SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4485-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN P. MCARDLE,

Defendant-Appellant.

__________________________

Argued September 17, 2018 – Decided

Before Judges Messano and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 13-07-

1338.

Elyse S. Schindel argued the cause for appellant 

(Kalavruzos Mumola Hartman & Lento, LLC, 

attorneys; Edward C. Bertucio, Jr., of counsel and on

the brief; Elyse S. Schindel, on the briefs).

Ian David Brater, Assistant Prosecutor, argued the 

cause for respondent (Christopher J. Gramiccioni,

Monmouth County Prosecutor, attorney; Ian David

Brater, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

August 29, 2019
2

A-4485-16T1

PER CURIAM 

Following the denial of his motions to suppress evidence seized from his 

car and home, to exclude his post-arrest confession to police, to disclose the 

identity of a confidential informant (CI), and to reconsider the denial of the 

respective motions, defendant Sean McArdle entered an unconditional

negotiated guilty plea to count three of an eight-count indictment charging him 

with first-degree possession of a controlled dangerous substance (CDS) with 

intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a).1 On June 9, 2017, in accordance 

with the plea agreement, he was sentenced to a flat seven-year term of 

imprisonment, and the remaining charges in the indictment were dismissed.

2

 

The charges stemmed from a CI's tip that defendant was a "bulk-level distributor 

of marijuana" who used large duffel bags to transport marijuana to distribution 

locations. As a result, law enforcement officers conducted a motor vehicle stop 

 

1

 Defendant pled guilty the day after his trial began.

2

 The remaining charges consisted of two counts of fourth-degree possession of 

CDS, N.J.S.A. 2C:35-10(a)(3); two counts of third-degree possession of CDS 

with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; 

first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(b)(10)(a); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-

3(d); and first-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-

25.
3

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after observing defendant place two large duffel bags in his van. Defendant was 

arrested when the officers detected the odor of raw marijuana emanating from 

the van, and consented to a search of his van and home, leading to the seizure 

of the marijuana and other evidence that formed the evidential basis for the 

charges.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED 

[DEFENDANT'S] MOTION TO SUPPRESS 

EVIDENCE SEIZED WITHOUT A WARRANT AND 

RELATED MOTION TO CONFIRM AND REVEAL 

THE IDENTITY OF THE [CI] AND THE 

APPELLATE DIVISION SHOULD REVERSE THE 

TRIAL COURT'S DECISION AND SUPPRESS THE 

PHYSICAL EVIDENCE IN THIS CASE.

POINT II

THE TRIAL COURT ERRONEOUSLY DENIED 

[DEFENDANT'S] MOTION FOR 

RECONSIDERATION AFTER THE DEFENSE 

RECEIVED CRITICAL INFORMATION IN THE 

FORM OF A TRANSCRIPT OF THE TELEPHONE 

CALL BETWEEN [DEFENDANT] AND THE CI ON 

THE DATE OF [DEFENDANT'S] ARREST.

We reject these contentions and affirm.

I.
4

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Preliminarily, we agree with the State that, other than the denial of his 

suppression motion, when defendant entered an unconditional guilty plea, he

waived his right to appeal any other adverse determination, including his motion 

to compel the State to disclose the CI's identity, and his motion for 

reconsideration of that decision. "[T]he failure to enter a conditional plea under 

Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment 

constitutional issues." State v. J.M., 182 N.J. 402, 410 (2005). "Our rules 

provide for three exceptions to the general rule of waiver[,]" none of which 

apply to the other adverse decisions defendant now seeks to challenge on appeal. 

State v. Knight, 183 N.J. 449, 471 (2005). See State v. Robinson, 224 N.J. 

Super. 495, 498-99 (App. Div. 1988) (explaining that under the rules, 

notwithstanding a guilty plea, a defendant may appeal "from the denial of his 

motion to suppress as permitted by [Rule] 3:5-7(d), from the denial of admission 

into pretrial intervention pursuant to [Rule] 3:28(g), and, with consent of the 

court and approval of the prosecutor, from any other pre-trial order when the 

issue is preserved, [Rule] 3:9-3(f)").

