State of New Jersey v. Michael A. Gilliard ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1513-21
A-3877-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL A. GILLIARD,
Defendant-Appellant.
_______________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYON E. EVANS, a/k/a
TYWON EVANS, and
PAC-MAN,
Defendant-Appellant.
_______________________
Argued September 18, 2023 (A-1513-21) and November
13, 2023 (A-3877-21) – Decided February 9, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No.
20-02-0237.
Scott Michael Welfel, Assistant Deputy Public
Defender, argued the cause for appellant in A-1513-21
(Joseph E. Krakora, Public Defender, attorney; Ashley
T. Brooks, Assistant Deputy Public Defender, and Scott
Michael Welfel, of counsel and on the briefs).
Colin Sheehan, Assistant Deputy Public Defender,
argued the cause for appellant in A-3877-21 (Joseph E.
Krakora, Public Defender, attorney; Colin Sheehan, of
counsel and on the brief).
William P. Cooper-Daub argued the cause for
respondent in A-1513-21 (Matthew J. Platkin, Attorney
General, attorney; Amanda Frankel, Deputy Attorney
General, of counsel and on the brief).
David M. Galemba, Deputy Attorney General, argued
the cause for respondent in A-3877-21 (Matthew J.
Platkin, Attorney General, attorney; David M.
Galemba, of counsel and on the brief).
PER CURIAM
These appeals, which we have consolidated for the purpose of issuing a
single opinion, arise out of the search of a vehicle and the occupants and seizure
of two handguns. Following the denial of a motion to suppress the handguns
seized without a warrant, co-defendants Michael Gillard and Tyon Evans both
pleaded guilty to second-degree unlawful possession of a handgun without a
permit, N.J.S.A. 2C:58-4, and were sentenced to five years in prison with forty-
A-1513-21
2
two months of parole ineligibility as prescribed by the Graves Act, N.J.S.A.
2C:43-6(c). They now appeal from the orders denying their motion to suppress.
Because the searches and seizures were unlawful, we reverse, vacate their
convictions, and remand for further proceedings.
I.
A grand jury indicted Gilliard on two counts of second-degree unlawful
possession of a weapon, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b), and one
count of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). Gilliard
was also charged with disorderly persons possession of a controlled dangerous
substance, N.J.S.A. 2C:35-10(a)(4). The same grand jury indicted Evans on
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-
degree receiving stolen property, N.J.S.A. 2C:20-7(a).
Gilliard and Evans moved to suppress the two handguns seized without a
warrant after a BMW they had been riding in was stopped. The BMW had been
driven by Kafir Anderson. We recite the relevant facts from the record
developed at a multi-day evidentiary hearing on the motion to suppress. The
State presented testimony from Asbury Park Police Officers Christopher Leahy
and Samuel Griffeth, and Sergeant Frank Sangi. On December 1, 2019, Leahy
was assigned to monitor the surveillance cameras in the city's "high-crime areas"
for suspicious behavior. Around 1:00 a.m. on December 2, he "believed" there
A-1513-21
3
was a radio call concerning gunshots heard around Washington Avenue. He
viewed the video footage of two unidentified men approaching another man as
he walked out of 1292 Washington Avenue.1 As the man attempted to flee east
on Washington Avenue, the two men fired multiple gunshots at the victim, one
of which hit his arm.
The following night, Leahy monitored the 1200 block of Washington
Avenue. While watching the surveillance camera, at around 10:00 p.m., he saw
Gilliard engaged in what he thought was "suspicious behavior." Leahy knew
Gilliard based on prior "field contacts." Gilliard briefly entered 1292
Washington Avenue, then came back out and walked west on Washington
Avenue while "cupping" his left arm "very tightly to his body, almost as if he
was gripping something." Leahy later testified he thought Gilliard was "holding
something within his jacket or waistband area." Leahy then watched as Gilliard
walked west on Washington Avenue out of the camera's view.
Thereafter, at 10:05 p.m., Leahy observed a silver BMW drive up and park
in front of 1292 Washington Avenue. A male exited the BMW, briefly entered
1292 Washington Avenue, exited the building, and then entered the BMW
through the rear driver's-side door. The BMW, which appeared to have a driver
1
The surveillance camera video was played at the suppression hearing.
A-1513-21
4
and two passengers, then pulled away from the parking space without signaling.
Leahy testified the BMW then stopped in the middle of the street and Gilliard
entered the rear passenger side.
Leahy radioed Griffeth, who was on patrol in a police vehicle, and told
him the BMW "[left the] 1200 block of Washington Avenue without signaling
properly out of the parking space." On cross-examination, Leahy identified
Washington Avenue as a one-way street. He admitted that he ordered Griffeth
stop the BMW and expected Griffeth to comply. Leahy's report confirmed that
he had "transmitted over the radio to Officer Griffeth to conduct a traffic stop
with this vehicle."
Griffeth testified he received information from Leahy that he was
"conducting surveillance on the city cameras and he observed a couple of
individuals involved in suspicious behavior." By radio, Leahy advised him the
BMW was traveling south on Ridge Avenue towards Springwood Avenue. On
cross-examination, Griffeth testified that Leahy did not order him to stop the
BMW. However, Griffeth admitted that his report stated Leahy "advised [him]
via police radio that he would like me to stop a vehicle, which he observed
partaking in suspicious activity in front of 1292 Washington Avenue." Griffeth
acknowledged that he intended to stop the BMW based on Leahy's direction.
A-1513-21
5
Griffeth pulled his vehicle to the side of the road on Ridge Avenue and
waited for the BMW. Shortly thereafter, Griffeth saw the BMW slow down as
it approached a red light at the intersection of Ridge Avenue and Springwood
Avenue. He then saw the BMW's turn signal activate as the car made a right-
hand turn at the red light without coming to a full stop. Griffeth testified that
he observed two motor vehicle infractions: (1) the failure to initiate the turn
signal 100 feet prior to turning, and (2) the failure to come to a complete stop at
the red light. Griffeth pulled his vehicle out onto the street, pursued the BMW,
and conducted a motor vehicle stop. Griffeth did not check the BMW's license
plate before exiting his vehicle.
Griffeth testified that as he approached the BMW, he did not see any of
the occupants make furtive moments or "duck" under the seat. He also testified
that he did not see any of the rear passengers leaning up. When Griffeth got to
the driver's side of the BMW, he saw four occupants in the car. He knew all the
occupants based on their gang affiliations but was unable to identify the specific
gang.
Although Griffeth spoke to each occupant, his initial interaction was
primarily with Anderson, the driver, through the open driver's window.
Anderson produced his license, but explained to Griffeth that the BMW was his
father's car, and he did not have the insurance card or the vehicle registration.
A-1513-21
6
Anderson asked Griffeth to "look up" the license plate to check the registration.
Griffeth did not check Anderson's driver's license or the registration.
Griffeth testified that he detected the odor of raw and burnt marijuana
while standing by the driver's window. He saw the two rear passengers, Gilliard
and a juvenile, smoking cigars. Griffeth asked the rear passengers if they were
smoking a cigar to cover up the "weed." Gilliard stated, "no, no at all."
Anderson admitted to smoking marijuana about fifteen minutes before the stop.
Sangi, as the road supervisor, arrived at the traffic stop to assist and
walked to the passenger's side of the vehicle. He did not speak with Griffeth, so
he did not know Anderson failed to produce the vehicle registration or insurance
card.
After Sangi's arrival, Griffeth told the occupants the car would be searched
for "weed." Griffeth removed Anderson from the BMW and searched him near
the trunk but did not recover marijuana. Next, Griffeth removed the juvenile,
the rear driver's side passenger, from the BMW. No marijuana was found during
the search of the juvenile. He was then placed the juvenile near Anderson and
later arrested him.
Griffeth conducted a search of Evans, the front seat passenger in the
BMW, which revealed marijuana and a "large roll" of cash. Evans was placed
in handcuffs. Five or six additional officers then arrived at the stop.
A-1513-21
7
Gilliard was removed from the car, and Sangi conducted a pat-down based
on the "strong odor of raw marijuana" coming from him. Sangi discovered
marijuana and a loaded gun during the search. Gilliard was placed under arrest.
After the occupants were placed under arrest, the officers searched the car.
Sangi testified that he was "concerned" because the BMW "came from a location
that just had a shooting prior to" the traffic stop. Like Griffeth, he did not see
the occupants make any furtive movements or Evans move toward the glove
compartment. Sangi further stated the officers had probable cause to search the
remainder of the BMW based on the marijuana found on Evans. Additionally,
Sangi explained he obtained the car keys from another officer and searched the
glove compartment because Anderson "never provided the registration or
insurance information." A loaded gun was discovered. Later, Sangi received
"the owner's consent" to search the BMW.
In a July 30, 2021 oral decision, the trial court denied defendant's motion
to suppress the handguns, finding each of the State's witnesses "credible" and
their testimony "consistent" with the video of the stop and search. The court
found Griffeth had an "objectively reasonable and articulable" basis to the stop
the BMW—the failure to stop at the turn and the failure to properly use a turn
signal—and there was no requirement that Griffeth issue citations. In addition,
the court reasoned the motor vehicle infractions were "independent intervening
A-1513-21
8
events, sufficiently attenuated from any questionable order or direction made by
Officer Leahy earlier that night." Therefore, the trial court reasoned that "the
motor vehicle stop was proper and based on that improper turn."
Relying on State v. Myers, 442 N.J. Super. 287 (App. Div. 2015), the trial
court determined the occupants were properly ordered out of the BMW based
on the "burnt" smell of marijuana. The trial court also noted State v. Witt, 223
N.J. 409 (2015), "afford[ed] police officers at the scene the discretion to choose
between searching the vehicle immediately, if they spontaneously have probable
cause to do so, or hav[ing] the vehicle removed and impounded and seek[ing] a
search warrant later." It then found there was probable cause to believe
marijuana would be found in the car.
Lastly, the court found that Anderson’s inability to produce proof of
registration or insurance and the fact that he "never attempted to open the glove
compartment" justified the warrantless search of the locked glove compartment
pursuant to the credentials search exception. The trial court concluded that the
State presented sufficient facts to justify a protective search of the BMW,
resulting in the permissible seizure of the handguns.
After the denial of the motion to suppress, Gilliard and Evans each
pleaded guilty to one count of second-degree unlawful possession of a handgun
without a permit.
A-1513-21
9
II.
Gilliard makes the following arguments on appeal:
POINT I
THE STOP AND THE SEARCH WERE
UNCONSTITUTIONAL BECAUSE THE STOP WAS
PRETEXTUAL AND UNREASONABLE.
A. Officer Griffeth did not have reasonable suspicion.
B. Alternatively, if reasonable suspicion existed [on]
the record, it did so only [for a] de minimis traffic
violation, which could not support [the] stop because
[the] stop was clearly pretextual and such stops are
unconstitutional under our state constitution.
1. First Approach: Finding pretextual traffic stops
unconstitutional under our state constitution.
2. Second Approach: Using an equal protection
framework.
POINT II
[GILLIARD'S] CONVICTION FOR POSSESSION OF
A HANDGUN WITHOUT A PERMIT MUST BE
VACATED BECAUSE NEW JERSEY LICENSING
LAWS ARE FACIALLY UNCONSTITUIONAL (Not
Raised Below).
A. Under Bruen2, New Jersey's licensing scheme and
criminal statute, as written and enforced at the time of
the purported offense, is unconstitutional. Therefore,
his conviction must be vacated.
2
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
A-1513-21
10
B. New Jersey law precludes all persons under the
age of 21 from obtaining a permit to carry a handgun,
in violation of the second and fourteenth amendments.
Thus, Gilliard's Conviction for Possession without a
Permit Must Be Vacated.
C. These constitutional challenges are not waived.
Evans articulates similar arguments on appeal as follows:
POINT I
THE EVIDENCE SEIZED FROM THE CAR IN
WHICH EVANS WAS A PASSENGER MUST BE
SUPPRESSED BECAUSE THERE WAS NO
REASONABLE SUSPICION TO STOP THE CAR,
NO EXCEPTIONS TO THE WARRANT
REQUIREMENT APPLY, AND THE SEARCH IS
INVALIDATED BY THE LAW LEGALIZING
MARIJUANA.
A. The officers had no reasonable suspicion to stop the
car.
B. The warrantless search of the car cannot be excused
by the automobile exception.
C. The warrantless search of the glove compartment
cannot be excused by the credential-search exception.
D. The odor of marijuana cannot provide probable
cause for the warrantless search because the law
legalizing marijuana demands retroactive application.
