SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0234-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY M. SIMPSON,

a/k/a ANTHONY P. MILTON,

and ANTHONY MILTON, 

Defendant-Appellant.

__________________________

Submitted January 5, 2022 – Decided February 7, 2022

Before Judges Whipple and Susswein.

On appeal from the Superior Court of New Jersey, 

Law Division, Ocean County, Indictment No. 16-03-

0033.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

Andrew J. Bruck, Acting Attorney General, attorney 

for respondent (Steven A. Yomtov, Deputy Attorney 

General, 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NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Defendant Anthony M. Simpson appeals from a June 25, 2019 judgment 

of conviction and sentence for various drug and weapons offenses. We affirm 

his conviction but remand to correct the judgment of conviction.

Defendant raises the following issues on appeal:

POINT I:

THE CONVICTIONS MUST BE REVERSED 

BECAUSE THE TRIAL WAS IRREPARABLY 

TAINTED BY THE IMPROPER ADMISSION OF 

AN ASSAULT RIFLE, LARGE CAPACITY 

MAGAZINES, AND $10,000 IN CASH. U.S. Const., 

Amend. IV; N.J. Const., Art. 1, Par. 7. 

POINT II:

THE AGGREGATE [THIRTY-ONE]-YEAR 

SENTENCE WITH [EIGHTEEN] YEARS OF 

PAROLE INELIGIBILITY WAS MANIFESTLY 

EXCESSIVE FOR THIS NON-VIOLENT 

OFFENDER. 

On March 13, 2015, the New Jersey State Police arrested defendant at a 

traffic stop for an outstanding warrant. Defendant had been under 

investigation for distribution of heroin in Ocean County for several months. 

Officers executed a search warrant of 265 Woodlake Manor Drive in 

Lakewood on suspicion of defendant's drug activities. There, officers 

discovered a digital scale, plastic bags, various amounts of marijuana, cocaine, 
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and heroin, ammunition, and weapons. Officers also discovered a business 

card for the Brick Motor Inn, in Bricktown. Defendant was previously 

observed traveling between 265 Woodlake Manor Drive and the Brick Motor 

Inn and stayed at both locations. 

Following the search of 265 Woodlake Manor Drive, officers decided to 

conduct a "knock and talk" at Room 108 at the Brick Motor Inn. Defendant's 

wife, Deshannon Simpson, and her two children had been staying in Room 

108, which defendant visited daily and paid for. 

Room 108 was on the first floor and had an exterior entrance to the 

parking lot. From the public walkway, officers observed through the window a 

gun bag protruding from underneath a pillow on the bed. Officers knocked on 

the door, and no one answered. They stayed outside for at least five minutes 

and saw no individuals inside the room, which had a bathroom in the rear. 

Because they previously observed Ms. Simpson and two children, the officers 

believed that other individuals could have been inside the room. The officers 

also believed that someone at the motel could have been alerted about the 

search at 265 Woodlake Manor Drive. Thus, the officers sought to enter the 

room to ensure that nobody was inside and that no one could access a gun in 

the gun bag, which may have posed a risk to the police and the general public. 
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The police obtained a card from the hotel manager to gain access to the 

room. The officers entered the room to secure any potential weapons. The 

officers conducted a "protective sweep," in which they checked whether 

anyone was inside the room. They did not search the room. They opened the 

gun case, observed an AK-47 type assault weapon, put it back, and exited the 

room without conducting a further search and then sought a search warrant for 

Room 108. 

While they were beginning the process of obtaining a search warrant, 

Ms. Simpson arrived and signed a Consent to Search form, so the officers 

abandoned the application for the search warrant. Officers then searched the 

room. Officers found the AK-47 style semiautomatic pistol inside a gun bag, 

Red Army 7.52 ammunition, a Berretta nine-millimeter Storm semi-automatic 

handgun, and cash. The Berretta handgun was on top of a television. 

On March 4, 2016, a state grand jury returned an indictment charging 

defendant with twenty-one offenses. These offenses included: first-degree 

possession with intent to distribute a controlled dangerous substance (CDS), 

cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); second-degree 

possession with intent to distribute CDS, heroin, N.J.S.A. 2C:35-5(a)(1) and 

N.J.S.A. 2C:35-5(b)(2); third-degree possession with intent to distribute CDS, 
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marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); third-degree 

possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree 

possession of CDS, heroin, N.J.S.A. 2C:35-10(a)(1); fourth-degree possession 

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

firearm, a nine-millimeter Glock semiautomatic pistol, a .327 Magnum Taurus 

revolver, and a .357 Magnum Herman Weihrauch revolver, during the 

commission of a drug offense, N.J.S.A. 2C:39-4.1(a) and N.J.S.A. 2C:35-5; 

fourth-degree possession with intent to distribute drug paraphernalia, N.J.S.A. 

