NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2503-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
October 20, 2020
v.
APPELLATE DIVISION
CHRISTOPHER RADEL a/k/a
CHRISTOPH R. RADEL,
CHRISTPOH R. RADEL, and
CHRISTOHE R. RADEL,
Defendant-Appellant.
_____________________________
Argued September 15, 2020 – Decided October 20, 2020
Before Judges Fisher, Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-08-0697.
Stefan Van Jura, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Stefan Van Jura, of counsel
and on the brief).
Deborah Bartolomey, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Deborah Bartolomey, of counsel and
on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
After being indicted and charged with numerous weapons and drug
offenses, defendant moved in the trial court for the suppression of evidence
seized from his home. The evidence – guns, ammunition, drugs, and drug
paraphernalia – was seized pursuant to a search warrant supported by
information police had obtained during a warrantless entry into defendant's
home. The State persuaded the trial judge that the warrantless entry did not run
afoul of the Fourth Amendment because the police were justified in conducting
a protective sweep. Because the evidence and the judge's findings do not support
that conclusion, we vacate the order denying suppression and remand for further
proceedings. In light of this disposition, we find it unnecessary at this time to
consider the other issues defendant raised in this appeal.
The record reveals that after the judge's denial of defendant's suppression
motion, defendant reached a plea agreement with the State and entered a
conditional guilty plea to one count of second-degree being a certain person not
permitted to possess weapons, N.J.S.A. 2C:39-7(b)(1), and one count of second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). As part of the
plea agreement, the State dismissed the other eighty-six counts of the
indictment. Defendant was later sentenced, within the plea agreement's
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parameters, to a ten-year prison term, subject to a five-year period of parole
ineligibility, on the certain-persons conviction and a fifteen-year prison term,
subject to a seven-and-one-half-year period of parole ineligibility, on the
unlawful-possession-of-a-weapon conviction; both terms were ordered to run
consecutively.
Defendant appeals, arguing:
(1) the warrantless entry and purported protective
sweep of his home could not be justified because,
among other things, he was arrested and handcuffed
outside the home before the sweep occurred;
(2) those counts charging unlawful possession of a
firearm under N.J.S.A. 2C:39-5(b)(1), were barred by
N.J.S.A. 2C:39-6(e), which declares that nothing in
subsection (b) of N.J.S.A. 2C:39-5 "shall be construed
to prevent a person keeping or carrying about his . . .
residence . . . any firearm";
(3) those counts charging possession of hollow nose
bullets, N.J.S.A. 2C:39-3(f)(1), were barred by
N.J.S.A. 2C:39-3(g)(2)(a), for reasons similar to those
raised in his second point;
(4) the charges based on defendant's possession of
marijuana or drug paraphernalia should have been
dismissed because, in defendant's words, "the State
failed to present clearly exculpatory evidence to the
grand jury demonstrating that defendant could lawfully
possess marijuana for medical reasons"; and
(5) the sentence imposed was shocking to the judicial
conscience and otherwise improperly imposed.
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We agree with defendant that the police were not entitled to conduct a protective
sweep under the circumstances. For that reason, we vacate the order denying
the suppression motion and remand for further proceedings without reaching or
deciding the other four issues.1
Three police officers and defendant testified at the suppression hearing.
The State's evidence revealed that police interest in defendant started with an
assistant prosecutor's January 7, 2016 call to local police about an October 27,
2015 order, which apparently sprang from defendant's March 2015 conviction
for unlawful possession of a weapon. The order directed "members of Little
Falls Police Department [to] respond to the [d]efendant's home, located at 103
Browertown Road [, Little Falls] . . . for the limited purpose of retrieving from
said home any and all firearms, including one Beretta [handgun]." One of the
officers testified that after the phone call from the prosecutor's office he did
some research and learned defendant was the target of two outstanding
municipal arrest warrants. He also learned that defendant lived at 81
Browertown Road, not 103 Browertown Road where his parents lived. The
1
Because we do not consider them at this time, defendant may pursue those
other four issues in any later appeal, if necessary.
