NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3397-05T43397-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUINN MARSHALL,

Defendant-Appellant.

_________________________________________________

Argued December 12, 2007 - Decided

Before Judges Stern, C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indict-ment No. 05-02-0140.

Eric A. Gang, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Gang, on the brief).

Maura K. Tully, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Tully, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

FISHER, J.A.D.

Constitutional principles require that a search warrant issue only upon a finding of probable cause by a neutral and detached magistrate. We find the warrant in question unconstitutional because it issued despite the judge's implicit finding that the place to be searched was not sufficiently described and because the judge thereafter directed the police to ascertain the facts needed to accurately describe the place to be searched without further judicial oversight or review.

I

Defendant was indicted and charged with various drug and weapons offenses. Following a hearing and the denial of his suppression motion, defendant pled guilty to first-degree possession of a controlled dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:35-5(a)(1). He was sentenced to a twelve-year prison term with a four-year period of parole ineligibility.

In this appeal, defendant seeks our review of the denial of his motion to suppress as well as the sentence imposed. Because we agree that the search warrant was invalid, we reverse and remand. As a result, we need not reach defendant's arguments regarding the sentence he received.

The charges asserted against defendant emanated from a police investigation of Allen Daniels, who was suspected of distributing CDS in the Trenton area. After conducting several controlled buys, the police had cause to believe that Daniels was operating a drug distribution business out of locations on Hoffman Street and Sanhican Drive in Trenton, and out of an apartment in the Avalon Run Apartments in Lawrence Township. The police obtained warrants to search those premises.

Before executing those warrants, detectives arranged to have a confidential informant meet with Daniels to make another purchase of CDS. The informant contacted Daniels and met him at the Hoffman Avenue location; from there they drove to Wayne Avenue in Trenton. Daniels exited the vehicle and entered 105 Wayne Avenue. Soon thereafter, the officers observed Daniels and an unknown black male walk out of 105 Wayne Avenue, enter the car, and drive away. The informant later advised the police that the other person in the car was Daniels' cousin, defendant Quinn Marshall.

Based on this information, the police applied to a superior court judge for a search warrant. The supporting affidavit averred, however, that "[i]nformation received . . . reveals that there are two separate units inside 105 Wayne Avenue, Trenton," and it was not then known, and could not be learned "through normal surveillance efforts," which of the two apartments was being used by Daniels. Nevertheless, the police "request[ed] that a search warrant be issued for the apartment within the premises of 105 Wayne Avenue to which [Daniels] has possession, custody, control or access as previously described."

Based on this factual presentation, the judge issued a search warrant, which permitted a search of the 105 Wayne Avenue apartment that was in Daniels' "possession, custody, control or access," but "if and only if" probable cause could be established after the police "secured [Daniels] outside 105 Wayne Avenue" and "a search of [Daniels] reveals documentation or keys which identify the specific unit inside 105 Wayne Avenue to which [Daniels] has possession, custody, control, or access, or if he divulges such information to the officers executing the search warrant for his person." The warrant also commanded the police that "[i]n the event [they were] unable to identify the premises utilized by [Daniels] through the above mentioned means, this premises warrant [for 105 Wayne Avenue] will not be executed."

Thereafter, the police executed the previously obtained search warrant on the Avalon Run apartment. There they found Daniels. They advised Daniels of his Miranda rights and questioned him about 105 Wayne Avenue; a police officer later testified at the suppression hearing that Daniels eventually revealed that defendant stayed in the first floor apartment. The officer who interrogated Daniels at the Avalon Run apartment relayed this information to other officers. Those officers then executed the search warrant for 105 Wayne Avenue where defendant, CDS and other incriminating items were found in the first floor apartment.

Defendant was indicted as a result of what was obtained through execution of the warrant in question. He filed a suppression motion and, following an evidentiary hearing that spanned over parts of two days, the trial judge denied the motion. He found, after hearing the testimony of Daniels and the police officer who questioned Daniels prior to the search of 105 Wayne Avenue, that the conditions set forth in the warrant had been met. The trial judge also implicitly rejected defendant's argument that the warrant improperly delegated to the police the issuing judge's obligation to ascertain whether probable cause had been established.

II

The Fourth Amendment to the Constitution of the United States declares that the right of the people to be secure against unreasonable searches and seizures shall not be violated and that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article I, paragraph 7 of our state constitution is practically identical. This constitutional mandate imposes "a firm standard with respect to the essentials of a search warrant." State v. Macri, 39 N.J. 250, 256 (1963). It commands that the "crucial determination" of whether a search warrant should issue "is to be made not by the police but by a neutral issuing judge" and that "[b]efore the judge is in a position to make his determination for issuance, he must properly be made aware of the underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated." Id. at 257. To protect the freedom and privacy of the individual, the constitutional insistence that there be issued a search warrant to invade a citizen's premises in this manner, as Justice Jacobs said for the Court in Macri, "is not a mere formality but is a great constitutional principle embraced by free men." Id. at 255.

Of course, we do not mean to suggest that there are not exceptions to the warrant requirement. But the process of requiring a law enforcement officer to obtain a warrant is a constitutionally-established preference because it "interposes an orderly procedure," United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 95, 96 L. Ed. 59, 64 (1951), and requires the examination of law enforcement's factual presentation by a "neutral and detached magistrate," Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948). These constitutional principles also require that the application for a search warrant particularly describe the place to be searched so as to "prevent the police officer from entering property which he has no authority to invade." State v. Wright, 61 N.J. 146, 149 (1972).

At the time a warrant is sought, as we have already observed, the issuing judge must be made aware of the facts and circumstances that would "warrant a prudent man in believing that the law was being violated." Macri, supra, 39 N.J. at 257. See also Aguilar v. Texas, 378 U.S. 108, 111-12, 84 S. Ct. 1509, 1512-13, 12 L. Ed.2d 723, 726-27 (1964); State v. Petillo, 61 N.J. 165, 173 (1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1393, 35 L. Ed.2d 611 (1973). "Critical to [t]his analysis of the underlying facts and circumstances is the issuing judge's evaluation of the credibility of the affiant." State v. Fariello, 71 N.J. 552, 564 (1976). See also Petillo, supra, 61 N.J. at 173; State v. Burrachio, 39 N.J. 272, 274 (1963).

Whether probable cause has been established must be based upon what is actually presented to the issuing judge. Justice Coleman explained, in speaking for the Court in Schneider v. Simonini, 163 N.J. 336, 363 (2000), that "[w]hen a search or seizure is made pursuant to a warrant, the probable cause determination must be made based on the information contained within the four corners of the supporting affidavit, as [may be] supplemented by sworn testimony before the issuing judge that is recorded contemporaneously." See also Whiteley v. Warden, Wyo. Penitentiary, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 1035 n.8, 28 L. Ed.2d 306, 311 n.8 (1971) (holding that "an otherwise insufficient affidavit cannot be rehabilitated by testimony" at a later suppression hearing "concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate" because "[a] contrary rule would . . . render the warrant requirements of the Fourth Amendment meaningless"); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment