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. 21-10-0676. 

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0890-22

General, attorney; Frank Muroski, of counsel and on the 

brief). 

PER CURIAM 

 Defendant Jerome L. Gayden pleaded 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 suppress evidence seized during 

what the court found to be a lawful investigatory stop of defendant on a public 

sidewalk. Defendant argues that the trial court erred in not conducting an 

evidentiary hearing on his motion to suppress. Because there were disputed 

issues of material fact surrounding the stop and subsequent 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 evidentiary hearing, we recite 

the facts as they are represented in the State's written 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 was 
3 A-0890-22

a suspicious person with a weapon in front of a specific address on Rosa Parks 

Boulevard. The dispatcher relayed the caller's description 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 information 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 point defendant "immediately 

accelerated his walking pace while using crutches to further his distance away" 

from the officers. Mendez wrote that defendant "was wearing a black fanny 

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 there 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 then 
4 A-0890-22

"conduct[ed] the pat down" during which he "observed a black object protruding 

out of the large pocket on the side of the fanny pack, which [he] immediately 

recognized as the butt of a handgun." The officers arrested defendant and 

removed the gun, which was loaded with illegal ammunition. A search of 

computer records revealed that the gun had been reported 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 possession 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 requires corroboration before 

officers can conduct an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 

(1968). According to defendant, the officers failed to corroborate the 

information reported by the anonymous caller. In support of his argument, 

defendant noted that the video recording showed the officers arrested defendant 

two seconds after they arrived on the scene, an insufficient amount of time for 

1

 Although the report is signed by Mendez as the reporting officer, it begins 

with "I, Off. J. Dabal was assigned to the Emergency Response Team as Unit 

514 with my partner Off. H. Mendez" and refers to Mendez in the third person. 

It is not clear if the narrative in the report was provided by Dabal or Mendez. 
5 A-0890-22

them to make the observations described in the police report. Defendant denied 

the officers ordered him to stop or made eye contact with him. He argued his 

fanny pack was not swaying because he was moving slowly on crutches and that 

he made no attempt to flee before the officers arrested 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 hop to avoid being struck. 

Defendant also disputed that the stop took place in a high-crime 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 conclusory 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 evidentiary hearing establishing 

its authenticity. 

On the return date of the motion to suppress, defense counsel requested 

an opportunity to challenge the officers' credibility and explore the admissibility 

of the video recording at an evidentiary hearing. The court denied that request 

and issued an oral opinion based on the written police reports and its viewing of 

the video recording, which took place outside of the presence of counsel. 
6 A-0890-22

The court began its opinion with its presumption that the caller contacted 

the police department dispatcher via 9-1-1, that the 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, were 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 defense's 

characterization of these events. With regard to the 

time line the police vehicle can first be seen entering 

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 parked 

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 the 

officers were only able to observe him for 

approximately two second as a result of the obstructed 

view[,] law enforcement appeared to have a clear line 

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 the 

police vehicle is slowly moving parallel to the 

defendant as he walks on the sidewalk for another five 

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 claims 
7 A-0890-22

that the police vehicle stopped suddenly causing the 

vehicle to shake. However, viewing the surveillance 

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 observe a 

large – a bulge in the defendant's fanny pack which 

swung as though . . . there was a heavy object inside of 

it. 

The officer[s'] vehicle was parallel to the defendant for 

five seconds as he walked on the sidewalk. The front 

of their vehicle is then facing the defendant as they 

pulled into the driveway for an additional four seconds 

before the officers ultimately exit their vehicle and 

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 have 

been able to see the fanny pack for at least 12 seconds 

prior to the detention. 

Further, during the time frame the defendant took five 

steps, one larger hop, and then two additional steps. 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 that the defendant was on 

crutches would have made the swing of that fanny pack 

more dramatic because he was limping. Even if the 

defendant's normal stride did not cause the fanny pack 

to sway, which the [c]ourt doubts, that bag certainly 

would have visibly shifted during defendant's hop. 
8 A-0890-22

 The court also made a critical credibility determination 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]his [c]ourt also finds no 

reason to doubt that Officer Menendez (sic) gave the defendant orders to stop." 

The court found that even if the officer's car window, which cannot be seen on 

the video, was closed as the vehicle arrived on scene as defendant contends, and 

he did not give the order to stop until he exited the vehicle, those facts would 

"not make the officer's recollection of these events less believable." 

The court also found that "in reviewing the police report it appears to this 

[c]ourt that law enforcement intended to convey that several of the[] things 

[described in the report] were happening simultaneously" rather than in the 

sequence described by defendant. The court continued, 

[t]he defendant also claims that he did not make eye 

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 argument 

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 that he 

would appear unfazed to those around him. 

 The court stated that it manipulated the video recording during its out-ofcourt 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. Specifically[,] 

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 driveway. 

It appears as though the vehicle's headlights are what 

draws the defendant's attention to it and that at this

point though it is moving slowly the vehicle's in close 

proximity to him which would support the defense's 

argument. 

