NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3275-17T4 A-3382-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE T. THOMPSON,
Defendant-Appellant.
BRIAN D. THOMPSON, a/k/a BOO THOMPSON,
Submitted May 6, 2019 – Decided June 19, 2019
Before Judges Messano and Rose. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 15-12- 1009.
Stefankiewicz & Belasco, LLC, attorneys for appellant in A-3275-17 (David A. Stefankiewicz, on the briefs).
Wayne Powell, attorney for appellant in A-3382-17.
Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
These two appeals, calendared back-to-back and consolidated for
purposes of our opinion, arise out of a single indictment charging defendants
George T. Thompson and his brother, Brian D. Thompson, 1 with several
weapons-related offenses. The charges ensued from an early morning 9-1-1 call
reporting gunshots were fired near an intersection in Middle Township.
Defendants lived with their mother in a nearby home.
Following the denial of their joint motion to suppress evidence,
defendants pled guilty to separate counts of the indictment, charging second-
degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)
and N.J.S.A. 2C:58-4, pursuant to negotiated plea agreements with the State.
1 Because defendants share the same last name, we refer to them throughout this opinion by their first names. In doing so, we intend no disrespect. A-3275-17T4 2 On February 15, 2018, the court sentenced both defendants in accordance with
the State's recommendations. Defendants now appeal from a June 17, 2016 Law
Division order denying their suppression motion; neither defendant challenges
his sentence.
On appeal, George raises the following points for our consideration:
POINT I
THE POLICE TRESPASSED UPON THE CURTILAGE OF THE [THOMPSON] HOME TO CONDUCT THE SEARCH OF THE VEHICLES THEREON, AND, THEREFORE, THE EVIDENCE WHICH DERIVED FROM THIS ILLEGAL ENTRY MUST BE SUPPRESSED.
POINT II
THE POLICE UNLAWFULLY ENTERED THE THOMPSON RESIDENCE WITHOUT WARRANT [SIC] AND ALL EVIDENCE WHICH DERIVED THEREFROM MUST BE SUPPRESSED.
POINT III
EVEN IF THE COURT CONCLUDES THAT GEORGE'S CAR WAS NOT ON PROTECTED CURTILAGE THE SEARCH OF IT AND THE ENSUING WARRANT MUST BE EXCLUDED AS FRUITS OF THE POISONOUS TREE DUE TO THE ANTECEDENT ILLEGALITY.
A-3275-17T4 3 POINT IV
THE SEARCH WARRANT AS TO GEORGE'S CAR WAS TAINTED BY FALSE, MISLEADING AND ILL-GOTTEN EVIDENCE AND IS, THEREFORE, INVALID AND/OR OTHERWISE ENTITLES [GEORGE] TO A TESTIMONIAL HEARING TO CHALLENGE THE INFORMATION THEREIN.
POINT V
EVEN WITH THE FALSE, MISLEADING AND ILL- GOTTEN EVIDENCE THE SEARCH WARRANT APPLICATION STILL LACKED SUFFICIENT INFORMATION TO ESTABLISH PROBABLE CAUSE TO SEARCH GEORGE'S CAR AND THEREFORE ALL EVIDENCE SEIZED THEREFROM MUST BE SUPPRESSED.
Brian offers the following arguments in his brief:
THE COURT BELOW COMMITTED ERROR BY DENYING [BRIAN]'S MOTION TO SUPPRESS THE EVIDENCE SEIZED
A. THE WARRANTLESS ENTRY ONTO THE CURTILAGE OF [THE THOMPSON] HOME AND SEARCH OF A VEHICLE LOCATED THERE CONSTITUTED A VIOLATION OF [BRIAN'S] CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES.
B. POLICE WERE WITHOUT VALID CONSENT TO ENTER THE [THOMPSON] HOME AND ANY EVIDENCE RESULTING FROM THE UNLAWFUL INTRUSION SHOULD HAVE BEEN SUPPRESSED.
A-3275-17T4 4 C. THE ARREST OF [BRIAN] WAS WITHOUT PROBABLE CAUSE AND WAS OTHERWISE UNLAWFUL AS POLICE WERE WITHOUT A WARRANT TO ARREST HIM IN HIS HOME.