It is well established that our review of a trial court's decision on a motion
to suppress following an evidentiary hearing is limited. State v. Ahmad, 246
N.J. 592, 609 (2021). In using a deferential standard of review, we "uphold the
A-1513-21
11
factual findings underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record." State v. Cohen, 254
N.J. 308, 318 (2023) (citing Ahmad, 246 N.J. at 609). We are bound to defer
"to those findings in recognition of the trial court's 'opportunity to hear and see
the witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" Ibid. (quoting Ahmad, 246 N.J. at 609). We "ordinarily will not disturb
the trial court's factual findings unless they are 'so clearly mistaken that the
interests of justice demand intervention and correction.'" State v. Goldsmith,
251 N.J. 384, 398 (2022). However, we are not bound by a trial court's
determination of a strictly legal question. See State v. O.D.A.-C., 250 N.J. 408,
425 (2022). Therefore, "[a] trial court's legal conclusions and its view of 'the
consequences that flow from established facts,' are reviewed de novo." State v.
Nyema, 249 N.J. 509, 526-27 (2022) (quoting State v. Hubbard, 222 N.J. 249,
263 (2015)).
When the motion court hears testimony in addition to reviewing an audio
and video recording of the stop,3 an appellate court's own review of the video
recording must not be elevated over the factual findings of the trial court. See
State v. S.S., 229 N.J. 360, 374-76 (2017).
3
The video recording of the traffic stop and the investigative detention was
made from Griffeth's vehicle and body-worn camera.
A-1513-21
12
A. The Alleged Reasonable Articulable Suspicion to Stop the BMW.
We first examine the relevant circumstances to determine whether Leahy
had a reasonable and articulable suspicion to believe that the BMW and the
occupants were engaged in criminal activity. Under the United States and New
Jersey Constitutions, a warrantless search by police officers is presumptively
invalid unless the State proves the search is justified by an established exception
to the warrant requirement. Cohen, 254 N.J. at 319. If the State fails to prove
such an exception applies, the evidence seized must be suppressed. Ibid.
Reasonable suspicion is defined as "a particularized and objective basis
for suspecting a person stopped of criminal activity." State v. Pineiro, 181 N.J.
13, 22 (2004) (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). There must
be "some objective manifestation that the person [detained] is, or is about to be
engaged in criminal activity." Ibid. (quoting United States v. Cortez, 449 U.S.
411, 417-18 (1981)). When determining whether reasonable suspicion exists, a
reviewing court must consider "the totality of the circumstances — the whole
picture." State v. Nelson, 237 N.J. at 554 (quoting Stovall, 170 N.J. at 361).
Applying these general principles, we conclude Leahy did not have
reasonable articulable suspicion to order Griffith to stop the BMW. The record
and video surveillance footage shows the traffic stop was more than an
investigatory stop. Leahy's order was based on an alleged motor vehicle
A-1513-21
13
infraction and defendant's "suspicious behavior" which do not support
reasonable suspicion. See State v. Rosario, 229 N.J. 263, 276-77 (2017). We
acknowledge Leahy's testimony concerning his observations in a high-crime
location is relevant to the totality of circumstances; however, more was required
"than simply invok[ing] the buzz words 'high-crime area' in a conclusory manner
to justify [the order] for [an] investigative stop[]." Goldsmith, 251 N.J. at 404.
We also note the motion judge did not find reasonable suspicion based on
Leahy's observations.
We next address defendant's argument that the traffic stop was based upon
pretext, and therefore, unlawful. An investigatory stop must be "based on
'specific and articulable facts which, taken together with rational inferences
from those facts,' give rise to a reasonable suspicion of criminal activity."
Nyema, 249 N.J. at 527 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)).
Reasonable suspicion requires "a particularized and objective basis for
suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J.
346, 356 (2002).
Generally, an officer observing a traffic violation has probable cause to
stop a vehicle. State v. Bacome, 228 N.J. 94, 103 (2017). Moreover, the State
must show by a preponderance of the evidence that the particular facts
objectively supported the officer's reasonable suspicion. State v. Alessi, 240
A-1513-21
14
N.J. 501, 518 (2020); State v. De Lorenzo, 166 N.J. Super. 483, 488 (App. Div.
1979).
