NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1966-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TODD C. FORD,
Defendant-Appellant. __________________________
Submitted April 9, 2025 – Decided August 13, 2025
Before Judges Mayer, Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 19-12- 1159.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the briefs).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Kimberly P. Will, Assistant Prosecutor, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for amicus curiae Attorney General of New Jersey (Jeremy M. Feigenbaum, Solicitor General, and Liza B. Fleming, Deputy Attorney General, on the brief).
PER CURIAM
Following denial of his motion to suppress evidence seized without a
search warrant, defendant Todd C. Ford pled guilty to second-degree possession
of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A.
2C:35-5(b)(2) (count five), and second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1) (count fourteen), charged in a fourteen-count
Cumberland County indictment. The indictment also charged Andrea Jones, the
mother of defendant's child, and Marcel C. Nelson, neither of whom is a party
to this appeal. Defendant also pled guilty to third-degree possession with intent
to distribute CDS and second-degree certain persons, charged in a separate
indictment, but does not challenge those convictions on appeal.
Under the terms of the negotiated plea agreement, defendant preserved the
right, prior to sentencing, to file a motion to dismiss the certain persons counts
pursuant to the United States Supreme Court's decision in New York State Rifle
& Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and the Third Circuit's
decision in Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (Range I).
Defendant also preserved the right to appeal an adverse decision on the dismissal
motion. See R. 3:9-3(f).
A-1966-23 2 After denying the motion, the court sentenced defendant to an aggregate
prison term of eight years, with a five-year parole disqualifier. Pursuant to the
terms of the plea agreement, the court dismissed the remaining counts charged
in both indictments.
On appeal, defendant raises the following points for our consideration:
POINT I
THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE POLICE FAILED TO GET KNOWING AND VOLUNTARY CONSENT FROM THE HOMEOWNER. [(Partially raised below)]
A. The State Failed To Establish That The Homeowner Validly Consented To The Police Entry Into Her Home. [(Not raised below).]
B. Alternatively, the Trial Court Erred in Crediting the Officers' Testimony Over The Homeowner's.
POINT II
THE CERTAIN PERSONS GUN CHARGE MUST BE VACATED BECAUSE IT VIOLATES DEFENDANT'S SECOND AMENDMENT RIGHTS.
Unpersuaded by defendant's renewed and belated contentions, we affirm.
A-1966-23 3 I.
We first address defendant's challenges to the judge's decision on the
suppression motion. Sometime after he was indicted, defendant moved to
suppress a firearm and narcotics seized from Jones's apartment, arguing Jones's
consent "was not voluntary [and] knowing." Jones joined the motion.
During the one-day testimonial hearing, the State presented the testimony
of New Jersey State Police (NJSP) Sergeant Jon Walker, assigned to the
Trafficking South Unit (TSU). The State also introduced into evidence the
consent to search form signed by Jones and the audio recording of her post-
consent statement to police.1 Defendant did not testify but called Jones on his
behalf.
Walker testified, while investigating Nelson for suspected drug
trafficking, TSU members learned defendant was Nelson's supplier. On
September 25, 2019, TSU members obtained search warrants for a Millville
residence on Fifth Street and a car registered to Jones at a Millville address on
Archer Street. Police also obtained an arrest warrant for defendant.
1 Although a transcript of Jones's statement was admitted into evidence for purposes of the hearing, the transcript was not provided on appeal . Instead, defendant provided the CourtSmart recording even though Jones's statement was transcribed in the suppression hearing transcript. A-1966-23 4 According to Walker, around 1:26 p.m. on October 1, 2019, TSU members
saw defendant enter the Archer Street residence, leave within the hour, travel to
the Fifth Street residence, and return to Jones's home with two black plastic
bags. Around 2:20 p.m., defendant left the Archer Street residence and was
arrested shortly thereafter while driving the car registered to Jones. Police
recovered drugs during a search incident to defendant's arrest.
Walker further testified that after defendant's arrest, he and two other
officers knocked on the door of the Archer Street home. Jones answered and
invited the officers inside into "the living room area, right beyond the door."
Jones's demeanor was "very polite." The officers did not threaten Jones. They
explained they wanted to speak with her because defendant was arrested in a car
registered to her. Walker stated Jones was "clueless [as] to why [defendant] was
. . . arrested." Walker acknowledged "there was a young child on scene."
Walker asked Jones for permission to search her home. He testified Jones
was "polite, cordial," and "didn't have a problem with it." Walker stated he did
not threaten Jones to obtain her consent. Nor did he "threaten to call DYFS."2
Walker advised Jones of her rights, reviewed the standard NJSP consent form
2 DYFS, the acronym for the Division of Youth and Family Services, is now known as the Division of Child Protection and Permanency. A-1966-23 5 with her, and completed the form. Walker told Jones "what [police] were
searching for" and explained the scope of the search included "[t]he entire
house." Jones remained receptive and signed the consent form. She did not,
however, waive her right to be present during the search.
As reflected in the consent form, the search began at 2:55 p.m. and ended
at 3:45 p.m. Police recovered narcotics, drug paraphernalia, currency, and a
handgun from an upstairs bedroom. Walker testified Jones was calm during the
duration of the encounter. At no time did Jones withdraw her consent. On cross-
examination, Walker stated he did not recall whether Jones was pregnant at the
time of the search.
One minute after the search was completed, Jones gave an audio-recorded
Mirandized statement to police. During the nine-minute interview, Jones
claimed the contraband belonged to defendant.
Jones testified to a vastly different version of the events. She asserted
police approached her home after first knocking on her neighbor's door. Jones
stated police entered her home without her permission and, with guns drawn and
in the presence of her eight-year-old child, searched her home. She testified
police asked her to sign the consent form after they searched the home. Jones
further claimed if she refused consent, police threatened to: charge her with the
A-1966-23 6 items recovered in the upstairs bedroom; seize her vehicle for six months; call
DYFS; and arrest and charge her elderly parents because the home was in their
name. Police also told Jones unless she signed the consent form, she would give
birth in jail. Jones testified police did not review the consent form with her.
On cross-examination, the prosecutor questioned her account, noting in
her interview with police Jones stated, "Like, I'm so mad right, like so mad.
Like, I was – I would let you all search. I wasn't trying to hide nothing." Jones
did not explain this statement; she reiterated she felt as though she had no choice
and police forced their way into the home. Jones testified she was about two or
three months pregnant during the encounter and visibly pregnant. Jones
acknowledged she agreed to testify to help defendant and herself.
Immediately following oral argument, the judge issued an oral decision
denying the motion. The judge concluded, based on the veracity of the
witnesses, the State established by a preponderance of the evidence Jones
voluntarily consented to the search of her home.
II.
A.
For the first time on appeal, defendant argues the officer's entry into
Jones's home constituted a warrantless search and "the State failed to establish
A-1966-23 7 [Jones] consented to [their entry]." To support his newly minted assertion,
"[r]acial minorities, in particular, may feel compelled to accede without
objection to police requests," defendant cites case law and news articles, not
presented to the motion judge.
Although under the plain error rule we will consider allegations of error
not brought to the trial court's attention that have a clear capacity to produce an
unjust result, see R. 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we
generally decline to consider issues that were not presented to the trial court, see
State v. Robinson, 200 N.J. 1, 18-19 (2009); State v. Witt, 223 N.J. 409, 418-
419 (2015). "When the parties fail to 'make known their positions at the
suppression hearing so that the trial court can rule on the issues before it[,] or a
'record is barren of facts that would shed light on the [the] issue[,]' appellate
courts should 'decline[] to entertain [a] belatedly related issue.'" State v.
Williams, 461 N.J. Super. 80, 93 n.7 (App. Div. 2019) (alterations in original)
(quoting Witt, 223 N.J. at 418-419).
Indeed, a defendant must "state the basis of the suppression motion when
making it and also introduce all of his proofs on the issue of the search and
seizure at that time." Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on
R. 3:5-7 (2025) (emphasis added) (citing State v. Bacome, 228 N.J. 94, 108
A-1966-23 8 (2017)). Defendant did not do so here. Because defendant failed to challenge
the officers' initial entry into Jones's home before the motion judge, we decline
to consider his belated contentions on appeal.
B.
We consider defendant's challenges to the court's credibility and factual
findings pursuant to our circumscribed review of a decision on a motion to
suppress evidence. See State v. Miranda, 253 N.J. 461, 474 (2023). After a
testimonial hearing, we "defer to the trial court's factual findings because the
trial court has the 'opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy.'" State v. S.S., 229
N.J. 360, 374 (2017) (quoting State v. Elders, 192 N.J. 224, 244 (2007)); see
also State v. Locurto, 157 N.J. 463, 474 (1999) (recognizing deference is
afforded because the court's findings "are often influenced by matters such as
observations of the character and demeanor of witnesses and common human
experience that are not transmitted by the record").
Therefore, we "must defer to the factual findings of the trial court on a
motion to suppress so long as its findings are supported by sufficient credible
evidence in the record." State v. Erazo, 254 N.J. 277, 297 (2023). Our deference
includes the trial court's findings based on recorded and documentary evidence.
A-1966-23 9 See S.S., 229 N.J. at 374-81. "A trial court's legal conclusions, 'however, and
the consequences that flow from established facts,' are reviewed de novo." State
v. Bullock, 253 N.J. 512, 532 (2023) (quoting State v. Hubbard, 222 N.J. 249,
263 (2015)).
"Warrantless seizures and searches are presumptively invalid as contrary
to the United States and the New Jersey Constitutions." State v. Pineiro, 181
N.J. 13, 19 (2004); see also State v. Nelson, 237 N.J. 540, 552 (2019). To
overcome this presumption, the State must show by a preponderance of evidence
the search falls within one of the well-recognized exceptions to the warrant
requirement. See State v. Bryant, 227 N.J. 60, 69-70 (2016). A consent search
is one such exception to the warrant requirement. See Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); State v. Cushing, 226 N.J. 187, 199
(2016). It is, of course, fundamental that consent to search must be voluntary.
See Bustamonte, 412 U.S. at 222; see also State v. Maristany, 133 N.J. 299, 305
(1993). Voluntariness of Jones's consent to search her home, however, is not
expressly reprised on this appeal.
In the present matter, the motion judge considered the conflicting
testimony adduced at the hearing and concluded Walker was more credible than
Jones. The judge reasoned Jones's testimony "[wa]s completely inconsistent
A-1966-23 10 with her demeanor as reflected in the recorded statement." Noting her statement
was made shortly after the officer's alleged threats, the judge found Jones
sounded "polite and calm" compared with her testimony, which "was rushed,
non-responsive to questions and evasive." The judge further found the consent
form was consistent with Walker's testimony, noting the beginning and ending
times of the search were written in different ink and by different people,
dispelling Jones's testimony that "the document she signed was not filled out
when she signed it."
We are satisfied the judge's credibility and factual findings are
substantially supported by sufficient credible evidence in the motion record.
Those findings were based on the judge's assessment of the demeanor of the
witnesses as they testified, and the judge's feel of the case. See S.S., 229 N.J.
at 374. We therefore defer to the judge's findings. See Erazo, 254 N.J. at 297.
III.
In his final point, defendant argues the judge erroneously denied his
motion to dismiss the certain persons charge. Defendant maintains the certain
persons statute violates his Second Amendment rights by categorically banning
gun ownership based solely on convicted felon status. He claims the statute is
facially unconstitutional and unconstitutional as applied to him. Defendant
A-1966-23 11 seeks vacatur of his conviction. In the alternative, defendant argues a remand is
necessary "for the State to try to meet its burden to justify the application of this
gun regulation to [him]." To support his argument, defendant cites Range I and
United States v. Duarte, 101 F.4th 657 (9th Cir. 2024) (Duarte I).
During the course of briefing on appeal, we granted the New Jersey Office
of the Attorney General's (AG) motion to appear as amicus curiae. The AG joins
the arguments advanced by the State, urging us to affirm the court's order. In
addition, the AG provides an in-depth historical analysis supporting its position
that states may disarm those who are not law-abiding and pose a risk to public
safety.
