STATE OF NEW JERSEY v. RASHIDA THOMPSON
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0408-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHIDA THOMPSON,
Defendant-Appellant.
____________________________
Submitted November 13, 2017 - Decided January 22, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-10-1383.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Y. Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Frances Tapia Mateo,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Rashida Thompson appeals from a judgment of
conviction following her guilty plea to third-degree unlawful
possession of a controlled dangerous substance. Defendant claims
the court erred by denying her motion to suppress evidence seized
during a search incident to her arrest because the warrant for her
arrest was issued without probable cause. Based on our review of
the record, we are convinced the information presented to the
judge did not establish probable cause to arrest defendant, and
reverse.
I.
The warrant for defendant's arrest was on a complaint charging
her with unlawful possession of a Hi Point semi-automatic handgun,
1 N.J.S.A. 2C:39-5(b). During the search incident to her arrest,
defendant was found in possession of a controlled dangerous
substance (CDS), 3,4-methylenedioxyamphethamine. She was
subsequently charged in an indictment with third-degree unlawful
possession of CDS,
N.J.S.A. 2C:35-10(a)(1), third-degree
possession of CDS with intent to distribute,
N.J.S.A. 2C:35-
5(a)(1) and 5(b)(3), and second-degree unlawful possession of CDS
with intent to distribute within 500 feet of public property,
N.J.S.A. 2C:35-7.1. She was not indicted for unlawful possession
of a handgun.
1
In the record before the motion court, the gun is referred to
as both a "Hi Point semi-automatic" and "High Point semi-
automatic."
2 A-0408-16T3
Defendant moved to suppress the CDS, claiming there was
insufficient evidence supporting the court's finding of probable
cause for the arrest warrant. The judge who issued the arrest
warrant also decided the suppression motion.
The motion record shows the State supported its request for
the arrest warrant with a four-page report prepared by Jersey City
Police Detective T. McVicar that he swore to the judge was accurate
and true. The report describes the investigation of a music video
recording posted on a website, and states defendant and eleven
other "members of the Moneycello Line of the NHB Set of the Bloods
Street Gang" are present in the video. A thirteenth person
appearing in the video is not identified in the report.
McVicar's report describes the video as "ostensibly an
amateur music video," and explains that during six separate seconds
in the video three different individuals are seen handling,
brandishing or pointing a Hi Point handgun, and during four other
seconds individuals are in possession of a silver handgun of an
unknown make or model. For example, the report states that "[a]t
approximately [the] 00:00:46 mark of the video" one of the
individuals "is observed brandishing" the Hi Point handgun, "at
approximately [the] 00:01:06 mark" a different individual is seen
"brandishing" the handgun, and "at approximately [the] 00:02:28
mark" a third individual possesses the handgun. The report
3 A-0408-16T3
includes additional notations for each instance an individual is
seen in possession of one of the guns. Defendant is not identified
as ever possessing either gun.
Other than its description of the individuals possessing the
guns, McVicar's report is devoid of any details about what the
individuals in the video otherwise do or say.2 With respect to
defendant, the report states only that she was "present in the
video." The report also explains that members of the Jersey City
Police Department's major crimes and street crimes units examined
the video and determined it was made for the purpose of promoting
the gang and threatening the gang's opponents.
The report describes a firearm expert's analysis of the video
and determination the Hi Point semi-automatic handgun is a real
firearm. The expert's analysis was inconclusive as to whether the
other gun depicted, a silver semi-automatic handgun, was real.
Because the investigation revealed that the Hi Point handgun was
real, the State sought an arrest warrant for defendant's alleged
unlawful possession of the Hi Point handgun.
2
The report, however, provides one detail not relevant here. The
report states that the unidentified thirteenth person seen in the
video is in possession of currency and a cup containing plastic
bags filled with suspected marijuana.
4 A-0408-16T3
The State chose not to provide the judge with the video when
it applied for defendant's arrest warrant, and the judge never
reviewed the recording. In its application for the warrant, the
State submitted only McVicar's report to the judge.3 McVicar
appeared before the judge, provided sworn testimony that his report
was truthful, and answered the judge's additional questions.
At the suppression hearing, defendant argued McVicar's report
did not establish probable cause to arrest defendant for unlawful
possession of the Hi Point handgun because it described the
possession of the Hi Point handgun only by others. Defense counsel
argued the report did not state that defendant was present when
the other individuals possessed the gun and even if it did,
defendant's mere presence while others possessed the gun is
insufficient to support a finding of probable cause she unlawfully
possessed the gun in violation of
N.J.S.A. 2C:39-5(b).
