SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3139-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS T. JONES,

Defendant-Appellant.

____________________________

Submitted April 5, 2017 – Decided

Before Judges Fuentes and Simonelli. 

On appeal from the Superior Court of New 

Jersey, Law Division, Morris County, 

Indictment No. 14-04-0385.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Mark H. Friedman, Assistant 

Deputy Attorney General, of counsel and on the 

brief).

Fredric M. Knapp, Morris County Prosecutor, 

attorney for respondent (Paula Jordao,

Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his motion for reconsideration of an 

order denying his motion to suppress evidence found in the trunk 

NOT FOR PUBLICATION WITHOUT THE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.

July 25, 2017
2 A-3139-15T4

of his vehicle, defendant Thomas T. Jones pled guilty to seconddegree unlawful possession of a firearm, N.J.S.A. 2:39-5(b). The 

trial court imposed a seven-year term of imprisonment with a threeand-one-half year period of parole ineligibility pursuant to the 

Graves Act, N.J.S.A. 2C:43-6(c). We remand for further 

proceedings.

The following facts are pertinent to our review. After 

stopping defendant's vehicle, Police Officer Matthew Ambrosi of 

the Mendham Township Police Department (MTPD) detected the odor 

of burnt marijuana emanating from the vehicle's interior. As a 

result, Ambrosi asked defendant for consent to search the vehicle.

After defendant read and signed a consent to search form, Ambrosi 

searched the interior of the vehicle and found marijuana shake1 in 

the center console area and on the floorboard. Ambrosi then 

"popped the trunk" lever and went to the rear of the vehicle to 

search the trunk. As he approached the rear of the vehicle, 

defendant put his hands on top of the trunk lid, shut it, and said

there was nothing in the trunk and he wanted to stop the search. 

 

1 "Marijuana shake" is a colloquial term use to describe the small 

pieces of cannabis flower that break off of larger buds, generally 

as the result of regular handling.
3 A-3139-15T4

Ambrosi stopped the search and called for a K-9 unit to respond 

to the scene. 

Detective Walter Rawa of the Morris County Sheriff's Office 

and K-9 Officer Reno, a trained narcotics dog, arrived at the 

scene to attempt to locate the odor of a controlled dangerous 

substance (CDS) around the exterior and interior of defendant's 

vehicle. In his March 18, 2014 investigation report, Rawa wrote 

that K-9 Reno "positively indicated [the presence of a CDS] two 

times at the partially open driver window of the vehicle." 

(Emphasis added). The police advised defendant of the findings 

and afforded him the option to either consent to search the vehicle 

or have the vehicle impounded while the police applied for a search 

warrant. After defendant declined to consent, the police impounded 

the vehicle. 

The police obtained a warrant to search the entire vehicle 

based on the affidavit of a MTPD detective, who stated there was 

probable cause to believe a CDS would be found in the vehicle. 

The affiant stated that Rawa "conducted a cursory search of the 

exterior of the vehicle which yielded a positive hit by K-9 Reno 

where K-9 Reno signaled to his handler the presence of a [CDS]." 

The court issued a warrant to search the entire vehicle based on 
4 A-3139-15T4

the affidavit. The police searched the trunk of the vehicle and 

found a loaded defaced handgun and under fifty grams of marijuana. 

Defendant filed a motion to suppress the evidence found in 

the trunk and requested a Franks2 hearing to determine whether the 

affidavit in support of the search warrant for the entire vehicle 

omitted material facts that tended to show the police lacked 

probable cause to search the trunk. Defendant argued that the 

affiant omitted the material facts that K-9 Reno's two positive 

hits were limited to the front passenger area and the dog did not 

detect a CDS on the vehicle's exterior or trunk.

The motion judge rejected defendant's reliance on State v. 

Patino, 83 N.J. 1 (1980), finding that the Supreme Court in that 

case only barred a warrantless search of the trunk of a vehicle 

based on the discovery of small amounts of marijuana in a vehicle's 

interior. In this case, the judge found the presence of marijuana 

shake coupled with the smell of burnt marijuana in the interior 

of defendant's vehicle provided probable cause for a warrant to 

search the entire vehicle. The judge denied defendant's motion 

and request for a Franks hearing.

 

2 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 

667 (1978).
5 A-3139-15T4

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S 

MOTION TO SUPPRESS WITHOUT HOLDING A FRANKS

HEARING CONCERNING THE CRITICAL ISSUE OF 

WHETHER THE AFFFIDAVIT IN SUPPORT OF THE 

WARRANT TO SEARCH THE ENTIRE VEHICLE OMITTED 

FACTS THAT TENDED TO SHOW THAT THE POLICE DID 

NOT HAVE PROBABLE CAUSE TO SEARCH THE TRUNK.

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE 

AND UNDULY PUNITIVE.

The primary purpose of a Franks hearing is to "determine 

whether the police made material misrepresentations and/or 

omissions in seeking a search warrant and if so, whether the 

evidence gather from a defective warrant must be suppressed." 

State v. Smith, 212 N.J. 365, 413 (2012), cert. denied, 568 U.S.

1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). The Fourth 

Amendment3 requires the court to hold a hearing at the defendant's 

request where the defendant "makes 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 v. Delaware, 

 

3 U.S. Const. amend. IV.
6 A-3139-15T4

438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672

(1978); see also State v. Howery, 80 N.J. 563, 568, cert. denied, 

444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979). "These 

requirements also 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.), certif. denied, 

130 N.J. 396 (1992). In Howery, supra, 80 N.J. at 567-68, the 

Court noted that the limitations imposed by Franks are not 

insignificant.

In view of the above authority, we remand for a Franks

hearing. In State v. Keaton, 222 N.J. 438, 448-49 (2015), our 

Supreme Court reaffirmed that a search of a car must be limited 

in scope to where the items can reasonably be expected to be

located. "Therefore, a search for registration in the rear of the 

vehicle would not be permissible." Ibid. (citing Patino, supra, 

83 N.J. at 12). The legal question in Keaton was whether a police 

officer has a legal right to enter an overturned vehicle in order 

to obtain registration and insurance information for the vehicle 

without first requesting permission, or allowing the defendant an 

opportunity to retrieve the documents himself. Id. at 442.

Here, the State conceded that without defendant's consent, 

the police had no legal right to search the trunk. The area of 
7 A-3139-15T4

defendant's vehicle that caused K-9 Reno's reaction is therefore 

extremely significant. Thus, we remand for the court to conduct 

a Franks hearing to determine whether the discrepancies between 

the affiant's and Rawa's versions of K-9 Reno's search are 

sufficient to question the legality of the search. 

In the event defendant does not succeed on remand, we address 

his sentence. At sentencing, the judge found aggravating factor 

N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior 

criminal record and the seriousness of the offenses of which he 

has been convicted[,]" based on defendant's prior conviction for 

the same offense. The judge also found aggravating factor N.J.S.A.

2C:44-1(a)(9), "[t]he need for deterring the defendant and others 

from violating the law[,]" based on the need to deter defendant 

and others from unlawfully possessing weapons. The judge rejected 

defendant's request to find mitigating factor N.J.S.A. 2C:44-

1(b)(1), "[t]he defendant's conduct neither caused nor threatened 

serious harm," and mitigating factor N.J.S.A. 2C:44-1(b)(2) "[t]he 

defendant did not contemplate that his conduct would cause or

threaten serious harm[.]" The judge found that carrying a loaded

defaced handgun in the trunk contemplated that someone might get 

harmed at some point, and defendant had no legitimate reason to 

have a loaded defaced handgun in his trunk.
8 A-3139-15T4

We review a judge's sentencing decision under an abuse of 

discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). 

As directed by the Court, we must determine whether: 

(1) the sentencing guidelines were violated; 

(2) the aggravating and mitigating factors 

found by the sentencing court were not based 

upon competent and credible evidence in the 

record; or (3) the application of the 

guidelines to the facts of [the] case makes 

the sentence clearly unreasonable so as to 

shock the judicial conscience. 

[Ibid. (quoting State v. Roth, 95 N.J. 334, 

364-65 (1984)).]

We have considered defendant's contention that his sentence 

is manifestly excessive and punitive in light of the record and 

applicable legal principles and conclude it is without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). 

We are satisfied that the judge did not violate the sentencing 

guidelines and the record amply supports his findings on 

aggravating and mitigating factors. The sentence is clearly 

reasonable, does not shock our judicial conscience, and is 

affirmed. 

Remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.