                                      RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3821-18T1
                                                                     A-3822-18T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

WALTER J. SOMICK and
ABRAHAM GARCIA,

          Defendants-Respondents.


                   Argued August 5, 2019 – Decided August 21, 2019

                   Before Judges Sabatino, Rose and Mitterhoff.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Hudson County,
                   Indictment Nos. 15-07-0107 and 15-07-0108.

                   Frank Muroski, Deputy Attorney General, argued the
                   cause for appellant (Gurbir S. Grewal, Attorney
                   General, attorney; Frank Muroski, on the brief).

                   Brian J. Neary argued the cause for respondent Walter
                   Somick (Law Offices of Brian J. Neary, attorneys;
                   Brian J. Neary, of counsel and on the brief; Jane M.
                   Personette, on the brief).
             John D. Lynch argued the cause for respondent
             Abraham Garcia (John D. Lynch, attorney, joins in the
             brief of respondent Walter Somick).

PER CURIAM

       By leave granted, the State appeals from a March 11, 2019 order

suppressing evidence seized from municipal premises pursuant to a search

warrant. A Law Division judge granted the motion filed by defendants Walter

J. Somick and Abraham Garcia, following a Franks hearing.1           The State

primarily contends the motion judge improperly concluded the detective's sworn

affidavit, submitted in support of the warrant application, included multiple

willfully false and misleading statements and omitted other material statements.

       These appeals, which we consolidated for purposes of our opinion,

essentially require us to decide whether the purported misstatements and

omissions were material, thereby vitiating the issuing judge's finding of

probable cause to support the warrant application.     In particular, the State

advances the following arguments on appeal:

             [POINT I]

             THE JUDGE'S SUPPRESSION OF THE FRUITS OF
             THE SEARCH WARRANT BASED ON HIS


1
    Franks v. Delaware, 438 U.S. 154 (1978).


                                                                        A-3822-18T1
                                       2
            SIGNIFICANT LEGAL AND FACTUAL ERRORS
            SHOULD BE REVERSED.

            A. The judge erred in even granting defendants a
            Franks hearing to challenge the search-warrant
            affidavit.

            B. The judge improperly shifted the burden to the State
            in finding that the affiant's alleged omission was a
            deliberate falsehood in the affidavit.

            C. Not only were there no deliberate falsehoods in the
            affidavit, but the judge's misperceived omissions were
            immaterial in any event.

            D. The judge grossly erred in naming in his ruling
            who[] defendants thought was the confidential
            informant.

            E. Given the judge's manifest hostility toward the
            State's case and its witnesses and the pre-judgmental
            nature of the judge's handling of the matter from the
            beginning, this case should be returned to a different
            judge.

After reviewing the record in light of these contentions, and the applicable law,

we reverse and vacate the order granting suppression, and remand the matter to

the Law Division for further proceedings consistent with this opinion.

                                       I.

      Because we conclude the motion judge erred in his analysis, we

commence our review with a summary of the relevant legal principles to give



                                                                         A-3822-18T1
                                       3
context to the judge's decision and the sufficiency of the search warrant

application.

      Ordinarily, we "must uphold a trial court's factual findings at a motion-to-

suppress hearing when they are supported by sufficient credible evidence in the

record." State v. Hathaway, 222 N.J. 453, 467 (2015) (citing State v. Elders,

192 N.J. 224, 244 (2007)). We owe no such deference, however, to the court's

interpretation of the law. Ibid. Whether a search warrant was supported by

adequate probable cause is a question of law, which we review de novo.         See

State v. Handy, 206 N.J. 39, 44-45 (2011).

      A search executed pursuant to a warrant enjoys the presumption of

validity. See 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,

389 (2004)). The defendant, therefore, 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 there is "a reasonable ground for belief of guilt" based on




                                                                          A-3822-18T1
                                        4
facts of which the officers had knowledge and reasonably trustworthy sources.

Marshall, 199 N.J. at 610 (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).

      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.

2016), modified on other grounds, 189 N.J. 108 (2007) (citing State v.

Kasabucki, 52 N.J. 110, 117 (1968)).               Nonetheless, "under certain

circumstances, a search warrant's validity may be questioned, in which case an

evidential hearing may be afforded." Ibid. (citing Franks v. Delaware, 438 U.S.