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officer called and briefly spoke to defendant's mother, who, the officer asserted,
wasn't helpful in assisting his attempts to get in touch with defendant.
The police assembled a team of six officers for the purpose of going to
defendant's neighborhood and arresting him on the outstanding municipal arrest
warrants. 81 Browertown and 103 Browertown are on the same side of the street
and separated by a driveway that runs off Browertown and into a Passaic Valley
High School parking lot. The officers were stationed around the premises; some
watched the backs of the homes, and others sat in the driveway to the high school
between 81 and 103 Browertown. Before long, one officer noticed a figure in
blue in the backyard of 81 Browertown entering the rear of that home; that
officer also heard a "loud bang." Within a few minutes, other officers saw a
person, who matched their photos of defendant, wearing a blue jacket as he
exited the front door of 81 Browertown carrying a laundry basket. As defendant
placed the laundry basket in the backseat of a vehicle parked in the driveway,
an officer – in his words – was "on" him, seizing defendant and placing him face
down as he applied handcuffs. Defendant did not resist. Once defendant was in
custody, the police concluded a protective sweep of 81 Browertown was
necessary out of a concern there might be others inside, along with the handgun
they had come to retrieve.
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After entering the dwelling at 81 Browertown, police observed in plain
sight a black handgun in a glass cabinet, a ballistics vest, and drug paraphernalia.
No other person was inside. Some officers then left to seek out a search warrant
while others remained behind to secure the premises until the warrant was
obtained. A judge issued a search warrant and the subsequent search led to the
seizure of weapons and other evidence that were the subject of defendant's
unsuccessful suppression motion. The linchpin of the judge's denial of the
motion was his finding that the officers engaged in a legitimate protective sweep
of 81 Browertown.
In considering defendant's argument about the challenged protective
sweep, we start with broad principles. The Fourth Amendment protects
individuals from unreasonable searches and seizures, and "the chief evil against
which the wording of the Fourth Amendment is directed" is an unwarranted
physical intrusion into the home. United States v. U.S. Dist. Court, 407 U.S.
297, 313 (1972). So, the officers' entry into 81 Browertown after defendant's
arrest outside was presumptively unlawful absent the State's demonstration that
the entry fell into one of the specific exceptions acknowledged by the Supreme
Court of the United States. State v. Davila, 203 N.J. 97, 111-12 (2010). The
only exception argued by the State was based on the protective-sweep doctrine.
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In Maryland v. Buie, 494 U.S. 325, 327 (1990), the Court approved the
protective-sweep doctrine while also recognizing that to pass constitutional
muster the sweep must be
a quick and limited search of premises, incident to an
arrest and conducted to protect the safety of police
officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person
might be hiding.
Despite Buie's declaration that the search of the premises must be "incident to
an arrest," ibid., our Supreme Court has recognized that this doctrine has been
"extended," State v. Bryant, 227 N.J. 60, 70 (2016), and the warrantless sweep
is permitted, when:
(1) law enforcement officers are lawfully within the
private premises for a legitimate purpose, which may
include consent to enter; and (2) the officers on the
scene have a reasonable [and] articulable suspicion that
the area to be swept harbors an individual posing a
danger.
[Davila, 203 N.J. at 125.]
Even though a protective sweep does not have to be "incident to an arrest," Buie
and Davila presuppose that law enforcement officers who believe themselves or
others in potential danger would actually be in the premises or location to be
swept. In both cases, officers were properly inside the defendant's home either
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to execute an arrest warrant or by consent, thus presenting the heightened
concern for their safety that the protective-sweep doctrine requires.
This case differs. No one disputes that defendant was outside his home,
under arrest, and in handcuffs before police made the decision to enter his home,
ostensibly for their protection. Despite this distinguishing fact, the judge found
that Davila's first prong "can be extended to the circumstances of this case" and
he then justified that extension by reference to facts he found supportive of the
second prong. We reject the judge's legal analysis.
The first prong requires that the officers have a legitimate purpose for
being within the private area to be swept. The officers were in the vicinity to
either obtain the handgun described in the October 27 forfeiture order or to
execute the municipal warrants calling for defendant's arrest. The October 27
order only directed them to 103 Browertown, not 81 Browertown; it did not
explicitly authorize a search of the former, let alone the latter. And, the
municipal warrants only provided authority to arrest defendant. Once the arrest
was accomplished, the arrest warrants were fulfilled, and the officers had no
further legitimate purpose for remaining on the property. See State v. Lane, 393 N.J. Super. 132, 154-55, 157-58 (App. Div. 2007). We, thus, reject the judge's
legal conclusion that the first prong of the Davila test was met.
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Even assuming the first prong was satisfied, we conclude that the
circumstances offered on the second prong were insufficient to support a
permissible protective sweep. In finding that the State sufficiently demonstrated
the officers had a reasonable and articulable suspicion that the place to be swept
harbored a danger, the judge relied on:
• the forfeiture order;
• one officer's fleeting observation that someone
dressed in blue in the backyard entered the home
from the rear a few minutes before defendant,
also dressed in blue, exited from the front;
• that same officer heard a "loud bang";
• two cars were in the driveway; and
• what the judge referred to as defendant's
"contradictory answers to the police."
We conclude that, whether considered individually or collectively, these
circumstances could not support a reasonable and articulable suspicion that both
a weapon and at least one other person were inside 81 Browertown and posed a
threat to the officers or others.
The forfeiture order. We do not know – because the State failed to show
at the suppression hearing – what led to the issuance of the October 27 forfeiture
order. Even so, the order suggested only that a handgun could be found at 103
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Browertown; it was silent about 81 Browertown. And, whatever it suggested
about 103 Browertown was nearly three-month-old information when the
officers arrived to arrest defendant. So, we not only reject the leap suggested
by the State that this order authorized entry into 103 Browertown – it says no
such thing2 – but we reject as well the contention that this order somehow
supports a belief that the handgun could be found inside 81 Browertown three
months later.
The person in the backyard. One of the officers stationed so he could
watch the rear of 81 Browertown testified that he observed
a person walking in the rear yard of 81 Browertown.
The individual was wearing something blue. And –
and, then, the image was gone. . . . [T]he image . . .
[e]ntered the rear of 81 Browertown.
2
When questioned by the judge about the October 27 order's significance, the
assistant prosecutor conceded that it could not pass for a search warrant:
THE COURT: . . . But, listen to me. I'm going to tell
you what really bothers me here, is . . . the staleness of
[the October 27 order] . . . .
ASSISTANT PROSECUTOR: Judge, there's no
staleness. This is not a search warrant.
[Emphasis added.]
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"[P]retty quick[ly]" after, the officer who made this observation "became aware
. . . over the radio" "that an individual had exited the front of the residence."
This testimony at best reveals only that one officer saw a person in blue
in the backyard 3 and that this person in blue entered the home a few minutes
before another officer saw a person in blue exit the front of the home . This
suggests only one reasonable conclusion: the officer in the front of 81
Browertown saw the same person that the other officer saw in the back of 81
Browertown: defendant. Nothing about this reasonably suggests that the person
seen in the backyard wasn't the person who came out the front door.4
The loud bang. The officer who observed the person in blue in the back
of 81 Browertown also testified that after that person entered the home he heard
"a very loud bang." When asked to describe the sound, he said that "if [he] had
to characterize it, [it] was very metallic and very heavy – very, like a clanking
almost, but a very loud, very intense sound[;] [i]t wasn't high-pitched, but it was
metallic." No one else professed to have heard it. Neither at the scene nor from
3
The officer testified that he had asked the other officers near him whether they
saw the individual, but he never said whether anyone confirmed that they did.
4
That officer merely testified he "wasn't sure if . . . the individual that I had
seen towards the rear of the property was actually the defendant, or not. All I
really saw was somebody wearing blue. I couldn't identify that person's face or
really make any other descriptive observations of them."
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the witness stand did this officer state that the loud bang sounded like a gunshot
or that he told the other officers prior to the protective sweep that it sounded like
a gunshot.
