STATE OF NEW JERSEY VS. RANDOLPH MCLEODÂ (13-07-0984 AND 13-07-0991, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 NO. A-0136-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RANDOLPH MCLEOD,
Defendant-Respondent.
Argued March 16, 2017 – Decided June 8, 2017
Before Judges Alvarez and Accurso.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment Nos. 13-07-0984 and 13-07-0991.
David M. Liston, Assistant Prosecutor, argued
the cause for appellant (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Mr.
Liston, of counsel and on the brief).
Stefan Van Jura, Deputy Public Defender II,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Mr. Van
Jura, of counsel and on the brief).
PER CURIAM
By leave granted, the State appeals a March 23, 2016 order
suppressing evidence after a hearing on defendant Randolph
McLeod's motion, as well as the judge's subsequent denial of
reconsideration. We now reverse.
Defendant was indicted for fourth-degree being an unlicensed
bounty hunter, N.J.S.A. 45:19-30 (count one); three counts of
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(counts two, four, and six); four counts of second-degree
possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a)
(counts three, five, seven, and nine); fourth-degree unlawful
possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count
ten); fourth-degree unlawful possession of a stun gun, N.J.S.A.
2C:39-3(h) (count eleven); four counts of fourth-degree unlawful
possession of a large capacity ammunition magazine, N.J.S.A.
2C:39-3(j) (counts twelve, thirteen, fourteen, fifteen); two
counts of fourth-degree possession of a prohibited weapon, an
expandable baton, N.J.S.A. 2C:39-3(e) (counts sixteen and
seventeen); two counts of fourth-degree possession of imitation
firearms, N.J.S.A. 2C:39-4(e) (counts eighteen and nineteen);
fourth-degree violation of regulatory provision, N.J.S.A. 2C:58-3
and/or 2C:58-4, N.J.S.A. 2C:39-10 (count twenty); and fourth-
degree hindering, N.J.S.A. 2C:29-3(b)(4) (county twenty-one).
Woodbridge Police Department Patrol Officer Thomas Ganci,
Jr., testified that on March 27, 2013, he passed a blue Crown
Victoria with tinted side windows, lights in the grill, and
2 A-0136-16T1
spotlights on the sides. His attention was drawn to the vehicle
because it was headed west "a little fast" while he was headed
east in a marked vehicle. Ganci promptly made a u-turn and
followed. The Crown Victoria, which to that point had been
traveling in the center lane, suddenly made a sharp left across
the far left lane of travel towards the exit ramp. After the
vehicle halted at a stop sign, the driver rolled down his car
window, and gave Ganci a "thumbs-up" signal, proceeding to make
another sharp left into a parking lot.
Ganci followed the car into the lot, learned that the owner
had a suspended license, and turned on his overhead lights, which
activated the patrol car's video camera. The driver got out of
the Crown Victoria and immediately walked over to him. Ganci
testified that the driver said, "something to the effect of, 'we
just came from your department. We just came from you guys. I
have a warrant here for this person.'" The driver seemed nervous
and talked very fast. He wore battle dress uniform (BDU) pants,
a bullet-proof vest which had the words, "Sergeant Johnson"
embroidered on the left side, and a nylon duty holster around his
belt and one on his thigh, with an empty gun holster.
The paper the driver handed Ganci only had a person's name
written on it, and no other information. Ganci had difficulty
understanding the driver, but thought he said something about a
3 A-0136-16T1
warrant and that the driver intended to apprehend the person. When
asked about the registered owner of the vehicle, the driver said
it was his partner, whose father was a lieutenant in the Newark
Police Department.
The driver handed Ganci an unfamiliar form of identification,
indicating the driver was a bounty hunter. When Ganci asked him
to identify the department with which he was affiliated, he said
"[n]o, we're bounty hunters." He was unable to produce a driver's
license, although he looked in the back seat of his car, opened
the trunk, briefly looked in a duffle bag, and said something to
the effect of "[y]ou know, I might have left it on the counter[.]"
The driver gave his name as Edward Johnson IV, and when asked
if he used a middle initial, he first said no and then said the
letter "B."1 Johnson provided Ganci with a correct date of birth.
By that juncture, defendant, who was the passenger, had stepped
out of the vehicle and handed Ganci his cell phone, stating the
registered owner was on the line. Ganci spoke to someone who said
the occupants had permission to drive his car.
When Ganci tried to pin Johnson down as to his precise title,
he initially declared he and defendant "[w]e're bail bondsmen[.]"