Neither is this one of those "limited situations where it would result in an 

injustice to strictly adhere to the requirements of the rule[.]" J.M., 182 N.J. at 

402, 410 (citing State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992)). 
5

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Thus, because defendant failed to preserve his right to appeal any other pre-trial 

orders, only his challenge to the legality of the search and seizure of evidence 

"automatically survive[s] the entry of a guilty plea" and is properly before us. 

State v. Greeley, 178 N.J. 38, 50-51 (2003).

During the suppression hearing, conducted over the course of three nonconsecutive days, the State presented Monmouth County Prosecutor's Office 

Detective Jose Goncalves as its sole witness. Goncalves, who had been involved 

in "[h]undreds" of narcotics investigations during his law enforcement career,

testified that on March 11, 2013, while he was on assignment at the New Jersey 

field office of the United States Drug Enforcement Agency (DEA), Special 

Agent Terrance Dunlap of the DEA's New York field office contacted his office. 

Dunlap advised a superior officer that defendant was a suspected "bulk-level 

distributor of marijuana." According to Dunlap, a CI with whom he had worked 

with in the past had provided information that defendant was transporting 

marijuana to distribution locations in "large[-]size duffel bags, almost like 

hockey[-]size duffel bags." Dunlap stated that based on the CI's tip, DEA agents 

had conducted surveillance of defendant and had observed him making 

exchanges with high-level marijuana traffickers who were the targets of a drug 

investigation in New York. Additionally, Dunlap had personally conducted an 
6

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"overhear" of a March 13, 2013 telephone conversation between defendant and 

the CI, during which the CI arranged to purchase marijuana from defendant the 

following day, March 14, 2013.

After receiving this information, on the day of the pre-arranged sale, a 

task force, comprised of officers from the DEA, the Monmouth County 

Prosecutor's Office, and the Middletown Police Department, "conducted

surveillance" of defendant's home, located in Port Monmouth. At approximately 

7:00 a.m. on March 14, the task force stationed undercover vehicles outside 

defendant's home and conducted aerial surveillance from a helicopter. While 

under surveillance, after loading two "large[-]size weighted duffel bag[s]" from 

his garage into a black Sierra pick-up truck parked in his driveway, defendant

went back inside his house. Approximately thirty minutes later, defendant came 

back outside, transferred the duffel bags from the pick-up truck to a red Dodge 

van in his driveway, and returned to his house. A few minutes later, defendant

came outside a third time and drove away in the red Dodge van.

While task force officers followed him, defendant drove a "very short 

distance" from his home, stopped to scan the area by "looking around aimlessly 

in many different directions[,]" and then continued driving. After defendant 

resumed driving, Goncalves directed Middletown Corporal Gerald Weimer, who 
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was in uniform and driving a marked police car, to conduct a motor vehicle stop 

of defendant's van. At approximately 11:17 a.m., Weimer pulled defendant 

over, asked him for his driving credentials, and instructed him to exit the van. 

When Goncalves arrived at the scene, he immediately detected "[a] very strong 

odor of marijuana" "emanating from [defendant's] van." Goncalves approached 

defendant and informed him that he was stopped because law enforcement had 

received information that he was "involved in criminal activity[,]" and had 

observed defendant moving "two large duffel[-]size bags" between vehicles at 

his home. As Goncalves spoke to defendant, he "could also smell marijuana" 

on him.3

Thereafter, Goncalves advised defendant of his Miranda4rights by reading 

"a Miranda warning waiver card" to defendant, who "waived his rights" and 

agreed to talk to the officers. Defendant also read and signed "a consent to 

search form" after Goncalves reviewed it with him. Goncalves read the consent 

form to defendant aloud, informing him of his right "to refuse to allow police to 

conduct the search," to "revoke [his] consent to search at any time," to "stop the 

 

3

 At Goncalves' request, a K-9 unit responded to the scene to assist with the 

investigation, but the result of the unit's involvement was not revealed during 

the hearing.

