STATE OF NEW JERSEY VS. WALTER J. SOMICK AND ABRAHAM GARCIA (15-07-0107 AND 15-07-0108, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) ( 2019 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NOS. A-3821-18T1
    A-3822-18T1
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,
    v.
    WALTER J. SOMICK and
    ABRAHAM GARCIA,
    Defendants-Respondents.
    Argued August 5, 2019 – Decided August 21, 2019
    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
    1
    Franks v. Delaware, 
    438 U.S. 154
    (1978).
    A-3822-18T1
    2
    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 give
    A-3822-18T1
    3
    context 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 on
    A-3822-18T1
    4
    facts 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,
    A-3822-18T1
    
    5 438 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 caused
    A-3822-18T1
    6
    the 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-degree
    A-3822-18T1
    7
    official 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.
    2
    The matters were venued in Hudson County. Before the matters were
    consolidated, Garcia filed pretrial motions. Another judge denied Garcia's
    motions to dismiss the indictment and disclose the identity of the confidential
    informant named in the affidavit; and adjourned Garcia's motion to suppress
    evidence seized pursuant to the search warrant. After the matters were
    consolidated, Somick filed similar motions, which were assigned to the judge
    who decided the motion under appeal. After granting the Franks hearing that is
    the subject of this appeal, the motion judge reserved decision on the remaining
    motions, which apparently are still pending.
    3
    Although defendants bore the burden of proof at the hearing, Jones, 179 N.J
    at 388, the detective testified on behalf of the State. Apparently, the judge held
    A-3822-18T1
    8
    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 search warrants."
    Notably, the detective did not include public document requests pursuant to the
    Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 as one of those
    procedures.   Prior to his four-year employment with the Division, he was
    employed as an officer and detective with the Princeton Police Department.
    During his combined law enforcement experience, the detective "ha[d]
    conducted dozens of investigations involving different types of criminal
    activity, specifically related to white collar crimes and theft, fraud and the
    falsification of documents."
    an off-the-record conference in chambers "regarding the procedural manner in
    which th[e] hearing w[ould] proceed." The State did not object, on the record,
    to that procedure.
    A-3822-18T1
    9
    The probable cause section of the affidavit is set forth in paragraphs six
    through twenty-one. The introductory paragraphs of that section disclose the
    genesis of the Division's investigation of defendants. In sum, in April 2011, the
    Division commenced an investigation of the "misus[e] of department manpower,
    equipment, and material" by James Wiley, a former superintendent of the
    Township's Department of Public Works (DPW). The following year, Wiley
    pled guilty to second-degree conspiracy to commit official misconduct, N.J.S.A.
    2C:5-2, for misusing DPW resources at his residence.         Thereafter, "Wiley
    became a cooperator with the Division's ongoing investigation into various
    allegations of criminal activities involving several municipal bodies of the
    Township of North Bergen."
    According to the next paragraph of the affidavit, "Wiley provided details
    and information regarding the ongoing 'no show' employment of several
    individuals, including [defendants] . . . ." Garcia was employed full time as the
    security supervisor for the Township's Board of Education (BOE) and an
    assistant coach for the high school's football team. However, Garcia allegedly
    submitted time sheets reflecting he worked twenty-one hours per week with the
    DPR. Somick periodically contracted to perform electrical work for the BOE,
    A-3822-18T1
    10
    but allegedly submitted time sheets reflecting he consistently performed sixty
    hours of work, per two-week pay period, as a DPR employee.
    The following paragraph summarizes the investigative procedures
    personally undertaken by the detective to support the warrant application. In
    particular, the detective, "conducted both physical and electronic surveillance,
    using pole cameras placed at [defendants'] residences, in order to determine
    whether either, or both, were being compensated by the DPR for work or
    services that they had not or could not have performed." Those investigative
    steps, as set forth more specifically in other paragraphs, are undisputed; the crux
    of the issue in these appeals arises from statements in, and omissions from, the
    ensuing paragraphs.
    For example, the affidavit provides (emphasis added):
    To further my investigation, I was assisted by a
    confidential informant, CI #1144, an employee of the
    Township of North Bergen, who provided to me copies
    of time sheets that [defendants] submitted to the DPR
    on a bi-weekly basis . . . starting in the Fall of 2013
    . . . [and continuing through] the months that followed
    installation of the pole camera [on Somick's residence
    on October 3, 2014].
    According to the detective's testimony at the hearing, CI #1144 did not
    tender copies of defendants' time sheets directly to him, but rather provided the
    documents to Wiley from Fall 2013 to December 2014. Wiley, in turn, furnished
    A-3822-18T1
    11
    the documents to the detective as part of his ongoing cooperation with the
    Division. CI #1144 utilized Wiley as a "middleman" because he or she wished
    to remain anonymous, and CI #1144 "knew that Mr. Wiley was a cooperating
    witness and had the ear of the [S]tate's corruption bureau."          Although the
    detective knew CI #1144 worked for the Township during the course of the year
    that he or she provided the documents, he did not learn CI #1144's identity until
    their meeting on December 10, 2014.
    At that December 10 meeting, CI #1144 was conferred confidential
    informant status. Thereafter, CI #1144 did not provide any other documents
    through Wiley or directly to the detective, nor did they partake in any other
    meetings. The detective testified at the hearing he did not include in his affidavit
    the date on which CI #1144 became a confidential informant because he did not
    believe that fact was material, i.e., that date "had no bearing or effect on the
    case" because it did not "point to . . . any specific actions or illegality o [f] any
    kind of conduct."
    Because the detective did not believe Wiley's position as the middleman
    was material to a probable cause determination, he did not include that fact in
    his affidavit. The detective elaborated:
    Mr. Wiley had no independent knowledge of the
    validity or v[e]racity of these documents. These
    A-3822-18T1
    12
    documents were simply being relayed through Mr.
    Wiley from the confidential informant. And by that I
    mean he had no first[-]hand knowledge of where the
    documents came from or that they were real.
    To gauge the reliability of the documents, at the December 10 meeting,
    the detective "reviewed each and every one of th[e] documents with the
    confidential informant who confirmed to [him] that the[y] were photocopies of
    original documents that had not been disturbed as they existed in town hall
    . . . ." Among other things discussed during that meeting, CI #1144 specified
    the location within the Township's facilities of the documents to be seized.
    Based on his personal observations during other investigations, the detective
    knew the Township archived the documents in the storage facility identified by
    CI #1144.
    Following his meeting with CI #1144, the detective issued a grand jury
    subpoena to Automatic Data Processing, Inc. (ADP), the Township's payroll
    service provider. The ADP payroll records confirmed defendants "had been paid
    for the same amount of hours per period" as submitted to the DPR. Paragraph
    sixteen of the affidavit specifies that corroboration.
    Thereafter, the detective drafted an application for a warrant to search the
    administrative and clerical offices located in the DPR and the Township's
    storage facility. Of note, the warrant application not only requested defendants'
    A-3822-18T1
    13
    original time sheets, but also encompassed several categories of documents and
    records pertaining to DPR "employees from 2010 to the present." Those items
    included:
    employee personnel files, disciplinary files, job
    descriptions, lists of current or former employees, time-
    keeping files, payment files, payroll and wage
    sheets/records, overtime sheets/records, overtime
    certification reports/records, sign-in or roll-call sheets,
    attendance sheets, Supervisors' daily reports,
    assignment reports, work reports, work orders, tasks,
    duties, overtime assignment reports, responsibilities,
    vehicle assignments, whether permanent or temporary,
    truck/equipment/vehicle         logs,     responsibilities,
    equipment assignments, requests or grants for any type
    of leave or time off from work, records of time worked,
    records of time off, and any record of accountability,
    whether written, typed, recorded or stored in digital or
    computer form.
    According to the detective's testimony at the Franks hearing, he and two
    deputy attorneys general assigned to the investigation met with the issuing judge
    who "had a few general questions and specifically asked about the v[e]racity of
    the confidential informant[,] noting that there was no language in [the affidavit]
    asserting that the confidential informant had provided reliable information in the
    past." See State v. Smith, 
    155 N.J. 83
    , 93 (1998) (recognizing an informant's
    veracity and basis of knowledge for the information supplied are two important
    factors in determining whether the informant's tip supports probable cause for
    A-3822-18T1
    14
    issuance of a warrant). The detective informed the issuing judge he omitted that
    routine paragraph because he did not have a prior relationship with the
    confidential informant. However, the detective told the issuing judge about his
    personal knowledge of the Township's storage facility for the documents at
    issue.
    Pursuant to the issuing judge's request, the detective then added the
    following language to paragraph seventeen, which begins with the detective's
    "discussions with CI #1144" about the informant's knowledge of the municipal
    premises to be searched:
    Through my experiences on unrelated matters, I also
    have personal knowledge to corroborate the use of th[e]
    basement area [of the Law and Public Safety Building]
    by the Township of North Bergen as a storage and
    archiving facility for other [d]epartments. I have
    visited this location previously on another matter, and
    have observed archived payroll documents and other
    documents stored within this area, as corroborated by
    my discussions with CI #1144.
