SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3538-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

SHAWN BAXLEY, 

 Defendant-Appellant. 

_______________________

Argued April 23, 2024 – Decided May 1, 2024 

Before Judges Enright and Whipple. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 21-08-0662.

Margaret Ruth McLane, Assistant Deputy Public 

Defender, argued the cause for appellant (Jennifer 

Nicole Sellitti, Public Defender, attorney; Margaret 

Ruth McLane, of counsel and on the briefs). 

Deborah Cronin Bartolomey, Deputy Attorney General, 

argued the cause for respondent (Matthew J. Platkin, 

Attorney General, attorney; Deborah Cronin 

Bartolomey, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-3538-22

PER CURIAM 

 Defendant Shawn Baxley appeals from a May 19, 2022 order denying his

motion to suppress a weapon seized without a warrant. We affirm. 

I.

 We summarize the facts from the motion record. On the night of April 5, 

2021, Detective Anthony Cancel responded to a report of a shooting in Jersey 

City near Lexington Avenue and John F. Kennedy Boulevard. When he arrived 

on the scene, the detective learned two female victims were struck by gunfire 

during the incident and taken from the scene by ambulance. Upon further 

investigation, he found shell casings in the area. 

Detective Cancel canvassed the area and was able to recover two 

surveillance videos from the shooting incident. When he reviewed the footage 

approximately twenty to thirty minutes after the shooting, he noted one of the 

videos depicted a person in a dark-colored Audi sedan stop on Lexington 

Avenue, exit the vehicle, and engage in a verbal dispute with another individual 

before exchanging several rounds of gunfire. The video also showed the Audi 

driver run into what appeared to be an alley between 57 and 61 Lexington 
3 A-3538-22

Avenue,1 and exit the alley shortly thereafter. The Audi driver then got back 

into the Audi and left the scene. 

Detective Cancel went to the area on Lexington Avenue that was shown 

on the video, and inspected the location where the Audi driver was seen exiting 

the alley. The detective "look[ed] for a firearm that was possibly . . . discarded 

by" the suspected shooter. Cancel determined the alley was actually the 

driveway of a home on 61 Lexington Avenue. While at that location, Cancel 

recovered additional shell casings. He also knocked on the doors of homes at 

57, 60, and 61 Lexington Avenue to speak with anyone there, based on his belief 

the Audi driver "may have discarded the firearm" in one of those locations. 

No one answered the door at 61 Lexington Avenue. But because the 

driveway to the property was fully accessible, no signs were posted instructing 

the public to keep away, and the gate to the backyard was open, Cancel briefly 

inspected the driveway and rear yard of this property. Finding no evidence of a 

firearm, Cancel then spotted a low garage "the next yard over," at 63 Lexington 

Avenue. Based on his suspicion the fleeing shooter may have discarded a 

firearm on the roof of that garage, Cancel spoke to a female occupant of the 

1

 As the motion judge noted in his written opinion, "there is no 59 Lexington 

Avenue" and "57 and 61 [Lexington Avenue] are adjacent properties." 
4 A-3538-22

home at 57 Lexington Avenue and asked to use her deck "to see the top of the 

roof of the low garage . . . next door to 61 [Lexington Avenue]." She consented. 

While on the deck at 57 Lexington Avenue, Cancel used a flashlight to 

illuminate the silver rooftop of the garage on 63 Lexington Avenue. He 

immediately saw "a black object in the middle of the roof," and believed it 

"could have been a . . . discarded firearm." Cancel saw no other items on the 

roof. 

After leaving the deck, Cancel "climbed on[to a] low fence" next to the 

garage at 63 Lexington Avenue to secure a better "vantage point" for viewing 

the top of the roof. At that point, it became "more apparent" to Cancel that the 

black object on the roof "was a firearm." Detective Kevin Lowry of the Jersey 

City Cease Fire Unit then recovered the firearm from the roof by climbing a 

ladder he found at "the rear of 61 Lexington" Avenue. 

The police subsequently determined from surveillance footage that the 

Audi captured on video from the night of the shooting was registered to 

defendant. Accordingly, they arrested him as a suspect in the incident. 

 In August 2021, defendant was charged under Hudson County Indictment 

No. 21-08-0662 with: first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 

N.J.S.A. 2C:11-3(a)(2); two counts of second-degree aggravated assault, 
5 A-3538-22

N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a handgun with 

a defaced serial number, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and fourth-degree 

possession of a defaced firearm, N.J.S.A. 2C:39-3(d). The next month, he

moved to suppress the firearm recovered from 63 Lexington Avenue. 

The trial court conducted an evidentiary hearing on the suppression 

motion in February 2022. The State called Detectives Cancel and Lowry to 

testify. Each detective described his involvement with the investigation of the 

April 5, 2021 shooting incident and the recovery of the firearm from 63 

Lexington Avenue. The State also played and moved into evidence the 

surveillance footage Detective Cancel recovered from the incident. 

Elizabeth Harley, the owner of 61 Lexington Avenue and defendant's aunt, 

testified for the defense. She stated that although she never lived at 61 

Lexington Avenue, she inherited the property from her deceased mother a few 

months before the shooting incident. Harley also testified she was not at 61 

Lexington Avenue when the shooting occurred, and was unaware if anyone else 

was there that night. Further, she testified no one had permission to enter this

property, but admitted the gate on property "was always open." Harley also 
6 A-3538-22

denied keeping a ladder at the property and denied that the ladder the police used 

to retrieve the firearm from 63 Lexington Avenue was hers. 

 On May 19, 2022, the trial court entered an order denying the suppression 

motion. In a written opinion accompanying the order, the judge initially found 

defendant had standing to "challenge the recovery of the handgun he [wa]s 

charged with possessing." 

Regarding whether the search and seizure of the gun from 63 Lexington 

Avenue was lawful, the judge found that because "Detective Cancel was on the 

deck of 57 Lexington Avenue with the occupant's consent" when he saw the gun, 

the detective "had a right to be in th[at] location." Further, the judge concluded 

"the driveway and backyard of 61 Lexington Avenue constitute[d] a semiprivate area of that home's curtilage."2

 The judge explained, "[b]oth areas [we]re 

2

 "Certain lands adjacent to a dwelling called the 'curtilage' have always been 

viewed as falling within the coverage of the Fourth Amendment." 1 Wayne R. 

LaFave, Search and Seizure § 2.3(f) (3d ed. 1996). Whether a part of the 

curtilage is afforded Fourth Amendment protection depends on "the proximity 

of the area . . . to the home, whether the area is included within an enclosure 

surrounding the home, the nature of the uses to which the area is put, and the 

steps taken by the resident to protect the area from observation by people passing 

by." United States v. Dunn, 480 U.S. 294, 301 (1987). It is also well established 

that 

a portion of the curtilage, being the normal route of 

access for anyone visiting the premises, is "only a semi-
7 A-3538-22

adjacent to the home," and "the resident[] of 61 Lexington Avenue took minimal 

steps to protect the area from public access." Further, the judge found "[t]he 

gate across the driveway" at 61 Lexington Avenue "was left open on a regular 

basis, and there were no signs indicating that visitors or other members of the 

public should keep off that portion of the property." 

Based on Detective Cancel's testimony, the judge also determined the 

detective had probable cause to believe the gun he saw in plain view "relate[d] 

to criminal activity," considering the detective "stated multiple times throughout 

his testimony that he went into the alleyway and onto the deck of 57 Lexington 

Avenue in search of a discarded firearm," and "[h]e undertook these steps shortly 

after a shooting was captured on camera and an individual was seen running into 

the alleyway at issue and exiting the same alleyway a few seconds later." 

private area." . . . Thus, when the police come on to 

private property to conduct an investigation or for some 

other legitimate purpose and restrict their movements 

to places visitors could be expected to go (e.g., 

walkways, driveways, porches), observations made 

from such vantage points are not covered by the Fourth 

Amendment. 

[LaFave, § 2.3(f) (footnotes omitted) (quoting United 

States v. Magana, 512 F.2d 1169 (9th Cir. 1975)).] 
8 A-3538-22

Accordingly, the judge found "Detective Cancel had more than enough reason 

to believe that the object was a discarded firearm." The judge added, "[t]hough 

Detective Cancel's suspicion that the object was a firearm was ultimately 

correct, our case law does not require absolute certainty in an officer's 

determination that an object in plain view is, in fact, evidence of a crime." The 

judge also found: 

Detective Cancel possessed sufficient probable cause at 

the time of [his] observation to believe that the black 

object seen on the roof was a gun. As the criminal

nature of the object was immediately apparent to 

Detective Cancel, the plain view exception to the 

warrant requirement justified officers' seizure of the 

gun, and no constitutional violation occurred 

warranting suppression in this case. 

 In April 2023, defendant pled guilty to the second-degree charge of 

possession of a firearm for an unlawful purpose. Two months later, the judge 

sentenced defendant to a five-year prison term, subject to a forty-two-month 

period of parole ineligibility. The judge entered a conforming judgment of 

conviction (JOC) on June 20, 2023.3

3

 The parties agree the JOC should be amended to reflect the judge found 

aggravating factor nine (need to deter), N.J.S.A. 2C:44-1(a)(9), at sentencing, 

not aggravating factor seven (defendant committed the offense pursuant to an 

agreement involving a pecuniary incentive), N.J.S.A. 2C:44-1(a)(7), as shown 

on the existing JOC. Accordingly, we remand this matter solely to allow the 

trial court to amend the JOC to correct the clerical error. 
9 A-3538-22

II. 

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

POINT I 

THE EVIDENCE MUST BE SUPPRESSED 

BECAUSE NO VALID EXCEPTION TO THE 

WARRANT REQUIREMENT ALLOWED POLICE 

TO ENTER PRIVATE PROPERTY TO RETRIEVE 

THE GUN. 

 

Our scope of review of a decision on a motion to suppress is limited. State 

v. Ahmad, 246 N.J. 592, 609 (2021); State v. Nelson, 237 N.J. 540, 551 (2019); 

State v. Boone, 232 N.J. 417, 425-26 (2017); State v. Robinson, 200 N.J. 1, 15 

(2009). "Generally, on appellate review, a trial court's factual findings in 

support of granting or denying a motion to suppress must be upheld when those 

findings are supported by sufficient credible evidence in the record." State v. 

A.M., 237 N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). 

We give deference to those factual findings in recognition of the trial court's 

"opportunity to hear and see the witnesses and to have the 'feel' of the case, 

which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007) 

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). 

Thus, "[w]e ordinarily will not disturb the trial court's factual findings 

unless they are 'so clearly mistaken that the interests of justice demand 
10 A-3538-22

intervention and correction.'" State v. Goldsmith, 251 N.J. 384, 398 (2022) 

(quoting State v. Gamble, 218 N.J. 412, 425 (2014)). However, legal 

conclusions to be drawn from those facts are reviewed de novo. State v. Radel, 

249 N.J. 469, 493 (2022); State v. Hubbard, 222 N.J. 249, 263 (2015). 

Both the Fourth Amendment of the Federal Constitution and Article I, 

Paragraph 7 of our State Constitution protect "against unreasonable searches and 

seizures" and prohibit the issuance of warrants in the absence of probable cause. 

U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7; see also State v. Robinson, 228 

N.J. 529, 543-44 (2017). "[S]earches and seizures conducted without warrants

issued upon probable cause are presumptively unreasonable and therefore 

invalid." Goldsmith, 251 N.J. at 398 (quoting Elders, 192 N.J. at 246). To 

overcome the presumption, "the State bears the burden of proving by a 

preponderance of the evidence not only that the search or seizure was premised 

on probable cause, but also that it f[ell] within one of the few well-delineated 

exceptions to the warrant requirement." State v. Bryant, 227 N.J. 60, 69-70

(2016) (alteration in original) (quoting State v. Johnson, 193 N.J. 528, 552 

(2008)). One such exception is the "plain view" exception. 

Under the plain view exception, an officer may, without a warrant, "seize 

evidence or contraband that is in plain view." State v. Gonzales, 227 N.J. 77, 
11 A-3538-22

90 (2016). To lawfully seize evidence or contraband under this exception, the 

"officer must lawfully be in the area where [the officer] observed and seized the 

incriminating item or contraband, and it must be immediately apparent that the 

seized items is evidence of a crime." Id. at 101. 

"Any constitutional challenge to the search of a place or seizure of an item 

must begin with" a court considering whether a defendant has standing to pursue 

the challenge. State v. Randolph, 228 N.J. 566, 581 (2017). "If the defendant 

has standing," a court then must determine whether "the police secure[d] a 

warrant to search or seize by constitutional means, and if no warrant issued," 

whether "the search or seizure [was] justified by an exception to the warrant 

requirement." Ibid. "When the seizure of evidence is the result of the State's 

unconstitutional action, the principal remedy for violation of the constitutional 

right to be free from unreasonable searches and seizures is exclusion of the 

evidence seized." Bryant, 227 N.J. at 71.

