NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. STATE OF NEW JERSEY, v. Plaintiff-Respondent, TERRANCE D. HARRIS, a/k/a SHAKEEL DAWUD, DAVID HARRIS, TERRANCE HARRIS and TERRIN HARRIS, Defendant-Appellant. Submitted February 26, 2014 Decided March 21, 2014 Before Judges Grall and Accurso. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.

2 PER CURIAM Following a denial of his motion to suppress the evidence, defendant Terrance D. Harris pled guilty to second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), b(2). He was sentenced to an eight-year term of imprisonment with a four-year period of parole ineligibility. Defendant now appeals the denial of his motion to suppress the evidence. For the reasons that follow, we remand for further proceedings on the motion to suppress. The search was conducted at 5:00 a.m. on the morning of November 4, The State contended that the search was conducted pursuant to a warrant, but the warrant the Superior Court judge signed indicated that it was issued at 3:30 p.m. on November 4, The affidavit signed by Detective Steven W. Hadley of the Egg Harbor Township Police Department and the judge also bore the same date. Detective Hadley and the Chief Assistant Prosecutor for Atlantic County, Cary Shill, testified at the hearing. Although Detective Hadley did not recall the date on which he appeared before the judge and had not included the date in his investigation report, he knew that he obtained Mr. Shill's approval before bringing the affidavit to the judge in the Atlantic County Courthouse in Mays Landing. Mr. Shill recalled 2

3 ing the affidavit he approved to Detective Hadley at 10:55 a.m. on November 3, 2010, and he produced that at the hearing. Mr. Shill, however, was not with Detective Hadley when he went to the judge. Detective Hadley was able to identify what he described as a "log" officers must sign when they enter the court complex. He explained that the log is kept just inside the courthouse door at the metal detector and that an officer signs it before passing through the detector. Detective Hadley identified his signature and the time and date he had written in the log November 3, 2010 at 15:30. Log sheets from November 4, 2010 were also produced, and they do not include an entry indicating that the detective came to the courthouse that day. Detective Hadley also testified that he never secured a warrant after conducting a search. At the outset of the hearing on the motion to suppress, the State took the position that the defendant had the burden of proof. The State also takes that position in this appeal. The State is mistaken, however. The presumption of validity afforded to a search warrant does not attach until the State has established that the search warrant was issued. As our Supreme Court recently explained: A search based upon a warrant is presumed to be valid once the State 3

4 establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants. The burden of demonstrating the invalidity of such a search is placed upon the defendant. The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable. [State v. Robinson, 200 N.J. 1, 7-8 (2009) (quoting State v. Valencia, 93 N.J. 126, 133 (1983).] In this case, the judge presiding over the hearing on the suppression motion carefully reviewed the evidence and concluded that the judge who signed the warrant simply made a mistake and wrote down the wrong date. The judge's findings are supported by the record, based on his assessment of the credibility of the witnesses, and are entitled to deference. State v. Locurto, 157 N.J. 463, (1999). The difficulty is that the judge also referred to the presumption of validity that attaches to a search warrant in assessing the adequacy of the State's proofs. Because that misstatement of the law may have affected the court's assessment of the evidence, we cannot affirm the judge's determination. Accordingly, the matter is remanded for reconsideration in conformity with this opinion. On appeal, defendant moved to supplement the record with information he deemed relevant to the detective's credibility, 4

5 and we granted that motion. We have not, however, considered that new information in deciding this appeal. Accordingly, we leave the question of whether to allow supplementation of the record on the motion to suppress to the discretion of the judge on remand. Remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction. 5