    Oral argument on the suppression motion was held nine months after the
    conclusion of the detective's testimony. The motion judge reserved decision and
    thereafter issued a lengthy written decision ultimately finding, for a confluence
    of reasons, "the State in its warrant application engaged in material omissions
    and misstatements that were included intentionally and those omissions and
    A-3822-18T1
    15
    misstatements were necessary to the finding of probable cause." According to
    the motion judge:
    In this case, the State, in lieu of an OPRA request or in
    lieu of following its own protocols, chose to make
    deliberate misstatements to mislead the issuing judge
    into believing that a properly vetted source with lawful
    access to government documents and the authority to
    remove those documents had been working for and with
    the State for an extended period of time to build a case
    against . . . defendants. This was simply not true, there
    was never any privity between the State and the would-
    be informant until after all documents had been
    delivered and thus these deliberate misstatements were
    necessary to attempt to sanitize the State's behavior
    during its warrant application process.
    Concluding defendants "met both prongs of the Franks material false statement
    test and alternatively, the Sheehan material omission test[,]" the judge
    suppressed the evidence seized from the municipal premises. This interlocutory
    appeal followed.
    III.
    Based on our de novo review of the record, 
    Handy, 206 N.J. at 44
    , we
    conclude the motion judge erred in his analysis and improperly suppressed the
    evidence seized from the municipal premises. We do so for multiple reasons.
    A-3822-18T1
    16
    A.
    Initially, the motion judge determined "defendants had no reasonable
    expectation of privacy in the payroll documents at issue, and under normal
    circumstances these documents would not be subject to a suppression motion if
    obtained through an OPRA request." We agree with the judge that defendants
    had no reasonable expectation of privacy in their time sheets. See e.g., State v.
    Sloane, 
    193 N.J. 423
    , 435-37 (2008) (citing Doe v. Poritz, 
    142 N.J. 1
    , 28 n.8
    (1995)). Those payroll records are public records. See N.J.S.A. 47:1A-10.
    We part company, however, with the judge's determination that "[t]he
    State bypassed the legal OPRA channel to obtain the documents at issue . . . ."
    The judge's suggestion that the State was duty-bound to make an OPRA request
    for defendants' time sheets is misplaced and unsupported by any authority.
    Indeed, law enforcement is not obligated to utilize OPRA before, during or after
    it utilizes a particular, chosen investigative path. Contrary to the judge's finding,
    see 
    Hathaway, 222 N.J. at 467
    , there is no evidence in the record that the State
    considered – or should have considered – an OPRA request as an option to
    receiving the time sheets from CI #1144, even though he or she had not yet been
    formally vetted as a confidential informant.
    A-3822-18T1
    17
    Notably, the detective testified he did not consider issuing a grand jury
    subpoena for the original time sheets and the other documents itemized in the
    warrant because he was concerned about the destruction of evidence. Therefore,
    even if an OPRA request were a law enforcement tool, the detective would have
    had the same concerns in utilizing that procedure. We therefore disagree with
    the motion judge's finding that the reason for not pursuing an OPRA request was
    pretextual where, as here, the detective testified law enforcement had not ruled
    out whether defendants' supervisors were complicit in their alleged criminal
    activity.
    B.
    We next address the motion judge's application of State v. Saavedra, 
    222 N.J. 39
    (2015), to the facts of the present case, and his conclusion that CI #1144
    was involved in the same "official misconduct" as the defendant in Saavedra.
    Unlike CI #1144, the defendant in Saavedra was a North Bergen BOE employee,
    who "removed or copied" hundreds of original and photocopied documents to
    support her employment discrimination case against the Board.              Unlike
    defendants' time sheets, here, the documents in Saavedra contained "highly
    confidential student educational and medical records that were protected by
    federal and state privacy laws." The defendant moved to dismiss the indictment
    A-3822-18T1
    18
    for official misconduct and theft by unlawful taking, claiming immunity under
    Quinlin v. Curtiss-Wright Corp., 
    204 N.J. 239
    (2010), because she intended to
    use the documents to support her employment discrimination civil suit.
    
    Saavedra, 222 N.J. at 46-47
    .