While his appeal was pending, defendant filed a letter pursuant to Rule
2:6-11(d), citing the Third Circuit's decision in Range v. Attorney General
United States, 124 F.4th 218 (3d Cir. 2024) (Range II). He argues, following
the United States Supreme Court's remand, "the Third Circuit again held that the
federal felon-in–possession statute was unconstitutional as applied to [the
petitioner]." He maintains this state's certain persons statute is unconstitutional.
We review de novo a trial court's decision on a motion to dismiss an
indictment when the decision "was based on the court's interpretation of the
statutes pursuant to which [the] defendant was charged." State v. Bernardi, 456
A-1966-23 12 N.J. Super. 176, 186 (App. Div. 2018); see also State v. S.B., 230 N.J. 62, 67
(2017) (reiterating appellate courts "review a trial court's decision to dismiss an
indictment de novo [when] it [does] not involve 'a challenge to fact-finding on
the part of the trial court'" (quoting State v. Cagno, 211 N.J. 488, 505 (2012))).
Accordingly, "[a] trial court's 'interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference.'" Bernardi, 456 N.J. Super. at 186 (quoting State v. Pomianek, 221
N.J. 66, 80 (2015)).
Appellate courts "review the constitutionality of . . . New Jersey statutes
de novo, owing no deference to the legal conclusions of the . . . trial court."
State v. Higginbotham, 257 N.J. 260, 280 (2024) (citing State v. Hemenway,
239 N.J. 111, 125 (2019)). "Democratically enacted laws 'are presumed
constitutional.'" Ibid. (quoting Whirlpool Props. Inc. v. Dir., Div. of Tax'n, 208
N.J. 141, 175 (2011)). We will not deem a statute unconstitutional "unless its
repugnancy to the Constitution is clear beyond a reasonable doubt." Ibid.
(quoting State v. Smith, 251 N.J. 244, 263 (2022)).
The Second Amendment of the United States Constitution provides: "A
well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend
A-1966-23 13 II. Since 2008, the United States Supreme Court has explored the extent to
which states may regulate an individual's right to bear arms, culminating in its
2022 Bruen decision. See Dist. of Columbia v. Heller, 554 U.S. 570, 636 (2008)
(holding the Second Amendment protects the ownership of "handguns held and
used for self-defense in the home"); McDonald v. City of Chicago, 561 U.S.
742, 750 (2010) (extending the Heller decision to the states).
In Bruen, the Court overturned a New York state licensing scheme
requiring those seeking public carry licenses to provide a special justification
for self-defense. 597 U.S. at 11. After engaging in a lengthy historical analysis,
the Court held "New York's proper-cause requirement violate[d] the Fourteenth
Amendment in that it prevent[ed] law-abiding citizens with ordinary self-
defense needs from exercising their right to keep and bear arms." Id. at 71.
However, the Court recognized a state may "justify its regulation by
demonstrating that it is consistent with the Nation's historical tradition of
firearm regulation. Only then may a court conclude that the individual's conduct
falls outside the Second Amendment's 'unqualified command.'" Id. at 24
(quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)).
Two years later, in United States v. Rahimi, 602 U.S. 680 (2024), the
United States Supreme Court held 18 U.S.C. § 922(g)(8), prohibiting individuals
A-1966-23 14 subject to domestic violence restraining orders from possessing firearms ,
comported with the Second Amendment. Id. at 699. Relevant here, the Rahimi
Court stated the appellant's facial challenge to the statute "is the 'most difficult
challenge to mount successfully,' because it requires a defendant to 'establish
that no set of circumstances exists under which the Act would be valid.'" Id. at
693 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). "That means
that to prevail, the Government need only demonstrate that Section 922(g)(8) is
constitutional in some of its applications." Ibid.
