NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2503-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER RADEL a/k/a

CHRISTOPH R. RADEL,

CHRISTPOH R. RADEL, and

CHRISTOHE R. RADEL,

Defendant-Appellant.

_____________________________

Argued September 15, 2020 – Decided

Before Judges Fisher, Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 16-08-0697.

Stefan Van Jura, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Stefan Van Jura, of counsel 

and on the brief).

Deborah Bartolomey, Deputy Attorney General, argued 

the cause for respondent (Gurbir S. Grewal, Attorney 

General, attorney; Deborah Bartolomey, of counsel and 

on the brief).

The opinion of the court was delivered by

October 20, 2020

APPROVED FOR PUBLICATION

October 20, 2020

APPELLATE DIVISION
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FISHER, P.J.A.D.

After being indicted and charged with numerous weapons and drug 

offenses, defendant moved in the trial court for the suppression of evidence

seized from his home. The evidence – guns, ammunition, drugs, and drug 

paraphernalia – was seized pursuant to a search warrant supported by 

information police had obtained during a warrantless entry into defendant's 

home. The State persuaded the trial judge that the warrantless entry did not run 

afoul of the Fourth Amendment because the police were justified in conducting

a protective sweep. Because the evidence and the judge's findings do not support 

that conclusion, we vacate the order denying suppression and remand for further 

proceedings. In light of this disposition, we find it unnecessary at this time to 

consider the other issues defendant raised in this appeal.

The record reveals that after the judge's denial of defendant's suppression 

motion, defendant reached a plea agreement with the State and entered a 

conditional guilty plea to one count of second-degree being a certain person not 

permitted to possess weapons, N.J.S.A. 2C:39-7(b)(1), and one count of seconddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). As part of the 

plea agreement, the State dismissed the other eighty-six counts of the 

indictment. Defendant was later sentenced, within the plea agreement's 
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parameters, to a ten-year prison term, subject to a five-year period of parole 

ineligibility, on the certain-persons conviction and a fifteen-year prison term, 

subject to a seven-and-one-half-year period of parole ineligibility, on the 

unlawful-possession-of-a-weapon conviction; both terms were ordered to run 

consecutively.

Defendant appeals, arguing:

(1) the warrantless entry and purported protective 

sweep of his home could not be justified because, 

among other things, he was arrested and handcuffed 

outside the home before the sweep occurred; 

(2) those counts charging unlawful possession of a 

firearm under N.J.S.A. 2C:39-5(b)(1), were barred by

N.J.S.A. 2C:39-6(e), which declares that nothing in 

subsection (b) of N.J.S.A. 2C:39-5 "shall be construed 

to prevent a person keeping or carrying about his . . . 

residence . . . any firearm";

(3) those counts charging possession of hollow nose 

bullets, N.J.S.A. 2C:39-3(f)(1), were barred by 

N.J.S.A. 2C:39-3(g)(2)(a), for reasons similar to those 

raised in his second point;

(4) the charges based on defendant's possession of 

marijuana or drug paraphernalia should have been 

dismissed because, in defendant's words, "the State 

failed to present clearly exculpatory evidence to the 

grand jury demonstrating that defendant could lawfully 

possess marijuana for medical reasons"; and

(5) the sentence imposed was shocking to the judicial 

conscience and otherwise improperly imposed.
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We agree with defendant that the police were not entitled to conduct a protective 

sweep under the circumstances. For that reason, we vacate the order denying 

the suppression motion and remand for further proceedings without reaching or 

deciding the other four issues.1

Three police officers and defendant testified at the suppression hearing. 

The State's evidence revealed that police interest in defendant started with an 

assistant prosecutor's January 7, 2016 call to local police about an October 27, 

2015 order, which apparently sprang from defendant's March 2015 conviction 

for unlawful possession of a weapon. The order directed "members of Little 

Falls Police Department [to] respond to the [d]efendant's home, located at 103 

Browertown Road [, Little Falls] . . . for the limited purpose of retrieving from 

said home any and all firearms, including one Beretta [handgun]." One of the 

officers testified that after the phone call from the prosecutor's office he did 

some research and learned defendant was the target of two outstanding 

municipal arrest warrants. He also learned that defendant lived at 81 

Browertown Road, not 103 Browertown Road where his parents lived. The 

1

 Because we do not consider them at this time, defendant may pursue those 

other four issues in any later appeal, if necessary.
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officer called and briefly spoke to defendant's mother, who, the officer asserted, 

wasn't helpful in assisting his attempts to get in touch with defendant.