    The Court in Saavedra upheld the indictment, reasoning the State had
    presented prima facie evidence of official misconduct based on testimony before
    the grand jury that "the documents contained highly confidential and private
    information about students, that [the] defendant was not given permission to
    have them in her personal possession, . . . [the] defendant's conduct violated the
    Board's confidentiality policies . . . [and her conduct] was unauthorized by her
    employer." 
    Id. at 61.
    Further, in addressing the theft by unlawful taking charge,
    the Court observed "a significant portion of those documents were the Board's
    'original' copies . . . and others were photocopies that served as the Board's sole
    file copy, the removal of which left the Board without the document in its files."
    
    Id. at 62.
      Accordingly, the State presented prima facie evidence that the
    documents were taken "'with purpose to deprive' the Board of them." 
    Ibid. Significantly, in Saavedra,
    the State demonstrated the defendant's
    conduct, if proven, violated federal and state privacy laws, and contravened the
    Board's internal confidentiality policies. Notwithstanding their burden, here,
    A-3822-18T1
    19
    defendants failed to present evidence that CI's #1144's conduct violated any
    statute, regulation or policy, nor do they contend the timesheets are confidential.
    Rather, in their merits brief, defendants argue "it is not known what other
    records, perhaps containing sensitive and confidential information, CI #1144
    accessed in . . . pursuit of . . . defendants' payroll records." That contention is
    mere speculation.
    As we stated above, the judge expressly found defendants' time sheets
    were public records. Further, unlike the defendant's conduct in Saavedra, CI
    #1144 provided photocopied time sheets to the State; the originals were retained
    in the DPR's files. Unlike the Board in Saavedra, the DPR was not deprived of
    the information contained in the time sheets. Unlike the defendant in Saavedra,
    who was charged with official misconduct, CI #1144 provided the documents to
    the State to disclose defendants' alleged official misconduct.
    Moreover, Saavedra, which was decided after the detective drafted the
    warrant application in the present matter, did not announce a bright-line rule,
    nor conclusively decide the illegality of the defendant's conduct. As the motion
    judge here acknowledged, the Court in Saavedra "did not bar an application of
    a claim of right defense, if asserted at trial. See [i]d. [at 47]." The motion judge
    A-3822-18T1
    20
    also acknowledged, by taking judicial notice at the hearing, that the Court
    decided Saavedra after the detective drafted the affidavit, here.
    Importantly, the detective testified he did not suspect CI #1144 illegally
    procured defendants' time sheets, and "discussed . . . with the [issuing] judge
    that the documents were obtained by a [T]ownship of North Bergen employee[,]
    who was making copies and providing them to [the Division's] investigation on
    an ongoing basis." The issuing judge expressed no concerns to the detective that
    the documents might have been illegally obtained by CI #1144. Thus, based on
    the record before us, we conclude the Court's holding in Saavedra does not
    compel suppression of the subject documents in the present case.
    C.
    We next consider the judge's determination that "suppression [wa]s proper
    where an Attorney General [d]etective (and the [d]eputy [a]ttorney [g]eneral,
    . . . who reviewed and approved the affidavit) made no less than seven . . . false
    statements that were necessary for a finding of probable cause in [the]
    application for [the] search warrant." According to the judge:
    Misstatement 1) "To further my investigation, I was
    assisted by a confidential informant, CI #1144, an
    employee of the Township of North Bergen, who
    provided to me copies of time sheets that [defendants]
    submitted to the DPR on a bi-weekly basis." . . .
    A-3822-18T1
    21
    Misstatement 2) "CI #1144, provided to me time sheets
    as submitted to the DPR by or on behalf of [defendants]
    starting in the Fall of 2013." . . .
    Misstatement 3) ". . . I also continued to receive time
    records from CI #1144 through November 4, 2014."
    ...
    Misstatement 4) "I continued to receive SOMICK's
    payroll documents from CI #1144 in the months that
    followed the installation of the pole camera." . . .
    Misstatement 5) "Through my discussions with CI
    #1144, I learned that all time-keeping and payroll
    records are submitted to and maintained at the [DPR],
    which is located in the Township of North Bergen
    Offices at 4233 Kennedy Boulevard, North Bergen,
    New Jersey." . . .
    Misstatement 6) "I also learned through my discussions
    with CI #1144 that, after an unspecified period of time,
    the time keeping and payroll records are physically
    transferred to an archive at the storage facility of the
    Township of North Bergen, located in the ground
    and/or basement floor of the North Bergen Township
    Law & Public Safety Building . . ." . . .
    Misstatement 7) "Through my discussion [sic] with CI
    #1144, I also learned that time-keeping and payroll
    records submitted to the [DPR] are entered into and
    processed by a computer station that is located within
    the [DPR]." . . .
