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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2278-10T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JEROME MCGHEE,
Defendant-Respondent.
June 16, 2011
Submitted June 2, 2011 - Decided
Before Judges Axelrad and J. N. Harris.
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On appeal from the Superior Court of New Jersey, Law Division, Hudson County,
Indictment No. 10-03-00419.
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Nicole M.
Ghezzar, Assistant Prosecutor, on the brief).
DeLuca & Taite, attorneys for respondent (George T. Taite, on the brief).
PER CURIAM
By leave granted, the State appeals from the Law Division's interlocutory order of November 29, 2010,
which granted defendant Jerome McGhee's motion to suppress. We affirm.
I.
A.
We recite the facts based upon the parties' stipulation and the N.J.R.E. 104 hearing that was conducted on
October 8, 2010. The motion revolved around events that occurred one year earlier, on October 27, 2009.
On that day, fifteen-year veteran Jersey City Police Officer Terrence Doran received information from a
reliable confidential informant1 that "there was an individual by the name of Jerome McGhee who was
selling heroin and cocaine in the area of . . . 571 Montgomery Street [in Jersey City]." The informant also
passed on information indicating that McGhee "uses a gold Lincoln, and that he's constantly in and out of
the back of 571, and uses the gold Lincoln to make his deliveries." A physical description of McGhee was
communicated to Doran, as well as information that the informant had actually "purchased drugs from Mr.
McGhee, but only on the seventh floor of 571, so the informant wasn't able to give [him] an exact
apartment." Lastly, the informant volunteered that "Mr. McGhee has, in the past, carried the drugs within
his shoe."
Based upon this information, Doran canvassed the area of 571 Montgomery Street, which included the
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Montgomery Gardens public housing complex (Montgomery Gardens), and observed a 1989 two-door gold
Lincoln automobile parked nearby. A records check of the vehicle's license plates indicated that it was
registered to Irving McGhee of East Orange. The police set up a surveillance location nearby to further
observe the Lincoln.
Around 7:20 p.m., Doran received a telephone call from the confidential informant, who told the police
officer that McGhee was going to make a drug delivery between 7:30 p.m. and 8:00 p.m. that day, and he
would be using the Lincoln in that endeavor. Within thirty minutes of that call, McGhee was seen leaving
the building at 571 Montgomery Street and walking directly to the Lincoln. He thereafter entered the
automobile and started the engine. Before the Lincoln could be moved, Jersey City Detective Ludwig and
Sergeant Nestor blocked the Lincoln to prevent such travel, and approached McGhee. The police officers
asked McGhee to step out of the vehicle, and he complied. They then asked him to remove his left sneaker,
which was also readily accomplished.
Secreted inside McGhee's sneaker were fifteen glassine bags of heroin, branded "Star Track," and two vials
of cocaine with clear caps. Sixty-eight dollars in cash was then retrieved from McGhee's right front jeans
pocket, along with an apartment key. The police officers thereupon arrested McGhee and he was
transported to a police facility for further questioning.
After being provided the appropriate Miranda2 warnings, McGhee was asked why he was in possession of a
key to an apartment located in Montgomery Gardens. He responded by indicating that he occasionally
"stayed at his girlfriend's apartment, Priscilla Gadson, at [unit] 776."
A police officer then contacted Gadson and informed her of McGhee's arrest and the contraband recovered
from his person. She confirmed that McGhee "does live there and that he comes and goes." Gadson was
advised that it was believed that McGhee was selling controlled dangerous substances from her apartment.
A consent to search form was proferred to her, which she read and signed.
Upon the police entry and search of Gadson's apartment, the following were seized:
One defaced loaded High Point nine millimeter handgun;
eight ballpoint bullets inside a gun magazine;
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twenty-eight dollars in cash;
one police scanner set to the Jersey City Police Department's radio frequency;
one East Orange High School diploma that belonged to McGhee;
102 glassine bags of heroin branded "Star Track";
five vials of cocaine, two with clear caps and three with orange caps; and
one  and  one-half  grams  of  marijuana,  two  and  one-half  grams  of crack  cocaine,
numerous empty vials, rubber bands, caps, zip lock bags, one Hide-a-Key, and one scale
"commonly used to weigh narcotics."
B.
On February 3, 2010, McGhee was indicted by a Hudson County Grand Jury in a seventeen-count
indictment that included several counts of possession of controlled dangerous substances with the intent to
distribute, unlawful possession of a weapon, and unlawful interception of emergency communications. On
April 29, 2010, McGhee moved to suppress all of the evidence that was seized without a warrant, including
the material found as a result of the consent search of Gadson's apartment. An evidentiary hearing was
conducted on October 8, 2010, at which time only Doran testified. The parties stipulated that the transcript
of Doran's testimony in the Grand Jury would also be incorporated into the record for purposes of the
suppression motion.
