The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0364-23
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
February 19, 2025
v. APPELLATE DIVISION
JORGE L. GOMEZ,
Defendant-Appellant.
___________________________
Submitted January 14, 2025 – Decided February 19, 2025
Before Judges Smith, Chase and Vanek.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
22-12-0753.
John W. Hartmann, attorney for appellant.
Matthew J. Platkin, Attorney General, attorney for
respondent (Sarah D. Brigham, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
CHASE, J.A.D.
Following denial of his motion to suppress evidence seized pursuant to a
search warrant, defendant Jorge L. Gomez pled guilty to second-degree
possession of a firearm during the commission of a controlled dangerous
substance ("CDS") offense, N.J.S.A. 2C:39-4.1(a), and was sentenced to five
years in prison with a minimum forty-two months of parole ineligibility
pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
This appeal raises an issue of first impression. We must decide whether
the New Jersey Cannabis Regulatory, Enforcement Assistance, and
Marketplace Modernization Act ("CREAMMA")1, codified in relevant part at
N.J.S.A. 24:6I-31 to -56; and N.J.S.A. 2C:35-5 to -10, requires police to give a
written warning for a first offense of marijuana distribution prior to applying
for a search warrant. We must also decide whether a probable cause
determination requires proof that a person is distributing one ounce or more of
marijuana. We conclude the answer to both questions is "no." The
Legislature's adoption of CREAMMA did not alter how police conduct
investigations of those illegally distributing marijuana or alter the probable
cause requirement for obtaining search warrants. Therefore, we affirm
defendant's convictions.
1
Despite having the same chemical properties, under New Jersey law there is
a difference between regulated legal "cannabis" and unregulated illegal
"marijuana." CREAMMA, which became effective February 22, 2021, L.
2021, c. 16, and Article IV, Section 7, Paragraph 13 of the New Jersey
Constitution, legalized cannabis by persons twenty-one years of age or older.
State v. Gomes, 253 N.J. 6, 23-24 (2023); State v. Cohen, 254 N.J. 308, 328
(2023) (citing N.J.S.A. 24:6I-32(a)).
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I.
The events leading to defendant's indictment were described in detail in
New Jersey State Police ("NJSP") Detective Robert Murray's search-warrant
application, the search warrant, the NJSP incident report, the NJSP evidence
log, and the motion judge's fact-findings. Since there were no issues of
material fact in dispute, no testimony was taken by the court. R. 3:5-7(c).
In September 2022, Detective Murray submitted a certified application
for a search warrant for defendant's apartment in Trenton. At the time,
Detective Murray was assigned to the Intelligence and Criminal Enterprise
Section, Violent and Organized Crime Control Central Bureau, Crime
Suppression Central Unit of the NJSP ("CSCU"). He certified that he "ha[d]
conducted and assisted in numerous criminal investigations that have resulted
in arrests and convictions," including weapons and CDS offenses.
In 2022, CSCU received information from a confidential source ("CS")
that defendant was distributing marijuana in and around the Trenton area. This
CS had provided reliable information in past investigations that helped lead to
arrests and convictions. Detective Murray used this information to find a
picture of defendant to show the CS, who immediately identified defendant.
The CSCU set up two controlled CDS purchases between the CS and
defendant. Each time, the CS called defendant while in the presence of CSCU
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members, and defendant instructed the CS to go to the target residence, which
he did while under constant surveillance. The CS went inside and exited
shortly thereafter. When CSCU members and the CS met at the predetermined
debriefing location, the CS turned over marijuana and confirmed that it was
provided by defendant in exchange for money. 2
While surveilling the target residence, Detective Murray and other
detectives made two notable observations. First, on September 21, 2022, at
about 11:00 p.m., Detective Murray "observed an unknown white sedan pull
into [an] [a]lley and park near the [t]arget [r]esidence." He then watched "[a]n
unknown individual . . . exit[] the white sedan and enter[] the [t]arget
[r]esidence," only to exit and reenter the white sedan "[m]oments later." Based
on Detective Murray's "training and experience, and the training and
experience of other CSCU members," Detective Murray described this
interaction as "consistent with a narcotics sale occurring inside the [t]arget
[r]esidence."
Second, detectives "observed [defendant] entering the [t]arget
[r]esidence, using keys to do so, at all hours of the day," including "early in the
morning and late at night." Given Detective Murray's "training" and
2
Specific quantities were not disclosed because, according to Detective
Murray, doing so could have revealed the identity of the CS, compromising the
CS's safety.
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"experience," Detective Murray believed defendant lived there, alone, as his
primary residence.
Following a criminal history check of defendant, Detective Murray
learned defendant had indictable convictions for credit card theft in 2004,
aggravated assault in 2004, conspiracy to commit murder in 2005, and
distribution of synthetic cannabinoid in 2019. 3
Detective Murray certified he had "probable cause to believe that
[defendant] [was] distributing CDS and utiliz[ed] the [t]arget [r]esidence to
store, distribute, and/or stockpile CDS, along with evidence of its
distribution." He therefore thought he "ha[d] probable cause to believe . . .
that the execution of the requested [s]earch [w]arrant for the [t]arget
[r]esidence[] . . . w[ould] reveal evidence of the specified crimes." These
items included: "CDS, including, but not limited to, marijuana, and items used
for the purpose of weighing, processing, diluting, packaging, and
administering CDS, specifically scales, baggies, and other related drug
paraphernalia"; "records pertaining to the distribution of CDS, . . . whether
kept manually or by mechanical or electronic devices"; "proceeds of illegal
3
The State does not argue that the conviction counts as a first offense under
N.J.S.A. 2C:35-5(b)(12)(b).
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drug distribution activity"; and "wireless telephones . . . and other devices for
sending and receiving e-mail." The judge authorized the search warrant.
The next day, police executed the search warrant. Defendant was read
his Miranda4 rights and disclosed to the officers "he ha[d] a handgun in the
kitchen draw[er] and rifle ammunition on top of the [refrigerator]." The search
of the residence yielded the following: one 9mm Sarsilmaz CM9 pistol, with a
laser and magazine attached; four 9mm rounds; one green bag containing
5.56mm rounds; one plastic container, five glass jars, and eight plastic bags
containing CDS marijuana; eleven boxes of pre-rolled marijuana cigarettes;
three plastic bags containing marijuana edibles; one bag containing eleven
marijuana electronic cigarettes and four boxes containing an undisclosed
number of them; one box containing THC oil; one orange pill bottle containing
eighteen Tramadol pills; one black digital scale; one "Latin King Legal
Document"; one black iPhone with a black case; one blue iPhone with a blue
case; and one kitchen vacuum sealer. In total, five pounds of marijuana worth
$6,000 was recovered.
A grand jury returned an indictment charging defendant with fourth-
degree possession of a CDS, N.J.S.A. 2C:35-10(a)(3)(b) (count one); third-
degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count two); second-
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(10)(b) (count three); second-degree possession of a
firearm during the commission of a CDS offense, N.J.S.A. 2C:39-4.1(a) (count
four); and second-degree certain persons not to have weapons or ammunition,
N.J.S.A. 2C:39-7(b)(1) (count five).
Defendant moved to suppress the evidence seized from the apartment.
After argument, the trial court denied defendant's motion to suppress, making
findings.
First, the trial court recited the facts of the investigation that supported a
finding of probable cause. Next, the court detailed why the CREAMMA
amendments that decriminalized the possession of certain quantities of
marijuana did not mean police did not have probable cause for the search
warrant.
The court reasoned that although probable cause for an arrest and
probable cause for a search warrant are the same, each involve a separate and
not necessarily identical inquiry. The court found it was unclear whether the
search-warrant application, on its own, would have supported probable cause
to arrest defendant. However, it determined the application nonetheless
supported a finding of probable cause that evidence of distribution and
possession with intent to distribute would be found in defendant's home.
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Moreover, the court reasoned although the punishment may be different, the
statutes clearly indicate that distribution and possession with the intent to
distribute are still offenses. Finally, the court recognized "the statute
continues to subject individuals to criminal liability and, thus, investigation
into such violations of law . . . continues to be appropriate."
After his suppression motion was denied, defendant pled guilty to
second-degree possession of a firearm during the commission of a CDS
offense, N.J.S.A. 2C:39-4.1(a) (count four). In exchange for his plea, the State
recommended five years of imprisonment subject to the Graves Act.
Defendant was sentenced in accordance with the plea agreement. The
remaining counts of the indictment were dismissed, and the court imposed the
appropriate fines, fees, and penalties.
This appeal follows, with defendant raising the following issues for our
consideration:
POINT I
SINCE DETECTIVE MURRAY DID NOT GIVE
[DEFENDANT] THE STATUTORILY REQUIRED
WARNING[,] THE CONDUCT NEVER ROSE TO
THE CRIMINAL LEVEL OF A SECOND OFFENSE
AND A SEARCH WARRANT SHOULD NOT HAVE
ISSUED.