The police assembled a team of six officers for the purpose of going to 

defendant's neighborhood and arresting him on the outstanding municipal arrest 

warrants. 81 Browertown and 103 Browertown are on the same side of the street 

and separated by a driveway that runs off Browertown and into a Passaic Valley 

High School parking lot. The officers were stationed around the premises; some 

watched the backs of the homes, and others sat in the driveway to the high school

between 81 and 103 Browertown. Before long, one officer noticed a figure in 

blue in the backyard of 81 Browertown entering the rear of that home; that 

officer also heard a "loud bang." Within a few minutes, other officers saw a 

person, who matched their photos of defendant, wearing a blue jacket as he 

exited the front door of 81 Browertown carrying a laundry basket. As defendant

placed the laundry basket in the backseat of a vehicle parked in the driveway, 

an officer – in his words – was "on" him, seizing defendant and placing him face 

down as he applied handcuffs. Defendant did not resist. Once defendant was in 

custody, the police concluded a protective sweep of 81 Browertown was 

necessary out of a concern there might be others inside, along with the handgun 

they had come to retrieve.
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After entering the dwelling at 81 Browertown, police observed in plain 

sight a black handgun in a glass cabinet, a ballistics vest, and drug paraphernalia. 

No other person was inside. Some officers then left to seek out a search warrant 

while others remained behind to secure the premises until the warrant was 

obtained. A judge issued a search warrant and the subsequent search led to the 

seizure of weapons and other evidence that were the subject of defendant's 

unsuccessful suppression motion. The linchpin of the judge's denial of the

motion was his finding that the officers engaged in a legitimate protective sweep 

of 81 Browertown.

In considering defendant's argument about the challenged protective 

sweep, we start with broad principles. The Fourth Amendment protects 

individuals from unreasonable searches and seizures, and "the chief evil against 

which the wording of the Fourth Amendment is directed" is an unwarranted 

physical intrusion into the home. United States v. U.S. Dist. Court, 407 U.S. 

297, 313 (1972). So, the officers' entry into 81 Browertown after defendant's 

arrest outside was presumptively unlawful absent the State's demonstration that 

the entry fell into one of the specific exceptions acknowledged by the Supreme 

Court of the United States. State v. Davila, 203 N.J. 97, 111-12 (2010). The 

only exception argued by the State was based on the protective-sweep doctrine.
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In Maryland v. Buie, 494 U.S. 325, 327 (1990), the Court approved the 

protective-sweep doctrine while also recognizing that to pass constitutional 

muster the sweep must be

a quick and limited search of premises, incident to an 

arrest and conducted to protect the safety of police 

officers or others. It is narrowly confined to a cursory 

visual inspection of those places in which a person 

might be hiding.

Despite Buie's declaration that the search of the premises must be "incident to 

an arrest," ibid., our Supreme Court has recognized that this doctrine has been 

"extended," State v. Bryant, 227 N.J. 60, 70 (2016), and the warrantless sweep 

is permitted, when:

(1) law enforcement officers are lawfully within the 

private premises for a legitimate purpose, which may 

include consent to enter; and (2) the officers on the 

scene have a reasonable [and] articulable suspicion that 

the area to be swept harbors an individual posing a 

danger.

[Davila, 203 N.J. at 125.]

Even though a protective sweep does not have to be "incident to an arrest," Buie

and Davila presuppose that law enforcement officers who believe themselves or 

others in potential danger would actually be in the premises or location to be 

swept. In both cases, officers were properly inside the defendant's home either 
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to execute an arrest warrant or by consent, thus presenting the heightened 

concern for their safety that the protective-sweep doctrine requires.

This case differs. No one disputes that defendant was outside his home, 

under arrest, and in handcuffs before police made the decision to enter his home, 

ostensibly for their protection. Despite this distinguishing fact, the judge found 

that Davila's first prong "can be extended to the circumstances of this case" and 

he then justified that extension by reference to facts he found supportive of the 

second prong. We reject the judge's legal analysis.

The first prong requires that the officers have a legitimate purpose for 

being within the private area to be swept. The officers were in the vicinity to 

either obtain the handgun described in the October 27 forfeiture order or to 

execute the municipal warrants calling for defendant's arrest. The October 27 

order only directed them to 103 Browertown, not 81 Browertown; it did not 

explicitly authorize a search of the former, let alone the latter. And, the

municipal warrants only provided authority to arrest defendant. Once the arrest 

was accomplished, the arrest warrants were fulfilled, and the officers had no 

further legitimate purpose for remaining on the property. See State v. Lane, 393 

N.J. Super. 132, 154-55, 157-58 (App. Div. 2007). We, thus, reject the judge's 

legal conclusion that the first prong of the Davila test was met.
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Even assuming the first prong was satisfied, we conclude that the 

circumstances offered on the second prong were insufficient to support a 

permissible protective sweep. In finding that the State sufficiently demonstrated 

the officers had a reasonable and articulable suspicion that the place to be swept 

harbored a danger, the judge relied on:

• the forfeiture order; 

• one officer's fleeting observation that someone 

dressed in blue in the backyard entered the home 

from the rear a few minutes before defendant, 

also dressed in blue, exited from the front; 

• that same officer heard a "loud bang"; 

• two cars were in the driveway; and 

• what the judge referred to as defendant's 

"contradictory answers to the police."

We conclude that, whether considered individually or collectively, these 

circumstances could not support a reasonable and articulable suspicion that both 

a weapon and at least one other person were inside 81 Browertown and posed a 

threat to the officers or others.

The forfeiture order. We do not know – because the State failed to show

at the suppression hearing – what led to the issuance of the October 27 forfeiture 

order. Even so, the order suggested only that a handgun could be found at 103
10 A-2503-18T3

Browertown; it was silent about 81 Browertown. And, whatever it suggested 

about 103 Browertown was nearly three-month-old information when the 

officers arrived to arrest defendant. So, we not only reject the leap suggested 

by the State that this order authorized entry into 103 Browertown – it says no 

such thing2 – but we reject as well the contention that this order somehow 

supports a belief that the handgun could be found inside 81 Browertown three 

months later.

The person in the backyard. One of the officers stationed so he could 

watch the rear of 81 Browertown testified that he observed

a person walking in the rear yard of 81 Browertown. 

The individual was wearing something blue. And –

and, then, the image was gone. . . . [T]he image . . .

[e]ntered the rear of 81 Browertown.

2

 When questioned by the judge about the October 27 order's significance, the 

assistant prosecutor conceded that it could not pass for a search warrant:

THE COURT: . . . But, listen to me. I'm going to tell 

you what really bothers me here, is . . . the staleness of 

[the October 27 order] . . . .

ASSISTANT PROSECUTOR: Judge, there's no 

staleness. This is not a search warrant.

[Emphasis added.]
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"[P]retty quick[ly]" after, the officer who made this observation "became aware 

. . . over the radio" "that an individual had exited the front of the residence."

This testimony at best reveals only that one officer saw a person in blue 

in the backyard3and that this person in blue entered the home a few minutes 

before another officer saw a person in blue exit the front of the home. This

suggests only one reasonable conclusion: the officer in the front of 81 

Browertown saw the same person that the other officer saw in the back of 81 

Browertown: defendant. Nothing about this reasonably suggests that the person 

seen in the backyard wasn't the person who came out the front door.

4

The loud bang. The officer who observed the person in blue in the back 

of 81 Browertown also testified that after that person entered the home he heard 

"a very loud bang." When asked to describe the sound, he said that "if [he] had 

to characterize it, [it] was very metallic and very heavy – very, like a clanking 

almost, but a very loud, very intense sound[;] [i]t wasn't high-pitched, but it was 

metallic." No one else professed to have heard it. Neither at the scene nor from 

3

 The officer testified that he had asked the other officers near him whether they 

saw the individual, but he never said whether anyone confirmed that they did.

4

 That officer merely testified he "wasn't sure if . . . the individual that I had 

seen towards the rear of the property was actually the defendant, or not. All I 

really saw was somebody wearing blue. I couldn't identify that person's face or 

really make any other descriptive observations of them."
12 A-2503-18T3

the witness stand did this officer state that the loud bang sounded like a gunshot

or that he told the other officers prior to the protective sweep that it sounded like 

a gunshot.

Interestingly, the judge found this officer credible because the officer did 

not exaggerate by asserting it was a gunshot he heard. Nevertheless, in his 

findings, the judge gave this "loud bang" greater weight than police seemed to 

have given it at the time. Despite the fact that this officer, who was a Marine 

veteran, a firearm instructor, and at the time an eleven-year veteran on the police 

force, could not say that the bang was a gunshot, the judge found that the sound 

"could have been, maybe, a gunshot." Not one of the State's witnesses testified 

they either heard a gunshot or thought the sound might have been a gunshot.

The cars in the driveway. In forming an opinion that there could have 

been another person inside 81 Browertown at the time defendant was under 

arrest outside, police relied in part on the presence of "multiple vehicles" in the 

driveway but were imprecise as to what the State now claims is a relevant 

circumstance. One officer testified on direct that there were "multiple" vehicles 

in the driveway, but he said something else once subjected to cross-examination:

Q. – in terms of the multiple vehicles that – were they 

all on the driveway, or were they close to the residence? 

Where were the location of all of these vehicles you 

mentioned?
13 A-2503-18T3

A. I would say they were both in the driveway.

Q. Both? Was there only two?

A. That I recall, there was at least two, yes.

Q. Okay. Was there more –

A. At least.

Q. – do you know – was there more than two?

A. I don't recall if there was more than two. But, I knew 

there were multiple vehicles in the driveway.

THE COURT: Well, when you – but, when you say 

multiple, you mean two?

THE WITNESS: Well, yes; correct. Two.

THE COURT: Okay.

THE WITNESS: That I can recall.

Although in this way the officer tried to suggest the presence of more than two 

cars, he ultimately could state only that he was sure there were two and that is 

what the judge found.

Defendant's "contradictory answers" to police. In seeking to justify the 

intrusion into defendant's home for the purpose of the challenged protective 

sweep, the State did not argue that statements defendant had given to police 

before the sweep were either contradictory or a basis for entry into the home. 
14 A-2503-18T3

The only officer who testified about having a conversation with defendant first 

stated that he had not asked defendant for consent to search the home because 

he believed defendant was intoxicated and unable to give lawful consent. The 

officer testified that defendant had asserted, when asked, that he had turned in 

the gun referred to in the October 27 order. That assertion – if true – was not 

contradictory of anything else defendant was claimed to have said. When asked 

about their discussion immediately after defendant's arrest, the officer provided 

the following testimony:

A. I do believe I did mention the – the weapons in 

question on the order. Because he did tell me that he 

had turned some of those gun – or turned that gun in. 

Or sold one of them – those guns. So, out – out of the 

guns that I had mentioned to him, he had – did respond 

to me.

Q. In terms of his response, what did – what was – did 

he indicate which firearms, if any, he – he did surrender 

before your –

A. I don't recall.

Q. – appearance.

A. I don't recall which weapon he said he surrendered.

The October 27 order referred to two weapons. The order's first paragraph

revoked defendant's firearm purchaser identification card that had permitted the 

purchase of two handguns: a .357 Smith & Wesson and a 9mm Beretta. The 
15 A-2503-18T3

second paragraph authorized police to go to 103 Browertown to retrieve the 

Beretta. No other weapon is specifically mentioned in the order, nor does 

anything about the order suggest any unaccounted-for weapon but the Beretta. 

So, we interpret the officer's quoted testimony as suggesting that defendant said 

he surrendered one and sold the other: an assertion that is not, on its face, 

contradictory.

More importantly, the judge made no specific finding as to how the 

statements attributed to defendant were contradictory. The judge only generally 

concluded that what the officer attributed to defendant was contradictory. It 

may be that what defendant then said was contradicted by what the police later 

learned when executing the search warrant, but what was later learned is 

irrelevant to what the officers may have objectively believed when deciding to 

sweep the premises. See Florida v. Harris, 568 U.S. 237, 249 (2013). An 

intrusion is not made legal and an officer's unexplained hunches do not ripen 

into a reasonable and articulable suspicion "by what it turns up"; instead, to 

borrow Justice Jackson's words, the intrusion "is good or bad when it starts and 

does not change character from its success." United States v. Di Re, 332 U.S. 

581, 595 (1948); see also State v. Howery, 80 N.J. 563, 584 n.5 (1979).
16 A-2503-18T3

From these five circumstances, the judge concluded that the officers had 

a reasonable and articulable suspicion that both a weapon and other individuals 

were inside 81 Browertown and posed a danger to them or others.