154, 155-56 (1978)).

      Pursuant to Franks and its progeny, the Fourth Amendment requires the

court to hold a hearing at the defendant's request only if 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[.]" Franks, 438 U.S. at 155-56; see also State v.

Howery, 80 N.J. 563, 567-68 (1979). 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,


                                                                            A-3822-18T1
                                         5
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.

      Similarly, "[t]hese requirements apply where the allegations are that the

affidavit, though facially accurate, omits material facts." State v. Stelzner, 257

N.J. Super. 219, 235 (App. Div. 1992). An omission is deemed material if the

issuing judge likely would not have approved the warrant if the judge had been

apprised of the omitted information. State v. Sheehan, 217 N.J. Super. 20, 25

(App. Div. 1987). However, "[t]he test for materiality is whether inclusion of

the omitted information would defeat a finding of probable cause; it is not . . .

whether a reviewing magistrate would want to know the information." State v.

Smith, 212 N.J. 365, 399 (2012).

      If probable cause exists despite the errant information, the search warrant

remains valid and an evidentiary hearing is unnecessary. See Sheehan, 217 N.J.

Super. at 25. 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, excluded material

information from the affidavit which, had it been provided, would have caused


                                                                          A-3822-18T1
                                        6
the judge to refuse to issue the warrant, the evidence must be suppressed." Id.

at 25-26.

      We pause to note the State did not move for leave to appeal from the

judge's oral decision granting the Franks hearing, nor the ensuing orders denying

the State's motion for reconsideration. We therefore decline to consider the

State's Point IA on appeal. See Towpath Unity Tenants Ass'n v. Barba, 182 N.J.

Super. 77, 81 (App. Div. 1981) (limiting appellate review of a specific

interlocutory order for which leave to appeal has been granted); see also State

v. King, 387 N.J. Super. 522, 528 n.1 (App. Div. 2006) (noting the defendant

did not seek leave to appeal from a specific provision of a judge's order); State

v. Rambo, 401 N.J. Super. 506, 520 (App. Div. 2008) ("It is a fundamental of

appellate practice that we only have jurisdiction to review orders that have been

appealed to us.").   We therefore confine our review to the order granting

suppression following the hearing.

                                       II.

      Applying the guiding principles stated above, we turn to the pertinent facts

and procedural history from the record before the motion judge.

      By way of background, the dispute over the veracity of the affidavit arose

following defendants' separate State grand jury indictments for second-degree


                                                                          A-3822-18T1
                                        7
official misconduct, N.J.S.A. 2C:30-2; third-degree theft by deception, N.J.S.A.

2C:20-4; third-degree tampering with public records or information, N.J.S.A.

2C:28-7(a)(1) and (2); and fourth-degree falsifying records, N.J.S.A. 2C:21-

4(a).2 The charges emanated from allegations that defendants "ma[de] and

submit[ted] false and fraudulent time sheets to the Township of North Bergen"

and "receive[d] paid compensation to which [they] were not entitled" during the

course of their employment with the Township's Department of Parks and

Recreation (DPR).

      The affiant was the sole witness to testify at the three-day Franks hearing,

which intermittently spanned ten months. Defendants did not testify nor present

any witnesses on their behalf. 3 Among other documents, the twenty-one-page

affidavit supporting the search warrant was admitted in evidence.


2
   The matters were venued in Hudson County. Before the matters were
consolidated, Garcia filed pretrial motions. Another judge denied Garcia's
motions to dismiss the indictment and disclose the identity of the confidential
informant named in the affidavit; and adjourned Garcia's motion to suppress
evidence seized pursuant to the search warrant. After the matters were
consolidated, Somick filed similar motions, which were assigned to the judge
who decided the motion under appeal. After granting the Franks hearing that is
the subject of this appeal, the motion judge reserved decision on the remaining
motions, which apparently are still pending.
3
   Although defendants bore the burden of proof at the hearing, Jones, 179 N.J
at 388, the detective testified on behalf of the State. Apparently, the judge held


                                                                          A-3822-18T1
                                        8
      The warrant authorizing the search of the DPR's administrative and

clerical offices and a Township storage facility was issued on March 2, 2015. It

was supported by the affidavit of a detective, who was assigned to the Division

of Criminal Justice Corruption and Fraud Bureau (Division) for four years as of

that date.