POINT II
THE SEARCH WARRANT SHOULD NOT HAVE
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ISSUED BECAUSE PROBABLE CAUSE DID NOT
EXIST TO BELIEVE [DEFENDANT] WAS
DISTRIBUTING OR POSSESSING TO
DISTRIBUTE MARIJUANA IN A QUANTITY
GREATER THAN ONE OUNCE[.]
II.
A.
Our review of a trial judge's decision on a motion to suppress is limited.
State v. Ahmad, 246 N.J. 592, 609 (2021). "When reviewing a trial court's
decision to grant or deny a suppression motion, appellate courts '[ordinarily]
defer to the factual findings of the trial court so long as those findings are
supported by sufficient evidence in the record.'" State v. Smart, 253 N.J. 156,
164 (2023) (alteration in original) (quoting State v. Dunbar, 229 N.J. 521, 538
(2017)). "A trial court's interpretation of the law, however, and the
consequences that flow from established facts are not entitled to any special
deference." State v. Gamble, 218 N.J. 412, 425 (2014). Legal conclusions
drawn from those facts are reviewed de novo. State v. Radel, 249 N.J. 469,
493 (2022).
"A search that is executed pursuant to a warrant is 'presumptively valid,'
and a defendant challenging the issuance of that warrant has the burden of
proof to establish a lack of probable cause 'or that the search was otherwise
unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v.
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Watts, 223 N.J. 503, 513-14 (2015)). "Accordingly, courts 'accord substantial
deference to the discretionary determination resulting in the issuance of the
[search] warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005) (alteration in
original) (quoting State v. Jones, 179 N.J. 377, 388 (2004)).
B.
The New Jersey Constitution provides "no warrant shall issue except
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched and the papers and things to be seized."
N.J. Const. art. I, ¶ 7. "When a court receives an application from the police
for a search warrant, it should not issue that warrant 'unless [it] is satisfied that
there is "probable cause to believe that . . . evidence of a crime is at the place
sought to be searched."'" State v. Smith, 212 N.J. 365, 388 (2012) (omission
in original) (quoting State v. Marshall, 199 N.J. 602, 610 (2009)); see also,
State v. Ross, 256 N.J. 390, 400-01 (2024) (affirming probable cause standard
for search warrant to issue for physical evidence in possession of third party).
Probable cause requires "less than legal evidence necessary to convict
though more than mere naked suspicion." Keyes, 184 N.J. at 553 (quoting
State v. Sullivan, 169 N.J. 204, 210-11 (2001)). It exists when a police officer
possesses "'a "well[-]grounded" suspicion that a crime has been or is being
committed.'" Sullivan, 169 N.J. at 211 (quoting State v. Waltz, 61 N.J. 83, 87
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(1972)). "[T]he court must 'make a practical, common[-]sense determination
whether, given all of the circumstances, "there is a fair probability that
contraband or evidence of a crime will be found in a particular place."'" State
v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 46
(2004)). Further, probable cause must be determined "based on the
information contained within the four corners of the supporting affidavit, as
supplemented by sworn testimony before the issuing judge that is recorded
contemporaneously." Marshall, 199 N.J. at 611 (quoting Schneider v.
Simonini, 163 N.J. 336, 363 (2000)).
"Information related by informants may constitute a basis for probable
cause, provided that a substantial basis for crediting that information is
presented." Jones, 179 N.J. at 389. The issuing court must consider the
totality of the circumstances in determining whether an informant's tip
establishes probable cause, including the informant's "veracity and basis of
knowledge." Ibid. (quoting State v. Novembrino, 105 N.J. 95, 123 (1987)).
These are the most important factors, and a deficiency in one may be
compensated "'by a strong showing as to the other, or by some other indicia of
reliability.'" State v. Zutic, 155 N.J. 103, 110-11 (1998) (quoting Illinois v.
Gates, 462 U.S. 213, 233 (1983)).
"[R]elevant corroborating facts may include a controlled drug buy
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performed on the basis of the tip, . . . the suspect's criminal history, and the
experience of the officer who submitted the supporting affidavit." Keyes, 184
N.J. at 556. Although a lone fact rarely establishes probable cause, "a
successful 'controlled [drug] buy "typically will be persuasive evidence in
establishing probable cause."'" Ibid. (quoting Jones, 179 N.J. at 392). When
the police have successfully performed a controlled drug buy, "even one
additional circumstance might suffice . . . to demonstrate probable cause ."
Jones, 179 N.J. at 392.
