STATE OF NEW JERSEY VS. KENNETH JAMES (15-02-0121, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0783-17T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KENNETH JAMES,
Defendant-Respondent.
____________________________
Submitted December 19, 2018 – Decided March 19, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 15-02-
0121.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marcia H. Blum, Assistant Deputy Public
Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Paul H. Heinzel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kenneth James appeals from the trial court's order denying his
motion to suppress evidence – drugs and guns – seized from his home pursuant
to a search warrant. He advances a single argument on appeal:
BECAUSE THE AFFIDAVIT IN SUPPORT OF THE
SEARCH WARRANT WAS NOT BASED ON
PROBABLE CAUSE TO BELIEVE THAT
MARIJUANA, OR ANY CONTRABAND, WOULD
BE FOUND IN DEFENDANT'S HOME THE
SEARCH OF DEFENDANT'S HOME WAS
UNCONSTITUTIONAL, AND THE EVIDENCE
SEIZED MUST BE SUPPRESSED. 1
Contrary to defendant's argument, the search warrant connected defendant's sale
of marijuana to his home. Accordingly, we affirm.
Our review is governed by the well-established principles restated by our
Supreme Court in State v. Boone:
A search executed pursuant to a warrant is
"presumptively valid," and a defendant challenging the
issuance of that warrant has the burden of proof to
establish a lack of probable cause "or that the search
was otherwise unreasonable." State v. Watts, 223 N.J.
503, 513-14 (2015). Reviewing courts "accord
substantial deference to the discretionary determination
resulting in the issuance of the [search] warrant." State
v. Jones, 179 N.J. 377, 388 (2004). Courts consider the
"totality of the circumstances" and should sustain the
1
Although defendant's criminal case information statement mentions that his
sentence was excessive, that issue was not briefed. As such, we will not consider
that issue. State v. Amboy Nat'l Bank, 447 N.J. Super. 142, 148 n.1 (App. Div.
2016).
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2
validity of a search only if the finding of probable cause
relies on adequate facts. Id. at 388-89. "[T]he probable
cause determination must be . . . 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." State v. Marshall, 199 N.J. 602,
611 (2009).
[232 N.J. 417, 427 (2017) (alterations in original).]
Here, the sworn testimony of the affiant, presented to the issuing judge by
an experienced investigator attached to the Somerset County Prosecutor's Office
Organized Crime and Narcotics Task Force, described two identical police-
arranged drug sales by defendant to a confidential informant:
I met with the . . . confidential informant, at [a]
prearranged location, . . . searched the confidential
informant for any contraband U.S. currency and CDS
. . . with negative results, . . . monitored the confidential
informant . . . as they traveled directly to the area of
267 Lenox Place. . . . I watched the gentleman who I
previously identified as Kenneth James, exit the
residence, enter into a vehicle . . . the gray Acura . . .
leave the location and meet with a confidential
informant in a close proximity. . . . [A]fterward . . . I've
again still on this under strict surveillance I met with
the confidential informant who was again searched . . .
finding only the marijuana that . . . they stated was
acquired from Mr. Kenneth James.
Unlike the affidavit presented to the issuing judge in Boone, which did
not specify how the police knew that defendant lived in the apartment unit that
A-0783-17T2
3
was searched, id. at 422, the investigator here testified: he watched defendant
exit from his home and drive to a location "in close proximity" to meet with the
informant; the informant was surveilled "directly to the area of" defendant's
home; and the informant met with the investigator and turned over marijuana
which the informant said was purchased from defendant. The investigator also
recounted how the informant was searched for currency and drugs, both prior to
proceeding to the meet-location with defendant and upon meeting with the
investigator after the drug-sale was completed.
We utilize the familiar probable cause definition: "less than legal
evidence necessary to convict though more than mere naked suspicion," State v.
Sullivan, 169 N.J. 204, 210-11 (2001) (quoting State v. Mark, 46 N.J. 262, 271
(1966)), and recognize its characterization "as a common-sense, practical
standard for determining the validity of a search warrant," State v. Novembrino,
105 N.J. 95, 120 (1987). Appraising the totality of the circumstances, see id. at
122 (adopting the totality-of-the-circumstances test established by the United
States Supreme Court in Illinois v. Gates, 462 U.S. 213, 230-32 (1983)), we
determine that corroborative information twice linked the sale of marijuana by
defendant to his home so as to establish probable cause that marijuana would be
found there, see State v. Jones, 179 N.J. 377, 388 (2004) (holding that the
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warrant application must establish "that there is probable cause to believe that a
crime has been committed, or is being committed, at a specific location or that
evidence of a crime is at the place sought to be searched" (quoting Sullivan, 169
N.J. at 210)).
The proximity of defendant's home to the location to which both the
informant and defendant traveled to complete both sales of marijuana, coupled
with the investigator's observations of defendant leaving his home after the sale
had been arranged, makes it probable that the drugs were stored at defendant's
home or in the vehicle in which he drove to the meetings,2 thus supporting the
issuing judge's finding of probable cause to search the home. State v. Evers,
175 N.J. 355, 385 (2003) ("[T]he proofs in support of a search warrant will
continue to be examined in a common-sense and not a hypertechnical manner.").
Affirmed.
2
Defendant argues only that the affidavit did not establish probable cause to
search his home. He does not challenge that the affidavit established probable
cause for the search of the vehicle in which he drove to the meeting or his person.
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