      As set forth in the affidavit, the detective had extensive training and

experience in investigative procedures, including surveillance, witness

interviews, and "the writing and execution of numerous search warrants."

Notably, the detective did not include public document requests pursuant to the

Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13 as one of those

procedures.   Prior to his four-year employment with the Division, he was

employed as an officer and detective with the Princeton Police Department.

During his combined law enforcement experience, the detective "ha[d]

conducted dozens of investigations involving different types of criminal

activity, specifically related to white collar crimes and theft, fraud and the

falsification of documents."




an off-the-record conference in chambers "regarding the procedural manner in
which th[e] hearing w[ould] proceed." The State did not object, on the record,
to that procedure.
                                                                        A-3822-18T1
                                       9
      The probable cause section of the affidavit is set forth in paragraphs six

through twenty-one. The introductory paragraphs of that section disclose the

genesis of the Division's investigation of defendants. In sum, in April 2011, the

Division commenced an investigation of the "misus[e] of department manpower,

equipment, and material" by James Wiley, a former superintendent of the

Township's Department of Public Works (DPW). The following year, Wiley

pled guilty to second-degree conspiracy to commit official misconduct, N.J.S.A.

2C:5-2, for misusing DPW resources at his residence.         Thereafter, "Wiley

became a cooperator with the Division's ongoing investigation into various

allegations of criminal activities involving several municipal bodies of the

Township of North Bergen."

      According to the next paragraph of the affidavit, "Wiley provided details

and information regarding the ongoing 'no show' employment of several

individuals, including [defendants] . . . ." Garcia was employed full time as the

security supervisor for the Township's Board of Education (BOE) and an

assistant coach for the high school's football team. However, Garcia allegedly

submitted time sheets reflecting he worked twenty-one hours per week with the

DPR. Somick periodically contracted to perform electrical work for the BOE,




                                                                         A-3822-18T1
                                      10
but allegedly submitted time sheets reflecting he consistently performed sixty

hours of work, per two-week pay period, as a DPR employee.

      The following paragraph summarizes the investigative procedures

personally undertaken by the detective to support the warrant application. In

particular, the detective, "conducted both physical and electronic surveillance,

using pole cameras placed at [defendants'] residences, in order to determine

whether either, or both, were being compensated by the DPR for work or

services that they had not or could not have performed." Those investigative

steps, as set forth more specifically in other paragraphs, are undisputed; the crux

of the issue in these appeals arises from statements in, and omissions from, the

ensuing paragraphs.

      For example, the affidavit provides (emphasis added):

            To further my investigation, I was assisted by a
            confidential informant, CI #1144, an employee of the
            Township of North Bergen, who provided to me copies
            of time sheets that [defendants] submitted to the DPR
            on a bi-weekly basis . . . starting in the Fall of 2013
            . . . [and continuing through] the months that followed
            installation of the pole camera [on Somick's residence
            on October 3, 2014].

      According to the detective's testimony at the hearing, CI #1144 did not

tender copies of defendants' time sheets directly to him, but rather provided the

documents to Wiley from Fall 2013 to December 2014. Wiley, in turn, furnished

                                                                           A-3822-18T1
                                       11
the documents to the detective as part of his ongoing cooperation with the

Division. CI #1144 utilized Wiley as a "middleman" because he or she wished

to remain anonymous, and CI #1144 "knew that Mr. Wiley was a cooperating

witness and had the ear of the [S]tate's corruption bureau."          Although the

detective knew CI #1144 worked for the Township during the course of the year

that he or she provided the documents, he did not learn CI #1144's identity until

their meeting on December 10, 2014.

      At that December 10 meeting, CI #1144 was conferred confidential

informant status. Thereafter, CI #1144 did not provide any other documents

through Wiley or directly to the detective, nor did they partake in any other

meetings. The detective testified at the hearing he did not include in his affidavit

the date on which CI #1144 became a confidential informant because he did not

believe that fact was material, i.e., that date "had no bearing or effect on the

case" because it did not "point to . . . any specific actions or illegality o [f] any

kind of conduct."