Defendant interrupted him and said "[w]e're fugitive recovery."
1
Johnson is named in the indictment for virtually the same
offenses; he is defendant's co-defendant.
4 A-0136-16T1
As a result, Ganci became concerned since the men "gave me three
separate titles as to who they were and . . . they didn't even
know what -- who they worked for, what their job was."
Defendant was dressed in the same manner as Johnson, including
an empty gun holster. Johnson had a criminal warrant out of the
Town of Orange and a traffic warrant from the Newark Municipal
Court. Defendant also had an active arrest warrant either out of
Long Branch or West Long Branch municipal court.
After backup arrived, Sergeant Richard Velez and Ganci spoke
about the possibility of searching the vehicle. Velez decided to
call a detective to the scene, Detective Richard Yanak, to obtain
a consent to search the car.
Once Yanak arrived, he and Ganci can be heard discussing the
possibility of a search on the video tape from the stop played
during the hearing. When Yanak asked Ganci if defendant had any
weapons, Ganci responded that he had not seen any. Yanak then
said:
I know [bail bondsmen] carry bullet proof
vests and stuff like that; they're allowed to.
Unless they have a (indiscernible), holsters
and stuff like that, they can have. But if
there's a gun in it, they better have the
information on them 'cause of them, 99 percent
of them, don't -- aren't allowed to carry.
Johnson consented to the search after being read the form. Towards
the end of the search, a man claiming to be the owner of the
5 A-0136-16T1
vehicle appeared with a licensed driver. By then, the officers
had located firearms, hollow point bullets, and a stun gun, among
other items.
The trial judge found that the consent to search was obtained
voluntarily, a point not in dispute. His concern was whether
there was sufficient reasonable and articulable suspicion as
required under State v. Carty, 170 N.J. 632, 647, modified on
other grounds, 174 N.J. 351 (2002), to request consent in the
first place. In his opinion, looking at the totality of the
circumstances, there was insufficient reasonable and articulable
suspicion "to suggest that the driver or passenger had engaged in,
or were about to engage in, criminal activity." He found that the
initial testimony established that the officers intended to arrest
Johnson and defendant on the outstanding warrants, and secure the
vehicle for retrieval by the owner.
In the judge's opinion, when Yanak arrived at the scene,
however, that plan changed because he had a "hunch" that bail bond
employees often illegally carry firearms. The judge further opined
that the empty holsters were not indicative of criminal activity,
nor were the men's clothing. That the driver was nervous did not
alter the equation. The judge considered Yanak's "presentiment"
not equivalent to reasonable and articulable suspicion. He
therefore suppressed the evidence.
6 A-0136-16T1
On appeal, the State contends that the trial judge erred
because he mischaracterized the facts, namely, that the decision
to search was based on Yanak's expression of a hunch. The State
also argues that the judge misunderstood the type of scenario the
Carty reasonable and articulable suspicion standard was intended
to address, and that in any event the circumstances presented
ample reasonable and articulable suspicion.
We review a motion judge's factual findings in a suppression
hearing with great deference. State v. Gonzales, 227 N.J. 77, 101
(2016). They are upheld "so long as those findings are supported
by sufficient credible evidence in the record." State v. Rockford,
213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1,
15 (2009)). The deference with which we review those factual
findings is "substantially influenced by [the motion judge's]
opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy." State v.
Johnson, 42 N.J. 146, 161 (1964). We owe no deference, however,
to the trial court's legal conclusions or interpretation of the
legal consequences that flow from established facts. As always,
our review in that regard is de novo. State v. Watts, 223 N.J.
503, 516 (2015); State v. Vargas, 213 N.J. 301, 327 (2013).
Under the Fourth Amendment of the United States Constitution
and Article I, Paragraph 7, of the New Jersey Constitution, a
7 A-0136-16T1
warrantless search is presumed invalid. The burden is on the
State to prove it "falls within one of the few well delineated
exceptions to the warrant requirement." State v. Pineiro, 181
N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482
(2001)). Consent is a well-recognized exception to the Fourth
Amendment's search warrant requirement. Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed.
2d 854, 858 (1973). The voluntary or knowing nature of the consent
is not challenged here. See State v. Sugar, 100 N.J. 214, 234
(1985).
Once the validity of a consent to search has been established,
the burden then shifts to the defendant to establish some
illegality in the manner of execution. State v. Robinson, 200
N.J. 1, 7-8 (2009) (citing State v. Valencia, 93 N.J. 126, 133
(1983)).