We reject defendants' contentions, with the exception of George's Point II
and Brian's Point IB, finding police entry into the Thompson home was unlawful
and the evidence seized therein should have been suppressed. We therefore
affirm in part and reverse in part.
I.
We derive the salient facts from the record developed at the suppression
hearing. Three members of the Middle Township Police Department (MTPD)
testified on behalf of the State: Patrolman Joseph Gamble; Corporal Phillip
Johnson; and Detective Kenneth Martin. Among other items, the State moved
into evidence, without objection, photographs and an aerial view of the exterior
of the Thompson residence and surrounding area. Defendants did not testify nor
present any evidence.
At approximately 2:55 a.m. on August 9, 2015, MTPD officers were
dispatched to an intersection in Middle Township, after a caller reported
gunshots had been fired from the direction of "a large house party" in the area.
Upon his arrival at the scene, Officer Jonas McInnis radioed that he heard a
gunshot. About twenty to fifty people "were scattering" from the area when
A-3275-17T4 5 police approached. They were unwilling to speak with police. Gamble met with
McInnis, who "was trying to gain control of some of the subjects in the
surrounding area." McInnis had detained one suspect and told Gamble he was
also looking for Brian, who was known to the MTPD for his "adverse contacts"
and because he had been the victim of a shooting.
While searching for Brian, Gamble recovered a spent cartridge amid
debris in the street near the corner of the intersection. Gamble testified that the
cartridge looked as though it recently had been discharged because it was clean
and shiny. The cartridge was labeled "9X19."
Gamble then noticed Brian, who was standing next to a blue Mercury sport
utility vehicle (SUV). The SUV was parked on the grass in a side lot more than
twelve yards from the Thompson home and about ten to fifteen feet from the
street. Other vehicles were parked in the lot. Gamble approached Brian, asking
"why he was at the vehicle" which "made [Brian] walk away" from the car.
Using his flashlight to see whether anyone was inside the car, Gamble noticed
an AR-15 rifle laying across the rear seat. Dispatch confirmed the SUV was
registered to Brian.
After Gamble observed the rifle, he saw Brian walking toward the front
door of the Thompson residence. Gamble and McInnis then knocked on the
A-3275-17T4 6 door, which was answered by defendants' mother. While the officers were
speaking with her, they saw Brian standing in the rear of the living room, about
twenty feet from the door. The officers asked Brian to step outside. Instead of
complying with their request, Brian "stood there. He reached his hand in his
pocket, threw a few items on the ground behind him as [the officers] went in to
get him." Those items included two .223 ammunition rounds, which matched
an AR-15 rifle. Gamble had taken "one step" inside the residence when he saw
Brian toss the items to the floor. The officers immediately arrested Brian inside
the home and recovered an additional .223 round during a protective pat down.
On cross-examination by Brian's counsel, Gamble said defendants' mother
gave consent for the officers to enter the home while she was speaking with
McInnis at the front door, but he could not recall their exact conversation.
Gamble acknowledged his report did not mention he and McInnis entered the
Thompson residence based on the consent of defendants' mother. No testimony
was elicited as to whether defendants' mother was advised she had the right to
refuse consent.
Meanwhile, MTPD officers looked inside most of the cars in the vicinity,
especially in areas "where people were walking." A black Lincoln sedan,
registered to George, was parked partially "at the foot of the [Thompson]
A-3275-17T4 7 driveway . . . almost on the street." The front of the car was parked on the
Thompson's lawn, appearing as though it had "crashed into the tree . . . in the
front yard." Using a flashlight, Johnson looked inside the sedan and saw "a bag
on the floor . . . [that] looked like it contained . . . a box . . . [of] bullets."
Thereafter, police towed Brian's SUV and George's sedan to the MTPD
impound lot while Martin applied for warrants to search both vehicles. Pertinent
to this appeal, Martin's affidavits indicated Brian's vehicle was "parked in a
vacant lot" next to the Thompson property. The affidavits also stated the MTPD
"observed a black duffle bag containing an ammunition box labeled 9X19" on
the floor of George's vehicle.
