STATE OF NEW JERSEY VS. CHRISTOPHER RADEL (16-08-0697, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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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