4

 Miranda v. Arizona, 384 U.S. 436 (1966).
8

A-4485-16T1

search at any time[,]" and "to be present while the search [was] conducted." 

Defendant initialed next to each of these rights, and next to the section indicating

that he had "given []his permission voluntarily of [his] own free will without 

coercion, fear, or threat." The consent form, which was executed approximately

forty minutes after the motor vehicle stop, specifically authorized the search of 

defendant's residence, the red Dodge van, and the black Sierra pick-up truck.

In the ensuing search, inside the two large duffel bags in the red Dodge 

van, the officers found "bulk marijuana . . . wrapped in clear plastic." At his 

home, defendant, who was neither restrained nor handcuffed, led the officers to 

the basement where they found "bulk marijuana," "hashish," "a large amount of 

U.S. currency," drug "paraphernalia," "three weapons[,]" and other contraband. 

In the basement, defendant showed the officers "a wall shelf with a lever," which

opened up a part of a bookshelf, revealing a hidden compartment where officers 

found "numerous duffel bags," "bins," and other containers filled with marijuana 

and hashish. The officers also recovered a handgun and a shotgun from the 

hidden compartment. Additionally, the officers found a safe inside the hidden 

compartment, which they opened after defendant gave them the code, and found

cash and a Derringer handgun with a defaced serial number inside. In another 

area of the basement, the officers found another safe with cash inside.
9

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In total, the officers seized approximately 394 pounds of marijuana and 

over $762,000 in cash from defendant's basement. After the search, defendant 

was transported to Middletown police headquarters, and again advised of his 

Miranda rights. Defendant waived his rights and gave a video recorded

statement to police in which he acknowledged consenting, knowingly and 

voluntarily, to the search of his home and vehicles, he admitted owning and 

possessing all the evidence seized, and he admitted operating a narcotics 

distribution business.

Following the hearing, on April 27, 2015, the motion judge denied 

defendant's suppression motion. In a comprehensive and reasoned written 

opinion, the judge found Goncalves to be a credible witness based on his 

"demeanor." According to the judge, "[Goncalves] was honest and very 

straightforward throughout his testimony[,]" which was "clear, candid, and 

convincing." As a result, the judge made detailed factual findings consistent 

with Goncalves' account. The judge also recounted at length the governing 

principles and applicable case law, ultimately concluding that the motor vehicle 

stop and subsequent consent search were lawful.

Beginning with the motor vehicle stop, the judge found that "Dunlap . . . 

provided New Jersey authorities with particularized information about 
10 A-4485-16T1

[d]efendant, which included his name, address, [and] physical description," as 

well as the fact that "defendant was observed meeting with high-level bulk 

marijuana traffickers and would transport marijuana in large duffle bags." The 

judge described the information received from Dunlap as "very specific" and 

determined that "the level of detail" provided to Dunlap by the CI, including 

"[d]efendant's home address, physical description, [and] types of bags . . . 

carried," as well as "the prior meetings that [the CI] had with [d]efendant," 

demonstrated that the CI had "a reliable 'basis of knowledge.'"5 Additionally, 

the judge determined that the CI's information was "subsequently corroborated 

 

5

 The judge also rejected defendant's argument that the overhear evidence 

provided by Dunlap of the CI's conversation arranging the March 14, 2013 

purchase of marijuana from defendant violated the New Jersey Wiretapping and 

Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -137. 

The judge reasoned that Dunlap obtained the evidence "acting 'in the exercise 

of federal jurisdictional power, pursuant to federal authority[,] and in 

accordance with federal standards[,]'" see State v. Mollica, 114 N.J. 329, 350 

(1989), and "gathered [the] evidence . . . in compliance with the consensual 

interception provision pursuant to [18 U.S.C. § 2511(c)]." According to the 

judge, "[a]s such, Agent Dunlap was not subject to the Wiretap Act." See State 

v. Minter, 116 N.J. 269, 281 (1989) (holding New Jersey Wiretap Act "does not 

specifically regulate wiretaps . . . by federal law enforcement officials because 

the provisions requiring law enforcement officers to obtain prior approval . . . 