Interestingly, the judge found this officer credible because the officer did
not exaggerate by asserting it was a gunshot he heard. Nevertheless, in his
findings, the judge gave this "loud bang" greater weight than police seemed to
have given it at the time. Despite the fact that this officer, who was a Marine
veteran, a firearm instructor, and at the time an eleven-year veteran on the police
force, could not say that the bang was a gunshot, the judge found that the sound
"could have been, maybe, a gunshot." Not one of the State's witnesses testified
they either heard a gunshot or thought the sound might have been a gunshot.
The cars in the driveway. In forming an opinion that there could have
been another person inside 81 Browertown at the time defendant was under
arrest outside, police relied in part on the presence of "multiple vehicles" in the
driveway but were imprecise as to what the State now claims is a relevant
circumstance. One officer testified on direct that there were "multiple" vehicles
in the driveway, but he said something else once subjected to cross-examination:
Q. – in terms of the multiple vehicles that – were they
all on the driveway, or were they close to the residence?
Where were the location of all of these vehicles you
mentioned?
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A. I would say they were both in the driveway.
Q. Both? Was there only two?
A. That I recall, there was at least two, yes.
Q. Okay. Was there more –
A. At least.
Q. – do you know – was there more than two?
A. I don't recall if there was more than two. But, I knew
there were multiple vehicles in the driveway.
THE COURT: Well, when you – but, when you say
multiple, you mean two?
THE WITNESS: Well, yes; correct. Two.
THE COURT: Okay.
THE WITNESS: That I can recall.
Although in this way the officer tried to suggest the presence of more than two
cars, he ultimately could state only that he was sure there were two and that is
what the judge found.
Defendant's "contradictory answers" to police. In seeking to justify the
intrusion into defendant's home for the purpose of the challenged protective
sweep, the State did not argue that statements defendant had given to police
before the sweep were either contradictory or a basis for entry into the home.
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The only officer who testified about having a conversation with defendant first
stated that he had not asked defendant for consent to search the home because
he believed defendant was intoxicated and unable to give lawful consent. The
officer testified that defendant had asserted, when asked, that he had turned in
the gun referred to in the October 27 order. That assertion – if true – was not
contradictory of anything else defendant was claimed to have said. When asked
about their discussion immediately after defendant's arrest, the officer provided
the following testimony:
A. I do believe I did mention the – the weapons in
question on the order. Because he did tell me that he
had turned some of those gun – or turned that gun in.
Or sold one of them – those guns. So, out – out of the
guns that I had mentioned to him, he had – did respond
to me.
Q. In terms of his response, what did – what was – did
he indicate which firearms, if any, he – he did surrender
before your –
A. I don't recall.
Q. – appearance.
A. I don't recall which weapon he said he surrendered.
The October 27 order referred to two weapons. The order's first paragraph
revoked defendant's firearm purchaser identification card that had permitted the
purchase of two handguns: a .357 Smith & Wesson and a 9mm Beretta. The
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second paragraph authorized police to go to 103 Browertown to retrieve the
Beretta. No other weapon is specifically mentioned in the order, nor does
anything about the order suggest any unaccounted-for weapon but the Beretta.
So, we interpret the officer's quoted testimony as suggesting that defendant said
he surrendered one and sold the other: an assertion that is not, on its face,
contradictory.
More importantly, the judge made no specific finding as to how the
statements attributed to defendant were contradictory. The judge only generally
concluded that what the officer attributed to defendant was contradictory. It
may be that what defendant then said was contradicted by what the police later
learned when executing the search warrant, but what was later learned is
irrelevant to what the officers may have objectively believed when deciding to
sweep the premises. See Florida v. Harris, 568 U.S. 237, 249 (2013). An
intrusion is not made legal and an officer's unexplained hunches do not ripen
into a reasonable and articulable suspicion "by what it turns up"; instead, to
borrow Justice Jackson's words, the intrusion "is good or bad when it starts and
does not change character from its success." United States v. Di Re, 332 U.S.
581, 595 (1948); see also State v. Howery, 80 N.J. 563, 584 n.5 (1979).
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From these five circumstances, the judge concluded that the officers had
a reasonable and articulable suspicion that both a weapon and other individuals
were inside 81 Browertown and posed a danger to them or others.
