Case Number: A-0116-15T1

Judge: PER CURIAM

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Robert W. Johnson
Acting Cape May County Prosecutor

Gretchen A. Pickering
Special Deputy Attorney General/Acting Assistant Prosecutor

Defendant's Attorney: Joseph E. Krakora
Public Defender

Margaret McLane
Assistant Deputy Public Defender

Description: Defendant, who was charged with multiple drug offenses, filed
numerous pretrial motions, including a motion to suppress evidence
obtained from the use of a global positioning system (GPS) tracker
and a motion to recuse the trial court judge. After the court
denied the motion to suppress and the motion to recuse, defendant
pled guilty to first-degree possession with intent to distribute
a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(1).1 In accordance with defendant's plea
agreement, the trial court sentenced him to fourteen years
imprisonment, with seven years of parole ineligibility.
Defendant then filed this appeal. He presents the following
arguments for consideration:
POINT I
THE INITIAL GPS SEARCH WARRANT AFFIDAVIT DID NOT PROVIDE PROBABLE CAUSE TO BELIEVE THAT THE LAND ROVER WAS INVOLVED IN DRUG DISTRIBUTION.

POINT II
THE COURT ERRED IN FAILING TO FOLLOW THE DENIKE2 STANDARD IN DEFENDANT'S MOTION FOR A RECUSAL.

We reject these arguments and affirm.

1 Defendant's plea agreement preserved his right to appeal the orders denying his pretrial motions.

2 DeNike v. Cupo, 196 N.J. 502 (2008).



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I
Defendant first argues the search warrant affidavit failed
to provide sufficient evidence linking him to the vehicle in which
the GPS tracker was placed and to any narcotics distribution. As
a result, defendant contends the State failed to establish probable
cause for the issuance of a valid search warrant.
On December 28, 2007, a Superior Court judge issued a warrant
authorizing the installation of a GPS tracker in a Land Rover
utilized by defendant. Detective Robert P. Harkins, who was
assigned to the Intelligence Unit of the Narcotics Task Force
within the Cape May County Prosecutor's Office, provided the
affidavit supporting the warrant application. Because a judge
reviewing an affidavit for probable cause is limited to the
information contained within the four corners of the affidavit,
see State v. Wilson, 178 N.J. 7, 14 (2003), we begin our review
with a summary of those facts.
In his affidavit, Detective Harkins set forth his extensive
training and sixteen years of experience in investigative
procedures regarding criminal street gangs, CDS distribution, and
terrorism. He previously worked in conjunction with several law
enforcement agencies, including the FBI, DEA, and New Jersey State
Police, conducting surveillance of suspected criminals and
participating in the execution of search warrants, resulting in



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the arrest and conviction of suspected criminals. Through this
knowledge and experience, he became familiar with the methods of
installing and using a GPS tracking device.
According to the affidavit, on September 4, 2007, police in
Henderson, North Carolina stopped a black Chevrolet Caprice driven
by defendant on Interstate Route 85. Defendant produced a
temporary registration that identified International Motorsports
as the vehicle's owner, but the document did not identify the
specific make, model, or vehicle identification number of the car.
Defendant failed to produce any valid paperwork for the car and
his New Jersey driver's license was suspended. Police smelled
marijuana and found rolled marijuana blunts and $8442 in cash
inside the car. Police arrested defendant, charging him with
possession with the intent to distribute marijuana.
On November 12, 2007, the New Jersey State police arrested
defendant on the Garden State Parkway, charging him with eluding
and possession of CDS. At the time, defendant was driving the
Land Rover. Inside the car, police found a boarding pass from a
November 2, 2007 flight from Atlanta to Philadelphia, a receipt
for two checked bags, and a receipt for a box of "clothing" shipped
from New Jersey to Georgia on July 19, 2007.
On November 16, 2007, Middle Township police received
information from a confidential informant that defendant planned



