STATE OF NEW JERSEY VS. HANIF THOMPSON (14-09-2285, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 21, 2020
• Docket: A-3816-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3816-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HANIF THOMPSON, a/k/a HAQUIR THOMPSON, BOBBIE WILSON, HANIF THOMAS, HANIF L. THOMPSON, HANIF TAYLOR, BOBBY WILSON, BODDY WILSON, and JAROD HOPKINS,

Defendant-Appellant. ______________________________

Submitted March 10, 2020 – Decided April 21, 2020

Before Judges Hoffman and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-09-2285.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hanif Thompson appeals from the November 20, 2015 Law

Division order denying his motion to suppress evidence obtained with a search

warrant without a Franks1 hearing. We affirm.

In September 2014, an Essex County grand jury returned Indictment Number

14-09-2285, charging Basim Henry, Karif Ford, Kevin Roberts, and defendant with

second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2, 2C:15-2(a) (count

one); first-degree carjacking, N.J.S.A. 2C:15-2(a)(2) (count two); first-degree felony

murder, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree murder, N.J.S.A. 2C:11-

3(a)(1) (count four); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count five); and, second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count six). On the same day, an Essex County grand

jury returned Indictment Number 14-09-2289, charging defendant with second-

degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).

1 Franks v. Delaware, 438 U.S. 154 (1978). A-3816-17T3 2 Prior to trial, all four defendants unsuccessfully moved to suppress evidence.

Pursuant to N.J.R.E. 404(b), the State moved to admit evidence of defendants'

conduct three days before the day of the crimes charged. Judge Michael L. Ravin

granted the State's Rule 404(b) motion.

After a jury convicted Henry on all counts, and the court sentenced him to life

imprisonment plus ten years, defendant pleaded guilty to first-degree felony

murder and second-degree possession of a weapon without a permit, pursuant to

a plea agreement with the State. In exchange for his guilty plea, the State agreed to

recommend a thirty-year prison term with thirty years of parole ineligibility and the

dismissal of all remaining counts on both indictments; however, defendant reserved

the right to appeal the denial of the pretrial motions.

On January 18, 2018, defendant appeared for sentencing. Judge Ravin

sentenced defendant in accordance with the plea agreement and imposed a thirty-

year prison term with thirty years of parole ineligibility on the felony murder count,

and a concurrent term of ten years with five years of parole ineligibility on the illegal

possession of a weapon count. The judge dismissed the remaining charges against

defendant.

On appeal, defendant raises the following arguments:

A-3816-17T3 3 POINT I

IT WAS ERROR FOR THE COURT TO DENY DEFENDANT'S REQUEST FOR A FRANKS[2] HEARING CONCERNING THE [CDWs] ISSUED FOR THE TELEPHONE NUMBERS.

POINT II

IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DENY THE DEFENSE REQUEST FOR ORAL ARGUMENT ON THIS MOTION TO SUPPRESS EVIDENCE.

POINT III

BECAUSE THERE WAS AN INSUFFICIENT SHOWING OF PROBABLE CAUSE TO SUPPORT THE ISSUANCE OF THE SEARCH WARRANT, THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

I

We discern the following facts from the record. In the late afternoon of

December 15, 2013, Jaime and Dustin Friedland3 drove their 2012 silver Range

Rover to the The Mall at Short Hills (the mall) in Millburn and parked on the

third-floor parking deck. Several hours later, Henry drove Roberts, Ford, and

2 Franks v. Delaware, 438 U.S. 154 (1978). 3 For clarity, and intending no disrespect, we refer to Jaime and Dustin Friedland by their first names. A-3816-17T3 4 defendant in a 1996 green and beige two-tone GMC Suburban to the same parking

deck.

Shortly after 9:00 p.m., surveillance footage from the mall captured the couple

returning to their Range Rover. Dustin opened the car door for Jamie and then

walked around to the back of the car. At this point, Roberts and defendant

approached Dustin; following a struggle, defendant shot Dustin in the head,

inflicting a fatal wound. After pointing a gun at Jaime's head and ordering her to get

out of the car, Roberts and defendant fled in the Range Rover, following Henry and

Ford in the Suburban. Henry, Roberts, Ford, and defendant then returned to

Newark.

Within an hour of the shooting, Lieutenant Luigi Corino of the Essex County

Prosecutor's Office (ECPO) began reviewing mall surveillance footage, resulting in

the issuance of a "be on the lookout" alert for both the Range Rover and the

Suburban. Police recovered the Range Rover the following morning in Newark.