We are mindful that judge-made findings are generally entitled to 

appellate deference when supported by "sufficient credible evidence in the 

record." State v. Locurto, 157 N.J. 463, 471 (1999). Deference is given to those 

findings that "are substantially influenced by [the judge's] opportunity to hear 

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

cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964); see also State v. 

Elders, 192 N.J. 224, 244 (2007). This deference, however, does not extend to 

legal conclusions drawn from the found facts. In Interest of J.A., 233 N.J. 432, 

445 (2018). Those conclusions are reviewed de novo. Ibid.

To summarize, the judge's determination that the officers had a reasonable 

and articulable suspicion of a danger was based on the five circumstances we 

have discussed. Only two of them arguably suggest the presence of a weapon 

inside 81 Browertown, and the other three only arguably suggest the presence 

of another person inside. 

The two circumstances that suggested the presence of a weapon inside 81 

Browertown were, according to the judge's oral decision, the October 27 order 
17 A-2503-18T3

and the "loud bang." The order, if accepted at face value, stated only that as of 

October 27 a gun could be found at 103 Browertown. The conclusion the judge 

seems to have implicitly drawn is that this would also mean that three months 

later the same gun would not be there but at the nearby 81 Browertown; that 

conclusion is not entitled to deference because it is entirely speculative. The 

only other fact offered in support of the officers' belief that a gun was located 

within 81 Browertown was the "loud bang." But the only officer who heard the 

"loud bang" did not form or express a belief as to what he thought made that

sound. He didn't say it was a gunshot. And he didn't say it sounded like a gun

dropped on cement.5 So, while we will defer to the judge's finding that such a 

"loud bang" was heard by an officer, the speculative conclusion the judge drew 

from that fact – "it could have been, maybe, a gunshot" – is not entitled to 

deference because only the judge – not the officers – drew that conclusion.

The three circumstances that the judge relied on in concluding that the 

officers had a reasonable and articulable suspicion that others were inside 81 

5

 Considering that the later search uncovered, among other things, two handguns 

in a backpack in the detached garage likely suggests defendant had walked out 

the back of the house and dropped the backpack in the garage, arguably making 

the sound that the officer heard when the backpack hit the garage floor. But this 

can only be surmised through hindsight; it was not something known or 

knowable to the officers when they decided to conduct the protective sweep.
18 A-2503-18T3

Browertown – even assuming police were entitled to believe a gun was also 

within the dwelling – are also speculative. An extra car in the driveway suggests 

little. And the judge made no finding as to whether the officers could reasonably 

conclude that the person in blue fleetingly seen entering the back of 81 

Browertown was not defendant, who a few minutes later exited the front of 81 

Browertown wearing a blue jacket. The judge lastly adds to his analysis

defendant's "contradictory answers to the police" about the gun, but the 

statements were not contradictory on their face and the police could not have 

known defendant was untruthful about the presence of a weapon on the property 

until they conducted the protective sweep. The statements attributed to 

defendant did not and could not support a reasonable decision to conduct a 

protective sweep.

Thus, in giving deference to those findings supported by the evidence 

found credible, we find no support for the judge's conclusion that the police had 

a reasonable and articulable suspicion that there were other persons inside the 

home or that they posed a risk to the police or others.

* * *
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For all these reasons, we conclude that the circumstances presented here 

do not support either prong of Davila's protective-sweep test. We vacate the 

order denying suppression and remand for further consideration.

Specifically, we remand for the trial judge to first determine whether the 

facts contained in the warrant affidavit were sufficient to support the issuance 

of a search warrant once the information obtained from the impermissible 

protective sweep is removed from consideration. We direct that, within fortyfive days, the judge render his determination on this question, allowing – if the 

judge deems it appropriate – additional submissions from the parties. We retain 

jurisdiction until the judge's final disposition of the suppression motion but only 

if the motion is denied. If it is denied, defendant may file a timely amended 

notice of appeal and we will enter a scheduling order for supplemental briefing. 

If, on remand, the judge grants the suppression motion, then: the judge shall 

vacate the judgment of conviction; our retention of jurisdiction will 

automatically terminate; and the matter shall proceed in the trial court to a final 

disposition.

Vacated and remanded for further proceedings in conformity with this 

opinion. We retain jurisdiction but only to the extent expressly described.