STATE OF NEW JERSEY VS. THOMAS T. JONES (14-04-0385, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5871-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS T. JONES,
Defendant-Appellant.
________________________
Submitted October 8, 2019 - Decided November 21, 2019
Before Judges Accurso and Gilson.
On appeal from the Superior Court of New Jersey,
Law Division, Morris County, Indictment No. 14-04-
0385.
Joseph E. Krakora, Public Defender, attorney for
appellant (David J. Reich, Designated Counsel, on the
brief).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Paula Cristina Jordao, Assistant
Prosecutor, on the brief).
PER CURIAM
Following the denial of his motion to suppress evidence seized in a
warrantless car search, defendant Thomas T. Jones pleaded guilty to second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and was
sentenced to seven years in State prison with a three-and-one-half year period
of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). We
affirmed defendant's sentence on appeal but remanded for a Franks1 hearing to
address defendant's contention that the affidavit in support of the search
warrant, which police applied for after defendant revoked his consent to search
his trunk, omitted facts tending to show police did not have probable cause to
search beyond the car's interior. State v. Jones, No. A-3139-15 (App. Div.
July 25, 2017) (slip op. at 6-7).
As we explained in our prior opinion, the affidavit supporting the
warrant failed to note that the dog conducting a sniff of the car after the police
officer smelled burnt marijuana, only alerted at defendant's partially opened
driver's window. Id. at 2-3. Although walked around the entire car, the dog
did not alert at the trunk. Id. at 3. Police were obviously interested in
searching the trunk after a consent search of the car's interior revealed nothing
more than marijuana shake on the floor and center console, and defendant
1
Franks v. Delaware, 438 U.S. 154 (1978).
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would not permit them to search the trunk. Ibid. After obtaining the warrant,
police found the handgun in the trunk. Id. at 4.
On remand, Judge Enright took testimony from the sheriff's officer who
conducted the canine sniff, the police officer who made the stop and the
detective who submitted the affidavit on the application for the search warrant,
all called by defendant. The sheriff's officer testified that he and his dog,
Reno, were dispatched to the stop where he met with the arresting officer and
had the dog perform an exterior sniff of the car. He explained that Reno was a
"passive-trained" dog who would sit when he detected an odor of narcotics.
The officer explained the dog was trained to go where the odor was strongest,
and, in this case, he went twice to the open window of the driver's door. The
officer testified he let the arresting officer know there was a positive indication
on the exterior of the car and departed.
The police officer testified he was monitoring defendant and his
passenger and did not watch the canine sniff. He also testified he had never
had any canine training and "wouldn't even know what an exact hit would look
like." After concluding his walk around the car, the sheriff's officer simply
told him there was a hit, indicating the presence of drugs. The two did not
discuss where the dog had alerted. The officer stated he wrote his report of the
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stop between 4:00 to 5:00 a.m., noting "a positive indication on the exterior of
the vehicle," and left it for the detective who would apply for the search
warrant.
The detective testified he used the report to prepare his affidavit in
support of the application for the search warrant. He did not recall speaking
with the officer who prepared it. He explained he stated in the affidavit that
the dog hit on the exterior of the car because that was what was in the report,
nothing more specific. The detective claimed no one told him the dog had hit
twice on the open driver's window before he prepared the affidavit. He
testified he did not intentionally omit the information, he simply was not aware
of it.
In her cogent and comprehensive twenty-four page written opinion,
Judge Enright described the testimony of all three officers as "candid, direct
and unwavering," on both direct and cross-examination. Finding the officers
"highly credible," the judge concluded she could not find the failure to have
noted where the dog "hit on defendant's vehicle was a deliberate or reckless
omission." The judge noted defendant did not dispute that the sheriff officer's
report noting the exact location of the dog's alert was not prepared until three
weeks after the detective submitted his affidavit for the warrant. The only
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report available to the detective was the police officer's, which provided only
the general statement that "the dog hit on the 'exterior of the vehicle.'"
Judge Enright acknowledged that although the affidavit did not contain
any false statements, it did omit material information as to where the dog
alerted to the odor of drugs. The judge found, however, "after listening to the
credible testimony of all three officers" that defendant did not establish "the
omission was intentional or made with reckless disregard for the truth." See
Franks, 438 U.S. at 171. Instead, she found
it appear[ed] each officer provided specific, albeit,
limited, information he thought was appropriate either
during the incident, or when preparing a report of the
incident, applying for a search warrant or when [the
sheriff's officer] prepared his final report. Moreover,
given the undisputed facts surrounding the incident
. . . a reading of the search warrant affidavit itself does
not lead this court to conclude its content were tainted
by a deliberate or reckless omission.
On appeal, defendant raises two issues, arguing:
POINT I
THE TRIAL COURT ERRED IN CONCLUDING
THAT THE POLICE OFFICERS' WITHHOLDING
OF CRITICAL MATERIAL INFORMATION FROM
THE JUDGE HEARING THE WARRANT
APPLICATION WAS NOT DELIBERATE OR
RECKLESS.
POINT II
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THE WARRANT JUDGE WOULD NOT HAVE
APPROVED OF THE SEARCH WARRANT
APPLICATION HAD SHE BEEN APPRISED OF
THE MATERIAL INFORMATION THE POLICE
IMPROPERLY OMITTED FROM THE AFFIDAVIT
IN SUPPORT OF THE SEARCH WARRANT
APPLICATION.
We reject his arguments as without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). Defendant's arguments reduce to
quarrels with the trial judge's factual findings. Those findings, however,
which were obviously "substantially influenced by [her] opportunity to hear
and see the witnesses and to have the 'feel' of the case, which a reviewing court
cannot enjoy," State v. Johnson, 42 N.J. 146, 161 (1964), have ample support
in the record and are thus binding on appeal. See State v. Gamble, 218 N.J.
412, 424 (2014). Defendant has offered us no good reason to second-guess the
judge's conclusion that he failed to establish "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." State v. Sheehan,
217 N.J. Super. 20, 26 (App. Div. 1987).
Accordingly, we affirm the denial of defendant's Franks motion, thus
affirming his conviction, substantially for the reasons expressed in Judge
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Enright's statement of reasons accompanying the order of June 18, 2018. We
have nothing to add to her thoughtful and thorough analysis.
Affirmed.
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