STATE OF NEW JERSEY VS. ELIZABETH SANCHEZ (18-10-0825, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1572-19
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ELIZABETH SANCHEZ, a/k/a
ELY,
Defendant-Respondents.
____________________________
Submitted September 20, 2021 – Decided September 27, 2021
Before Judges Fasciale and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 18-10-0825.
Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary G. Markarian, Assistant Deputy
Public Defender, of counsel and on the briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Chief Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
After pleading guilty, defendant appeals from her conviction for third-
degree conspiracy to possess heroin, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:35-
5(b)(3).1 Defendant filed a motion to suppress and challenged search warrants
authorized by Judge Marilyn Clark. A different judge (the motion judge) denied
the motion concluding that defendant was not entitled to a Franks2 hearing.
After the motion judge denied reconsideration, defendant entered her guil ty
plea.
1
A Passaic County Grand Jury charged defendant with one count of first-degree
maintaining or operating a controlled dangerous substance (CDS) production
facility, N.J.S.A. 2C:35-4 (Count One); one count of third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1) (Count Two); one count of third-degree
possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-
5(b)(3) (Count Three); one count of third-degree of possession of heroin with
intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35 -7(a)
(Count Four); one count of second-degree possession of heroin with intent to
distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1(a) (Count
Five); one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1)
(Count Six); one count of second-degree possession of cocaine with intent to
distribute, N.J.S.A. 2C:35-5(a)(1), 2C:35-5(b)(2) (Count Seven); one count of
third-degree possession of cocaine with intent to distribute within 1000 feet of
school property, N.J.S.A. 2C:35-7(a) (Count Eight); one count of second-degree
possession of cocaine with intent to distribute within 500 feet of public property,
N.J.S.A. 2C:35-7.1(a) (Count Nine), and one count of third-degree financial
facilitation, N.J.S.A. 2C:21-25(a) (Count Ten). As part of the plea agreement,
the State dismissed these charges. Defendant reserved her right to appeal from
the denial of her motion to suppress. Defendant received a sentence of one year
of probation.
2
Franks v. Delaware, 438 U.S. 154 (1978).
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On appeal, defendant raises the following argument for this court's
consideration:
POINT I
[DEFENDANT] MADE A "SUBSTANTIAL
PRELIMINARY SHOWING" THAT THE
WARRANT AFFIDAVIT INCLUDED MATERIAL
FALSE STATEMENTS AND SHE WAS
THEREFORE ENTITLED TO A FULL FRANKS
HEARING. (Raised below).
We disagree and affirm.
I.
A search executed pursuant to a warrant enjoys the presumption of
validity. 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, 388-89
(2004)). The defendant 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, based
on facts within the officers' knowledge and of which they had reasonably
trustworthy information, there is "a reasonable ground for belief of guilt."
Marshall, 199 N.J. at 610 (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).
A-1572-19
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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.
2006) (citing State v. Kasabucki, 52 N.J. 110, 117 (1968)), modified on other
grounds, 189 N.J. 108 (2007). Nonetheless, "under certain circumstances, a
search warrant's validity may be questioned, in which case an evidential hearing
may be afforded." Ibid. (citing Franks, 438 U.S. at 155-56).
Where, as here, a defendant challenges the veracity of a search warrant
affidavit, a Franks hearing is required only "where 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." 438 U.S. at 155-56. The defendant "must allege
'deliberate falsehood or reckless disregard for the truth,' pointing out with
specificity the portions of the warrant that are claimed to be untrue." State v.
Howery, 80 N.J. 563, 567 (1979) (quoting Franks, 438 U.S. at 171).