      Because the detective did not believe Wiley's position as the middleman

was material to a probable cause determination, he did not include that fact in

his affidavit. The detective elaborated:

             Mr. Wiley had no independent knowledge of the
             validity or v[e]racity of these documents. These

                                                                             A-3822-18T1
                                        12
            documents were simply being relayed through Mr.
            Wiley from the confidential informant. And by that I
            mean he had no first[-]hand knowledge of where the
            documents came from or that they were real.

      To gauge the reliability of the documents, at the December 10 meeting,

the detective "reviewed each and every one of th[e] documents with the

confidential informant who confirmed to [him] that the[y] were photocopies of

original documents that had not been disturbed as they existed in town hall

. . . ." Among other things discussed during that meeting, CI #1144 specified

the location within the Township's facilities of the documents to be seized.

Based on his personal observations during other investigations, the detective

knew the Township archived the documents in the storage facility identified by

CI #1144.

      Following his meeting with CI #1144, the detective issued a grand jury

subpoena to Automatic Data Processing, Inc. (ADP), the Township's payroll

service provider. The ADP payroll records confirmed defendants "had been paid

for the same amount of hours per period" as submitted to the DPR. Paragraph

sixteen of the affidavit specifies that corroboration.

      Thereafter, the detective drafted an application for a warrant to search the

administrative and clerical offices located in the DPR and the Township's

storage facility. Of note, the warrant application not only requested defendants'

                                                                          A-3822-18T1
                                       13
original time sheets, but also encompassed several categories of documents and

records pertaining to DPR "employees from 2010 to the present." Those items

included:

            employee personnel files, disciplinary files, job
            descriptions, lists of current or former employees, time-
            keeping files, payment files, payroll and wage
            sheets/records, overtime sheets/records, overtime
            certification reports/records, sign-in or roll-call sheets,
            attendance sheets, Supervisors' daily reports,
            assignment reports, work reports, work orders, tasks,
            duties, overtime assignment reports, responsibilities,
            vehicle assignments, whether permanent or temporary,
            truck/equipment/vehicle         logs,     responsibilities,
            equipment assignments, requests or grants for any type
            of leave or time off from work, records of time worked,
            records of time off, and any record of accountability,
            whether written, typed, recorded or stored in digital or
            computer form.

      According to the detective's testimony at the Franks hearing, he and two

deputy attorneys general assigned to the investigation met with the issuing judge

who "had a few general questions and specifically asked about the v[e]racity of

the confidential informant[,] noting that there was no language in [the affidavit]

asserting that the confidential informant had provided reliable information in the

past." See State v. Smith, 155 N.J. 83, 93 (1998) (recognizing an informant's

veracity and basis of knowledge for the information supplied are two important

factors in determining whether the informant's tip supports probable cause for


                                                                          A-3822-18T1
                                       14
issuance of a warrant). The detective informed the issuing judge he omitted that

routine paragraph because he did not have a prior relationship with the

confidential informant. However, the detective told the issuing judge about his

personal knowledge of the Township's storage facility for the documents at

issue.

         Pursuant to the issuing judge's request, the detective then added the

following language to paragraph seventeen, which begins with the detective's

"discussions with CI #1144" about the informant's knowledge of the municipal

premises to be searched:

              Through my experiences on unrelated matters, I also
              have personal knowledge to corroborate the use of th[e]
              basement area [of the Law and Public Safety Building]
              by the Township of North Bergen as a storage and
              archiving facility for other [d]epartments. I have
              visited this location previously on another matter, and
              have observed archived payroll documents and other
              documents stored within this area, as corroborated by
              my discussions with CI #1144.

         Oral argument on the suppression motion was held nine months after the

conclusion of the detective's testimony. The motion judge reserved decision and

thereafter issued a lengthy written decision ultimately finding, for a confluence

of reasons, "the State in its warrant application engaged in material omissions

and misstatements that were included intentionally and those omissions and


                                                                         A-3822-18T1
                                       15
misstatements were necessary to the finding of probable cause." According to

the motion judge:

            In this case, the State, in lieu of an OPRA request or in
            lieu of following its own protocols, chose to make
            deliberate misstatements to mislead the issuing judge
            into believing that a properly vetted source with lawful
            access to government documents and the authority to
            remove those documents had been working for and with
            the State for an extended period of time to build a case
            against . . . defendants. This was simply not true, there
            was never any privity between the State and the would-
            be informant until after all documents had been
            delivered and thus these deliberate misstatements were
            necessary to attempt to sanitize the State's behavior
            during its warrant application process.