    In essence, the judge found those statements were "deliberately false" to the
    extent they could be construed as "label[ing] CI #1144 as a [confidential
    informant] at any point in time prior to December 10, 2014[,]" and because the
    A-3822-18T1
    22
    detective "asserts he had more than one conversation with CI #1144" when they
    only participated in one meeting.
    We recognize the State formally designated CI #1144 as a confidential
    informant prior to applying for the warrant and, as such, the detective's use of
    that status to describe the documents' source, at the time he swore to the contents
    of the affidavit, was technically correct. However, we appreciate the motion
    judge's concerns that the affidavit gives the incorrect impression the detective
    communicated directly with CI #1144 before December 10, 2014. Further, the
    detective's use of the term, "discussions" in the plural may be interpreted as
    various discussions that occurred during the meeting on December 10, 2014 or,
    as the judge found, multiple conversations over the course of time. Notably,
    however, defendants did not elicit any testimony from the detective, nor produce
    any evidence whatsoever as to his intention in using the plural term,
    "discussions."
    Nonetheless, to the extent the wording of the seven enumerated statements
    was subject to more than one interpretation, defendants failed to establish the
    materiality of any of those statements, 
    Stelzner, 257 N.J. Super. at 235
    , where,
    as here, the affidavit still "contains facts sufficient to establish probable cause"
    even if they were absent. 
    Howery, 80 N.J. at 568
    .            Accordingly, we are
    A-3822-18T1
    23
    unpersuaded those particular assertions materially undermine the affidavit's
    bona fides or the independent evidence that amply establishes probable cause to
    issue the warrant. See, e.g., Franks v. State, 
    398 A.2d 783
    , 785-86 (Del. 1979)
    (on remand from the United States Supreme Court, holding that misstatements
    in the affidavit about the affiant's source of certain information did not require
    the search warrant to be invalidated because, excised of those misstatements,
    there was sufficient independent proof to support the warrant's issuance).
    Indeed, it is beyond peradventure that the affidavit accompanying the
    search warrant included ample facts, without the seven misstatements,
    establishing probable cause that the municipal premises specified in the warrant
    application would yield the subject documents. The detective corroborated the
    time recorded on defendants' time sheets, which had been furnished by CI #1144,
    through ongoing personal surveillance, video surveillance and a comparison of
    the subpoenaed ADP payroll records with the copies of defendants' timesheets.
    Based on his own personal knowledge from prior investigations, the detective
    also corroborated CI #1144's information specifying the location of the rec ords
    to be seized in the Township's storage facility. See 
    Keyes, 184 N.J. at 555
    (citation omitted) (recognizing probable cause may be based on information
    received from informants, as long as there is "substantial evidence in the record
    A-3822-18T1
    24
    to support the informant's statements"). In sum, all of those facts were set forth
    in the affidavit and established probable cause for issuance of the warrant; none
    of those facts was inherently false.
    D.
    We next consider the motion judge's determination that "there are striking
    omissions in the affidavit . . . and had they been included it would have caused
    the judge to refuse to issue the warrant." According to the judge:
    Chief among the material omissions is the false
    narrative that CI #1144 was a confidential[]informant
    who contributed to the State's investigation consistently
    and met with and spoke to [the d]etective . . .
    throughout the investigation and assisted the [d]etective
    in corroborating the findings of the [d]etective's
    physical surveillance of defendants' residences. . . .
    Nowhere in the affidavit does [the d]etective . . .
    disclose to the issuing judge that prior to December 10,
    2014, CI #1144, he and the team made up a status called
    a "conditional-confidential informant," or an
    "intended" confidential informant.
    Accordingly, the judge found the detective violated the Attorney General's
    Standard Operating Procedure 29 (SOP 29) 4 for conferring confidential
    informant status on CI #1144. In particular:
    4
    At our request, the State supplemented the appellate record with a copy of
    SOP 29, which had been provided to the motion judge.
    A-3822-18T1
    25
    The document source [wa]s handled throughout all
    material stages by a known convicted felon, James
    Wiley, from the first document turned over to the State
    to the last. The source is never vetted in accordance
    with SOP 29, and the State already had in its possession
    those documents it sought by the issu[ance] of a
    warrant. Remarkably, none of this was made known to
    the issuing [j]udge.