The State contends the stop was lawful based on the failure to give the
appropriate signal when turning under N.J.S.A. 39:4-126, and the failure of the
BMW to come to a complete stop under N.J.S.A. 39:4-144. However, Griffeth
acknowledged that he stopped the BMW at Leahy's direction. Therefore, the
trial court's finding was not supported by the record. Moreover, no testimony
was elicited that the BMW's turn affected the traffic. See State v. Williamson,
270 N.J. Super. 318, 320-22 (App. Div. 1994).
The trial court rejected defendant's argument that the stop was pretextual
and concluded the traffic stop was based on Griffeth's observation of the motor
vehicle's infractions. The court cited State v. Barrow, 408 N.J. Super. 509 (App.
Div. 2009), stating: "The fact that the justification for the stop was p retextual
[was] irrelevant. Even the slightest motor vehicle violation provides a basis for
the stop." The court determined the "intervening acts of those motor vehicle
infractions [did] not invalidate the stop." We disagree and conclude the trial
court erred in its application of Barrow.
Here, there was a direct nexus between the traffic stop and Leahy's radio
call to stop the BMW. Griffeth waited for the BMW, which supported his
testimony that he intended to comply with Leahy's order and stop the BMW.
A-1513-21
15
Although Griffeth observed the BMW commit the motor vehicle violations, we
hold the motor vehicle violations were not attenuated from Leahy's order. Thus,
the traffic violations were not independent intervening events. Having engaged
in a fact-sensitive inquiry, we conclude the State failed to show by a
preponderance of the evidence that the stop of the BMW was objectively
supported by the officer's reasonable suspicion.
We also consider the foreseeability and spontaneity of the traffic stop.
The automobile exception authorizes a warrantless search of a vehicle when
police officers have probable cause to believe the vehicle contains contraband
or evidence of an offense and the circumstances giving rise to probable cause
are "unforeseeable and spontaneous." Witt, 223 N.J. at 448-50. Following Witt,
we have explained warrantless on-the-scene searches of motor vehicles are
permitted in circumstances where: "(1) the police have probable cause to believe
the vehicle contains evidence of a criminal offense; and (2) the circumstances
giving rise to probable cause are unforeseeable and spontaneous." State v.
Rodriguez, 459 N.J. Super. 13, 22 (App. Div. 2019).
Recently, in State v. Smart, 253 N.J. 156 (2023), our Supreme Court
closely examined the unforeseeable and spontaneous requirement in affirming
the suppression of evidence seized from the search of the car where the police
failed to obtain a warrant. The Court ruled a warrant was required in an
A-1513-21
16
investigative stop where the circumstances giving rise to probable cause were
not unforeseeable and spontaneous as required by Witt. Id. at 173.
In Smart, the Court held the stop was not "unforeseeable and
spontaneous," stating:
Here, the police actions that led to the warrantless
search of the GMC were not prompted by the
"unforeseeability and spontaneity of the circumstances
giving rise to probable cause." Witt, 223 N.J. at 414
(quoting State v. Alston, 88 N.J. 211, 233 (1981)). The
opposite occurred. Indeed, the investigative stop was
deliberate, orchestrated, and wholly connected with the
reason for the subsequent seizure of the evidence.
[Id. at 172 (citations reformatted).]
Under Smart and Witt, probable cause pursuant to the automobile
exception must "aris[e] from unforeseeable and spontaneous circumstances."
Smart, 253 N.J. at 174; Witt, 233 N.J. at 450. The facts from the suppression
hearing show Griffeth's stop of the BMW was not "unforeseen and
spontaneous." Instead, the facts establish that Griffeth's presence at the
intersection of Ridge Avenue and Springwood Avenue was orchestrated by
Leahy's direct and deliberate order to stop the BMW.
B. The Search of the BMW and the Occupants.
Probable cause, moreover, did not ripen to search the car or occupants
after the stop. In New Jersey, a lawful traffic stop does not necessarily give rise
A-1513-21
17
to a personal or full automobile search. State v. Pierce, 136 N.J. 184, 205, 208-
10 (1994); State v. Roman-Rosado, 462 N.J. Super. 183, 196 (App. Div. 2020).
A full vehicle search requires a showing of probable cause of the presence of
contraband or reasonable suspicion that an occupant is dangerous and may gain
access to weapons. State v. Gamble, 218 N.J. 412, 426 (2014); Roman-Rosado,
462 N.J. Super. at 196.
There was insufficient evidence in the record to show reasonable
articulable suspicion for the search of the occupants or probable cause for the
search of the BMW. Prior to the passage of Cannabis Regulatory, Enforcement
Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I-
31 to -56, in 2021, the smell of marijuana provided sufficient probable cause for
an officer to search a car and its passengers. State v. Mandel, 455 N.J. Super.