2C:36-3; three counts of second-degree unlawful possession of a handgun, 

N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; fourth-degree possession of 

prohibited weapons and devices, hollow-nose bullets, N.J.S.A. 2C:39-3(f); 

three counts of third-degree receiving stolen property, three firearms, N.J.S.A. 

2C:20-7; third-degree unlawful possession of an assault firearm, a 7.62 X 

39mm Romarm semiautomatic pistol (AK-47), N.J.S.A. 2C:39-5(f); seconddegree unlawful possession of a handgun, a nine-millimeter Beretta 

semiautomatic pistol, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4; fourth-degree 

possession of prohibited weapons and devices, a large-capacity ammunition 

magazine, N.J.S.A. 2C:39-3(j); third-degree unlawful transportation of an 

assault firearm, N.J.S.A. 2C:39-9(g); fourth-degree unlawful transportation of 
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a firearm N.J.S.A. 2C:39-9(d); and second-degree certain persons not to have 

weapons, five firearms, N.J.S.A. 2C:39-7. 

On May 12, 2017, the trial court denied defendant's motion to suppress 

evidence seized because of a warrantless search of Room 108 of the Brick 

Motor Inn on March 13, 2015. From February 5 to 13, 2019, the court held a 

bench trial. Ms. Simpson testified that she owned the guns found in Room 

108. After she purchased the guns and ammunition in Georgia, she and 

defendant drove to New Jersey with these items in the car. Defendant showed 

her how to load the Beretta semiautomatic pistol. 

The court found defendant guilty of possession and possession with 

intent to distribute cocaine, heroin, and marijuana. The court also found 

defendant guilty of possession of the weapons found at 265 Woodlake Manor 

Drive, unlawful possession of the Beretta semiautomatic pistol, as well as for 

possessing prohibited devices, the ammunition associated with the weapons. 

The court further found defendant guilty of possession of a firearm while in 

possession of or distributing or attempting to distribute CDS, unlawfully 

possessing a weapon as a convicted felon, and for receiving stolen weapons 

found at 265 Woodlake Manor Drive. 
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The court sentenced defendant a twenty-six-year term of imprisonment, 

with thirteen years of parole ineligibility, on the first-degree conviction of 

possession with intent to distribute CDS; a mandatory consecutive term of five 

years imprisonment, with five years of parole ineligibility, on the conviction of 

second-degree possession of a firearm during the commission of a CDS 

offense; and a concurrent five-year prison term, with five years of parole 

ineligibility, on the second-degree certain-persons conviction. The remaining 

counts were merged. The court found aggravating factors three, six and nine 

and mitigating factor eleven that imprisonment of the defendant would entail 

excessive hardship to himself or his dependents. Despite giving substantial 

weight to the mitigating factor, the court found the aggravating factors 

substantially outweigh the sole mitigating factor. This appeal followed. 

We defer to a trial court's evidentiary ruling absent an abuse of 

discretion. State v. Garcia, 245 N.J. 412, 430 (2021). We review the trial 

court's evidentiary rulings "under the abuse of discretion standard because, 

from its genesis, the decision to admit or exclude evidence is one firmly 

entrusted to the trial court's discretion." State v. Prall, 231 N.J. 567, 580 

(2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 

383-84 (2010)). Under that deferential standard, appellate courts "review a 
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trial court's evidentiary ruling only for a 'clear error in judgment.'" State v. 

Medina, 242 N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 

(2017)).

Defendant argues that the trial court erred in admitting evidence of the 

assault rifle, ammunition, and cash because law enforcement conducted an 

unlawful entry and subsequent search of Room 108. Defendant contends that 

the trial court should have suppressed the tainted evidence recovered via the 

unlawful entry and search of Room 108. Defendant also argues that admitting 

this evidence was overwhelmingly prejudicial. 

Having reviewed the record, we conclude the trial court properly 

admitted the evidence under the inevitable discovery doctrine. The 

exclusionary rule extends to evidence that is the "fruit" of unlawful police 

conduct. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963). 

However, under the inevitable discovery doctrine, 

even though evidence may have been obtained as a 

result of unlawful governmental activity, if the 

prosecution can show that 'the information ultimately 

or inevitably would have been discovered by lawful 

means . . . the deterrence rationale [of the 

exclusionary rule] has so little basis that the evidence 

should be received.'
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[State v. Finesmith, 406 N.J. Super. 510, 522 (App. 

Div. 2009) (quoting Nix v. Williams, 467 U.S. 431, 

444 (1984)).] 