Following issuance of the search warrants, officers recovered from Brian's
SUV the AR-15 assault rifle Gamble had observed on the rear seat; a .38 caliber
revolver; and a case, scope and ammunition box for the AR-15 rifle. A search
of George's sedan revealed a .45 caliber handgun, two loaded magazines for that
handgun, twenty-six rounds of nine millimeter bullets, and thirty-six rounds of
hollow-point bullets. The nine millimeter ammunition matched the 9X19 spent
cartridge Gamble recovered earlier from the street.
After the hearing concluded, the motion judge reserved decision.
Thereafter, the judge rendered an oral opinion, denying defendants' motion. On
A-3275-17T4 8 June 16, 2016, the judge issued a supplemental written opinion correcting
certain factual findings, but reaching the same conclusion.
After reviewing the record and canvassing the relevant case law, the judge
made credibility and factual findings, which were largely consistent with the
recitation of facts set forth above. The judge found "all three law enforcement
officers who testified were highly credible and reliable." Ultimately, the judge
determined both motor vehicles were located outside the protected curtilage of
the Thompson home; the officers had reasonable suspicion to stop Brian;
defendants' mother granted the officers permission to enter the Thompson home;
and any discrepancies in Martin's search warrant affidavit did not necessitate a
Franks2 hearing.
II.
Well-settled legal principles guide our analysis. Our review of a trial
court's decision on a suppression motion is circumscribed. We defer to the
court's factual and credibility findings, as long as they are supported by
sufficient credible evidence in the record. State v. Dunbar, 229 N.J. 521, 538
(2017). Deference is afforded because the "findings of the trial judge . . . are
substantially influenced by his [or her] opportunity to hear and see the witnesses
2 Franks v. Delaware, 438 U.S. 154 (1978). A-3275-17T4 9 and to have the 'feel' of the case, which a reviewing court cannot enjoy." State
v. Reece, 222 N.J. 154, 166 (2015) (first alteration in original) (quoting State v.
Locurto, 157 N.J. 463, 471 (1999)). We disregard a trial court's factual and
credibility findings only if clearly mistaken. State v. Hubbard, 222 N.J. 249,
262 (2015). "We accord no deference, however, to a trial court's interpretation
of law, which we review de novo." Dunbar, 229 N.J. at 538.
A.
Initially, we address defendants' overlapping arguments that their motor
vehicles were located on the Thompson home's protected curtilage and, as such,
the officers had no right to search the vehicles without first obtaining warrants.
In New Jersey, it is well settled that "[c]ertain lands adjacent to a dwelling
called the 'curtilage' have always been viewed as falling within the coverage of
the Fourth Amendment." State v. Johnson, 171 N.J. 192, 208 (2002) (alteration
in original). However, "[a]n area within the curtilage to which the public is
welcome, such as a walkway leading to an entrance to a home, is not afforded
Fourth Amendment protection because the resident has given implicit consent
to visitors to approach the home that way." State v. Domicz, 188 N.J. 285, 302
(2006); see also Johnson, 171 N.J. at 209 (declaring the Fourth Amendment is
not offended "when the police come on to private property to conduct an
A-3275-17T4 10 investigation or for some other legitimate purpose and restrict their movements
to places visitors could be expected to go"). In addition to walkways, curtilage
may also include porches and driveways. Domicz, 188 N.J. at 302.
The appropriate inquiry is whether the officers have intruded into an area
the resident seeks to preserve as private. Accordingly, when the police restrict
their movements on private property to places visitors could be expected to
enter, observations they make from such vantage points are not protected by the
Fourth Amendment. Johnson, 171 N.J. at 209. No user of curtilage that can be
accessed by multiple persons can have a reasonable expectation of privacy in
that area. Ibid.
As the motion judge recognized here, the extent to which curtilage is
protected against unreasonable searches and seizures depends on the well -
known factors set forth by the United States Supreme Court in United States v.
Dunn (Dunn factors):
[T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
[480 U.S. 294, 301 (1987).]
A-3275-17T4 11 New Jersey courts have utilized the Dunn factors in determining the propriety
of a search in curtilage. See Domicz, 188 N.J. at 302; Johnson, 171 N.J. at 208-
09; State v. Lane, 393 N.J. Super. 132, 145 (App. Div. 2007).
