SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0890- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. JEROME L. GAYDEN, a/k/a ROBERT GAYDEN, JEROME L. GAYDON, and J SKI, Defendant-Appellant.

_________________________

Argued December 18, 2023

– Decided March 8, 2024 Before Judges Gilson and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 21

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. Tamar Yael Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Yael Lerer, of counsel and on the brief). Frank Muroski, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0890

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PER CURIAM Defendant Jerome L. Gayden ple ad ed guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). In accordance with a plea agreement, he was sentenced to a five-year term of incarceration with a fortytwo -month period of parole ineligibility. He appeals from the August 16, 2022 order of the Law Division denying his motion to sup press evidence seized during what the court found to be a lawful investigatory s top of defendant on a public sidewalk. Defendant argues that the trial court er red in not conducting an evidentiary hearing on his motion to suppress. Because there were disputed issues of material fact surrounding the stop and subseq uent search of defendant,

we vacate the August 16, 2022 order and remand for a full evidentiary hearing on defendant's motion to suppress.

I. In light of the trial court having not held an evidentia ry hearing, we recite the facts as they are represented in the State's wr itten submissions and as described by the trial court from its out- of -court viewing of a surveillance camera recording of the stop and search. On August 13, 2021, a Paterson police dispatcher transmitted a message to patrol cars that a "caller" reported there was3 A- 0890

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a suspicious person with a weapon in front of a speci fic address on Rosa Parks Boulevard. The dispatcher relayed the caller's des cription of the person as a black male with dreadlocks wearing blue shorts and a white tank top, using crutches and with a gun in his pocket. No informat ion was transmitted with respect to how the caller obtained the information the dispatcher conveyed. Approximately five minutes later, officers arrived at the address, in what they described as a high -crime area, and saw defendant, who matched the physical description provided by the caller. Officer Mendez filed a written report stating when he and his partner arrived they "made eye contact with [defendant] and he appeared startled by our police presence." According to the report, Mendez told defendant to stop at which poin t defendant "immediately accelerated his walking pace while using crutches t o further his distance away"

from the officers. Mendez wrote that defendant "was wearing a black fa nny pack that had a large bulge around the front of his torso and as he was walking with crutches at a fast pace, it appeared that ther e was a heavy object inside, due

to the manner in which it was sway[ing]." According to the report, Mendez "wrap[ed] his hand across [defendant's] torso" and "immediately advised [his partner] that he felt a heavy, hard, metallic object inside the fanny pack across his torso." Mendez's partner then4 A- 0890

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"conduct[ed] the pat down" during which he "observed a black object protruding out of the large pocket on the side of the fanny pa ck, which [he] immediately recognized as the butt of a handgun." The officers arrested defendant and removed the g un , which was loaded with illegal ammunition. A search of computer records revealed that the gun had been rep orted stolen in Georgia. 1 A grand jury indicted defendant, charging him with six counts relating to his possession of a weapon, a large-capacity ammunition magazine, a prohibited device, and stolen property, as well as being in po ssession of a weapon while a

convicted felon. Defendant moved to suppress the evidence obtained during the stop. He argued that an anonymous tip of criminal activity r equires corroboration before officers can conduct an investigatory stop pursuant to Te rry v. Ohio, 392 U.S. 1 (1968). According to defendant, the officers failed to corr oborate the information reported by the anonymous caller. In s upport of his argument, defendant noted that the video recording showed the offi cers arrested defendant two seconds after they arrived on the scene, an ins ufficient amount of time for

1 Although the report is signed by Mendez as the repo rting officer, it be gin s with "I, Off. J. Dabal was assigned to the Emergenc y Response Team as Unit 514 with my partner Off. H. Mendez" and refers to M endez in the third person. It is not clear if the narrative in the report was provided by Dabal or Mendez.5 A- 0890