apply only to state officials"). As previously discussed, because defendant 

entered an unconditional guilty plea, his claims that Dunlap's "overhear" of his 

conversation with the CI violated the Wiretap Act are not properly before us and 

will not be considered. Rule 3:5-7(d) does not automatically preserve the right 

to appeal from "an adverse pre[-]trial ruling on a statutory violation of the 

[Wiretap Act]." State v. Keegan, 188 N.J. Super. 471, 475 (App. Div. 1983).
11 A-4485-16T1

by the observations made by the Task Force through surveillance" of defendant. 

The judge found that drawing "on his years of experience and participation in 

more than 100 narcotics investigations," Goncalves determined that defendant's 

"conduct was consistent with illegal activity[,]" thereby giving rise to "a 

reasonable . . . and articulable suspicion" to justify stopping defendant's vehicle.

According to the judge, after conducting the investigatory stop, the 

"overwhelming odor of marijuana emanating from . . . [d]efendant and . . . [his] 

van" "gave rise to a well-grounded suspicion that [d]efendant committed the 

criminal offense of possessing a large quantity of marijuana" and that 

"additional contraband may [have been] present." As a result, the judge 

determined that because there was "probable cause to arrest . . . [d]efendant,"

prolonging defendant's detention to continue the investigation by securing

defendant's consent to search was justified.

Turning to the ensuing consent search, after applying the factors 

articulated in State v. King, 44 N.J. 346, 352-53 (1965), the judge concluded

defendant knowingly and voluntarily consented to the search of his vehicles and 

home, leading to the lawful seizure of the evidence. The judge explained:

In addition to the documentation of [d]efendant's 

valid consent by way of executed form and video 

recording, the totality of the circumstances established 

[d]efendant's consent was voluntary. Defendant was 
12 A-4485-16T1

not handcuffed or under arrest at the time he consented. 

His consent was not preceded by a refusal to consent. 

He did not deny his guilt before providing consent. 

Defendant also cooperated by affirmatively assisting 

law enforcement authorities with the search of his

residence. As such, it is evident that [d]efendant's 

consent was knowing and voluntary, and the consent 

was valid.

Thereafter, defendant moved for reconsideration of the denial of the 

suppression motion, asserting that "new evidence ha[d] come to light." 

Specifically, defendant presented the transcript of the conversation between 

defendant and the CI, which he had obtained through discovery in defendant's 

related case in New York. Claiming that he had identified the CI as "Fritz," 

defendant argued that the State should confirm the CI's identity so he could "call 

'Fritz' as a witness in a re-opened [suppression m]otion."

On May 24, 2016, in a written decision, the judge determined defendant's 

motion was untimely because it was "filed . . . far more than [twenty] days after" 

the entry of the order denying the suppression motion. The judge also rejected 

the motion on the merits. In that regard, the judge recounted that he had 

previously "granted [defendant's] motion and ordered the State to confirm or 

reveal the identity of the [CI]." However, "[t]he Appellate Division granted the 

State's motion [to file an interlocutory appeal] and the trial court's decision was 
13 A-4485-16T1

reversed." See State v. McArdle, No. A-2029-13 (App. Div. June 5, 2014).6 

The judge pointed out that "[e]ach of [defendant's] arguments revisit[ed] those 

previously argued before the trial court and the Appellate Division." The judge 

noted that "[t]he Appellate Division's decision clearly state[d] that the State did 

not [need to] disclose the [CI's] identity and that it was not in the interest of 

justice to force the State to confirm defendant's belief that the informant was 

'Fritz.'" Thus, the judge concluded "there [was] no new evidence . . . that would 

require reconsideration of . . . defendant's motion to suppress evidence." The 

judge entered a memorializing order and this appeal followed.

II.

Our review of the trial court's decision on a motion to suppress is limited. 