However, as support for their arguments, defendants cite Collins v.
Virginia, ___ U.S. ___, 138 S.Ct. 1663 (2018). Collins, which was decided by
the United States Supreme Court nearly two years after the motion judge
rendered her decision here, specifically addressed whether the automobile
exception applies to a vehicle parked in a partially enclosed section of a
residential driveway. Id. at 1670-73. Notably, the defendant's motorcycle was
parked under a tarp in the top portion of the driveway, which was "enclosed on
two sides by a brick wall about the height of a car and [on] a third side by the
house." Id. at 1670. Under those facts, the Court determined the curtilage of
the house included the top portion of the driveway because it was "an area
adjacent to the home and to which the activity of home life extends." Id. at 1671
(internal quotation marks omitted) (quoting Florida v. Jardines, 569 U.S. 1, 7
(2013)).
Conversely, the facts of the present case support the motion judge's
conclusion that neither vehicle was located within the Thompson home's
A-3275-17T4 12 protected curtilage. In particular, applying the Dunn factors to Brian's SUV, the
judge aptly determined the vehicle
was outside the curtilage because, as Gamble testified, it was several yards away from the house itself, not within an area enclosed by the house fence, there was no objective indication that the spot where the car was parked was used for intimate activities associated with the home, and there was no protection from observation by those standing on the sidewalk or in the street. Indeed, other individuals even had their cars parked around the same spot and were coming and going as officers arrived on the scene.
The judge also found "[f]or the same reasons" that George's sedan "was not
located in the protect[ed] curtilage either."
From our review of the record, we conclude the totality of the
circumstances sufficiently supports the judge's findings, which were based on
the judge's assessment of the demeanor of the witnesses as they testified and the
judge's feel of the case. Accordingly, we defer to her findings. Reece, 222 N.J.
at 166. We simply note George's car was even more removed from the curtilage
of the Thompson home than was Brian's. As Gamble testified, the sedan was
"barely on the driveway . . . part[ly] on the driveway, part[ly] on the grassy
area[.]"
Moreover, police had a duty to investigate the early morning 9-1-1 call of
gunshots fired from the direction of a large party in a residential neighborhood. A-3275-17T4 13 That call was corroborated by the events that quickly unfolded after officers
were dispatched to the scene: McInnis heard a gunshot; the crowd scattered and
was uncooperative; Gamble recovered a "fresh spent round"; and Brian walked
away from Gamble when questioned about his reason for being near the SUV.
Accordingly, the officers' entry onto the Thompson property also was justified
by the exigency of those circumstances. See State v. Hathaway, 222 N.J. 453,
468 (2015) (quoting State v. Pena-Flores, 198 N.J. 6, 30 (2009)) (recognizing
"'exigent circumstances are present when law enforcement officers do not have
sufficient time to obtain any form of warrant' because of the immediate and
urgent circumstances confronting them").
B.
Next, we consider defendants' arguments that police unlawfully entered
the Thompson home. Defendants maintain the State failed to establish their
mother permitted police to enter the home: George cites Gamble's inability to
recount the conversation between McInnis and defendants' mother, during which
she allegedly gave consent; Brian contends the State failed to establish her
consent was voluntary and that she was informed she had a right to refuse
consent to enter.
A-3275-17T4 14 Under New Jersey law, the police are not obligated to advise a person of
his or her right to refuse, at least where, as here, the person being asked for
consent is not in custody. State v. Johnson, 68 N.J. 349, 354 (1975).
Interpreting Johnson on precisely this point, we have explicitly held "Johnson
does not compel the police to specifically advise the property owner . . . of the
affirmative right to refuse an inspection." State v. Farmer, 366 N.J. Super. 307,
314 (App. Div. 2004).
Nonetheless, "[w]hile the State need not prove that the third person was
informed of a right to refuse consent, the State has the burden of demonstrating
knowledge on the part of the third party that he had a choice in the matter." State
v. Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985) (citations omitted).
"[T]he State is required to prove voluntariness by clear and positive testimony."
Ibid. (citing State v. King, 44 N.J. 346, 352 (1965)); see also State v. Chapman,
332 N.J. Super. 452, 466 (App. Div. 2000) (alteration in original)
("Voluntariness is a question of fact to be determined from all the circumstances
. . . ."); Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).