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to travel to northern New Jersey or New York to pick up a large
quantity of narcotics. Police began surveillance along the Garden
State Parkway and attempted to stop a Lincoln LS associated with
defendant. The driver of the vehicle eluded police, who later
found the car crashed, with cocaine and marijuana inside. Police
were unable to identify defendant as the driver; however, the car
was registered to defendant's ex-girlfriend, who told police she
did not know who took her car, but she "wouldn't put it past"
defendant, because he had taken the car before without permission.
On December 1, 2007, Middle Township police observed
defendant driving the Land Rover. Further investigation revealed
the Land Rover was registered in Georgia to defendant's mother.
During the week of December 3, 2007, Middle Township police
received information from a "concerned citizen" that defendant was
involved in distributing firearms to juveniles. The informant
stated defendant was known as a high-ranking member of the Bloods
street gang.
Defendant's criminal history records, at the time of the
warrant request, included three convictions for drug possession,
along with convictions for aggravated assault with a weapon,
terroristic threats, resisting arrest and hindering apprehension.
The New Jersey Department of Corrections and New Jersey State
Police Intelligence Section for security threat group members



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listed defendant as a member of the Bloods street gang. Criminal
intelligence suggested defendant holds a supervisory position in
the gang. The New Jersey Criminal History detail record indicated
defendant had several gang-related tattoos.
Based on his training and experience, Detective Harkins
believed a GPS tracker installed in the Land Rover defendant used
would allow law enforcement to determine defendant's trends and
habits, aid in physical surveillance operations, and help identify
other individuals and locations involved in drug distribution.
Based on Detective Harkins's affidavit, a Superior Court
judge authorized the GPS tracker's installation in the Land Rover
for sixty days. The judge found the affidavit provided probable
cause that a GPS tracking device installed in the Land Rover
utilized by defendant would provide evidence of drug crimes
involving defendant and others. Police installed the GPS, which
provided information that led to evidence used against defendant.
On February 14, 2012, Judge Raymond Batten heard oral argument
regarding defendant's motion to suppress the evidence resulting
from the GPS device installed in the Land Rover. Judge Batten
described the appropriate standard for probable cause and
recognized the issuing judge's finding of probable cause should
receive substantial deference. He acknowledged the requirement



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of considering the totality of the circumstances, and the affidavit
must provide contemporary information.
Judge Batten proceeded to review all of the information in
the affidavit, including: the confidential informants' statements,
police interactions with defendant, defendant's criminal history,
the connection between defendant and the Land Rover, and
defendant's gang affiliation. The judge denied the suppression
motion, concluding the record established probable cause, as he
was "not able[,] on this record[,] to find either fault or
difficulty or any level of intellectual uncertainty[.]"
Under the Constitutions of the United States and New Jersey,
individuals are protected from unreasonable searches and seizures,
and no warrant shall issue except upon probable cause. U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. Unless a search falls within
one of the recognized exceptions to the warrant requirement, the
police must first obtain a warrant from a neutral judicial officer
as a prerequisite to a search. State v. Sullivan, 169 N.J. 204,
210 (2001) (citing State v. Cooke, 163 N.J. 657, 664 (2000)).
"Before issuing a warrant, the judge must be satisfied that there
is probable cause to believe that a crime has been committed, or
is being committed, at a specific location or that evidence of a
crime is at the place sought to be searched." Ibid. (citing State
v. Laws, 50 N.J. 159, 173 (1967)). The installation of a GPS



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device in a vehicle constitutes a search under the Fourth Amendment
of the U.S. Constitution. United States v. Jones, 565 U.S. 400
(2012).
The concept of probable cause "eludes precise definition."
Sullivan, 169 N.J. at 210 (quoting Wildoner v. Borough of Ramsey,
162 N.J. 375, 389 (2000)). Courts generally accept it to mean
"less than legal evidence necessary to convict though more than
mere naked suspicion." Id. at 210-11 (quoting State v. Mark, 46
N.J. 262, 271 (1966)). Probable cause is "consistently
characterized . . . as a common-sense, practical standard for
determining the validity of a search warrant." State v.
Novembrino, 105 N.J. 95, 120 (1987). It is met when police have
"a 'well-grounded' suspicion that a crime has been or is being
committed." Sullivan, 169 N.J. at 211 (quoting State v. Waltz,
61 N.J. 83, 87 (1972)).
In identifying the competing policy concerns behind the
probable cause requirement, our Supreme Court explained:
Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other.



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[State v. Kasabucki, 52 N.J. 110, 116 (1968).]