    Our examination of the record in this matter discloses no evidence of
    intentional misconduct or reckless disregard for the truth on the part of the
    detective by omitting the information the motion judge deemed material. As our
    description of the detective's testimony at the Franks hearing discloses, the
    detective did not believe the omitted information was material to the
    determination of probable cause, a conclusion with which we concur. See
    
    Smith, 212 N.J. at 398-99
    (citation omitted) ("There is no requirement that a
    warrant affidavit fully describe all steps taken, all information obtained, and all
    statements made by witnesses during the course of an investigation."). At most,
    the issuing judge might have "want[ed] to know the [omitted] information[,]"
    
    id. at 399,
    but it was not material to the determination of probable cause.
    As we stated above, two factors for the issuing court to consider when
    determining probable cause, based on information provided by a confidential
    source, are the informant's "veracity" and "basis of knowledge." 
    Smith, 155 N.J. at 93
    . Here, the issuing judge did not question CI #1144's basis of knowledge.
    A-3822-18T1
    26
    Indeed, there is no suggestion in the record, that the content of defendants' time
    sheets was inaccurate. Rather, the affidavit contained four paragraphs, spanning
    four pages of the affidavit, detailing the detective's personal surveillance and
    video surveillance of defendants' presence at locations other than the DPR,
    which corroborated the time reported in defendants' DPR time sheets. The
    affidavit also stated the subpoenaed documents obtained from ADP corroborated
    the time billed.
    Because the detective did not provide the "routine" paragraph concerning
    CI #1144's past reliability, the issuing judge expressed concern about the CI's
    veracity. Notably, the judge asked the detective to amend paragraph seventeen
    to include his personal knowledge of the location of the items to be seized,
    thereby corroborating the source's information concerning the places to be
    searched.
    Our examination of the omissions in question satisfies us that those
    statements were not material, and that ample, unassailable evidence apart from
    those statements established probable cause for issuance of the warrant. In State
    v. Meighan, 
    173 N.J. Super. 440
    , 448 (App. Div. 1980), the affiant omitted that
    an eyewitness, who eventually identified the defendant, was unable to do so at
    first. In dicta, we concluded the defendant failed to meet the Franks standard,
    A-3822-18T1
    27
    i.e., "that the affiant's statements were materially untrue, that such untrue
    statements were made knowingly and intentionally or recklessly or that the
    magistrate would not have issued, or could not have found probable cause to
    issue, the warrant had he known all the facts." 
    Id. at 449.
    So too, in this case,
    the affidavit provided ample probable cause for the issuance of the warrant.
    Omitting any reference to the detective's one-time meeting with CI #1144, his
    or her anonymity when providing the documents through Wiley, and the State's
    apparent failure to strictly adhere to the Attorney General's SOP for vetting
    confidential sources when the defendants' time sheets were provided, 5 does not
    undermine that conclusion.
    E.
    We next address the State's contention that the motion judge improperly
    identified CI #1144 by full name in his decision, noting CI #1144's identity was
    not necessary to resolve the issues raised and defendants have not provided any
    authority to suggest otherwise. Moreover, the first motion judge denied Garcia's
    motion to disclose the CI, and the present motion judge adjourned Somick's
    motion in that regard. Accordingly, CI #1144 should not have been identified.
    5
    In any event, a deviation from the SOP does not automatically invalidate the
    State's action. See State v. Henderson, 
    208 N.J. 208
    , 278 (2011).
    A-3822-18T1
    28
    On remand, CI #1144's full name should be redacted forthwith from the judge's
    written decision and any related filings.
    F.
    Finally, in view of the motion judge's extensive findings regarding the
    veracity of the detective and deputy attorney general who approved the warrant,
    on remand the matter should be assigned to a different judge. See State v.
    Camey, ___ N.J. ___, ___ (2019) (slip op. at 36) (remanding and referring the
    matter for reassignment "[b]ecause the original judge made extensive credibility
    determinations about the witnesses"); see also State in the Interest of C.F., 
    458 N.J. Super. 134
    , 147 (App. Div. 2019) (quoting Entress v. Entress, 376 N.J.
    Super. 125, 133 (App. Div. 2005)) ("In an abundance of caution, we direct that
    this matter be remanded to a different judge for the plenary hearing to avoid the
    appearance of bias or prejudice based upon the judge's prior involvement with
    the matter . . . .").
    In light of our disposition on appeal, we need not reach the State's
    subsidiary argument that the motion judge impugned the reputations of the
    detective and the deputy attorney general who approved and reviewed the
    warrant application.
    Reversed and remanded. We do not retain jurisdiction.
    A-3822-18T1
    29