109, 114-15 (App. Div. 2018). This matter predates CREAMMA, so had
Griffeth made the stop based solely on the traffic violations, the smell of
marijuana would have provided sufficient probable cause. However, based on
the events as noted above, we hold the smell of marijuana was mere pretext for
the officers' warrantless search.
Evans concedes CREAMMA was passed after the stop challenged in the
suppression motion but argues for retroactive application of the statute. That
argument lacks merit. First, we have previously held CREAMMA requires
A-1513-21
18
prospective application. State v. Cambrelen, 473 N.J. Super. 70, 76 n.6 (App.
Div. 2022). Additionally, the imperative language, "shall take effect
immediately," applicable to N.J.S.A. 2C:35-10(c) signified a prospective
application. L. 2021, c. 16, § 87(a)(1); State v. Lane, 251 N.J. 84, 96 (2022).
Moreover, our Supreme Court has held the Act "has no bearing" on a search that
"predated the passage of CREAMMA." Cohen, 254 N.J. at 328.
We are similarly not persuaded that Sangi had probable cause to search
the BMW because the vehicle registration was not produced. Sangi was unaware
that Anderson had not produced the registration or the insurance card prior to
the search of the occupants and the car. Griffeth did not conduct a search of a
limited area of the BMW based on Anderson's inability to produce the
registration. See State v. Johnson, 476 N.J. Super. 1, 13 (App. Div. 2023).
Rather, he told the occupants the car would be searched for "weed." Griffeth
could have searched the Department of Motor Vehicles database to determine
the BMW's ownership prior to the stop and subsequent search but did not do so.
We are also not convinced the search was for the officers' safety. Neither
Griffeth nor Sangi saw furtive gestures from any occupant to justify a sweeping
search or any actions that "gave rise to an articulable suspicion suggesting
criminal activity." Nyema, 249 N.J. at 530; Goldsmith, 251 N.J. at 405-06. In
fact, the record shows the occupants were compliant.
A-1513-21
19
Lastly, Gilliard's movement was restricted from the moment Sangi arrived
because Sangi stood by the side of the BMW where Gilliard was seated. See
Rosario, 229 N.J. at 272. Also, from the moment of the stop to the arrest, Evans's
movement was restricted. While Sangi testified that he was "concerned"
because the BMW "came from a location that just had a shooting prior to" the
traffic stop, the shooting occurred approximately twenty-two hours before the
stop, and there was no evidence adduced in the suppression hearing that
identified any of the occupants as being involved in the shooting or armed and
dangerous.
We, therefore, conclude the traffic stop was not unforeseeable and
spontaneous but was a pretextual, "deliberate," and "orchestrated" stop based on
the "sequence of interconnected events" that began with the radio transmission.
Smart, 253 N.J. at 172. The totality of the circumstances establish that the
officers stopped the BMW to investigate a shooting. Everything thereafter was
a pretext to look for guns. Thus, the subsequent search of Gilliard, Evans, and
the BMW and seizure of the handguns were illegal; and the handguns should
have been suppressed.
C. Alleged Unconstitutionality Under Bruen.
Gilliard also argues his conviction for possession of a handgun without a
permit should be vacated because the New Jersey law is "facially
A-1513-21
20
unconstitutional" under Bruen. Gilliard has misread the holding in Bruen. We
conclude Gilliard does not have standing to raise this argument.
We considered and rejected the same argument in State v. Wade, 476 N.J.
Super 490, 511 (App. Div. 2023). In Wade, we held "that the justifiable need
requirement in N.J.S.A. 2C:58-4(c) (2018) was severable and the remaining
provisions of N.J.S.A. 2C:58-4 (2018), as well as N.J.S.A. 2C:39-5(b)(1), were
constitutional and enforceable." Id. at 511. Gilliard has incorrectly presumed
he "would have been granted a permit but for one potentially invalid provision
of a permit statute." Id. at 507. Based on that legal principle, we reject Gilliard's
argument that New Jersey's gun permit scheme was unconstitutional.
Reversed, vacated, and remanded.
A-1513-21
21