Investigators later learned that on December 12, 2013, Sergeant Jamal Poyner of

the Millburn Police Department ran the license plate number of a GMC Suburban

driving suspiciously up and down the aisles of the mall parking lot. Lieutenant

Corino requested surveillance from that date, which revealed the Suburban

following a 2013 white Range Rover out of the parking lot.

A-3816-17T3 5 The police identified G.S.4 as the owner of the white Range Rover. According

to E-Zpass records from December 12, 2013, the Suburban passed through a New

Jersey Turnpike toll booth immediately behind the Range Rover. Lieutenant Corino

interviewed G.S.'s daughter, who confirmed she drove the Range Rover to the mall

on December 12, 2013.

On December 17, 2013, the court granted the State's application to install and

monitor a mobile tracking device on the 1996 GMC Suburban registered to a person

believed to be Henry's mother.5 In support of the application, the State provided an

affidavit from Detective Miranda Mathis that stated, "During the course of the

investigation, a review of the surveillance footage from the [mall] captured a 1996

GMC Suburban, New Jersey license plate [] leaving the mall parking deck at a high

rate of speed followed by the carjacked Range Rover Wagon." She identified

Henry's mother as the registered owner of the Suburban and stated the current

location of the vehicle was at her address in South Orange.

4 To protect their privacy, we use initials to refer to G.S. and her daughter. 5 The record indicates it was later determined the actual owner of the vehicle was the "significant other" of Henry's mother, who resided at the same address as Henry and his mother.

A-3816-17T3 6 On December 19, 2013, Ford met with ECPO detectives; after waiving his Miranda6

rights, he agreed to submit to an interview, which the detectives recorded. Ford provided

a detailed account of the carjacking and admitted his involvement. He informed the

detectives he was staying at his mother's house, and that the clothes he wore during the

carjacking, including a burgundy vest, remained at that location.

In addition, Ford voluntarily turned over his cell phone to the detectives; a search of

the phone revealed text messages from defendant's phone, telling Ford that he should not

give anyone the phone number, and that he should "stop running" his "mouth." On

December 20, 2013, police obtained arrest warrants for Henry, Ford, Roberts, and

On December 21, 2013, police executed a search warrant of the home of Henry's

mother in South Orange. Later that day, police arrested Henry at a motel in Easton,

Pennsylvania. After waiving his Miranda rights, Henry provided a statement,

recounting the events leading up to the murder, the murder itself, and his efforts to

evade detection.

During the statement, Henry confirmed that, several days prior to the murder, he

and defendant drove to the mall in the GMC Suburban, looking for a Jeep Cherokee

6 Miranda v. Arizona, 384 U.S. 436 (1966).

A-3816-17T3 7 to steal. He confirmed that he picked up Roberts, Ford, and defendant in the

Suburban on the night of the murder and went to the mall to steal a Range Rover.

Henry admitted he saw a gun in defendant's coat before the four men went to the

mall.

In September 2015, defendants all filed or joined in motions to suppress

evidence, including the cell phone records of all four defendants obtained with

communication data warrants (CDWs). The cell phone records showed that all four

defendants were together before the murder, that several of their phones pinged off

of towers servicing the mall just before the murder, that their phones were not in use

at the time of the murder, that the four men were in contact with one another shortly

after the murder, and that all four defendants returned to the Newark area after the

murder.

In an affidavit submitted by the State in opposition to the motion, Detective

Mathis explained:

I believed then, as I do now, that every factual assertion in that paragraph was and is accurate. . . . With regard to the language in question . . . "[t]he vehicle is currently located at [a specific address in] South Orange, New Jersey." While the language could lead [one] to conclude that the license plate was observed on the video, and it was not, the fact is our investigation led us to believe the car in the video had that plate number, that the plate number matched the car, that the last address for the car was [the

A-3816-17T3 8 South Orange address], and most importantly that the car was currently at that address.

Without hearing oral argument on the motions, Judge Ravin issued a written

opinion denying defendants' motions to suppress evidence, rejecting their arguments

as lacking in merit. The judge also concluded that defendants were not entitled to a

Franks hearing "because they failed to provide an offer of proof, such as witness

affidavits, to support" their claims that "the affidavits were deliberately false or

contained falsities made with reckless disregard for the truth."

Judge Ravin further explained:

A literal reading of the statement . . . in support of the CDWs, that the Suburban captured on the surveillance had a license plate number . . . does not imply that the license plate number was visible in the surveillance video; rather, it is consistent with the implication that the license plate number could have been discovered from other sources, which is the State's claim, and that the license plate number was included in the affidavits for descriptive purposes.

Judge Ravin reasoned probable cause existed for the CDWs "because the totality

of the circumstances described in the affidavit . . . supported the belief that tracking

the [1996 two toned-green and beige GMC Suburban] would provide evidence" of

the murder. The judge concluded the mistaken identification of Henry's mother as

the owner of the vehicle, rather than defendant's mother's partner, "does not change

the analysis."

A-3816-17T3 9 Additionally, Judge Ravin explained he denied oral argument on defendants'

suppression motions because the issues were not complex, and he found the briefs

submitted were succinct and precise. Thus, the judge reasoned that "judicial

economy militate[d]" deciding the motions on the parties' briefs.

II

We affirm the denial of defendant's motion to suppress evidence and application

for a Franks hearing, without oral argument, substantially for the reasons expressed

by Judge Ravin in his cogent written opinion. We add the following comments.

We review the trial court's decision for abuse of discretion. State v. Broom-

Smith, 406 N.J. Super. 228, 239 (App. Div. 2009). When reviewing a determination

on a motion to suppress, this court "must uphold the factual findings underlying the

trial court's decision so long as those findings are supported by sufficient credible

evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We will only

reverse when the trial court's determination is "so clearly mistaken 'that interests of

justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244

(2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We first note there is "a presumption of validity with respect to the affidavit

supporting the search warrant." Broom-Smith, 406 N.J. Super. at 240 (quoting

Franks, 438 U.S. at 154). Where, as here, a defendant challenges the veracity of a

A-3816-17T3 10 search warrant affidavit, a Franks hearing is required only "where the defendant

makes a substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false statement is necessary to the finding

of probable cause . . . ." Franks, 438 U.S. at 155-56. The defendant "must allege

'deliberate falsehood or reckless disregard for the truth,' pointing out with specificity

the portions of the warrant that are claimed to be untrue." State v. Howery, 80 N.J.

563, 567 (1979) (quoting Franks, 438 U.S. at 171).

Furthermore, to obtain a Franks hearing, a defendant's allegations should be

supported by affidavits or other reliable statements; "[a]llegations of negligence or

innocent mistake are insufficient." Broom-Smith, 406 N.J. Super. at 241 (quoting

Franks, 438 U.S. at 171). The allegations "must be proved by a preponderance of

the evidence." Howery, 80 N.J. at 568. The defendant must also demonstrate that

absent the alleged false statements, the search warrant lacks sufficient facts to

establish probable cause. Ibid. If a search warrant affidavit contains sufficient facts

establishing probable cause even when the alleged false statements are excised, a

Franks hearing is not required. Franks, 438 U.S. at 171-72.

"The limitations imposed by Franks are not insignificant." Howery, 80 N.J. at

567. A defendant's burden is substantial because "a Franks hearing is not directed

A-3816-17T3 11 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.

Defendant claims that Detective Mathis' affidavit contained a material

misstatement by including the Suburban's license plate information, despite that

information not being available on the surveillance footage. However, as Judge

Ravin noted, defendant did not provide any additional evidence or submit an

affidavit in order to make a substantial showing that Detective Mathis' affidavit

contained deliberate falsehoods or statements made in reckless disregard for the

truth.

Absent additional information, when reading the warrant application literally,

the record is devoid of any evidence satisfying defendant's burden for a Franks

hearing. See Broom-Smith, 406 N.J. Super. at 240-41. The record reveals there was

sufficient corroborating evidence discovered at the beginning of the investigation

which led to the inclusion of the Suburban's license plate information.

Moreover, Judge Ravin correctly concluded that even in the absence of the

statement that defendant challenges, the affidavits for the CDWs established

probable cause. Those affidavits included information provided by a confidential

informant, whose tip corroborated the Suburban's identifying information, and the

A-3816-17T3 12 various cell phone records obtained through an independent CDW. Since defendant

failed to make any credible showing that the affidavit included false or perjured

statements, the trial court did not err in denying the Franks hearing or his motion to

suppress.

Defendant also failed to provide any convincing argument that Judge Ravin

abused his discretion by denying his request for oral argument on his suppression

motions. Defendant relies on State v. Parker, 459 N.J. Super. 26, 30-31 (App. Div.

2019), where we acknowledged "[o]ral advocacy is a fundamental aspect of our

criminal justice system and should be encouraged, preserved and protected."

However, only in civil and family part motions is oral argument granted on motions

as of right. R. 1:6-2(d). Oral argument on a criminal motion is not mandated by

the United States or New Jersey Constitutions or any applicable New Jersey Court

Rule. Here, we find the judge did not abuse his discretion because he issued a written

opinion and provided a reasonable explanation for denying oral argument, finding

the issues were not complex and the briefs submitted were succinct and precise.

Affirmed.

A-3816-17T3 13