We are mindful that judge-made findings are generally entitled to
appellate deference when supported by "sufficient credible evidence in the
record." State v. Locurto, 157 N.J. 463, 471 (1999). Deference is given to those
findings that "are substantially influenced by [the 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); see also State v.
Elders, 192 N.J. 224, 244 (2007). This deference, however, does not extend to
legal conclusions drawn from the found facts. In Interest of J.A., 233 N.J. 432,
445 (2018). Those conclusions are reviewed de novo. Ibid.
To summarize, the judge's determination that the officers had a reasonable
and articulable suspicion of a danger was based on the five circumstances we
have discussed. Only two of them arguably suggest the presence of a weapon
inside 81 Browertown, and the other three only arguably suggest the presence
of another person inside.
The two circumstances that suggested the presence of a weapon inside 81
Browertown were, according to the judge's oral decision, the October 27 order
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and the "loud bang." The order, if accepted at face value, stated only that as of
October 27 a gun could be found at 103 Browertown. The conclusion the judge
seems to have implicitly drawn is that this would also mean that three months
later the same gun would not be there but at the nearby 81 Browertown; that
conclusion is not entitled to deference because it is entirely speculative. The
only other fact offered in support of the officers' belief that a gun was located
within 81 Browertown was the "loud bang." But the only officer who heard the
"loud bang" did not form or express a belief as to what he thought made that
sound. He didn't say it was a gunshot. And he didn't say it sounded like a gun
dropped on cement. 5 So, while we will defer to the judge's finding that such a
"loud bang" was heard by an officer, the speculative conclusion the judge drew
from that fact – "it could have been, maybe, a gunshot" – is not entitled to
deference because only the judge – not the officers – drew that conclusion.
The three circumstances that the judge relied on in concluding that the
officers had a reasonable and articulable suspicion that others were inside 81
5
Considering that the later search uncovered, among other things, two handguns
in a backpack in the detached garage likely suggests defendant had walked out
the back of the house and dropped the backpack in the garage, arguably making
the sound that the officer heard when the backpack hit the garage floor. But this
can only be surmised through hindsight; it was not something known or
knowable to the officers when they decided to conduct the protective sweep.
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Browertown – even assuming police were entitled to believe a gun was also
within the dwelling – are also speculative. An extra car in the driveway suggests
little. And the judge made no finding as to whether the officers could reasonably
conclude that the person in blue fleetingly seen entering the back of 81
Browertown was not defendant, who a few minutes later exited the front of 81
Browertown wearing a blue jacket. The judge lastly adds to his analysis
defendant's "contradictory answers to the police" about the gun, but the
statements were not contradictory on their face and the police could not have
known defendant was untruthful about the presence of a weapon on the property
until they conducted the protective sweep. The statements attributed to
defendant did not and could not support a reasonable decision to conduct a
protective sweep.
Thus, in giving deference to those findings supported by the evidence
found credible, we find no support for the judge's conclusion that the police had
a reasonable and articulable suspicion that there were other persons inside the
home or that they posed a risk to the police or others.
***
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For all these reasons, we conclude that the circumstances presented here
do not support either prong of Davila's protective-sweep test. We vacate the
order denying suppression and remand for further consideration.
Specifically, we remand for the trial judge to first determine whether the
facts contained in the warrant affidavit were sufficient to support the issuance
of a search warrant once the information obtained from the impermissible
protective sweep is removed from consideration. We direct that, within forty-
five days, the judge render his determination on this question, allowing – if the
judge deems it appropriate – additional submissions from the parties. We retain
jurisdiction until the judge's final disposition of the suppression motion but only
if the motion is denied. If it is denied, defendant may file a timely amended
notice of appeal and we will enter a scheduling order for supplemental briefing.
If, on remand, the judge grants the suppression motion, then: the judge shall
vacate the judgment of conviction; our retention of jurisdiction will
automatically terminate; and the matter shall proceed in the trial court to a final
disposition.
Vacated and remanded for further proceedings in conformity with this
opinion. We retain jurisdiction but only to the extent expressly described.
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