Furthermore, "'a probable cause determination to search a home where
the suspect lives may be valid irrespective of whether probable cause to arrest
that particular individual has crystallized.'" Boone, 232 N.J. at 428 (quoting
State v. Chippero, 201 N.J. 14, 31 (2009)).
III.
On appeal, defendant argues the court erred in denying his motion to
suppress because Detective Murray's certified application did not allege
conduct "ris[ing] to the level of criminal conduct," and in the absence of
allegations of quantity, the application needed to allege that defendant had
been warned for a first offense of distributing marijuana before the warrant
could be issued.
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Defendant posits that a first offense of N.J.S.A. 2C:35-5(b)(12)(b) with
one ounce or less of marijuana does not fit neatly into the categories of
"crimes," "disorderly persons offenses," and "petty disorderly persons
offenses," as the punishment for that offense is neither incarceration nor a fine,
but a written warning. N.J.S.A. 2C:1-4. Since defendant's misconduct is
without penal consequences, he contends it is not an offense. Looking to
CREAMMA's amendments to N.J.S.A. 2C:35-5(b)(12)(b), defendant asserts
that because the warrant application did not specify the marijuana quantities
involved in the two controlled buys, and a third suspected CDS transaction,
"that all three unwarned alleged marijuana transaction[s] were not penal" and
that "probable cause that criminal marijuana distribution was occurring did not
exist." We disagree. This is a distinction without a difference that is belied by
the statutory language in the CREAMMA amendments.
N.J.S.A. 2C:35-5(a)(1) provides "it shall be unlawful for any person
knowingly or purposely . . . [t]o manufacture, distribute or dispense, or to
possess or have under [the person's] control with intent to manufacture,
distribute or dispense, a [CDS] . . ." ("PWID"). N.J.S.A. 2C:35-5(b)(12)(b)
provides that
[a]ny person who violates [N.J.S.A. 2C:35-5(a)] with
respect to:
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. . . marijuana in a quantity of one ounce
or less . . . is, for a first offense, subject to
a written warning, which also indicates
that any subsequent violation is a crime[,]
. . . and for a second or subsequent
offense, is guilty of a crime of the fourth
degree.
[Ibid. (Emphasis added).]
Stated differently, the punishment for PWID or distribution of any quantity of
marijuana over one ounce could be imprisonment, and the punishment for
PWID or distribution under one ounce or less of marijuana after a warning
could also be imprisonment.
Based on the totality of circumstances, Detective Murray's certification
more than amply supported probable cause that defendant was unlawfully
distributing marijuana and likely would have marijuana intended for
distribution in his residence. These circumstances included: (1) the two
controlled buys of marijuana from defendant's residential apartment that
corroborated the CS's tip; (2) the information provided by the CS, whose
reliable information led to multiple arrests and convictions in the past, that
defendant was distributing marijuana in the Trenton area; (3) defendant's
recent, prior conviction for CDS distribution; (4) Detective Murray's seven
years of law enforcement experience, from which he was familiar with the
patterns and methods of CDS distribution; (5) Detective Murray's observation
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of another suspected CDS sale; and (6) Detective Murray's further surveillance
confirming the residential apartment was defendant's residence.
In determining what the Legislature envisioned in enacting CREAMMA,
we adhere to the cardinal principle that the judicial construction of statutes
must always seek as its ultimate goal to carry out the Legislature's apparent
intent. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 587 (2021). "The best
evidence of that legislative intent is the statutory language," and, accordingly,
that is the first place that we look. Ibid. When we look at the plain language
of a statute, we are to consider it "'in context with related provisions so as to
give sense to the legislation as a whole.'" Williams v. N.J. State Parole Bd.,
255 N.J. 36, 46 (2023) (quoting State v. Lopez-Carrera, 245 N.J. 596, 613
(2021)).
Under CREAMMA, the growth, cultivation, processing, manufacturing,
preparing, packaging, transferring, and selling of cannabis are all strictly
regulated by the Cannabis Regulatory Commission, which requires a license
for these activities, sets limits on the number of those licenses it issues, and on
the types of licenses one person may concurrently hold, and allows
municipalities to set additional restrictions. N.J.S.A. 24:6I-24, -35 to -46; see,
e.g., Trenton, N.J., Code § 146-46(A) (setting limitations on where cannabis
businesses may be located). The Criminal Code, post-CREAMMA, similarly
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only allows the licensed distribution of cannabis. See N.J.S.A. 2C:35-5(a). It
also limits how much cannabis someone can buy or possess at one time from a
licensed retailer, or transfer to another without remuneration, to one ounce,
"subject[ing] the person to prosecution" under Chapter 35 of Title 2C for any
greater amount.5 N.J.S.A. 2C:35-10(a).
Additionally, under CREAMMA, the Legislature made the possession of
six ounces or less of marijuana "not subject to any punishment, as this
possession of [unregulated marijuana] is not a crime, offense, act of
delinquency, or civil violation of law." N.J.S.A. 2C:35-10(a)(4)(b). Though
CREAMMA downgraded the penal consequences for a first-time commission
of PWID or distribution of less than an ounce of marijuana, the Legislature
specifically omitted this language from the distribution statute . N.J.S.A.
2C:35-5. The Legislature's purposeful omission shows it intended that PWID
or distribution of marijuana remained a crime. Cashin v. Bello, 223 N.J. 328,
340 (2015) (alteration in original) ("[W]here [the Legislature] includes
particular language in one section of the statute but omits it in another section
of the same [a]ct, it is generally presumed that [the Legislature] acts
5
N.J.S.A. 2C:35-10(a) to -10(d), together with the amendments to N.J.S.A.
2C:35-5 and 2C:35-10, are the "criminal . . . centerpiece" of CREAMMA.
Cannel, New Jersey Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:35-10(a)
to -10(d) (2024).
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intentionally and purposely in the disparate inclusion or exclusion."
(alterations in original) (quoting N.J. Dep't of Child. & Fams. v. A.L., 213 N.J.
1, 20-21 (2013))). This is supported by the plain language of the Legislature's
finding and declarations, which shows that by enacting CREAMMA it
intended to "eliminate the problems caused by the unregulated manufacturing,
distribution, and use of illegal marijuana within New Jersey." N.J.S.A. 24:6I-
32(c).
Our Legislature's clear intent to not alter distribution investigations is
further supported by the plain language of N.J.S.A. 2C:35-10. This section
specifically imposes limits on criminal investigations, as distinct from
prosecution. Ibid. It provides that the odor of marijuana or burnt marijuana
does not constitute reasonable suspicion and, by inexorable extrapolation,
probable cause. N.J.S.A. 2C:35-10(a)(3)(b)(i). Notably, this statement only
applies to simple possession, not illegal distribution or sale. Had the
Legislature intended to make sure a first distribution of marijuana is not
considered in the probable cause analysis, the plain text of CREAMMA's
amendments shows that it knew how to do so, but it did not. That was not an
oversight, but a deliberate part of a comprehensive statutory framework in
which to investigate and prosecute marijuana dealers who eschew the cannabis
licensing system.
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Defendant's argument, if accepted, would undermine the legal cannabis
scheme by creating transactional immunity for multiple violations of the law
which CREAMMA did not repeal. We decline to adopt this cramped reading
of the statute, which would lead to unintended consequences. Statutes should
be interpreted to oblige the "legislative will as written, and not according to
some supposed unexpressed intention." See Hoffman v. Hock, 8 N.J. 397, 409
(1952) (quoting City of Camden v. Loc. Gov't Bd., 127 N.J.L. 175, 178 (Sup.
Ct. 1941)) (finding no statutory language evidencing an intent to prevent
properly licensed distillers from selling liquor directly to retailers). "[A] court
should not diversify the plain meaning of statutory language" if there is no
bizarre result. State v. Roma, 143 N.J. Super 504, 508 (Law Div. 1976). A
plain reading of these statutes reveals that the Legislature still considers
distributing any amount of unregulated marijuana a criminal offense, as
N.J.S.A. 2C:35-5(a)(1) refers to distribution of any amount of CDS as
"unlawful."
Because distribution of any amount of unregulated marijuana is still
illegal, the search warrant application did not need to allege defendant sold a
specific amount of marijuana before the court approved it. Probable cause for
the search warrant was amply supported even though defendant had not been
previously issued a warning for distributing one ounce or less of marijuana,
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and despite the quantities of marijuana sold being omitted from the warrant
application. CREAMMA's amendments to the Code of Criminal Justice do not
affect the analysis for determining if probable cause exists for issuance of a
search warrant. The warning is a condition precedent to prosecution for
distribution of less than one ounce of marijuana, not a precondition to apply
for or obtain a search warrant. This required warning has no bearing in
determining probable cause that a crime occurred or is occurring.
CREAMMA's purpose was to set up a regulated process for the legalized
use and purchase of cannabis, not deter or hinder law enforcement's
investigation of illegal marijuana distribution. It was not designed to endanger
those willing to assist law enforcement, or to jeopardize law enforcement
officers acting in an undercover capacity.
Affirmed.
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