Although the Law Division judge made no specific finding, it
is clear that he considered Ganci a credible witness. Ganci's
testimony was corroborated by a second officer who testified
regarding unrelated issues, as well as by the video of the entire
incident, which the judge watched. His conclusion, not supported
by Ganci's testimony, appeared to be that until Yanak arrived, and
articulated his "hunch," the officers were not considering
searching the Crown Victoria. That is not the testimony.
8 A-0136-16T1
Ganci said that he and Velez discussed obtaining a consent
to search because of their concerns, and Velez called Yanak to the
scene for that very reason. Furthermore, Yanak did not say that
there was a possibility weapons would be found in the car based
on a guess. He said, captured on the video:
I know they carry bullet proof vests and stuff
like that; they're allowed to. Unless they
have a (indiscernible), holsters and stuff
like that, they can have. But if there's a
gun in it, they better have the information
on them 'cause of them, 99 percent of them,
don't --- aren't allowed to carry.
The basis for his certainty that most "bounty hunters" do not have
permits to carry weapons is unknown——but his expression was of a
certainty, based on some knowledge, not a guess. Moreover, the
comment followed a discussion with Ganci regarding Ganci's
suspicions based on his encounter with the driver and defendant.
The stop of this automobile was lawful. The car was
proceeding at a rate of speed that caught Ganci's attention,
attempted to evade the patrol car by turning unexpectedly onto a
side street when the officer was observed to have made a u-turn,
attempted to engage Ganci in a friendly exchange by a thumbs-up
gesture, and immediately pulled into a parking lot. Once Ganci
pulled in behind the vehicle and stopped, Johnson promptly got out
of his car and approached him. The tinted windows, themselves a
violation of New Jersey's motor vehicle code, N.J.S.A. 39:3-74,
9 A-0136-16T1
warranted the stop without consideration of the other
circumstances.
During the stop, the conduct of the driver and the passenger
was suspicious. The officer could not elicit a definite answer
from the two men as to the nature of their employment, the name
of the person that they were seeking to apprehend, and by whom
they were employed. They were dressed in highly unusual military
or police garb, which would, when added to the driver's
nervousness, establish the reasonable and articulable suspicion
that the empty holsters meant that weapons would likely be found
in the car.
Before a consent to search can be requested, reasonable and
articulable suspicion must be demonstrated. See Carty, supra, 170
N.J. at 635. This doctrine was developed specifically to address
"unreasonable intrusions when it comes to suspicionless consent
searches following valid motor vehicle stops." Id. at 646. It
was intended to deter "the widespread abuse of our existing law
that allows law enforcement officers to obtain consent searches
of every motor vehicle stopped for even the most minor traffic
violation." Ibid. An "objective standard [was] imposed to restore
some semblance of reasonableness" to requests for consent to search
during routine motorist/police encounters. Ibid. The State
demonstrated in this case, however, that the officers had an
10 A-0136-16T1
objective reasonable and articulable suspicion to obtain consent
to search, a far cry from the fishing expeditions barred by Carty.
Preliminarily, reasonable suspicion may be based on an
officer's prior experiences. See State v. Stovall, 170 N.J. 346,
361 (2002). Yanak's seeming knowledge regarding the habits of
bail bondsmen was not speculation, but based on some prior
experience or training. It is inconsequential that he did not
identify the source of his knowledge given the fact he was standing
with other officers and two suspects in a public parking lot in
the midst of a stop. That he expressed himself as having
"knowledge" is consequential. It was not a "hunch."
In any event, where the driver and his passenger could not
give a good report of their destination, had outstanding warrants,
were not driving their own vehicle, appeared nervous, and initially
attempted to misrepresent themselves as law enforcement,
reasonable and articulable suspicion that justified the request
for a consent to search was well demonstrated. See Carty, supra,
170 N.J. at 635; State v. Thomas, 392 N.J. Super. 169, 188 (App.
Div.), certif. denied, 192 N.J. 597 (2007). The standard is far
lower than probable cause and is determined objectively. See
State v. Elders, 192 N.J. 224, 250 (2007); Stovall, supra, 170
N.J. at 356.
11 A-0136-16T1
The interests of justice demand intervention and correction
because, first, the trial court misheard testimony. Additionally,
even were we not to conclude the court mistakenly interpreted the
record, we disagree with the court's legal determination. The
circumstances did give rise to a reasonable and articulable
suspicion that a search would produce evidence of criminal
wrongdoing.
Reversed and remanded to the Law Division for further
proceedings consistent with this opinion.
12 A-0136-16T1