State v. Robinson, 200 N.J. 1, 15 (2009). "An appellate court reviewing a 

motion to suppress evidence in a criminal case must uphold the factual findings 

underlying the trial court's decision, provided that those findings are 'supported 

 

6

 In reversing the trial court, we explained that "defendant's claim to already 

know the identity of the CI" did "not justify disclosure" in the absence of "a 

purposeful waiver [of the Rule 516 privilege] on the State's part." McArdle, slip 

op. at 11-12; N.J.R.E. 516. We also determined defendant failed to make "any 

showing, much less 'a strong showing' of need for the CI's identity" given the 

CI's "marginal and tangential role in connection with the search of defendant's 

car and home" as well as the fact that "defendant was not charged with any 

offense arising from the CI's limited engagement." Id. at 13 (quoting State v. 

Milligan, 71 N.J. 373, 387 (1976)).
14 A-4485-16T1

by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417, 

425-26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40 (2016)). We do so 

"because those findings 'are substantially influenced by [an] opportunity to hear 

and see the witnesses and to have the "feel" of the case, which a reviewing court 

cannot enjoy.'" State v. Gamble, 218 N.J. 412, 424-25 (2014) (alteration in 

original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "The governing 

principle, then, is that '[a] trial court's findings should be disturbed only if they 

are so clearly mistaken that the interests of justice demand intervention and 

correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v. 

Elders, 192 N.J. 224, 244 (2007)). "We owe no deference, however, to 

conclusions of law made by trial courts in deciding suppression motions, which 

we instead review de novo." State v. Brown, 456 N.J. Super. 352, 358-59 (App. 

Div. 2018) (citing State v. Watts, 223 N.J. 503, 516 (2015)).

Applying a de novo standard of review, "[w]e review this appeal in 

accordance with familiar principles of constitutional law." State v. Robinson, 

228 N.J. 529, 543 (2017). "Both the United States Constitution and the New 

Jersey Constitution guarantee an individual's right to be secure against 

unreasonable searches or seizures." State v. Minitee, 210 N.J. 307, 318 (2012). 

Searches and seizures conducted without a warrant, "particularly in a home, are 
15 A-4485-16T1

presumptively unreasonable" and "must be subjected to particularly careful 

scrutiny." State v. Edmonds, 211 N.J. 117, 129 (2012) (quoting State v. Bolte, 

115 N.J. 579, 583, 585 (1989)). As such, "[t]he State bears the burden of proving 

by a preponderance of the evidence," id. at 128, that such searches and seizures 

are justified by a "'well-delineated exception[]' to the warrant requirement." 

State v. Shaw, 213 N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586, 

598 (2004)).

Under one such exception, law enforcement officers may lawfully stop a 

motor vehicle and detain the occupants on less than probable cause in order to 

investigate suspicious conduct. State v. Stovall, 170 N.J. 346, 356 (2002). Such 

an "investigatory stop" is permissible "if, based on the totality of the 

circumstances, the officer had a reasonable and particularized suspicion to 

believe that an individual has just engaged in, or was about to engage in, 

criminal activity." Ibid.; see also State v. Carty, 170 N.J. 632, 639-40 (2002). 

The State bears the burden of demonstrating, by a preponderance of the 

evidence, that it possessed sufficient information to give rise to the requisite

level of suspicion. State v. Pineiro, 181 N.J. 13, 19-20 (2004).

Whether reasonable and particularized suspicion exists is a fact-sensitive 

inquiry, and courts should consider the "totality of circumstances surrounding 
16 A-4485-16T1

the police-citizen encounter." State v. Coles, 218 N.J. 322, 343 (2014) (quoting 

State v. Privott, 203 N.J. 16, 25 (2010)); see also State v. Mann, 203 N.J. 328, 

338 (2010); State v. Nishina, 175 N.J. 502, 516-17 (2003). The officer's 

experience and knowledge, as well as the facts available to the officer at the 

time of the encounter, are circumstances relevant to the court's determination. 

See Pineiro, 181 N.J. at 22. Likewise, courts are required to give weight to the 

"rational inferences that could be drawn from the facts objectively and 

reasonably viewed in light of the officer's expertise." State v. Citarella, 154 N.J. 