The Rahimi Court noted "the Government offer[ed] ample evidence that
the Second Amendment permits the disarmament of individuals who pose a
credible threat to the physical safety of others." Ibid. The Court explained that
historical "surety and going armed laws confirm what common sense suggests:
When an individual poses a clear threat of physical violence to another, the
threatening individual may be disarmed. Section 922(g)(8) is by no means
identical to these founding era regimes, but it does not need to be." Id. at 698.
"Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical
violence, just as the surety and going armed laws do. Unlike the regulation
struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by
the public generally." Ibid.
A-1966-23 15 New Jersey's certain persons statute provides, in pertinent part:
A person having been convicted in this State or elsewhere of the crime, or an attempt or conspiracy to commit the crime, of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation . . . , carjacking . . . , gang criminality . . . , racketeering . . . , terroristic threats . . . , unlawful possession of a machine gun . . . , unlawful possession of a handgun . . . , unlawful possession of an assault firearm . . . , leader of firearms trafficking network . . . , endangering the welfare of a child . . . , stalking . . . , who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree and upon conviction thereof, the person shall be sentenced to a term of imprisonment by the court.
[N.J.S.A. 2C:39-7(b)(1) (emphasis added).]
Although the Rahimi Court did not expressly address the constitutionality
of 18 U.S.C. § 922(g)(1), 3 the federal statute analogous to New Jersey's certain
persons statute, both decisions cited by defendant, Range I and Duarte I, were
3 18 U.S.C. § 922(g)(1) provides, in pertinent part:
It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[] . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
A-1966-23 16 vacated and remanded for reanalysis under Rahami. See Garland v. Range, ___
U.S. ___, 144 S. Ct. 2706 (2024); United States v. Duarte, 108 F.4th 786 (9th
Cir. 2024) (Duarte II).4
On remand in Range II, the Third Circuit considered the appellant's
criminal history consisted of a single conviction in 1995 for "making a false
statement to obtain food stamps, . . . minor traffic and parking infractions[,] and
a summary offense for fishing without a license." 124 F.4th at 222-23. Noting
its decision in Range II was "a narrow one," the court held the government failed
to demonstrate "a longstanding history and tradition of depriving people like
Range of their firearms." Id. at 232 (emphasis added).
Less than two months later in Pitsilides v. Barr, 128 F.4th 203 (3d Cir.
2025), the Third Circuit explained "[c]ourts adjudicating as-applied challenges
to § 922(g)(1) must consider a convict's entire criminal history and post -
conviction conduct indicative of dangerousness, along with his predicate offense
and the conduct giving rise to that conviction, to evaluate whether he [or she]
meets the threshold for continued disarmament." Id. at 212. The court noted
4 On remand, the Ninth Circuit held "§ 922(g)(1) is not unconstitutional as applied to non-violent felons like [the defendant]." United States v. Duarte, 137 F.4th 743, 748 (9th Cir. 2025). A-1966-23 17 "some offenses may offer conclusive evidence that someone poses such a
danger." Id. at 211.
In the present matter, defendant's facial challenge fails because he cannot
show there exists "no set of circumstances . . . under which the [statute] would
be valid." See Salerno, 481 U.S. at 745. Pursuant to Rahimi and Range II
"'disarmament is justified as long as a felon continues to present a special danger
of misus[ing firearms],' in other words, when he [or she] would likely 'pose[] a
physical danger to others' if armed." Pitsilides, 128 F.4th at 210 (first and third
alterations in original) (citation omitted) (first quoting Rahimi, 602 U.S. at 698;
and then quoting Range II, 124 F.4th at 232).
Defendant's as-applied challenge also lacks merit. Unlike the successful
as-applied challenge in Range II, where the appellant had one previous non-
violent felony conviction for false statement, defendant's criminal convictions
are more extensive and violent. Those convictions include: fourth-degree
aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and three
counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).
Defendant also was convicted of third-degree perjury, N.J.S.A. 2C:28-1(a), and
A-1966-23 18 amassed a litany of juvenile adjudications for violent crimes and weapons
offenses.
Based on the circumstances presented in this case, including defendant's
criminal record for violent crimes and weapons offenses, we discern no basis to
disturb his certain persons conviction.
Affirmed.
A-1966-23 19