NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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,
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:
That same day, the SOG set up surveillance of Zahn's automobile repair shop. The detective who conducted the 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.
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 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
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 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.
Defendant appeals and makes two arguments:
We give deference to the factual findings of a trial court when supported by sufficient credible evidence in the record.
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."
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.
Deference to a judge's issuance of a warrant, however, is "not boundless."
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."
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.
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.