The United States Supreme Court similarly described probable
cause as a "practical, nontechnical conception." Illinois v.
Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United States,
338 U.S. 160, 176 (1949)). Probable cause requires more than mere
suspicion; it requires a showing of a "fair probability" that
criminal activity is taking place. State v. Demeter, 124 N.J.
374, 380-81 (1991) (quoting Gates, 462 U.S. at 238).
Courts must base a probable cause determination on the
totality of the circumstances and consider the probabilities.
State v. Jones, 179 N.J. 377, 389 (2004) (citing Schneider v.
Simonini, 163 N.J. 336, 361 (2000)). The court must also apply a
qualitative analysis to the unique facts and circumstances of any
given case. State v. Keyes, 184 N.J. 541, 556 (2005) (citing
Jones, 179 N.J. at 390). The analysis comes down to a "practical,
common-sense decision." Jones, 179 N.J. at 390 (quoting State v.
Smith, 155 N.J. 83, 93 (1998)). "[W]hether or not probable cause
exists 'involves no more than a value judgment upon a factual
complex rather than an evident application of a precise rule of
law, and indeed a value judgment which inevitably reflects the
seasoning and experience of the one who judges.'" Schneider, 163



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N.J. at 362 (quoting State v. Funicello, 60 N.J. 60, 72-73 (1972)
(Weintraub, C.J., concurring)).
For these reasons, a reviewing judge "should pay substantial
deference" to the discretionary determination of the issuing
judge. Kasabucki, 52 N.J. at 117. Review of a warrant's adequacy
"is guided by the flexible nature of probable cause and by the
deference shown to issuing courts that apply that doctrine."
Sullivan, 169 N.J. at 217. "[W]arrant applications 'should be
read sensibly rather than hypercritically and should be deemed
legally sufficient so long as they contain[] factual assertions
which would lead a prudent [person] to believe that a crime [has]
been committed and that evidence . . . of the crime [is] at the
place sought to be searched.'" Ibid. (quoting Laws, 50 N.J. at
173 (alteration in original)).
"[W]hen the adequacy of the facts offered to show probable
cause is challenged after a search made pursuant to a warrant, and
their adequacy appears to be marginal, the doubt should ordinarily
be resolved by sustaining the search." Jones, 179 N.J. at 388-89
(quoting Kasabucki, 52 N.J. at 116). It is therefore well settled
that a search executed pursuant to a warrant is presumed valid,
and the defendant bears the burden of proving lack of probable
cause in the warrant application. Sullivan, 169 N.J. at 211
(citing State v. Valencia, 93 N.J. 126, 133 (1983)).



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Applying these principles, we agree with Judge Batten's
assessment that the issuing judge committed no error in finding
probable cause. The affidavit contains multiple sources
identifying defendant as a high-ranking member of the Bloods street
gang, an extensive criminal history including three drug
possession convictions, and several police observations of drug
related activity. In the totality of the circumstances, these
facts presented more than a "fair probability" that criminal
activity was taking place. See Demeter, 124 N.J. at 380-81.
Furthermore, there was probable cause that the Land Rover, in
particular, was involved in the criminal activity. The affidavit
presented three times when police observed defendant driving the
Land Rover; one of those times, police arrested defendant for
possession of CDS. Defendant's suppression motion was properly
denied.
II
Defendant next argues that Judge Batten erred in failing to
recuse himself. On April 14, 2010, Judge Kyran Conner recused
himself from defendant's case after defendant's then counsel filed
an unrelated federal case naming the judge as a defendant. On
June 8, 2010, defendant argued a motion to change venue from Cape
May County to Atlantic County, and to disqualify Judge Batten
"because of the situation with Judge Conner." Assignment Judge



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Valerie Armstrong denied this motion reasoning the conflict with
Judge Conner did not extend to all of Cape May County or
specifically to Judge Batten. She further noted that Judge Batten
retained the discretion to recuse himself, if he should deem it
necessary. Two days later, after hearing oral argument, Judge
Batten concluded no basis existed for him to recuse himself from
defendant's case, finding no conflict or appearance of conflict.
On November 4, 2011, the Sheriff's Department cleared the
courtroom of anyone other than attorneys due to a security risk.
Judge Batten received information that defendant "has undertaken
efforts to . . . contact individuals outside the jail to somehow
jeopardize [Judge Batten's] safety." Defendant denied making any
threat. Defendant then filed a motion to disqualify Judge Batten
and change venue because of this incident. On January 13, 2012,
Judge Batten denied the motion, reasoning he received similar
communications in the past and the sheriff simply followed protocol
in clearing the courtroom. The judge found no circumstances that
would "compel or even justify recusal," and stated the incident
would not affect his judgment in any way.3
3 Judge Batten eventually did recuse himself, in spring 2012, after defendant filed a federal lawsuit against him.