Regarding the issue of standing, "under Article I, Paragraph 7 of the New 

Jersey Constitution, 'a criminal defendant is entitled to bring a motion to 

suppress evidence obtained in an unlawful search and seizure if [the defendant] 

has a proprietary, possessory[,] or participatory interest in either the place 

searched or the property seized.'" Randolph, 228 N.J. at 581-82 (quoting State 
12 A-3538-22

v. Alston, 88 N.J. 211, 228 (1981)). A defendant charged with a possessory 

offense of the evidence seized, as in this case, has automatic standing to 

challenge a search or seizure, unless the State establishes an exception to that 

rule. Id. at 581, 585; State v. Lamb, 218 N.J. 300, 313 (2014); Alston, 88 N.J. 

at 228. "Under New Jersey Law, the State bears the burden of showing that [a] 

defendant has no proprietary, possessory, or participatory interest in either the 

place searched[,] or the property seized." Randolph, 228 N.J. at 582 (citing State 

v. Brown, 216 N.J. 508, 528 (2014)). 

Under the three exceptions to the automatic standing rule for searches of 

real property, an accused will not have standing to challenge the search of: (1) 

an "abandoned property,"4 (2) "property on which he was trespassing," or (3)

"property from which he was lawfully evicted." Randolph, 228 N.J. at 585 

(citing Brown, 216 N.J. at 529 and generally, State v. Hinton, 216 N.J. 211 

(2013)). "[T]o strip a defendant of automatic standing to challenge a search," 

4

 In fact, our Supreme Court recently held, "[w]hen property is abandoned, . . . 

the defendant has 'no right to challenge the search or seizure of that property.'" 

State v. Gartrell, 256 N.J. 241, 250 (2024) (quoting Johnson, 193 N.J. at 548). 

"[P]roperty is abandoned only if '(1) a person has either actual or constructive 

control or dominion over property; (2) [the person] knowingly and voluntarily 

relinquishes any possessory or ownership interest in the property; and (3) there 

are no other apparent or known owners of the property.'" Id. at 251 (quoting 

State v. Carvajal, 202 N.J. 214, 223, 225 (2010)). 
13 A-3538-22

the State bears the burden of proving one of these exceptions by a preponderance 

of the evidence. Ibid. (citing Brown, 216 N.J. at 527-28). 

Guided by these principles, we decline to conclude on the limited record 

before us that the judge erred in finding the State failed to establish defendant 

had no standing to challenge the constitutionality of the search. However, our 

resolution of the standing issue does not end our inquiry. 

"A defendant's automatic standing to file a motion to suppress . . . does 

not equate to a finding that he or she has a substantive right of privacy in the 

place searched that mandates the grant of that motion." Hinton, 216 N.J. at 235 

(citing Johnson, 193 N.J. at 547). Indeed, "[e]ven when a defendant has 

automatic standing, if . . . the merits rest on whether [a] defendant possesses a 

reasonable expectation of privacy, [a] court must address that issue as part of 

the substantive constitutional analysis. That inquiry is separate and distinct 

from the question of standing." Id. at 234. 

"Under state law, a 'defendant must show that a reasonable or legitimate 

expectation of privacy was trammeled by government authorities'" to prevail on 

a suppression motion. Id. at 233 (quoting State v. Evers, 175 N.J. 355, 368-69 

(2003)); see also State v. Taylor, 440 N.J. Super. 515, 522 (App. Div. 2015) 

("Absent a reasonable expectation of privacy in the place or thing searched, an 
14 A-3538-22

individual is not entitled to protection under either the Fourth Amendment or 

Article I, Paragraph 7 of the New Jersey Constitution."). 

Here, defendant failed to show he had any legitimate expectation of 

privacy in the areas of Lexington Avenue that were searched and seized 

following the shooting incident. In fact, "notwithstanding the residential setting 

of the police activity," Hinton, 216 N.J. at 236, we are convinced defendant had 

no objectively reasonable expectation of privacy regarding the properties at 57, 

61, or 63 Lexington Avenue because the record is devoid of any evidence he 

rented, owned, or stayed at any of these properties prior to the April 5, 2021 

incident. 

Under these circumstances, we are persuaded the police action that 

occurred on April 5, 2021 did not constitute a "search" in violation of 

defendant's rights under either the Fourth Amendment of the United States 

Constitution or Article I of the New Jersey Constitution. See id. at 239-40; see 

also State v. Linton, 356 N.J. Super. 255, 259 (App. Div. 2002) (holding the 

defendant "ha[d] no constitutionally-reasonable expectation of privacy" for 

drugs he concealed in "someone else's vacant property."). That said, even if we 

concluded a search had occurred, we are satisfied, for the reasons expressed in 

the motion judge's thoughtful written opinion, the gun recovered from 63 
15 A-3538-22

Lexington Avenue was lawfully discovered in plain view, and therefore, the 

seizure of the gun was constitutional. 

To the extent we have not addressed defendant's remaining arguments, we 

conclude they are without sufficient merit to warrant discussion in a written 

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

Affirmed.