To obtain a Franks hearing, a defendant's allegations should be supported
by affidavits or other reliable statements; "[a]llegations of negligence or
innocent mistake are insufficient." State v. Broom-Smith, 406 N.J. Super. 228,
A-1572-19
4
241 (App. Div. 2009) (quoting Franks, 438 U.S. at 171). The allegations "must
be proved by a preponderance of the evidence." Howery, 80 N.J. at 567-68. A
defendant must also demonstrate that absent the alleged false statements, the
search warrant lacks sufficient facts to establish probable cause. Id. at 568. If
a search warrant affidavit contains sufficient facts establishing probable cause
even after the alleged false statements are excised, a Franks hearing is not
required. Franks, 438 U.S. at 171-72.
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, 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.
If probable cause exists despite the errant information, the search warrant
remains valid, and an evidentiary hearing is unnecessary. See State v. Sheehan,
217 N.J. Super. 20, 25 (App. Div. 1987). 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, exclud ed material
A-1572-19
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information from the affidavit which, had it been provided, would have caused
the judge to refuse to issue the warrant, the evidence must be suppressed." Id.
at 26.
Because a search warrant is presumed valid, our "role is not to determine
anew whether there was probable cause for issuance of the warrant, but rather,
whether there is evidence to support the finding made by the warrant-issuing
judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). The issuing judge's
probable cause determination "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."
Schneider v. Simonini, 163 N.J. 336, 363 (2000) (citing State v. Novembrino,
105 N.J. 95, 128 (1987)). Finally, we review a judge's ruling on a motion for a
Franks hearing for abuse of discretion. Broom-Smith, 406 N.J. Super. at 239.
II.
Judge Clark authorized the searches relying on an affidavit submitted by
Paterson Police Detective Keith Calderon. After reviewing his affidavit, the
judge issued search warrants for 61-69 Park Avenue, Apartment 211 in Paterson,
40 Passaic Street, Apartment 1-A in Hackensack, a gold 2003 Mercedes Benz,
and a blue 2005 Toyota.
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Calderon stated that in June 2018, he met with a confidential informant
whose reliable information and cooperation previously resulted in numerous
narcotics arrests and convictions, as well as seizures of large quantities of drugs
and drug proceeds. The informant told Calderon that he/she knew of two
Hispanic men, "Skippy" and "Cuto," and a Hispanic woman, "Skippy's
Girlfriend," who distributed crack cocaine and heroin from Apartment 211 of
61-69 Park Avenue in Paterson.
The informant explained to Calderon that he/she had purchased crack
cocaine from the individuals several times in the past few months. The
informant described Cuto as a "medium[-]skinned male, approximately [five
foot five inches] in height," "weighing 230 pounds" in his "mid [forties]."
Skippy drove a gold Mercedes Benz, and Skippy's girlfriend drove a blue Toyota
and a white Honda. Calderon identified Skippy as Pedro Anaya 3 and Skippy's
girlfriend as Elizabeth Sanchez. The informant later confirmed these
identifications after being shown their photographs from law enforcement
databases.
3
Pedro Anaya was charged in the same indictment as committing the same
offenses as defendant.
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The informant detailed the system for purchasing the CDS. The informant
would call Skippy, request a quantity of drugs, then go to 61-69 Park Avenue to
meet either Skippy, Skippy's girlfriend, or Cuto in either the foyer or outside the
apartment to pick it up. The informant explained that either Skippy or Cuto
would retrieve the CDS from their parked vehicles. The informant no ted that
Cuto is often the individual who conducts the CDS transactions from 61-69 Park
Avenue, and that at night, Skippy receives a plastic bag from Cuto containing
drug proceeds, which he would then bring to his girlfriend's residence before
returning to 61-69 Park Avenue.
Calderon planned to conduct a controlled purchase of CDS from Anaya,
Sanchez, and Hiram Ramos4 with the informant's help. On the week of July 8,
2018, Calderon met with the informant at a predetermined location while
Detective Sebastian Gomez surveilled the informant using the city's camera
system and Detectives Jason English and Jovan Candelo established physical
surveillance at the purchase location. Calderon gave the informant money to
purchase a predetermined amount of heroin. The informant called Anaya's
cellphone "in a manner in which [Calderon could] overhear the conversation."