The motion court issued a thorough twelve-page opinion on November 29, 2010, in which it granted
McGhee's motion. The court held, "[a]ll evidence seized from the Defendant and from the apartment at 571
Montgomery Street, apartment 77-6 is hereby suppressed and inadmissible as evidence against the
Defendant." Analyzing the case as if it were a conventional motor vehicle stop, the court found that "the
information received from the [confidential informant] in the case at bar provided the police with a
reasonable and articulable suspicion to justify the initial stop of the motor vehicle." However, it determined
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that there were no facts
which showed any action by the Defendant which gave    probable cause that the
Defendant was engaged in criminal activity.
As such, this Court finds that the Defendant's actions did not rise to the level of
establishing  probable  cause,  which  would  permit  the  officers  to  arrest the
Defendant.  It  is clear, therefore, that  the search  of the Defendant  was not a
search incident to a lawful arrest as the police did not   establish probable cause
to arrest the Defendant prior to stopping his vehicle.
This Court finds, based on the testimony presented and the facts  . . .    that the
police never established probable cause to arrest or search the Defendant based
solely on the tips received from the [confidential informant].
Thus, the search of McGhee's shoe "was unreasonable and not supported by probable cause," as was
the seizure of the sixty-eight dollars in cash and the apartment key. Moreover, the court held that because
Gadson's acquiescence to the search of her apartment was (1) "heavily influenced by the unlawful seizure
of the keys and drugs" from McGhee, and (2) "the purpose of the police misconduct (i.e., the unlawful
search) was to establish probable cause that was lacking from the [confidential informant's] tip," the
seizure of evidence in the apartment "was a product of the unlawful search and seizure of the drugs and
keys from the Defendant's person that was not supported by probable cause."
A memorializing order confirmed the disposition, and the court stayed further proceedings in the Law
Division to await the State's anticipated motion for leave to appeal. The State timely moved for leave to
appeal, which we granted on January 10, 2011.
II.
On appeal, the State raises the following points:
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POINT I: THE LOWER COURT ERRED IN GRANTING THE DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE.
POINT  II:  THE  LOWER  COURT  ERRED  BY  SUPPRESSING  EVIDENCE SEIZED
FROM 571 MONTGOMERY STREET APARTMENT 77-6.
Although we do not necessarily agree with all aspects of the legal analysis performed by the Law Division
—— we take issue particularly with its heavy reliance upon the so-called "automobile exception" that is part
of search-and-seizure jurisprudence —— we nevertheless agree substantially with its ultimate legal
conclusions, and do not find the State's arguments to be persuasive.
In reviewing an order disposing of a motion to suppress evidence we must defer to the motion court's
factual findings, "so long as those findings are supported by sufficient credible evidence in the record."
State v. Elders, 192 N.J. 224, 243 (2007). We accord no special deference to the motion judge's legal
conclusions. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004);
State v. Ventura, 353 N.J. Super. 251, 258 (App. Div. 2002).
The State argues first —— correctly in our view —— that this case did not involve a motor vehicle stop.
The motion court relied upon State v. Amelio, 197 N.J. 207 (2008), cert. denied, ___ U.S. ___, 129 S. Ct.
2402, 173 L. Ed.2d 1297 (2009), for the proposition that "'a lawful stop of an automobile must be based on
reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being
committed.'" Id. at 211 (quoting State v. Carty, 170 N.J. 632, 639-40, modified by 174 N.J. 351 (2002)).
This is a correct statement of the law, but the happenstance that McGhee was apprehended in his idling
motor vehicle that had not yet been moved from the curb does not bring this case within the niche of the
law that touches and concerns searches and seizures relating to automobiles. Instead, we rely upon the
more generalized law relating to the establishment of probable cause (for a warrantless search) derived
from confidential informants as the touchstone for our analysis.3 See, e.g., State v. Keyes, 184 N.J. 541
(2005); State v. Sullivan, 169 N.J. 204 (2001); State v. Zutic, 155 N.J. 103 (1998); State v. Smith, 155 N.J.
83 (1998).