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them to make the observations described in the police repo rt. Defendant denied the officers ordered him to stop or made eye contac t with him. He argued his fanny pack was not swaying because he was moving sl owly on crutches and that he made no attempt to flee before the officers arre sted and searched him. According to defendant, the officers nearly hit him with their vehicle when they pulled up to the scene and he had to quickly h op to avoid being struck. Defendant also disputed that the stop took place in a high-c rime area. See State v. Goldsmith, 251 N.J. 384, 404 (2022) ("The State must do more than simply invoke the buzz words 'high-crime area' in a conclu sory manner to justify investigative stops."). Finally, defendant argued that the video recording, which had been submitted to the trial court by the State, had not been authenticated and was not, therefore, admissible without an evide ntiary hearing establishing its authenticity. On the return date of the motion to suppress, defen se counsel requested an opportunity to challenge the officers' credibili ty and explore the adm issibility of the video recording at an evidentiary hearing. The court denied that request and issued an oral opinion based on the written pol ice reports and its viewing of the video recording, which took place outside of th e presence of counsel.6 A- 0890

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The court began its opinion with its presumption th at the caller contacted the police department dispatcher via 9-1-1, that th e call was recorded, and that police gathered information about the caller. The court found that these facts , which do not appear in the written police report, w ere indicative of the caller's reliability. In addition, based on its out

- of -court viewing of the video recording, the court made additional findings of fact. The court stated:

As for the disputed facts in this case the [c]ourt having reviewed the surveillance footage and either (sic) submitted evidence largely disagrees with the defens e's characterization of these events. With regard to t he time line the police vehicle can first be seen ente ring the frame of the surveillance footage at 9:24:01 as it turned onto Rosa Parks Boulevard. The [c]ourt acknowledges that there is a vehicle pa rked on the street near where the defendant was standing that would somewhat obstruct the officer[s'] view of him

. [W]here the defendant's brief . . . suggests that t he officers were only able to observe him for approximately two second as a result of the obstruc ted view[,] law enforcement appeared to have a clear li ne of sight to the defendant who's already on the move starting at 9:24 and 09 seconds p.m.

The officers likewise come on a second later and th e police vehicle is slowly moving parallel to the defendant as he walks on the sidewalk for another f ive seconds prior to turning into the driveway at 9:24 and 15 seconds p.m. The [c]ourt notes that this turn was not abrupt by any means. Additionally the defense clai ms7 A- 0890

- 22 that the police vehicle stopped suddenly causing th e vehicle to shake. However, viewing the surveillanc e footage it appears to have actually been caused by the front tire of the vehicle passing over the curb.

. . . . The [c]ourt does not credit the argument that the officers did not and would have been able to observ e a large

– a bulge in the defendant's fanny pack which swung as though . . . there was a heavy object insi de of it. The officer[s'] vehicle was parallel to the defenda nt for five seconds as he walked on the sidewalk. The fro nt of their vehicle is then facing the defendant as th ey pulled into the driveway for an additional four sec onds before the officers ultimately exit their vehicle a nd detain the defendant three seconds later. This means that the police had the opportunity to observe the defendant from a vantage point where they would hav e been able to see the fanny pack for at least 12 sec onds prior to the detention. Further, during the time frame the defendant took f ive steps, one larger hop, and then two additional step s. A bag which is weighed down by a heavy object would sway with each step giving the officer[s] clear opportunity to observe it doing so. Additionally, the fact tha t the defendant was on crutches would have made the swing of that fanny pac k more dramatic because he was limping. Even if the defendant's normal stride did not cause the fanny p ack to sway, which the [c]ourt doubts, that bag certain ly would have visibly shifted during defendant's hop.8 A- 0890

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The court also made a critical credibility determi nation based only on its review of the written police report. With respect to defendant's contention that the officers did not tell him to stop, the court found: "[t]h is [c]ourt also finds no reason to doubt that Officer Menendez (sic) gave th e defendant orders to stop ."

The court found that even if the officer's car wind ow, which cannot be seen on the video, was closed as the vehicle arrived on scen e as defendant contends, and he did not give the order to stop until he exited t he vehicle, those facts would

"not make the officer's recollection of these event s less believable." The court also found that "in reviewing the police report it appears to this [c]ourt that law enforcement intended to convey tha t several of the[] things [described in the report] were happening simultaneo usly" rather than in the sequence described by defendant. The court continued,

[t]he defendant also claims that he did not make ey e contact with the officers and that he was not startled by police but that he hopped out of the way so that he did not get hit by their oncoming vehicle. The [c]ourt does not credit the defendant's argument that he did not appear startled because his subsequent argumen t contradicts the assertion. The defendant was attempting to get out of the way of a vehicle that he believed would hit him the [c]ourt highly doubts th at he would appear unfazed to those around him. The court stated that it manipulated the video rec ording during its out- of

court viewing of that evidence:9 A- 0890

- 22 While the [c]ourt does not find to some extent that at least initially the defendant's startled appearance was likely attributable to the car coming toward him it believes that his subsequent actions indicate that he was startled by the police presence as well. Specifica lly[,] when the [c]ourt zoomed in on the surveillance footage the defendant can be seen turning his head in the direction of the police vehicle. This occurs at 9:24 and 17 seconds p.m. as the vehicle turns into the drive way. It appears as though the vehicle's headlights are w hat draws the defendant's attention to it and that at t h is point though it is moving slowly the vehicle's in c lose proximity to him which would support the defense' s argument. However, within half a second the defendant turns h is head back towards the sidewalk and takes on[e] hop. It seems unlikely that [defendant] would take his eyes off that vehicle if he was actually fearful that it was going to hit him. The court made additional findings of fact based o n the video recording. The court found that even assuming the police vehic le's "headlights were bright enough that defendant could not see" the officers i n order to make eye contact,

"he still would have been able to see that this was a police vehicle." In addition, the court found that "defendant did in fact pick up his pace in the two steps he took following that hop" and "defendant accelerated his pace to nearly double what his stride was initially" once the officers ar rived. Based on these findings, as well its finding that Rosa Parks Boulevard is located in a high-crime area, the court concluded t hat the officers' observations10 A- 0890

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were sufficient independent corroboration of the ca ller's report to constitute reasonable articulable suspicion defendant was abou t to engage in criminal activity to warrant the investigative stop and Terr y pat down. 2 An August 16, 2022 order memorializes the trial co urt's decision. After the court denied defendant's motion, he entered his guilty plea and was

sentenced. This appeal followed. Defendant raises the follow ing argument s.

THE OFFICERS' STOP AND SEARCH OF DEFENDANT BASED ON AN UNCORROBORATED, ANONYMOUS 9-1-1 CALL WAS ILLEGAL.

A. The Police Unlawfully Stopped Defendant.

B. The Police Unlawfully Searched Defendant.

C. If This Court Declines to Reverse the Denial of the Motion to Suppress, the Matter Must be Remanded for the Evidentiary Hearing the Defense Requested.

Al though the State argues that the trial court correc tly denied defendant's motion to suppress, it also concedes "that factual disputes were asserted by

2 The court, acknowledg ing the holding in Goldsmith , stated the following about whether the location of the stop was a high-crime a rea: "is that a material issue of dispute? I guess. Maybe it is a material issue of dispute. But at the end of the day the fact of the matter is even if you remov e that from the equation everything else here provides an articulable and re asonable suspicion to law enforcement to stop this particular defendant."11 A- 0890

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defendant that required an evidentiary hearing wher e credibility and factual findings should have been made to establish a recor d on which this [c]ourt can perform a full appellate review of the legal issues presented."

II. Both the federal and state constitutions protect c itizens against

unreasonable searches and seizures. See U.S. Const . amend. IV; N.J. C onst. art. I, ¶ 7. The parties agree that the officers' encou nter with defendant was an investigatory stop, which constitutes a seizure und er both the federal and state constitutions. An investigatory stop or detention, sometimes referred to as a Terry stop, involves a temporary seizure that restr icts a person's movement. A Terry stop implicates a constitutional requirement that there be "'specific and articulable facts which, taken together with ration al inferences from those facts,' give rise to a reasonable suspicion of criminal act ivity." State v. Elders, 192 N.J. 224, 247 (2007) (quoting State v. Rodriguez, 1 72 N.J. 117, 126 (2002)). The State has the burden to establish that a stop w as valid. State v. Mann, 203 N.J. 328, 337-38 (2010); State v. Pineiro, 181 N.J. 13, 20 (2004). If there was no reasonable suspicion of criminal activity to jus tify the stop, evidence discovered as a result of the stop is subject to ex clusion. State v. Chisum, 236 N.J. 530, 546 (2019).12 A- 0890

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To determine whether reasonable suspicion existed, a judge must consider the totality of the circumstances, viewing the "who le picture" rather than taking each fact in isolation. State v. Nelson, 237 N.J. 540, 554 (2019) (quoting St ate v. Stovall, 170 N.J. 346, 361 (2002)). Investigatory stops are justified "if th e evidence, when interpreted in an objectively reason able manner, shows that th e encounter was preceded by activity that would lead a reasonable police officer to have an articulable suspicion that criminal acti vity had occurred or would shortly occur." State v. Davis, 104 N.J. 490, 505 (1986).