Concluding defendants "met both prongs of the Franks material false statement

test and alternatively, the Sheehan material omission test[,]" the judge

suppressed the evidence seized from the municipal premises. This interlocutory

appeal followed.

                                      III.

      Based on our de novo review of the record, Handy, 206 N.J. at 44, we

conclude the motion judge erred in his analysis and improperly suppressed the

evidence seized from the municipal premises. We do so for multiple reasons.




                                                                        A-3822-18T1
                                      16
                                         A.

      Initially, the motion judge determined "defendants had no reasonable

expectation of privacy in the payroll documents at issue, and under normal

circumstances these documents would not be subject to a suppression motion if

obtained through an OPRA request." We agree with the judge that defendants

had no reasonable expectation of privacy in their time sheets. See e.g., State v.

Sloane, 193 N.J. 423, 435-37 (2008) (citing Doe v. Poritz, 142 N.J. 1, 28 n.8

(1995)). Those payroll records are public records. See N.J.S.A. 47:1A-10.

      We part company, however, with the judge's determination that "[t]he

State bypassed the legal OPRA channel to obtain the documents at issue . . . ."

The judge's suggestion that the State was duty-bound to make an OPRA request

for defendants' time sheets is misplaced and unsupported by any authority.

Indeed, law enforcement is not obligated to utilize OPRA before, during or after

it utilizes a particular, chosen investigative path. Contrary to the judge's finding,

see Hathaway, 222 N.J. at 467, there is no evidence in the record that the State

considered – or should have considered – an OPRA request as an option to

receiving the time sheets from CI #1144, even though he or she had not yet been

formally vetted as a confidential informant.




                                                                             A-3822-18T1
                                        17
      Notably, the detective testified he did not consider issuing a grand jury

subpoena for the original time sheets and the other documents itemized in the

warrant because he was concerned about the destruction of evidence. Therefore,

even if an OPRA request were a law enforcement tool, the detective would have

had the same concerns in utilizing that procedure. We therefore disagree with

the motion judge's finding that the reason for not pursuing an OPRA request was

pretextual where, as here, the detective testified law enforcement had not ruled

out whether defendants' supervisors were complicit in their alleged criminal

activity.

                                       B.

      We next address the motion judge's application of State v. Saavedra, 222

N.J. 39 (2015), to the facts of the present case, and his conclusion that CI #1144

was involved in the same "official misconduct" as the defendant in Saavedra.

Unlike CI #1144, the defendant in Saavedra was a North Bergen BOE employee,

who "removed or copied" hundreds of original and photocopied documents to

support her employment discrimination case against the Board.              Unlike

defendants' time sheets, here, the documents in Saavedra contained "highly

confidential student educational and medical records that were protected by

federal and state privacy laws." The defendant moved to dismiss the indictment


                                                                          A-3822-18T1
                                       18
for official misconduct and theft by unlawful taking, claiming immunity under

Quinlin v. Curtiss-Wright Corp., 204 N.J. 239 (2010), because she intended to

use the documents to support her employment discrimination civil suit.

Saavedra, 222 N.J. at 46-47.

      The Court in Saavedra upheld the indictment, reasoning the State had

presented prima facie evidence of official misconduct based on testimony before

the grand jury that "the documents contained highly confidential and private

information about students, that [the] defendant was not given permission to

have them in her personal possession, . . . [the] defendant's conduct violated the

Board's confidentiality policies . . . [and her conduct] was unauthorized by her

employer." Id. at 61. Further, in addressing the theft by unlawful taking charge,

the Court observed "a significant portion of those documents were the Board's

'original' copies . . . and others were photocopies that served as the Board's sole

file copy, the removal of which left the Board without the document in its files."

Id. at 62.   Accordingly, the State presented prima facie evidence that the

documents were taken "'with purpose to deprive' the Board of them." Ibid.