To satisfy the inevitable discovery exception, the State must

show that (1) proper, normal and specific 

investigatory procedures would have been pursued in 

order to complete the investigation of the case; (2) 

under all of the surrounding relevant circumstances 

the pursuit of those procedures would have inevitably 

resulted in the discovery of the evidence; and (3) the 

discovery of the evidence through the use of such 

procedures would have occurred wholly independently 

of the discovery of such evidence by unlawful means.

[State v. Sugar, 100 N.J. 214, 238 (1985).] 

"The State must show by clear and convincing evidence that had the illegality 

not occurred, it would have pursued established investigatory procedures that 

would have inevitably resulted in the discovery of the controverted evidence, 

wholly apart from its unlawful acquisition." Id. at 240. 

Here, the court noted that officers were investigating a crime, sought to 

speak to individuals in Room 108, which the defendant was observed visiting, 

and saw a gun case in plain view. After conducting a protective sweep, they 

began the process for obtaining a search warrant. Thus, the court found 

"clearly and convincingly that the warrant would have been obtained and the 

search executed resulting in the seizure of guns, ammunition, and money." 
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Defendant argues that the State failed to meet the third Sugar prong in 

which the State must show that "the discovery of the evidence through the use 

of such procedures would have occurred wholly independently of the 

discovery of such evidence by unlawful means." 100 N.J. at 238. Specifically, 

defendant argues that officers would not have obtained a search warrant 

because officers only discovered the assault rifle after unlawfully entering. 

Defendant cites decisions that upheld the admission of evidence that was 

inevitably discovered via an independent source. See e.g., State v. Sugar, 108 

N.J. 151 (1987) (upholding the application of the inevitable discovery doctrine 

to the admission of a body buried in a shallow grave in the backyard of a house 

to which the defendant's friends had unrestricted access). 

Defendant's arguments are unpersuasive. Here, officers used ordinary 

investigative tactics when they arrived at Room 108 and lawfully observed the 

gun case from a public area. The discovery of this evidence occurred wholly 

independently from the officers' entry. Sugar, 100 N.J. at 238. Thus, even if 

the officers did not enter, they would have obtained a lawful search warrant 

based on probable cause, which would have inevitably led to the discovery of 

the weapons, ammunition, and cash. Thus, we affirm the conviction on that 

basis.
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We disagree with the trial court's conclusion the evidence was 

admissible under the exigent circumstances and plain view exceptions to the 

rule against warrantless searches. The United States Constitution and the New 

Jersey Constitution forbid warrantless searches of homes except under certain 

circumstances. Kyllo v. United States, 533 U.S. 27, 31 (2001); State v. Davila, 

203 N.J. 97, 111-12 (2010). "[A] warrantless search of a suspect's [hotel] 

room is unreasonable and improper unless it falls within the scope of an 

exception to the general rule requiring the issuance of a search warrant." State 

v. Rose, 357 N.J. Super. 100, 103 (2003). 

Here, exigent circumstances did not supply the right to enter. "The 

Fourth Amendment does not require police officers to delay in the course of an 

investigation if to do so would gravely endanger their lives or the lives of 

others." State v. Hutchins, 116 N.J. 457, 464 (1989) (quoting Warden, 

Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-299 (1967)). "[E]xigent 

circumstances will be present when inaction due to the time needed to obtain a 

warrant will create a substantial likelihood that the police or members of the 

public will be exposed to physical danger or that evidence will be destroyed or 

removed from the scene." Id. at 553. 
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Moreover, a protective sweep was not permissible. Our Supreme Court 

recently held: 

First, when an arrest occurs outside a home, the police 

may not enter the dwelling or conduct a protective 

sweep in the absence of a reasonable and articulable 

suspicion that a person or persons are present inside 

and pose an imminent threat to the officers' safety. . . . 

Entering a home to conduct a protective sweep when 

an arrest is made outside a dwelling should be the rare 

circumstance, in light of the special constitutional 

protections afforded the home. Nevertheless, when 

objective facts provide the police with a reasonable 

and articulable suspicion that their lives may be placed 

in imminent danger by a person or persons inside the 

home, officers will be justified in entering the 

dwelling to carry out a protective sweep to safeguard 

their lives.

Second, this sensible balancing of the 

fundamental right to privacy in one's home and the 

compelling interest in officer safety will depend on an 

objective assessment of the particular circumstances in 

each case, such as the manner of the arrest, the 

distance of the arrest from the home, the 

reasonableness of the officers' suspicion that persons 

were in the dwelling and likely to launch an imminent 

attack, and any other relevant factors. A self-created 

exigency by the police cannot justify entry into the 

home or a protective sweep. 

