NOT FOR PUBLICATION WITHOUT THE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-1124-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RANDY VIDAL,
Defendant-Appellant.
____________________________
Argued November 18, 2019 – Decided November 26, 2019
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-04-0523.
Margaret Ruth McLane, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Margaret Ruth
McLane, of counsel and on the brief).
Erin M. Campbell, Assistant Prosecutor, argued the
cause for respondent (Esther Suarez, Hudson County
Prosecutor, attorney; Erin M. Campbell, on the brief).
PER CURIAM
After pleading guilty, defendant appeals from his conviction for second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1). He focuses
on the judge's denial of his motion to suppress, contending that the judge erred
by finding the independent source doctrine applied. He primarily maintains that
police engaged in flagrant misconduct by opening the basement apartment door
to verify it was the apartment in his Facebook pictures that depicted defendant
possessing guns and marijuana.
On appeal, defendant argues:
POINT I
THE EVIDENCE FOUND IN THE BASEMENT
APARTMENT MUST BE SUPPRESSED AS THE
FRUIT OF AN UNLAWFUL SEARCH BECAUSE
POLICE UNLAWFULLY OPENED THE
APARTMENT DOOR AND THEN RELIED ON
WHAT THEY SAW IN GETTING A SEARCH
WARRANT.
We remand for the judge to make specific findings and conclusions of law as to
prong three of the independent source doctrine, and to consider the State's
argument, raised for the first time, that the inevitable discovery doctrine is a
separate basis to deny defendant's motion to suppress.
Police received an anonymous tip that a "resident [was] posting pictures
with guns on Facebook," which included the link to a Facebook profile. Police
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discovered that defendant owned the Facebook profiles, that he was the person
holding guns and possessing marijuana in the pictures, and that he was a
convicted felon forbidden to possess weapons. Police initially identified
defendant's residence, which appeared in several of the Facebook photos, as
apartment number two that was located on the second floor. Sergeant Thomas
McVicar applied for a search warrant of defendant's person and apartment
number two. Police later discovered that defendant did not live in apartment
number two, but instead in the building's basement apartment.
They reached that discovery after Sergeant McVicar witnessed defendant
leave the building by exiting from an alleyway. Based on his familiarity with
similar apartment buildings, Sergeant McVicar concluded that the alleyway led
to a basement apartment.
A few blocks away from the apartment building, other officers arrested
defendant on an open municipal warrant. At that time, defendant said he lived
in the building's basement apartment. Sergeant McVicar and other officers went
to the building's side door, located the basement apartment, and opened the door
to confirm the basement apartment was the apartment in defendant's Facebook
pictures and "to make sure there was nobody there." Thereafter, he prepared a
new search warrant affidavit.
A-1124-18T4
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"The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution both safeguard the right of all
individuals to be secure in their houses against unreasonable searches and
seizures." State v. Shaw, 237 N.J. 588, 607-08 (2019) (citing State v. Hathaway,
222 N.J. 453, 468 (2015) (citations omitted)). "When law enforcement
undertakes a search without a warrant, that search is presumptively unlawful."
Id. at 608 (citing State v. Pineiro, 181 N.J. 13, 19 (2004)). To avoid exclusion,
the State must prove the search fell within an exception to the exclusionary rule.
See State v. Bryant, 227 N.J. 60, 71 (2016) (stating "[w]hen the seizure of
evidence is the result of the State's unconstitutional action, the principal remedy
. . . is exclusion of the evidence seized").
Here, the parties argued whether the independent source doctrine applied.
This doctrine "allows admission of evidence that has been discovered by means
wholly independent of any constitutional violation." State v. Holland, 176 N.J.
344, 348 (2003) (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). The
doctrine has three prongs:
First, the State must demonstrate that probable cause
existed to conduct the challenged search without the
unlawfully obtained information. It must make that
showing by relying on factors wholly independent from
the knowledge, evidence, or other information acquired
as a result of the prior illegal search. Second, the State
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4
must demonstrate in accordance with an elevated
standard of proof, namely, by clear and convincing
evidence, that the police would have sought a warrant
without the tainted knowledge or evidence that they
previously had acquired or viewed. Third, regardless
of the strength of their proofs under the first and second
prongs, [the State] must demonstrate by the same
enhanced standard that the initial impermissible search
was not the product of flagrant police misconduct.
[Id. at 360-61 (emphasis added).]
The State must establish all three prongs by clear and convincing evidence, and
its failure to satisfy any one prong will result in suppression. Id. at 345.
Although prong three is the focus of this appeal, we address the first and second
prongs as well.
As to the first prong, defendant argues Sergeant McVicar "heavily relied
on the information he learned by illegally opening the door to the basement
apartment" when he applied for the second search warrant. Specifically,
defendant argues Sergeant McVicar lacked probable cause for the search warrant
of the basement apartment absent his unlawful entry—the opening of the door—
into the apartment.
Probable cause is "more than mere suspicion but less than legal evidence
necessary to convict." Sanducci v. City of Hoboken, 315 N.J. Super. 475, 480
(App. Div. 1998) (internal quotation and citation omitted). It is "well-grounded
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suspicion" that an offense has been committed. State v. Moore, 181 N.J. 40, 45
(2004) (citation omitted). "Probable cause exists where 'the facts and
circumstances within . . . [the officers'] knowledge[,] and of which they had
reasonably trustworthy information[,] [are] sufficient in themselves to warrant
a man of reasonable caution in the belief that' an offense has been or is being
committed." Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (second
and fifth alteration in original) (citation omitted). In determining whether
probable cause existed, a judge should consider the totality of the circumstances
including the officer's "common and specialized experience[.]" Schneider v.
Simonini, 163 N.J. 336, 362 (2000) (internal quotation and citation omitted).
Probable cause existed here. Sergeant McVicar viewed the photographs
on defendant's Facebook pages, which showed defendant had guns and
marijuana. He researched defendant’s residence on LexisNexis and the CAD
system, and he identified defendant's apartment building. Officers observed
defendant leaving from the front door of the apartment building. Sergeant
McVicar also saw defendant leave from the building's alleyway, and he said this
observation led him to believe that defendant exited from the basement
apartment. Defendant said he lived at this basement apartment during his
arrest—before the unlawful entry.
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Further, the judge found there was probable cause for the second search
warrant, stating:
[T]he Lexis Nexis search revealed the [apartment
building] as [d]efendant's address and [Sergeant]
McVicar's observations independently give rise to
probable cause when viewed in conjunction with the
Facebook photos showing [d]efendant's name.
Moreover, given that [Sergeant] McVicar was familiar
with the layout of buildings like [this one], and the fact
that [Sergeant] McVicar verified that [d]efendant did
not live in [a]partment [two], he reasonably believed
that [d]efendant could have come out of the basement
apartment. This belief is also reasonable regardless of
whether [d]efendant stated that he lived in the basement
apartment or not.
Thus, Sergeant McVicar had a reasonable belief that defendant resided in the
basement apartment and that the guns may be present in this apartment.
In Holland, 176 N.J. at 348, the Supreme Court addressed the clear and
convincing evidence standard as to prong two of the independent source
doctrine. In this case, police went to assist an ambulance crew at a duplex,
where the officer noted a strong odor of burning marijuana and called for back-
up to determine the source of the odor. Id. at 349. Three other officers arrived
and concluded that the odor was coming from the adjoining residence of the
duplex. Ibid. The defendant ran out of that adjoining residence and dropped
marijuana on the ground. Id. at 349-50. Police then entered the residence to
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investigate further, finding marijuana and drug paraphernalia. Id. at 350-51.
After completing their investigation, a detective applied for a search warrant
based on the officers' observations. Id. at 351. The Court found the State failed
to satisfy prong two because the smell of marijuana and the marijuana that the
defendant dropped were insufficient to establish that police would have obtained
a search warrant absent their unlawful search. Id. at 364. Further, the Court
emphasized there was a statement from an officer that police sought a search
warrant based on what they saw in the residence. Ibid.
Here, the judge did not outline her specific findings as to prong two,
noting that prong two was not in contention. But the judge did find that there
was "not enough credible evidence to support that the basement apartment was
searched prior to obtaining [the second search warrant]." Unlike in Holland,
officers already had a search warrant to search defendant's residence —the
second search warrant only changed defendant's residence from "#2" to
"basement apartment." Also different from Holland, officers did not "seize" any
physical evidence when they opened the basement door: they did not see the
gun or marijuana that was subsequently seized during the second search
warrant's execution. Finally, the judge found that Sergeant McVicar and other
officers only opened the door to confirm it was the apartment in defendant's
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Facebook pictures. Thus, there exists clear and convincing credible evidence
that Sergeant McVicar would have applied for the search warrant of the
basement apartment absent opening the basement door.
But as to the third prong, the record must be more developed. Defendant
contends that the police engaged in flagrant misconduct when they opened the
basement apartment's door to confirm it was the apartment in defendant's
Facebook pictures. He further argues that Sergeant McVicar engaged in flagrant
misconduct when he made false statements in his search warrant application,
specifically that officers did not execute the search warrant for apartment
number two.
"Flagrancy is a high bar, requiring active disregard of proper procedure,
or overt attempts to undermine constitutional protections." State v. Camey, ___
N.J. ___, ___ (2019) (slip op. at 46) (citing State v. Smith, 212 N.J. 365, 398
(2012)). The Appellate Division addressed the concept of flagrant misconduct
in State v. Chaney, 318 N.J. Super. 217 (App. Div. 1999). In that case, police
went to execute an arrest warrant of the defendant at a local motel, which was
the defendant's last known address. Id. at 220. Officers went to the defendant's
motel room and knocked on the door; they entered when they received no
response. Ibid. While inside, officers observed stolen property, and based on
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this information, applied for a warrant to search the motel room for the stolen
property. Ibid. The defendant filed a motion to suppress the evidence, arguing
that police engaged in flagrant misconduct when they entered the motel room.
Id. at 219. We stated suppression was unwarranted, explaining:
[T]his is not a case where the police deliberately
conducted an unlawful search for the purpose of
confirming the presence of contraband before applying
for a warrant. Rather, the information received by the
police concerning the arrest warrants for a person with
the same name as [the] defendant, whose last known
address was the motel in which [the] defendant was
registered, provided the police with objectively
reasonable grounds for believing that they were
authorized to enter the motel room to execute the
warrants.
[Id. at 226 (emphasis added).]
Here, Sergeant McVicar testified:
When you open . . . that door, it's a small apartment. It's
a basement apartment. I . . . don't know legal or illegal,
but sort of, you know, it's where the garage and the
apartments would usually be. When you open that door,
the ceiling's kind of low and you’d look right at the
apartment. [R]ight there is that table that we saw
[defendant] sitting at in the numerous photographs and
pictures. Behind the table, we could see the cabinets
and the . . . appliances which were identified as being
where we believed that he lived[,] and there was
identified as . . . that they were the cabinets and the
appliances that we had observed in the numerous
photos. And then you could see that there [were] two
bedrooms. And then, not that far away, only about five
A-1124-18T4
10
feet across the living room, there’s two more bedrooms
right there. And we could see there was nobody in the
apartment.
Similar to Chaney, the judge found that officers did not enter the basement
apartment to confirm the presence of contraband. Sergeant McVicar testified,
and the judge found credible, that officers opened the basement apartment's door
to confirm it was the apartment in defendant's Facebook pictures and to confirm
defendant's girlfriend was not present. The judge also found there was not
enough "credible evidence to support that the basement apartment was searched
prior to obtaining [the second search warrant]."
The judge however did not make findings of fact and conclusions of law
about whether the "initial impermissible [opening of the door] was not the
product of flagrant police misconduct" as outlined in Holland. In fact, as to
prong three, the entirety of the judge's findings were:
Indeed, the officers had a [w]arrant to search
[apartment number two]. Therefore, they lawfully
entered [the witness's] apartment and did not commit
flagrant misconduct in searching [apartment number
two]. Further . . . there is not enough credible evidence
to support that the basement apartment was searched
prior to obtaining [the second search warrant.]
Thus, we conclude the judge did not make sufficient findings and conclusions
as to the third prong.
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We reject defendant's argument that Sergeant McVicar engaged in flagrant
misconduct by making false statements in his second search warrant application.
The judge held a three-day hearing on defendant's motion to suppress. Sergeant
McVicar stated in his affidavit, and testified at the hearing, that he and other
officers did not search apartment number two once they realized it was not the
apartment in defendant's Facebook pictures. However, the judge found credible
another witness who testified that officers searched apartment number two. The
judge determined Sergeant McVicar did not make false statements in his
application, finding: "[the witness's] testimony does not prove that [Sergeant]
McVicar made material misstatements." (Emphasis added). Moreover, the
judge noted that the first search warrant allowed officers to search apartment
number two. This finding of fact is entitled to deference. State v. Elders, 192
N.J. 224, 244 (2007).
Finally, in this appeal, the State argues for the first time that "discovery
of the proper apartment was inevitable."1 The independent source doctrine and
the inevitable discovery doctrine are two separate exceptions to the exclusionary
1
We leave the details of that argument—and the related consequences, such as
the discovery of the gun and marijuana were likewise inevitable—to the
discretion of the judge during the remand. Of course, the parties are free to
make any contentions that are warranted on remand.
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rule. See Camey, ___ N.J. at ___ (slip op. at 46) (describing separate tests for
the doctrines). On remand, the State can make this contention in the first
instance.
We therefore remand for proceedings consistent with this opinion. We do
not retain jurisdiction.
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