4
Hiram Ramos was also charged in the same indictment with committing the
same offenses as defendant and Pedro Anaya.
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A man answered the phone, which the informant later identified as Anaya. The
informant and Anaya agreed upon a price for the heroin and arranged the
purchase.
The informant and Calderon traveled to 61-69 Park Avenue to purchase
the heroin, where Ramos met him in front of the building and allowed him inside
with a key. A minute later, the informant exited the building and returned to
Calderon with the heroin. The informant explained that Ramos allowed him
inside the building, and the two exchanged cash for heroin. Police tested the
substance Ramos provided, which confirmed the substance was heroin.
That same week, Calderon and Candelo conducted surveillance at 61-69
Park Avenue. They observed a "dark-skinned male" engage in what appeared
to be a drug deal. The male spoke on his cellphone, and two minutes later , the
detectives observed Ramos open the main entrance door of the apartm ent
building. The male handed Ramos money in exchange for a "small item," which,
based on the informant's description of Anaya, Sanchez, and Ramos's dealings,
they believed was a narcotics transaction. Approximately thirty minutes later,
the detectives observed a gold Mercedes Benz driven by Anaya double-park in
front of 61-69 Park Avenue. Ramos exited the building, walked to the car, and
handed Anaya "a plastic bag . . . square in shape." The detectives believed that
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the bag contained drug sale proceeds based on the informant's description of
prior buys. The detectives followed Anaya to 40 Passaic Street in Hackensack.
Sanchez exited the building, entered the vehicle, then shortly exited and
reentered the building. Anaya then returned to 61-69 Park Avenue and used a
key to enter the building.
During that same week, the detectives conducted a second controlled
purchase of CDS. Again, Detective Gomez surveilled the informant using the
city's camera system, and Detectives English and Candelo established physical
surveillance at the apartment building. The informant was again given money
to purchase a specific amount of crack cocaine. The informant called Anaya,
the two again agreed upon a price for the specific amount and arranged the
purchase.
While Calderon and the informant were en route to 61-69 Park Avenue,
English observed Sanchez exit a gold Mercedes Benz and enter 61-69 Park
Avenue using a key. The informant arrived at 61-69 Park Avenue, parked near
the building, and three minutes later, Detective Gomez saw Anaya exiting the
building and entering the informant's vehicle. Shortly after, Anaya exited the
informant's vehicle and returned to the building using a key. The informant then
drove, while under surveillance, to a predetermined location to surrender the
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crack cocaine. The informant noted that Anaya exited the building, entered his
vehicle, and handed them the crack cocaine before returning to the building.
Police tested the substance Anaya provided, which confirmed the substance was
crack cocaine.
Again, during the week of July 8, 2018, Detectives Gomez and Calderon
conducted surveillance at 61-69 Park Avenue. Detective English located a gold
Mercedes Benz, blue Toyota, and white Honda parked near 61-69 Park Avenue.
Detectives Gomez and Calderon observed Ramos exit the building with an
object in his hand. A dark-skinned male walked towards Ramos, which Ramos
"acknowledged . . . by slightly raising his head." The male handed money to
Ramos in exchange for the object in Ramos's hand, and Ramos returned to the
building. About thirty minutes later, the detectives observed Sanchez exit the
building with a square-shaped plastic bag and enter a blue Toyota. Detectives
English, Gomez, and Calderon followed Sanchez as she drove from the
apartment building to 40 Passaic Street and observed Sanchez enter the
residence with the bag.