[State v. Radel, __ N.J. __ (2022) (slip. op. at 4-5) 

(citations omitted).]

Although officers previously observed defendant traveling between 265 

Woodlake Manor Drive and the motel, defendant was already arrested when 
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police arrived at the hotel. The officers arrived at the motel shortly after 

conducting a search of 265 Woodlake Manor Drive, where they found drugs 

and weapons. When the officers stood in a public area outside of Room 108, 

they saw the gun case in plain view. Thus, the officers could have reasonably 

believed that additional weapons were stored in Room 108 and could be used 

by someone hiding in the room to harm the officers or other people. However, 

the police were not authorized to carry out a protective sweep because police 

had no "reasonable and articulable suspicion that their lives may be placed in 

imminent danger by a person or persons inside the" room. Ibid. Police saw 

nobody inside the room. At least six officers stood guard at the room's only 

door. Defendant's wife's car that police surveilled was not in the parking lot. 

Once the police determined that no one was inside who might access the 

suspected weapon, the exigency that justified the incursion dissipated. The 

ensuing protective sweep and search was not justified by exigent 

circumstances. 

In addition, because no exigent circumstances permitted the warrantless 

entry and search, the plain view exception did not apply. Where an item is in 

an officer's plain view, a warrantless search is valid. State v. Bruzzese, 94 N.J. 

210, 235-36 (1983), certif. denied, 465 U.S. 1030 (1984). The plain view 
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exception has two requirements. State v. Gonzales, 227 N.J. 77, 82 (2016). 

First, the officer must lawfully be in the viewing area. Ibid. Second, it must 

be "immediately apparent" to the officer that the item is evidence of a crime, 

contraband, or otherwise the type of item subject to seizure. Ibid. The plain 

view doctrine, however, will not apply when the officer has no right to enter a 

private residence. See State v. Lewis, 116 N.J. 477 (1989). See also State v. 

Wright, 221 N.J. 456, 478 (2015); State v. Earls, 214 N.J. 564, 592 (2013); 

State v. Jefferson, 413 N.J. Super. 344, 360-362 (App. Div. 2010); State v. 

Johnson, 171 N.J. 192 (2002). Here, because the officers had no right to enter 

the hotel room, the plain view doctrine did not apply. 

Finally, admission of the evidence was not overwhelmingly prejudicial. 

Nothing in the record supports the conclusion that the admission of the 

evidence unduly prejudiced the trial judge. After carefully considering and 

weighing all the evidence, the trial judge found defendant not guilty of 

unlawful possession of the AK-47 and ammunition and of unlawful 

transportation of the AK-47 and the Beretta handgun. The trial judge found 

defendant guilty only of unlawful possession of the Beretta handgun because 

the judge found Ms. Simpson's testimony that defendant showed her how to 

load the gun credible. 
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We reject most of defendant's arguments regarding the judge's findings 

concerning the imposition of sentence. Our review of a sentence is limited. 

State v. Miller, 205 N.J. 109, 127 (2011). We review a judge's sentencing 

decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 

70 (2014). The court must determine whether (1) the sentencing guidelines 

were violated; (2) the aggravating and mitigating factors found by the 

sentencing court were not based upon competent and credible evidence in the 

record; or (3) the application of the guidelines to the facts of [the] case makes 

the sentence clearly unreasonable so as to shock the judicial conscience. Ibid.

(quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). 

We are persuaded that the trial court erred in imposing a five-year parole 

disqualifier on the second-degree possession of a firearm while committing a 

drug offense (N.J.S.A. 2C:39-4.1(a)), but did not err in imposing a five-year 

parole disqualifier for second-degree certain persons not to have weapons. 

The court properly imposed the latter parole disqualifier pursuant to N.J.S.A. 

2C:39-7(b)(1), which provides, in pertinent part: "[t]he term of imprisonment 

shall include the imposition of a minimum term, which shall be fixed at five 

years, during which the defendant shall be ineligible for parole." However, the 

Graves Act, N.J.S.A. 2C:43-6(c), applies to defendant's conviction under 
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N.J.S.A. 2C:39-4.1(a). N.J.S.A. 2C:43-6(c) provides, in pertinent part: "[t]he 

minimum term shall be fixed at one-half of the sentence imposed by the court 

or [forty-two] months, whichever is greater . . . during which the defendant 

shall be ineligible for parole." Thus, the court erred in imposing a mandatory 

consecutive term of five years imprisonment, with five years of parole 

ineligibility, on the conviction under N.J.S.A. 2C:39-4.1(a). Therefore, we 

remand for correction. 

Affirmed in part, remanded for resentencing consistent with this opinion. 

We do not retain jurisdiction.