272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).

However, "inarticulate hunches" and "subjective good faith" are 

insufficient to justify a warrantless search and seizure. State v. Maryland, 167 

N.J. 471, 487 (2001) (quoting Arthur, 149 N.J. at 8). "Rather, the officer 'must 

be able to point to specific and articulable facts which, taken together with 

rational inferences from those facts, reasonably warrant [the] intrusion.'" Ibid. 

(alteration in original) (quoting Arthur, 149 N.J. at 8). "Facts that might seem 

innocent when viewed in isolation can sustain a finding of reasonable suspicion 

when considered in the aggregate, so long as the officer maintains an objectively 

reasonable belief that the collective circumstances are consistent with criminal 

conduct." Nishina, 175 N.J. at 511.
17 A-4485-16T1

"In the event that known facts are not the result of an officer's 

observations, the court[] must assess the reliability of the source of information 

to ascertain whether reasonable suspicion exists." Byrnes, N.J. Arrest, Search 

& Seizure, § 14:2-1 (2018-2019). Thus, when officers conduct an investigatory 

stop based on a CI's tip, the court must assess the tip's reliability under the 

totality of the circumstances. State v. Smith, 155 N.J. 83, 93 (1998). If the court 

finds the tip was reliable, it may give rise to reasonable suspicion sufficient to 

justify the stop. See State v. Birkenmeier, 185 N.J. 552, 561-62 (2006). In 

evaluating the reliability of a tip, a CI's "'veracity' and 'basis of knowledge' are 

two highly relevant factors under the totality of the circumstances." State v. 

Zutic, 155 N.J. 103, 110 (1998) (quoting Smith, 155 N.J. at 93). Neither factor, 

in and of itself, is indispensable to a finding of reliability, and "a strong 

showing" in one of the factors, or "some other indicia of reliability[,]" may 

compensate for "[a] deficiency" in the other. Id. at 110-11 (quoting Illinois v. 

Gates, 462 U.S. 213, 233 (1983)).

"An informant's veracity may be established in a variety of ways." Id. at 

111. For instance, a CI's "past reliability will contribute to the informant's

veracity." Ibid. If, on the other hand, an "informant does not identify the basis 

of [his or her] knowledge," the court may infer "a reliable basis of knowledge"
18 A-4485-16T1

from "the level of detail and amount of hard-to-know information disclosed in 

the tip." Ibid. "[T]he nature and details revealed in the tip may imply that the 

informant's knowledge of the alleged criminal activity is derived from a 

trustworthy source." Smith, 155 N.J. at 94. A court can also infer knowledge 

from the informant's prediction of "hard-to-know future events[,]" id. at 95, and 

"independent corroboration of hard-to-know detail in the informant's tip may 

. . . greatly bolster the tip's reliability." Zutic, 155 N.J. at 111.

Here, the judge determined the CI had a reliable basis of knowledge based 

on the level of detail in the CI's tip. Further, through their surveillance of 

defendant, as well as Dunlap's observation of defendant making exchanges with 

high-level marijuana traffickers in New York, the task force officers were able 

to confirm and corroborate details indicating that the CI's knowledge came from 

a trustworthy source. Under these circumstances, the judge's determination that 

there was reasonable articulable suspicion to justify the motor vehicle stop is 

amply supported by the record, and the judge's legal conclusion is unassailable. 

Further, the judge's conclusion that the strong odor of marijuana emanating from 

defendant and his van during the lawful investigatory stop provided probable 

cause to arrest is equally sound. See State v. Walker, 213 N.J. 281, 290 (2013) 

(holding that the smell of marijuana "constitutes probable cause 'that a criminal 
19 A-4485-16T1

offense ha[s] been committed and that additional contraband might be present'" 

(alteration in original) (quoting Nishina, 175 N.J. at 515-16)); State v. Myers, 

442 N.J. Super. 287, 297-304 (App. Div. 2015) (holding that officers smelling 

the odor of marijuana emanating from the defendant's car gave officer probable 

cause to justify his arrest).