      Significantly, in Saavedra, the State demonstrated the defendant's

conduct, if proven, violated federal and state privacy laws, and contravened the

Board's internal confidentiality policies. Notwithstanding their burden, here,


                                                                           A-3822-18T1
                                       19
defendants failed to present evidence that CI's #1144's conduct violated any

statute, regulation or policy, nor do they contend the timesheets are confidential.

Rather, in their merits brief, defendants argue "it is not known what other

records, perhaps containing sensitive and confidential information, CI #1144

accessed in . . . pursuit of . . . defendants' payroll records." That contention is

mere speculation.

      As we stated above, the judge expressly found defendants' time sheets

were public records. Further, unlike the defendant's conduct in Saavedra, CI

#1144 provided photocopied time sheets to the State; the originals were retained

in the DPR's files. Unlike the Board in Saavedra, the DPR was not deprived of

the information contained in the time sheets. Unlike the defendant in Saavedra,

who was charged with official misconduct, CI #1144 provided the documents to

the State to disclose defendants' alleged official misconduct.

      Moreover, Saavedra, which was decided after the detective drafted the

warrant application in the present matter, did not announce a bright-line rule,

nor conclusively decide the illegality of the defendant's conduct. As the motion

judge here acknowledged, the Court in Saavedra "did not bar an application of

a claim of right defense, if asserted at trial. See [i]d. [at 47]." The motion judge




                                                                            A-3822-18T1
                                        20
also acknowledged, by taking judicial notice at the hearing, that the Court

decided Saavedra after the detective drafted the affidavit, here.

       Importantly, the detective testified he did not suspect CI #1144 illegally

procured defendants' time sheets, and "discussed . . . with the [issuing] judge

that the documents were obtained by a [T]ownship of North Bergen employee[,]

who was making copies and providing them to [the Division's] investigation on

an ongoing basis." The issuing judge expressed no concerns to the detective that

the documents might have been illegally obtained by CI #1144. Thus, based on

the record before us, we conclude the Court's holding in Saavedra does not

compel suppression of the subject documents in the present case.

                                       C.

      We next consider the judge's determination that "suppression [wa]s proper

where an Attorney General [d]etective (and the [d]eputy [a]ttorney [g]eneral,

. . . who reviewed and approved the affidavit) made no less than seven . . . false

statements that were necessary for a finding of probable cause in [the]

application for [the] search warrant." According to the judge:

            Misstatement 1) "To further my investigation, I was
            assisted by a confidential informant, CI #1144, an
            employee of the Township of North Bergen, who
            provided to me copies of time sheets that [defendants]
            submitted to the DPR on a bi-weekly basis." . . .


                                                                          A-3822-18T1
                                       21
            Misstatement 2) "CI #1144, provided to me time sheets
            as submitted to the DPR by or on behalf of [defendants]
            starting in the Fall of 2013." . . .

            Misstatement 3) ". . . I also continued to receive time
            records from CI #1144 through November 4, 2014."
            ...

            Misstatement 4) "I continued to receive SOMICK's
            payroll documents from CI #1144 in the months that
            followed the installation of the pole camera." . . .

            Misstatement 5) "Through my discussions with CI
            #1144, I learned that all time-keeping and payroll
            records are submitted to and maintained at the [DPR],
            which is located in the Township of North Bergen
            Offices at 4233 Kennedy Boulevard, North Bergen,
            New Jersey." . . .

            Misstatement 6) "I also learned through my discussions
            with CI #1144 that, after an unspecified period of time,
            the time keeping and payroll records are physically
            transferred to an archive at the storage facility of the
            Township of North Bergen, located in the ground
            and/or basement floor of the North Bergen Township
            Law & Public Safety Building . . ." . . .

            Misstatement 7) "Through my discussion [sic] with CI
            #1144, I also learned that time-keeping and payroll
            records submitted to the [DPR] are entered into and
            processed by a computer station that is located within
            the [DPR]." . . .

In essence, the judge found those statements were "deliberately false" to the

extent they could be construed as "label[ing] CI #1144 as a [confidential

informant] at any point in time prior to December 10, 2014[,]" and because the

                                                                       A-3822-18T1
                                      22
detective "asserts he had more than one conversation with CI #1144" when they

only participated in one meeting.