Based upon this information, on July 19, 2018, Detective Calderon
requested and obtained a "knock and announce" search warrant for Anaya,
Sanchez, Ramos, 61-69 Park Avenue, Apartment 211, 40 Passaic Street,
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Apartment 1-A, the gold Mercedes Benz, and the blue Toyota. On July 20, 2018,
detectives executed the search warrants. Detectives English, Gomez, and
Calderon arrested Ramos and Anaya at 61-69 Park Avenue, and a search of the
apartment revealed "nine bricks of heroin, . . . a knotted bag containing
suspected crack cocaine, and a knotted bag containing suspected cocaine," a
total of $2,280 in cash, and drug paraphernalia. At 40 Passaic Street, Detectives
Bailey and Montoya arrested Sanchez. Sanchez informed the officers that she
had $920 in a Domino sugar container and $20,000 inside of a Kool-Aid
container with a false bottom.
After the motion judge denied defendant's motion to suppress, she filed a
motion for reconsideration based on evidence submitted purporting to
demonstrate that the phone number called to arrange the controlled purchase of
CDS was registered to a "Derrick Jeter." 5 Defendant provided telephone records
subpoenaed from Sprint showing that on February 9, 2018, Sprint canceled the
account associated with the phone number used to arrange drug transactions with
Anaya in July 2018 for late payments. Additionally, defendant submitted
telephone records subpoenaed from MetroPCS/T-Mobile showing that an
5
There is no connection to the baseball player who spells his name as Derek
Jeter.
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account was opened for this number on June 8, 2018, registered with an account
name of "Derrick Jeter" and a subscriber name of "Blue Jay." Both defendant's
investigator and the Passaic County Prosecutor's Office called and spoke wit h
Jeter, who stated that he did not have any knowledge of the matter or the
individuals involved and refused a request to provide a statement. The motion
judge denied reconsideration.
The motion judge considered the new information regarding Jeter and his
ownership of the cellphone number. She explained that the evidence is not
"game[-]changing to merit reconsideration because defendant has not
established that . . . Jeter is not entirely connected with the defendants in this
case." The motion judge noted that defendant provided no certification to
support Jeter's statement, and "[j]ust because the number's no longer registered
to the defendant and her codefendants doesn't necessarily show that . . . Jeter
was not just trying to be as cautious as the defendants were given the nature of
the drug dealing business." Additionally, the judge determined that the
detectives provided sufficient corroborated information: the informant's
identification of the defendant and her codefendants, including their vehicles,
weights, and heights; confirmation of the informant's identification using photos
in the police's database; confirmation of defendant and her codefendants'
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criminal histories involving CDS; and two controlled purchases of CDS.
Additionally, "police observed what appeared to be drug transactions by others
at the target locations."
The motion judge concluded that defendant failed to demonstrate that the
inclusion of the cellphone number "was a reckless disregard for the truth." The
detectives corroborated that the number dialed was used to arrange two CDS
transactions because the informant and the individual receiving the call to the
cellphone number agreed on the price and specific amount of CDS and
completed the transaction twice, suggesting that the number was "somehow
affiliated . . . with the defendants." The motion judge determined that "the
evidence does not show a willful misstatement by the police, nor that . . . Jeter
is not a part of . . . defendant's operation," and that while Jeter may have stated
that he had no affiliation with defendant and her codefendants, "[t]he fact that
the defendants are very careful may explain why the number is now registered
to Blue Jay and owned by . . . Jeter." Further, the judge noted that "the affidavit
may have [at] best contained a misrepresentation or a misstatement," but there
was "no evidence that . . . Calderon recklessly disregarded the truth to warrant
relief under Franks," and even if the information was excised from the search
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warrant affidavit, "there is certainly sufficient probable cause to allow the search
warrant to be issued."
Defendant failed to make a substantial preliminary showing that the
inclusion of the cellphone number in the warrant affidavit was a material falsity.
And even if defendant satisfied her preliminary showing, which is not the case,
and assuming further that the information was then excised from the affidavit,
we conclude that the remaining information contained in the search warrant
affidavit established sufficient probable cause. We, therefore, see no abuse of
the motion judge's discretion by denying a Franks hearing.
Affirmed.
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