STATE OF NEW JERSEY v. ARTHUR L. HOYLE

NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0116-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ARTHUR L. HOYLE, a/k/a
SKINNYMAN HOYLE, and ARTHUR
HOYLE,

     Defendant-Appellant.
———————————————————————————

              Submitted November 28, 2017 – Decided January 18, 2018

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment No.
              08-07-0526.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Margaret McLane, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Robert W. Johnson, Acting Cape May County
              Prosecutor, attorney for respondent (Gretchen
              A.   Pickering,   Special   Deputy   Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
       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).

                                     2                                 A-0116-15T1
                                     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

                                     3                             A-0116-15T1
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

                                      4                             A-0116-15T1
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

                                   5                            A-0116-15T1
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



                                       6                                 A-0116-15T1
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

                                      7                               A-0116-15T1
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.

                                        8                             A-0116-15T1
          [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




                                      9                             A-0116-15T
1 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)).

                                  10                               A-0116-15T1
     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

                                        11                                   A-0116-15T1
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.


                                      12                               A-0116-15T1
     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

                                  13                           A-0116-15T1
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. . . .

                                        14                                  A-0116-15T1
             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,


                                       15                                 A-0116-15T1

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."       We conclude Judge Batten made a

well-reasoned decision and did not abuse his discretion in denying

defendant's motion for recusal.

     Affirmed.




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