A [judge] must first consider the officer's objecti ve observations. The evidence collected by the office r is "seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. [A] trained police officer dra ws inferences and makes deductions . . . that might we ll elude an untrained person. The process does not de al with hard certainties, but with probabilities." Se cond, a [judge] must determine whether the evidence "rais e[s] a suspicion that the particular individual being st opped is engaged in wrongdoing." [Id. at 501 (quoting United States v. Cortez, 449 U .S. 411, 418 (1981)) (alterations in original).] "The proper mechanism through which to explore the constitutionality of warrantless police conduct is an evidentiary hearin g." State v. Atwood, 232 N.J. 433, 445 (2018) (first citing N.J.R.E. 104; and the n citing State v. Gamble, 218 N.J. 412, 419 (2014)). When there are disputed material facts, the State m ust13 A- 0890

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present witnesses at the evidentiary hearing to sub stantiate the basis for the challenged warrantless conduct and where "the defen se is afforded the opportunity to confront and cross-examine the State 's witnesses." Ibid. ; see also

R. 3:5-7(c) (requiring testimony to be taken in open court "[i]f material facts are disputed . . . ."). An evidentiary hearing is mandated where "the parties made clear in their respective written submissions that they had diamet rically irreconcilable accounts about what [police officers] claimed occurre d when [they] approached [the] defendant." State v. Parker, 459 N.J. Super. 26, 30 (App. Div. 2019). "The motion judge . . . must make factual findings that will be substantially influenced by an opportunity to hear and see the witnesses." Ibid. We agree with defendant that the trial court erred when it resolved disputed issues of material fact relating to his mo tion to suppress without holding an evidentiary hearing. The parties dispute a number of critical facts surrounding the officers' stop and search of defendant. Ma terial facts in dispute include, among others, whether: (1) the caller used the 9-1-1 system to report information to police; (2) the officers made eye co ntact with defendant when they arrived on scene; (3) defendant appeared start led by police presence; (4) the officers ordered defendant to stop and had suff icient time to give such an14 A- 0890

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order before arresting defendant; (5) defendant att empted to flee; (6) the officers

had sufficient time to make the observations detail ed in their written report; (7 ) whether the stop took place in a high-crime area; a nd (8) whether officers observed defendant's fanny pack sway ing in a manner indicative of it containing a heavy object. The trial court resolved all these issues without the benefit of hearing sworn testimony from the officers and possibly defendant. Instead, the court made credibility determination based on a wri tten police report and its viewing of a video recording outside the presence of counsel. Defendant was not given an opportunity to challenge the credibili ty of the officers through cross-examination, test the admissibility of the vi deo recording , offer his view of what is depicted in the video recording, and rai se objections to the trial court's manipulation of the recording by magnifying its ima ges through "zooming in." 3 We, therefore, vacate the August 16, 2022 order and remand for an evidentiary hearing on defendant's motion to suppre ss. Because the judge who decided defendant's motion has already engaged in w eighing the evidence and rendered an opinion on the credibility of the defend ant and officers, the hearing

3 We note that a video recording must be properly aut henticated before it can be admitted as evidence. See State v. W il son , 135 N.J. 4, 16 (1994).15 A- 0890

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should take place before a different judge. See N. J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986). We are not vacating defendant's conviction. If, af ter the evidentiary hearing, the evidence is suppressed, defendant can move to withdraw his guilty plea. If the evidence is not suppressed, defendant can decide if he wants to appeal from the ruling following the remand. The August 16, 2022 order is vacated and the matte r is remanded for a full evidentiary hearing on defendant's motion to suppre ss. We do not retain jurisdiction.