Defendant argues that because Dunlap did not testify at the hearing, as the 

State had previously represented during its interlocutory appeal of the trial court 

order compelling the release of the CI's identity, the information provided to 

Goncalves was not reliable because it was hearsay. However, "[h]earsay may 

constitute probative evidence . . . 'so long as a substantial basis for crediting the 

hearsay is presented[,]'" as occurred here. Zutic, 155 N.J. at 110 (quoting State 

v. Novembrino, 105 N.J. 95, 111 (1987)). Coming from a fellow officer, 

Dunlap's information regarding his "overhear" of the phone conversation 

between defendant and the CI setting up the March 14, 2013 sale was 

presumptively reliable. See State v. Infante, 116 N.J. Super. 252, 254 (App. 

Div. 1971) (explaining that when an officer conducts an "overhear" of a 

telephone call and hears both ends of the call, the content of the call is "within 

the detective's personal knowledge and not the result of information conveyed 

to him"). Equally reliable was Dunlap's observations of defendant meeting and 
20 A-4485-16T1

making exchanges with suspected drug traffickers in New York. See United 

States v. Ventresca, 380 U.S. 102, 111 (1965) ("Observations of fellow officers 

of the Government engaged in a common investigation are plainly a reliable 

basis for a warrant applied for by one of their number.").

Defendant also argues that the officer's stop of his vehicle was unlawful 

because he did not observe defendant commit any motor vehicle violations. 

While reasonable and articulable suspicion that a driver has committed a motor 

vehicle infraction is sufficient to justify a stop, State v. Locurto, 157 N.J. 463, 

470 (1999), it is not the only justification. Here, the CI's tip and the subsequent 

corroborating investigation provided ample reasonable suspicion to justify the 

stop of defendant's vehicle, independent of any motor vehicle violation, or lack 

thereof.

The other "'long-recognized' exception to the warrant requirement" 

implicated in this appeal is the consent search. State v. Hagans, 233 N.J. 30, 39 

(2018) (quoting State v. Coles, 218 N.J. 322, 337 (2014)). In order to be valid, 

consent must be voluntary, which is "a factual question to be determined from 

the relevant circumstances." State v. Koedatich, 112 N.J. 225, 264 (1988). The 

State bears the burden of proving "that the individual giving consent knew that 

he or she 'had a choice in the matter.'" Hagans, 233 N.J. at 39 (quoting Carty, 
21 A-4485-16T1

170 N.J. at 639). Specifically, "one required element of proof is that the 

consenting party must know that he has the right to decline consent." 

Birkenmeier, 185 N.J. at 564 (citing State v. Johnson, 68 N.J. 349, 354 (1975)). 

Thus, "[t]he lynchpin to voluntary consent 'is whether a person has knowingly 

waived [his or her] right to refuse consent to the search.'" Hagans, 233 N.J. at 

39 (quoting State v. Domicz, 188 N.J. 285, 308 (2006)). In that regard, our 

Supreme Court has provided "guideposts to aid a trial judge" in evaluating 

whether consent was voluntary. King, 44 N.J. at 353.

According to the Court, factors that indicate coerced consent include: (1) 

the consenting individual was under arrest; (2) the individual consented despite 

a denial of guilt; (3) the individual refused initial requests for consent; (4) "the 

subsequent search resulted in a seizure of contraband" that the consenting 

individual "must have known would be discovered"; and (5) the accused gave 

consent while in handcuffs. Id. at 352-53. Factors that tend to indicate voluntary 

consent include: (1) the consenting individual "had reason to believe the police 

would find no contraband"; (2) the consenting individual admitted guilt before 

consenting to the search; and (3) the consenting individual affirmatively assisted 

the investigating officers. Id. at 353.
22 A-4485-16T1

A consent search following a lawful motor vehicle stop is valid when the 

officer seeking consent to search has a "reasonable and articulable suspicion to 

believe that [the defendant] has engaged in, or is about to engage in, criminal 

activity." Birkenmeier, 185 N.J. at 564 (alteration in original) (quoting Carty, 

170 N.J. at 647). "[U]nless there is a reasonable and articulable basis beyond 

the initial valid motor vehicle stop to continue the detention after completion of 

the valid traffic stop, any further detention to effectuate a consent search is 

unconstitutional." Carty, 170 N.J. at 647. The requirement of reasonable and 

articulable suspicion "serves to validate the continued detention associated with 

the search." Birkenmeier, 185 N.J. at 564.

