563, 567 (1979) (quoting Franks v. Delaware, 438 U.S. 154, 170,
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98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 681 (1978)). Defendant
cannot rely on unintentional falsification, but "must allege
'deliberate falsehood or reckless disregard for the truth[.]'"
Ibid. (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684,
57 L. Ed. 2d at 682). Further, the affidavit must fail to establish
probable cause in the absence of the allegedly false statements.
Id. at 568.
Here, defendant argues that the affidavit supporting the
arrest warrant contained false material statements. Moreover,
defendant contends that the intercepted communications on February
28, 2013, indicated the purchase of only one or two pounds of
marijuana, not five or more pounds as the affiant alleged.
The affidavit accurately reported the amount of one or two
pounds. The affidavit also went on to state, however, that there
was an ongoing investigation and that the detective had intercepted
other communications providing probable cause to believe that
there was a broader conspiracy with other sales. Consequently,
read in totality, the affidavit supported probable cause to believe
that defendant was part of a conspiracy in an ongoing drug
distribution network. Specifically, it provided the judge with a
substantial basis to conclude that there was probable cause to
believe defendant participated in a conspiracy to distribute five
or more pounds of marijuana.
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Since defendant failed to make any showing of false statements
contained in the affidavit, defendant was not entitled to an
evidentiary hearing. Further, the information contained in the
affidavit provided probable cause for the issuance of the arrest
warrant.
Affirmed.
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