However, within half a second the defendant turns his 

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 on the video recording. 

The court found that even assuming the police vehicle's "headlights were bright 

enough that defendant could not see" the officers in 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 arrived. 

 Based on these findings, as well its finding that Rosa Parks Boulevard is 

located in a high-crime area, the court concluded that the officers' observations 
10 A-0890-22

were sufficient independent corroboration of the caller's report to constitute 

reasonable articulable suspicion defendant was about to engage in criminal 

activity to warrant the investigative stop and Terry pat down.2

 An August 16, 2022 order memorializes the trial court's decision. After 

the court denied defendant's motion, he entered his guilty plea and was 

sentenced. 

 This appeal followed. Defendant raises the following arguments.

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. 

Although the State argues that the trial court correctly denied defendant's 

motion to suppress, it also concedes "that factual disputes were asserted by 

2

 The court, acknowledging the holding in Goldsmith, stated the following about 

whether the location of the stop was a high-crime area: "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 remove that from the equation 

everything else here provides an articulable and reasonable suspicion to law 

enforcement to stop this particular defendant." 
11 A-0890-22

defendant that required an evidentiary hearing where credibility and factual 

findings should have been made to establish a record on which this [c]ourt can 

perform a full appellate review of the legal issues presented." 

II. 

 Both the federal and state constitutions protect citizens against 

unreasonable searches and seizures. See U.S. Const. amend. IV; N.J. Const. art. 

I, ¶ 7. The parties agree that the officers' encounter with defendant was an 

investigatory stop, which constitutes a seizure under both the federal and state 

constitutions. An investigatory stop or detention, sometimes referred to as a 

Terry stop, involves a temporary seizure that restricts a person's movement. A 

Terry stop implicates a constitutional requirement that there be "'specific and 

articulable facts which, taken together with rational inferences from those facts,' 

give rise to a reasonable suspicion of criminal activity." State v. Elders, 192 

N.J. 224, 247 (2007) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). 

The State has the burden to establish that a stop was 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 justify the stop, evidence 

discovered as a result of the stop is subject to exclusion. State v. Chisum, 236 

N.J. 530, 546 (2019). 
12 A-0890-22

 To determine whether reasonable suspicion existed, a judge must consider 

the totality of the circumstances, viewing the "whole picture" rather than taking 

each fact in isolation. State v. Nelson, 237 N.J. 540, 554 (2019) (quoting State 

v. Stovall, 170 N.J. 346, 361 (2002)). Investigatory stops are justified "if the 

evidence, when interpreted in an objectively reasonable manner, shows that the 

encounter was preceded by activity that would lead a reasonable police officer 

to have an articulable suspicion that criminal activity had occurred or would 

shortly occur." State v. Davis, 104 N.J. 490, 505 (1986). 

A [judge] must first consider the officer's objective 

observations. The evidence collected by the officer 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 draws 

inferences and makes deductions . . . that might well 

elude an untrained person. The process does not deal 

with hard certainties, but with probabilities." Second, 

a [judge] must determine whether the evidence "raise[s] 

a suspicion that the particular individual being stopped 

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 hearing." State v. Atwood, 232 N.J. 

433, 445 (2018) (first citing N.J.R.E. 104; and then citing State v. Gamble, 218 

N.J. 412, 419 (2014)). When there are disputed material facts, the State must 
13 A-0890-22

present witnesses at the evidentiary hearing to substantiate the basis for the 

challenged warrantless conduct and where "the defense 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 diametrically irreconcilable 

accounts about what [police officers] claimed occurred 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 motion to suppress without 

holding an evidentiary hearing. The parties dispute a number of critical facts 

surrounding the officers' stop and search of defendant. Material 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 contact with defendant when 

they arrived on scene; (3) defendant appeared startled by police presence; (4) 

the officers ordered defendant to stop and had sufficient time to give such an 
14 A-0890-22

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

had sufficient time to make the observations detailed in their written report; (7) 

whether the stop took place in a high-crime area; and (8) whether officers 

observed defendant's fanny pack swaying 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 written police report and its 

viewing of a video recording outside the presence of counsel. Defendant was 

not given an opportunity to challenge the credibility of the officers through 

cross-examination, test the admissibility of the video recording, offer his view 

of what is depicted in the video recording, and raise objections to the trial court's 

manipulation of the recording by magnifying its images through "zooming in."3

We, therefore, vacate the August 16, 2022 order and remand for an 

evidentiary hearing on defendant's motion to suppress. Because the judge who 

decided defendant's motion has already engaged in weighing the evidence and 

rendered an opinion on the credibility of the defendant and officers, the hearing 

3

 We note that a video recording must be properly authenticated before it can 

be admitted as evidence. See State v. Wilson, 135 N.J. 4, 16 (1994). 
15 A-0890-22

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, after 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 matter is remanded for a full 

evidentiary hearing on defendant's motion to suppress. We do not retain 

jurisdiction.