                                 NOT FOR PUBLICATION WITHOUT THE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 cas e and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3203-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

REGGIE T. HUGGINS,
a/k/a NASHEED HENTON,
REGGIE HIGGINS, and
JAMAL MUHAMMAD,

     Defendant-Appellant.
________________________

                    Submitted December 18, 2019 – Decided December 26, 2019

                    Before Judges Haas and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 14-08-1998.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sarah C. Hunt, Deputy Attorney General,
                    of counsel and on the brief).
PER CURIAM

      Defendant Reggie T. Huggins appeals from the October 14, 2016 denial

of his request for a hearing consistent with Franks v. Delaware, 438 U.S. 154

(1978), and the January 12, 2017 denial of his suppression motion. We affirm

both rulings, substantially for the reasons outlined by Judge James M. Blaney in

his thoughtful and thorough opinions. We add only a few additional comments

to lend context to the instant appeal.

      In the fall of 2013, the police requested and obtained a warrant to search

defendant's vehicle and his home in Toms River. In defendant's home, they

found approximately 1250 wax folds of heroin, 2 bottles containing suspected

methadone, a digital scale, approximately $12,958 from a safe, a silver Cobra

Arms .38-caliber handgun with a defaced serial number, a box of Winchester

.38-caliber automatic ammunition, a women's sweatshirt containing 31 folds of

heroin, and 11 wax folds.

      Prior to resolving his case, defendant argued that the affidavit leading to

the issuance of the search warrant contained false and misleading statements .

Accordingly, he claimed he was entitled to a Franks hearing, and that probable

cause did not exist for the issuance of the search warrant. Judge Blaney rejected

these arguments. Thereafter, defendant pled guilty to second-degree possession


                                                                         A-3203-17T2
                                         2
with intent to distribute heroin, and second-degree possession of a firearm by a

certain person not to have weapons. N.J.S.A. 2C:35-5(b)(2); N.J.S.A. 2C:39-

7(a).

        On appeal, defendant raises the following arguments:

        POINT I

              IT WAS ERROR FOR THE COURT TO DENY
              DEFENDANT'S REQUEST FOR A FRANKS
              HEARING   CONCERNING     THE    SEARCH
              WARRANT ISSUED FOR THE PREMISES.

        POINT II

              BECAUSE THERE WAS INSUFFICIENT SHOWING
              OF PROBABLE CAUSE TO SUPPORT THE
              ISSUANCE OF THE SEARCH WARRANT, THE
              DEFENDANT'S MOTION TO SUPPRESS SHOULD
              HAVE BEEN GRANTED.

        As to Point I, we review the trial court's decision regarding the need for

an evidentiary hearing for an abuse of discretion. State v. Broom-Smith, 406

N.J. Super. 228, 239 (App. Div. 2009). We discern none here.

        A defendant challenging the veracity of a search warrant affidavit is

entitled to a Franks hearing 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



                                                                          A-3203-17T2
                                         3
affidavit, and if the allegedly false statement is necessary to the finding of

probable cause . . . ." Franks, 438 U.S. at 155-56.

      In making a "substantial preliminary showing," a 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). These allegations should be supported by

affidavits or other reliable statements; "[a]llegations of negligence or innocent

mistake are insufficient." Broom-Smith, 406 N.J. Super. at 240-41 (quoting

Franks, 438 U.S. at 171). A defendant must show that absent the alleged false

statements, the search warrant lacks sufficient facts to establish probable cause.

Howery, 80 N.J. at 568.        Further, the allegations "must be proved by a

preponderance of the evidence." Ibid.         Finally, if there remains sufficient

content in the warrant application to support a finding of probable cause when

the allegedly false material is set aside, a Franks hearing is not required. Franks,

438 U.S. at 171-72.

      Here, defendant alleged the search warrant affiant falsely claimed the

reliability of a confidential informant (C.I.) who had worked with police was set

forth in the affidavit. Defendant also insisted the affiant falsely stated money

given to the C.I. for a controlled buy was "previously recorded." Judge Blaney


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                                         4
carefully considered these allegations and directed the State to provide

additional documents to the court for an in camera review. The documents

inspected by the judge included: a United States Currency Seizure Report

showing that $12,958 was recovered during the search, from which one $100

bill was returned to a local police department's confidential funds; a Confidential

Fund Purchase Report, detailing the funds provided to the police; proof that the

Toms River and Brick Township police departments provided surveillance over

a controlled buy between the C.I. and defendant, after defendant became the

target of an investigation; a photograph of the funds provided during the

controlled buy; and a photograph of two pages of the Brick Township Police

Department Drug Ledger, showing the confidential funds being withdrawn for

use and $100 being placed back into the account after the execution of the search

warrant.

      After reviewing these documents, Judge Blaney concluded in his nine-

page October 14, 2016 written opinion:

            [b]ased on a review of the briefs, arguments, the
            [a]ffidavit and search warrant, as well as the additional
            documents submitted by the prosecutor, the [c]ourt
            finds no basis for the defense's claim that the State
            engaged in making any false statements in the
            [a]ffidavit provided to [the search warrant judge.]