Here, after reviewing the executed consent form and defendant's video

recorded statement, the judge determined defendant voluntarily consented to the 

search of his home and vehicles. The judge's decision is amply supported by the 

record, and his legal conclusion is sound. Further, as in Birkenmeier, "by the 

time the police asked defendant for his consent to search, the police not only 

had a reasonable and articulable suspicion of wrongdoing, but that suspicion had 

blossomed into probable cause[,]" ibid., which is a higher standard than

reasonable suspicion. Stovall, 170 N.J. at 356. Here, when Goncalves requested 

defendant's consent, there was probable cause to believe defendant had engaged 
23 A-4485-16T1

in criminal activity based on the strong odor of marijuana emanating from 

defendant and his van.

Finally, defendant argues the court "erroneously denied [his] motion for 

reconsideration." We disagree. Under Rule 4:49-2, a court "may reconsider 

final judgments or orders within twenty days of entry." Lee v. Brown, 232 N.J. 

114, 126 (2018). Although Rule 4:49-2 does not expressly apply to criminal 

practice, courts have nevertheless applied its standards to motions for 

reconsideration in criminal actions. See State v. Wilson, 442 N.J. Super. 224, 

233 n.3 (App. Div. 2015), rev'd on other grounds, 227 N.J. 534 (2017); see also

State v. Puryear, 441 N.J. Super. 280, 294-95 (App. Div. 2015) (applying Rule

4:49-2 and Rule 1:7-4(b) to a trial court's decision to grant reconsideration on 

its earlier decision on a motion to suppress).

Reconsideration is "a matter within the sound discretion of the [c]ourt,"

Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria 

v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), and will not be set aside 

unless the trial court abused its discretion. Granata v. Broderick, 446 N.J. Super. 

449, 468 (App. Div. 2016), aff'd, 231 N.J. 135 (2017). A court abuses its 

discretion "when a decision is 'made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible basis.'" Pitney 
24 A-4485-16T1

Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. 

Div. 2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

"[G]rounds for reconsideration are generally limited[,]" as "[t]he proper 

object of reconsideration is to correct a court's error or oversight." Puryear, 441 

N.J. Super. at 294; see also Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. 

Div. 2010). Further, reconsideration "is designed to seek review of an order 

based on the evidence before the court on the initial motion, [Rule] 1:7-4, not to 

serve as a vehicle to introduce new evidence in order to cure an inadequacy in 

the motion record." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. 

Super. 299, 310 (App. Div. 2008). Additionally, reconsideration is "not 

appropriate merely because a litigant is dissatisfied with a decision of the court 

or wishes to reargue a motion[.]" Palombi, 414 N.J. Super. at 288. Rather, courts 

should grant reconsideration motions only when either: "(1) the [c]ourt has 

expressed its decision based upon a palpably incorrect or irrational basis, or (2) 

it is obvious that the [c]ourt either did not consider, or failed to appreciate the 

significance of probative, competent evidence." Fusco v. Bd. of Educ. of City 

of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria, 242 

N.J. Super. at 401); see also R. 4:49-2.
25 A-4485-16T1

Here, the judge correctly denied defendant's motion for reconsideration 

because it was untimely, because defendant simply sought to reargue an issue 

previously decided in the trial court and on appeal, and because defendant was 

merely dissatisfied with the outcome. We discern no abuse of discretion in the 

judge's determination warranting our intervention because defendant relied on 

inappropriate bases for reconsideration. To the extent we have not addressed a 

particular argument, it is because either our disposition makes it unnecessary or 

the argument was without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).

Affirmed.