      We recognize the State formally designated CI #1144 as a confidential

informant prior to applying for the warrant and, as such, the detective's use of

that status to describe the documents' source, at the time he swore to the contents

of the affidavit, was technically correct. However, we appreciate the motion

judge's concerns that the affidavit gives the incorrect impression the detective

communicated directly with CI #1144 before December 10, 2014. Further, the

detective's use of the term, "discussions" in the plural may be interpreted as

various discussions that occurred during the meeting on December 10, 2014 or,

as the judge found, multiple conversations over the course of time. Notably,

however, defendants did not elicit any testimony from the detective, nor produce

any evidence whatsoever as to his intention in using the plural term,

"discussions."

      Nonetheless, to the extent the wording of the seven enumerated statements

was subject to more than one interpretation, defendants failed to establish the

materiality of any of those statements, Stelzner, 257 N.J. Super. at 235, where,

as here, the affidavit still "contains facts sufficient to establish probable cause"

even if they were absent. Howery, 80 N.J. at 568.            Accordingly, we are


                                                                            A-3822-18T1
                                        23
unpersuaded those particular assertions materially undermine the affidavit's

bona fides or the independent evidence that amply establishes probable cause to

issue the warrant. See, e.g., Franks v. State, 398 A.2d 783, 785-86 (Del. 1979)

(on remand from the United States Supreme Court, holding that misstatements

in the affidavit about the affiant's source of certain information did not require

the search warrant to be invalidated because, excised of those misstatements,

there was sufficient independent proof to support the warrant's issuance).

      Indeed, it is beyond peradventure that the affidavit accompanying the

search warrant included ample facts, without the seven misstatements,

establishing probable cause that the municipal premises specified in the warrant

application would yield the subject documents. The detective corroborated the

time recorded on defendants' time sheets, which had been furnished by CI #1144,

through ongoing personal surveillance, video surveillance and a comparison of

the subpoenaed ADP payroll records with the copies of defendants' timesheets.

Based on his own personal knowledge from prior investigations, the detective

also corroborated CI #1144's information specifying the location of the rec ords

to be seized in the Township's storage facility. See Keyes, 184 N.J. at 555

(citation omitted) (recognizing probable cause may be based on information

received from informants, as long as there is "substantial evidence in the record


                                                                          A-3822-18T1
                                       24
to support the informant's statements"). In sum, all of those facts were set forth

in the affidavit and established probable cause for issuance of the warrant; none

of those facts was inherently false.

                                       D.

      We next consider the motion judge's determination that "there are striking

omissions in the affidavit . . . and had they been included it would have caused

the judge to refuse to issue the warrant." According to the judge:

                  Chief among the material omissions is the false
            narrative that CI #1144 was a confidential[]informant
            who contributed to the State's investigation consistently
            and met with and spoke to [the d]etective . . .
            throughout the investigation and assisted the [d]etective
            in corroborating the findings of the [d]etective's
            physical surveillance of defendants' residences. . . .

                  Nowhere in the affidavit does [the d]etective . . .
            disclose to the issuing judge that prior to December 10,
            2014, CI #1144, he and the team made up a status called
            a "conditional-confidential informant," or an
            "intended" confidential informant.

Accordingly, the judge found the detective violated the Attorney General's

Standard Operating Procedure 29 (SOP 29) 4 for conferring confidential

informant status on CI #1144. In particular:



4
  At our request, the State supplemented the appellate record with a copy of
SOP 29, which had been provided to the motion judge.
                                                                          A-3822-18T1
                                       25
            The document source [wa]s handled throughout all
            material stages by a known convicted felon, James
            Wiley, from the first document turned over to the State
            to the last. The source is never vetted in accordance
            with SOP 29, and the State already had in its possession
            those documents it sought by the issu[ance] of a
            warrant. Remarkably, none of this was made known to
            the issuing [j]udge.

      Our examination of the record in this matter discloses no evidence of

intentional misconduct or reckless disregard for the truth on the part of the

detective by omitting the information the motion judge deemed material. As our

description of the detective's testimony at the Franks hearing discloses, the

detective did not believe the omitted information was material to the

determination of probable cause, a conclusion with which we concur. See

Smith, 212 N.J. at 398-99 (citation omitted) ("There is no requirement that a

warrant affidavit fully describe all steps taken, all information obtained, and all

statements made by witnesses during the course of an investigation."). At most,

the issuing judge might have "want[ed] to know the [omitted] information[,]"

id. at 399, but it was not material to the determination of probable cause.

      As we stated above, two factors for the issuing court to consider when

determining probable cause, based on information provided by a confidential

source, are the informant's "veracity" and "basis of knowledge." Smith, 155 N.J.

at 93. Here, the issuing judge did not question CI #1144's basis of knowledge.

                                                                           A-3822-18T1
                                       26
Indeed, there is no suggestion in the record, that the content of defendants' time

sheets was inaccurate. Rather, the affidavit contained four paragraphs, spanning

four pages of the affidavit, detailing the detective's personal surveillance and

video surveillance of defendants' presence at locations other than the DPR,

which corroborated the time reported in defendants' DPR time sheets. The

affidavit also stated the subpoenaed documents obtained from ADP corroborated

the time billed.

      Because the detective did not provide the "routine" paragraph concerning

CI #1144's past reliability, the issuing judge expressed concern about the CI's

veracity. Notably, the judge asked the detective to amend paragraph seventeen

to include his personal knowledge of the location of the items to be seized,

thereby corroborating the source's information concerning the places to be

searched.

      Our examination of the omissions in question satisfies us that those

statements were not material, and that ample, unassailable evidence apart from

those statements established probable cause for issuance of the warrant. In State

v. Meighan, 173 N.J. Super. 440, 448 (App. Div. 1980), the affiant omitted that

an eyewitness, who eventually identified the defendant, was unable to do so at

first. In dicta, we concluded the defendant failed to meet the Franks standard,


                                                                          A-3822-18T1
                                       27
i.e., "that the affiant's statements were materially untrue, that such untrue

statements were made knowingly and intentionally or recklessly or that the

magistrate would not have issued, or could not have found probable cause to

issue, the warrant had he known all the facts." Id. at 449. So too, in this case,

the affidavit provided ample probable cause for the issuance of the warrant.

Omitting any reference to the detective's one-time meeting with CI #1144, his

or her anonymity when providing the documents through Wiley, and the State's

apparent failure to strictly adhere to the Attorney General's SOP for vetting

confidential sources when the defendants' time sheets were provided, 5 does not

undermine that conclusion.

                                       E.

      We next address the State's contention that the motion judge improperly

identified CI #1144 by full name in his decision, noting CI #1144's identity was

not necessary to resolve the issues raised and defendants have not provided any

authority to suggest otherwise. Moreover, the first motion judge denied Garcia's

motion to disclose the CI, and the present motion judge adjourned Somick's

motion in that regard. Accordingly, CI #1144 should not have been identified.


5
  In any event, a deviation from the SOP does not automatically invalidate the
State's action. See State v. Henderson, 208 N.J. 208, 278 (2011).


                                                                         A-3822-18T1
                                      28
On remand, CI #1144's full name should be redacted forthwith from the judge's

written decision and any related filings.

                                        F.

       Finally, in view of the motion judge's extensive findings regarding the

veracity of the detective and deputy attorney general who approved the warrant,

on remand the matter should be assigned to a different judge. See State v.

Camey, ___ N.J. ___, ___ (2019) (slip op. at 36) (remanding and referring the

matter for reassignment "[b]ecause the original judge made extensive credibility

determinations about the witnesses"); see also State in the Interest of C.F., 458

N.J. Super. 134, 147 (App. Div. 2019) (quoting Entress v. Entress, 376 N.J.

Super. 125, 133 (App. Div. 2005)) ("In an abundance of caution, we direct that

this matter be remanded to a different judge for the plenary hearing to avoid the

appearance of bias or prejudice based upon the judge's prior involvement with

the matter . . . .").

       In light of our disposition on appeal, we need not reach the State's

subsidiary argument that the motion judge impugned the reputations of the

detective and the deputy attorney general who approved and reviewed the

warrant application.

       Reversed and remanded. We do not retain jurisdiction.


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