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We have considered defendant's arguments regarding the
judge's denial of his recusal motion in light of the record and
applicable legal principles and conclude they lack sufficient
merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We
affirm substantially for the reasons expressed by Judge Batten in
his oral opinion rendered on January 13, 2012. We add the
following comments.
Rule 1:12-1(g) provides, "The judge of any court shall be
disqualified on the court's own motion and shall not sit in any
matter, . . . when there is any other reason which might preclude
a fair and unbiased hearing and judgment, or which might reasonably
lead counsel or the parties to believe so." Furthermore, pursuant
to Rule 1:18, all judges in New Jersey must abide by the Code of
Judicial Conduct. Canon 3.17(B) of the Code of Judicial Conduct
provides: "Judges shall disqualify themselves in proceedings in
which their impartiality or the appearance of their impartiality
might reasonably be questioned," and provides a non-exclusive list
of examples. Code of Judicial Conduct, Pressler & Verniero,
Current N.J. Court Rules, Appendix to Part 1 at 534 (2018). In
short, "[o]ur rules . . . are designed to address actual conflicts
and bias as well as the appearance of impropriety." State v.
McCabe, 201 N.J. 34, 43 (2010). The standard in determining
whether recusal is appropriate asks: "Would a reasonable, fully



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informed person have doubts about the judge's impartiality?"
DeNike, 196 N.J. at 517.
Rule 1:12-2 permits a party to file a motion seeking to
disqualify the judge presiding over the case. The decision to
grant or deny the motion rests entirely within the "sound
discretion" of the trial judge. Chandok v. Chandok, 406 N.J.
Super. 595, 603, (App. Div. 2009) (quoting Panitch v. Pantich, 339
N.J. Super. 63, 66 (App. Div. 2001)). However, "[w]e review de
novo whether the proper legal standard was applied." State v.
McCabe, 201 N.J. 34, 45 (2010).
In cases where the defendant has allegedly threatened the
judge, recusal is not always required. State v. Dalal, 221 N.J.
601, 609 (2015). "[W]hen there is any evidence that a defendant
has conveyed a threat to prompt the recusal of a judge or somehow
manipulate the proceedings, recusal is not required." Id. at 608.
In deciding whether recusal is appropriate, the court should
consider the following factors:
the nature and context of the threat; whether there is any evidence that the threat was designed, in whole or part, to manipulate the system and/or force a recusal; whether the threat was meant to be communicated to the judge or was delivered in connection with a court proceeding relating to the defendant's case; whether evidence of the threat will be presented or referred to at trial; and whether the judge presiding over the case is the object of the threat. . . .



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The timing of a threat matters as well. For example, a defendant's outburst in the middle of a trial, with the presentation of evidence to a jury underway, might reasonably be seen as an attempt to thwart the orderly administration of justice and would not necessarily call for recusal.

[Id. at 608-09.]

The timing and circumstances of the threats here suggest an
intention to manipulate the proceedings. Defendant previously
succeeded in having Judge Conner recused after defense counsel
filed a federal case naming the judge as a defendant. Defendant
then moved for Judge Batten's recusal due to his alleged
relationship with Judge Conner. When that effort failed, Judge
Batten received a threat, arguably a second attempt to have him
recused, although defendant denied making the threat. The threat
came after Judge Batten had heard and denied three pretrial motions
filed by defendant, with six more pretrial motions pending.
Finally, when that effort failed as well, defendant resorted to
the initial method of filing a federal suit against the judge,
which ultimately caused Judge Batten to recuse himself.
In denying defendant's motion for recusal, Judge Batten
followed the DeNike standard. Also, although the Supreme Court
decided Dalal after Judge Batten denied the recusal motion, his
reasoning foreshadowed many of the factors from Dalal. See Dalal,



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221 N.J. at 608-09. First and foremost is the inference that
defendant may have initiated the threat to force a recusal. In
addition, Judge Batten noted it is not unusual as a criminal court
judge to receive threats. Judge Batten emphasized that the threat
and subsequent clearing of the courtroom had no impact on the
motions he decided that day. He also reasoned granting recusal
would only encourage other threats against judges in order to
force recusal, stating that granting recusal here "would
affectively render [defendant] a self-fulling prophet in terms of
his expression of discontent."

Outcome: We conclude Judge Batten made a well-reasoned decision and did not abuse his discretion in denying defendant's motion for recusal.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: