TRENTON – To search a home without the occupant’s permission, police need a search warrant from a judge. To get one, police need to show probable cause that the search will find evidence of a crime.
What probable cause entails was explored in a Dec. 1 Appellate Court decision, in an appeal of a lengthy sentence imposed on Dwayne Wakefield, of Whitesboro, who pleaded guilty four years ago to charges of aggravated assault on a police officer and possession of drugs with the intent to distribute.
Appellate Court judges wrote that police must show they have a legitimate reason to suspect a crime, but that the standard of proof is not as high as what is required for a conviction.
In a high-profile arrest Sept. 8, 2016, the Cape May County SWAT Team raided Wakefield’s home, on West Main Street, discovering cocaine, heroin, marijuana, cash and weapons. Angel Davis, who lived at the home, as well, was also arrested at the time. There were also six children at the house.
Wakefield was sentenced to 16 years in prison, with 54 months of parole ineligibility. His attorney filed an appeal, arguing the search warrant should have been suppressed. The public defender also argued that the sentencing did not follow the constitutionally mandated procedure.
The prosecutor sought, and received, an extended sentence after a plea agreement. The appeal argued that Wakefield was not given sufficient notice that the prosecutor intended to seek the extended term and failed to develop a record of the grounds on which that would be sought.
In a Dec. 1 decision, Appeals Court Judges Michael Haas, Hany Mawla, and Arnold Natali dismissed both appeals. In their decision, the judges included transcripts from the sentencing hearing, indicating that Wakefield was aware of the potential sentence when he made the plea agreement.
“Defendant was also questioned extensively as to his understanding of the extended sentence by the trial court at his plea hearing,” reads the decision, which found that the lower court met its constitutional requirements.
In their decision, the judges state that the sentencing court considered Wakefield’s extensive convictions on drug offenses, going back to the 1980s, with multiple felony convictions. They wrote that there is sufficient credible evidence in the record to support the sentencing.
The appeal sought to have the evidence found in the search of Wakefield’s home removed from consideration, based on how the search warrant was approved, an argument the judges also rejected.
According to the court records, Michael Pastore, an officer with the Middle Township Police Department’s Street Crimes Unit, sought the warrant Sept. 7, 2016, to search Davis and Wakefield’s home.
In an affidavit, Pastore stated that a confidential informant had firsthand knowledge that they were selling crack cocaine from the house. In August of that year, Pastore worked with the informant to buy crack.
The informant was searched before the buy, given money, and proceeded to the house. He was under surveillance and returned with, what Pastore suspected was, crack. There was a second purchase later that week.
The court approved a “no knock” warrant and police found drugs, about $1,200 in cash, a digital scale, two pistol crossbows and a high-powered Taser.
“Defendant moved to suppress the physical evidence seized pursuant to the search warrant,” reads the decision. “He principally asserted that the warrant lacked probable cause because it included the incorrect date for when Pastore met with the CI (confidential informant) and that the CI’s tip was not ‘sufficiently corroborated.’”
The defense asserts that the officer did not have enough information to establish probable cause and that the substance purchased on two occasions was not tested to determine if it was, in fact, cocaine.
“Defendant specifically contends that the facts contained in the probable cause affidavit, individually or collectively, failed to establish that there was a fair probability that contraband would be found in defendant’s residence or on him personally. We disagree,” reads the decision.
The judges found there was ample evidence to meet the definition of probable cause, and there was no indication in the record that the substance was anything other than crack cocaine.
The judges cited a 1966 ruling that stated probable cause requires less legal evidence than necessary to convict, but more than “mere naked suspicion.”
“The totality of the facts presented here – including the coordination of the controlled purchase of crack cocaine, the circumstances under which the controlled buys were made, and Pastore’s training and experience – established probable cause to believe the purchased items were illicit narcotics,” the decision reads.
To contact Bill Barlow, email bbarlow@cmcherald.com.
