STATE OF NEW JERSEY VS. HANIF THOMPSON (14-09-2285, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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).
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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:
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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.
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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.
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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.
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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
defendant.
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).
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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
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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."
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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
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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
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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
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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.
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