                                                                           A-3203-17T2
                                        5
      The judge added, the "prosecution in this case felt compelled to not

provide certain documents [to defendant] for fear . . . [he] would be able to

determine the identity of the confidential informant. The documents that have

been provided to the [c]ourt to review in camera explain those alleged

omissions." The judge's opinion also referenced the affiant's extensive training

and experience, the affiant's contact with a concerned citizen who advised him

defendant was distributing illicit drugs from his home, and the steps taken to

coordinate a controlled buy between defendant and the C.I. Judge Blaney noted

that the affiant confirmed the C.I. exchanged recorded funds of one hundred

dollars for a quantity of heroin, and a subsequent field test showed the substance

tested positive for heroin.    After his extensive review of the factual and

procedural history of this matter, Judge Blaney concluded defendant failed to

prove the State made false statements in the search warrant affidavit to obtain

the search warrant.

      Based on our deferential standard of review, we are satisfied Judge Blaney

properly found defendant failed to satisfy the "substantial preliminary showing"

requirement. Accordingly, a Franks hearing was unnecessary.




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                                        6
      In Point II, defendant argues the trial judge erred in finding probable cause

existed for the issuance of the search warrant and mistakenly denied his motion

to suppress. We disagree.

      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).

      "Probable cause is a flexible, nontechnical concept" requiring the

balancing of "the governmental need for enforcement of the criminal law against

the citizens' constitutionally protected right of privacy." State v. Kasabucki, 52

N.J. 110, 116 (1968). Generally, probable cause is understood to mean "less

than legal evidence necessary to convict though more than mere naked

suspicion." State v. Sullivan, 169 N.J. 204, 210-11 (2001) (citation omitted).

"When determining whether probable cause exists, courts must consider the

totality of the circumstances, and they must deal with probabilities." Schneider




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                                        7
v. Simonini, 163 N.J. 336, 361 (2000) , cert. denied, 531 U.S. 1146 (2001) (citing

Illinois v. Gates, 462 U.S. 213, 230, 238 (1983)).

      Information related by informants may constitute a basis for probable

cause, provided that a substantial basis for crediting that information is

presented. Sullivan, 169 N.J. at 212; State v. Smith, 155 N.J. 83, 92, cert.

denied, 525 U.S. 1033 (1998). "When examining an informant's tip . . . the

issuing court must consider the 'veracity and basis of knowledge' of the

informant as part of its 'totality' analysis." State v. Jones, 179 N.J. 377, 389

(2004) (quoting State v. Novembrino, 105 N.J. 95, 123 (1987)). If there is a

deficiency in one of those factors, it may be compensated for by a "strong

showing as to the other, or by some other indicia of reliability." State v. Zutic,

155 N.J. 103, 111 (1998). Even "if the informant's tip fails to demonstrate

sufficient veracity or basis of knowledge, a search warrant issued on the basis

of the tip may still pass muster if other facts included in a supporting [police]

affidavit justify a finding of probable cause." Jones, 179 N.J. at 390 (alteration

in original).

      "[R]elevant corroborating facts may include a controlled drug buy

performed on the basis of the tip, positive test results of the drugs obtained . . .

the suspect's criminal history, and the experience of the officer who submitted


                                                                            A-3203-17T2
                                         8
the supporting affidavit." Id. at 390-91.     While no one corroborating fact

conclusively establishes probable cause, a successful controlled buy "'typically

will be persuasive evidence in establishing probable cause.'" State v. Keyes,

184 N.J. 541, 556 (2005) (quoting Jones, 179 N.J. at 390) (citation omitted).

Moreover, if the police have conducted a successful controlled buy, our Supreme

Court has found "even one additional circumstance might suffice, in the totality

of the circumstances, to demonstrate probable cause." Jones, 179 N.J. at 390.

      Here, Judge Blaney set forth a number of facts which established probable

cause, including the C.I. positively identifying defendant as someone who was

distributing heroin, the use of the C.I. to conduct a controlled buy while under

police surveillance, and the field test results of the heroin purchased during the

controlled buy.

      "[A] search executed pursuant to a warrant is presumed to be valid and []

a defendant challenging its validity has the burden to prove 'that there was no

probable cause supporting the issuance of the warrant or that the search was

otherwise unreasonable.'" Jones, 179 N.J. 377, 388 (2004) (quoting State v.

Valencia, 93 N.J. 126, 133 (1983)). "[Appellate courts] accord substantial

deference to the discretionary determination resulting in the issuance of the

[search] warrant." State v. Marshall, 123 N.J. 1, 72 (1991) superseded by statute


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                                        9
on other grounds, comment 7 on N.J.S.A. 2C:11-3 (2007). If there is doubt as

to the validity of the warrant, such doubt should "ordinarily be resolved by

sustaining the search." Kasabucki, 52 N.J. at 116.

      There is ample support for Judge Blaney finding probable cause existed

for the issuance of the search warrant and that defendant failed to satisfy his

burden in proving the search warrant was improvidently issued. Accordingly,

there is no basis to disturb Judge Blaney's denial of defendant's motion to

suppress.

      Defendant's remaining arguments lack sufficient merit for discussion in

this opinion. Rule 2:11-3(e)(2).

      Affirmed.




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