In the present case, the judge concluded defendants' mother granted the
officers permission to enter the Thompson home. The judge did not, however,
make any specific findings regarding the voluntariness of her consent. From the
A-3275-17T4 15 scant testimony elicited from Gamble, who did not speak directly with
defendants' mother nor specifically recall the conversation between her and
McInnis, it is difficult to discern whether she knew she "had a choice in the
matter." See Douglas, 204 N.J. Super. at 277. Indeed, the prosecutor did not
ask Gamble any questions whatsoever relating to consent. Nor was any
testimony adduced about defendants' mother's demeanor or the duration of her
conversation with McInnis before police entered the Thompson home. Rather,
the sequence of events suggests Gamble saw Brian in the living room as soon as
defendants' mother opened the door; Gamble asked Brian to exit; instead Brian
discarded the ammunition, all of which occurred while Gamble had one step
inside the door. The record therefore does not establish, directly or
circumstantially, that defendants' mother voluntarily permitted police to enter
her residence.
Accordingly, we are constrained to suppress the evidence seized from the
Thompson home. Although we disagree with the trial judge's determination
regarding consent, we hasten to add our decision has no impact on the validity
of the searches of either vehicle. 3 Excising the references to the ammunition
3 Arguably, police could have seized the AR-15 rifle from Brian's SUV without first obtaining a search warrant pursuant to the plain-view exception to the
A-3275-17T4 16 seized from the Thompson home from both search warrant affidavits d oes not
defeat probable cause for their issuance. As we have long recognized
otherwise admissible evidence should not be excluded because a portion of the warrant authorizes the seizure of [evidence] . . . in excess of that justified by the supporting affidavit. The proper remedy is 'redaction,' the striking of those portions of the warrant which are invalid for want of probable cause, and preserving those severable portions that satisfy the Fourth Amendment, and our state constitutional counterpart.
[State v. Burnett, 232 N.J. Super. 211, 217 (App. Div. 1989).]
See also United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982) ("Materials
seized under the authority of those parts of the warrant struck for invalidity must
be suppressed, but the court need not suppress materials seized pursuant to the
valid portions of the warrant.").
III.
Lastly, we address George's challenges to the validity of the search
warrant for his sedan and his renewed request for a Franks hearing. George
claims Martin's affidavit failed to establish probable because, among other
things, it contained two material misstatements: (1) the misidentification of the
warrant requirement. See, e.g., State v. Gonzales, 227 N.J. 77, 102-03 (2016); State v. Mann, 203 N.J. 328, 341 (2010). A-3275-17T4 17 grassy area on which Brian's car was located as a "vacant lot"; and (2) the
reference to the specific type of ammunition, i.e., "9X19," when Johnson's report
generically referenced that he viewed "a box of ammunition" in George's car.
We are unpersuaded by George's challenges to the search warrant
affidavit, recognizing we review a trial judge's ruling regarding the need for a
Franks evidentiary hearing for abuse of discretion. See State v. Broom-Smith,
406 N.J. Super. 228, 239 (App. Div. 2009). We do not substitute our "own
judgment for that of the trial court, unless the trial court's ruling was so wide of
the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J.
138, 147 (2001) (internal quotation marks omitted).
A reviewing court gives substantial deference to a judge's determination
that probable cause existed to issue a search warrant. State v. Mosner, 407 N.J.
Super. 40, 61 (App. Div. 2009). "A search warrant is presumed to be valid, and
defendant bears the burden of demonstrating that the warrant was issued without
probable cause[.]" Ibid. (alteration in original) (quoting State v. Evers, 175 N.J.
355, 381 (2003)). "Doubt as to the validity of the warrant 'should ordinarily be
resolved by sustaining the search.'" State v. Keyes, 184 N.J. 541, 554 (2005)
(quoting State v. Jones, 179 N.J. 377, 389 (2004)).
A-3275-17T4 18 For that reason, a defendant is only entitled to a Franks evidentiary hearing
to challenge the veracity of a warrant affidavit when he "makes a substantial
preliminary showing" of either "material misstatements[,]" State v. Howery, 80
N.J. 563, 566 (1979), or "[m]aterial omissions[,]" State v. Marshall, 148 N.J. 89,
193 (1997), in a search warrant affidavit. See also Pressler & Verniero, Current
N.J. Court Rules, cmt. 3 on R. 3:5-3 (2019). A misstatement is material if the
warrant affidavit "no longer contains facts sufficient to establish probable cause"
in its absence. Howery, 80 N.J. at 568 (citing Franks, 438 U.S. at 171).
However, if probable cause exists despite the errant information, the search
warrant remains valid and a hearing is not necessary. See ibid.
"The limitations imposed by Franks are not insignificant." Id. at 567. The
burden placed on the defendant is onerous because "a Franks hearing is not
directed at picking apart minor technical problems with a warrant application[,]"
but rather, "it is aimed at warrants obtained through intentional wrongdoing by
law enforcement agents." Broom-Smith, 406 N.J. Super. at 240. Thus, a
defendant must identify "with specificity the portions of the warrant that are
claimed to be untrue" and support the allegations with "an offer of proof
including reliable statements by witnesses, [which] must be proved by a
preponderance of the evidence." Howery, 80 N.J. at 567-68 (citation omitted).
A-3275-17T4 19 In the present case, the motion judge concluded George failed to meet his
burden for a Franks hearing. Specifically addressing the affidavit's inaccurate
reference to the "vacant lot," the judge found,
there was no fraud on the part of law enforcement in applying for the warrant and there were no misrepresentations made. The information was reliable to the best of the officer's ability, supporting claims were provided to the issuing judge, the information was fresh, and . . . there was no illegally obtained information in the affidavit.
We agree. During cross-examination, Martin explained his familiarity
with the lot: "I've worked [for MTPD] for [sixteen] years. I've always just seen
that as the vacant lot next to the Thompson house. I've never . . . had any
reason to believe it was part of their property." The aerial photograph of the
Thompson property and vicinity corroborates Martin's testimony. Indeed, the
record is devoid of any indication that the lot was developed, enclosed, or
otherwise indicative of residential use. Accordingly, Martin's misnaming of the
lot was an inconsequential misstatement and a far cry from the "material
misstatements" contemplated by Franks. See 438 U.S. at 171.
Nor are we persuaded George established the affidavit's specific reference
to the "ammunition box labeled 9X19" was a material misstatement or
falsehood. To support his argument, George claims Johnson equivocated about
A-3275-17T4 20 his ability to observe the box of ammunition on the floor of George's sedan.
Seizing on Johnson's answers during cross-examination that the box "looked
similar to a box of ammunition[,]"4 and he told "that" to Martin, George
maintains Martin "prematurely viewed" the box of ammunition before obtaining
the search warrant. His argument, however, is unsupported by the record.
George failed to produce sufficiently reliable proof of Martin's purported
wrongdoing. Rather, George relies on parsed portions of Johnson's testimony.
Notably, George failed to question Martin whatsoever about the source of the
statement.
Although the motion judge did not specifically address George's argument
concerning the box of ammunition, she determined Martin was a reliable and
credible witness, and George generally failed to demonstrate Martin acted in bad
faith or made false and misleading statements to obtain the warrants. See State
v. Martinez, 387 N.J. Super. 129, 140 (App. Div. 2006) (deferring to the judge's
credibility findings that there was no intentional falsehood or reckless disregard
4 To further support his argument, George filed a reply appendix, including a poor-quality photograph of the bag containing ammunition. The photograph is unmarked and, as such, it is unclear whether it is the same photograph that was shown to Johnson at the hearing, i.e., a photograph marked "2D-3" for identification. Regardless, because George did not move any exhibits into evidence at the hearing, the photograph is inappropriate for our review. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014). A-3275-17T4 21 of truth in a search warrant affidavit). Because defendant did not make a
substantial preliminary showing of a material misstatement in the search warrant
affidavit, we discern no abuse of discretion by the trial judge.
To the extent we have not specifically addressed George's remaining
arguments, we find they lack sufficient merit to warrant discussion in our
opinion. R. 2:11-3(e)(2).
Affirmed in part; reversed in part. We do not retain jurisdiction.
A-3275-17T4 22