"Broadly speaking, the reliability of a known police informant is judged by any indicia of the informant's
veracity and an analysis of the basis of the informant's knowledge." Byrnes, N.J. Arrest, Search & Seizure, §
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6:3-2(d) (2010) (citing Keyes, supra, 184 N.J. at 555-56; Sullivan, supra, 169 N.J. at 212). "An informant's
'veracity' and 'basis of knowledge' are two highly relevant factors" in determining probable cause under a
totality of the circumstances test. Zutic, supra, 155 N.J. at 110-11 (quoting Smith, supra, 155 N.J. at 92).
Veracity may be shown by past reliability; basis of knowledge may come from the informant's statement or
it may be inferred from the level of detail and amount of hard-to-know information disclosed in the tip.
Byrnes, supra, at § 6:3-2(d).
In this case, the confidential informant's information was found to establish a basis to justify the
initial stop of McGhee. This was a proper application of the law because the informant's information was
corroborated when, as predicted, McGhee emerged from 571 Montgomery Avenue around 7:50 p.m., and
walked to a gold Lincoln. See Birkenmeier, supra, 185 N.J. at 561 ("As the informant predicted, the police
observed defendant leaving his home at 4:40 p.m., carrying a laundry tote bag, and driving away in the car
identified by the confidential informant."). "Reasonable suspicion necessary to justify an investigatory stop
is a lower standard than the probable cause necessary to sustain [a warrantless search]." State v. Stovall,
170 N.J. 346, 356 (2002).
However, notwithstanding a justification to stop McGhee, the motion court did not find that asking
McGhee to remove his shoe to conduct a warrantless search was proper because "there were no
observations made by the Officers which showed any action by the Defendant which gave probable cause
that the Defendant was engaged in criminal activity." Also, it was noted that given the circumstances, the
police had sufficient time to request a telephonic search warrant to further their investigation.
The State contends that asking McGhee to alight from his vehicle was minimally intrusive, as was the
demand that he remove his shoe. We cannot agree with this overly broad proposition, based upon the facts
of this case. Although, arguably, it was a de minimis request to ask McGhee to step out of the automobile
to talk with the police, the removal of McGhee's shoe at the insistence of police moved the encounter into a
heightened sphere. Even under the totality of the circumstances, the details provided by the confidential
informant were not sufficient to establish probable cause to support the warrantless search.
In Birkenmeier, the Court noted that the confidential informant's corroborated information was
sufficient for purposes of the "collective circumstances" test of State v. Nishina, 175 N.J. 502, 511 (2003),
and validated the police stop of the defendant's car. Id. at 562. However, more was necessary —— the
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smell of "a very strong odor of marijuana" —— to establish probable cause to actually search the vehicle.
Ibid. So too, in this case, more was necessary in order to ask McGhee to partially disrobe.
The impermissible search and seizure from McGhee in the street outside of 571 Montgomery Street
was also the basis for the motion judge's determination to suppress the cash and apartment key found on
McGhee's person, as well as the contraband found upstairs in Gadson's apartment. The State argues that
the consent search of the apartment was independently derived, thereby saving the fruits of the search.
We, however, agree with the motion court's legal analysis that recognized the linkage of all of the
circumstances, and resulted in the suppression of all of the evidence.
When McGhee's sneaker was improperly removed and searched, and the contraband hidden inside
found, that gaffe sent into motion the balance of the police investigation. As such, it was fatally infected,
and the confidential informant's information did not suffice to inoculate the consent search from the earlier
contagion. We note that at no time did the confidential informant indicate where on the seventh floor of
571 Montgomery Street McGhee was residing. Thus, the consent to search that was requested of Gadson
was irretrievably connected to the apartment key improperly seized from McGhee. Any suggestion that the
police would have gone door-to-door on the seventh floor of 571 Montgomery Street asking permission to
search all of the apartment units located there is absurd. Plainly, the consent to search could only have
matured from the planting of the poisonous tree in the street search of McGhee. Wong Sun v. United
States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed.2d 441, 454 (1963); State v. James, 346 N.J. Super.
441, 453 (App. Div.), certif. denied, 174 N.J. 193 (2002). All of the evidence was properly suppressed.
Affirmed.
1  Doran testified that  the confidential informant  had  provided  information to  him  ten times  in   the   past,
which had resulted in ten narcotic arrests. Doran did not indicate the outcome of any of those ten arrests.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
                                                                                                                       3 We recognize that many of the confidential informant cases also involve automobile stops and seizures.
See  e.g.,  State  v.  Birkenmeier,  185  N.J.                                                                                                                                                                                        552,   561  (2006)   (involving  an  automobile  stop  based upon
                                                                                                                       information from a confidential informant); cf. Amelio, supra, 197 N.J. at 213 (involving a tip from a known
citizen, the defendant's seventeen-year old daughter).
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