3
During the suppression hearing, defense counsel said the State
informed her it also provided the judge with photographs in support
of the arrest warrant application. In its brief here, the State
represents that the judge was presented with photographs when the
request for the warrant was made. The record on appeal does not
include any photographs and, in his denial of the suppression
motion, the judge did not rely on his review of any photographs
to support his finding there was probable cause for the arrest
warrant. We therefore do not consider whether any photographs
supported probable cause for the warrant. See Cmty. Hosp. Grp.
v. Blume Goldfaden,
381 N.J. Super. 119, 127 (App. Div. 2005)
(stating an appellate court is not "obliged to attempt review of
an issue when the relevant portions of the record are not
included").
5 A-0408-16T3
The judge recalled that when he was presented with the arrest
warrant request, he asked McVicar if "everybody on these warrants
were seen with a gun in the video," and McVicar said they were.
The judge said he signed the arrest warrant based on McVicar's
response. This suggests the judge understood McVicar testified
defendant was in actual possession of one of the guns in the video,
but the colloquy during the suppression motion confirmed she was
not. Indeed, the report does not identify defendant as being in
actual possession of either gun and the State does not argue the
video showed defendant in actual possession of either gun. As a
result, the argument before the motion court shifted to whether
defendant was present in the video when others were in possession
of the guns and, if based on mere presence, there was probable
cause defendant unlawfully possessed the Hi Point handgun.
The judge stated that McVicar testified defendant was present
in the video while the others possessed the guns. The judge did
not make notes or otherwise document McVicar's testimony. At the
suppression hearing, defense counsel, who had apparently seen the
video, did not dispute that defendant was present in the video
when the Hi Point handgun is possessed by the other individuals.
The judge concluded McVicar's statement that defendant was
seen in the video while others possessed the Hi Point handgun
supported the probable cause determination. The judge found the
6 A-0408-16T3
report showed defendant participated in "a video for the gang,"
her appearance in the video was not "inadvertent," and "[s]he
agreed to be involved in a promotional video where guns were
displayed." The court determined the report and McVicar's
testimony established probable cause for the arrest warrant, and
denied the suppression motion.
Defendant subsequently pleaded guilty to third-degree
unlawful possession of a controlled dangerous substance. The
court imposed a probationary sentence. This appeal followed.
Defendant presents the following argument:
POINT I
THE JUDGE ISSUING THE WARRANT TO ARREST
[DEFENDANT] DID NOT HAVE SUFFICIENT
INFORMATION THROUGH THE REPORT PRESENTED TO
HIM TO CONCLUDE THAT THERE WAS PROBABLE CAUSE
TO BELIEVE THAT [DEFENDANT] HAD COMMITTED A
CRIME. ANY ADDITIONAL ORAL INFORMATION GIVEN
BY THE OFFICER, WHICH THE COURT DID NOT
CONTEMPORANEOUSLY RECORD, COULD NOT FORM THE
BASIS FOR A PROBABLE CAUSE FINDING.
CONSEQUENTLY, THE ORDER DENYING [DEFENDANT'S]
MOTION TO SUPPRESS EVIDENCE AS THE FRUIT OF
AN UNLAWFUL ARREST SHOULD BE REVERSED AND HER
GUILTY PLEA VACATED. U.S. CONST. amend. IV,
N.J. CONST. (1947), art. 1, ΒΆ 7.
II.
A warrant is presumed valid, and a defendant challenging its
validity has the burden to prove there was no probable cause
supporting the issuance of the warrant. State v. Jones, 179 N.J.
7 A-0408-16T3
377, 388 (2004). We "accord substantial deference to the
discretionary determination resulting in the issuance of [a]
warrant." State v. Keyes,
184 N.J. 541, 554 (2005) (quoting Jones,
179 N.J. at 388).
Our deference to a judge's issuance of a warrant, however,
is "not boundless." United States v. Leon,
468 U.S. 897, 914
(1984). A warrant cannot be based on an affidavit or testimony
that does not "provide . . . a substantial basis for determining
the existence of probable cause." Illinois v. Gates,
462 U.S. 213, 239 (1983). Further, "probable cause is not established by
a conclusory affidavit that does not provide a magistrate with
sufficient facts to make an independent determination as to whether
the warrant should issue." State v. Novembrino,
105 N.J. 95, 109
(1987).
"Probable cause to arrest . . . hinges on the distinct and
discrete inquiry into whether the person to be arrested has
committed or is committing a criminal offense." State v. Chippero,
201 N.J. 14, 29 (2009). For probable cause to arrest, there must
be probable cause to believe that a crime has been committed and
"that the person sought to be arrested committed the offense."
Id. at 28 (quoting Schneider v. Simonini,
163 N.J. 336, 363
(2000)); see also State v. Brown,
205 N.J. 133, 144 (2010).
8 A-0408-16T3
"Probable cause exists where the facts and circumstances
within . . . [the officers'] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves
to warrant a [person] of reasonable caution in the belief that an
offense has been or is being committed." State v. Moore,
181 N.J.
40, 46 (2003) (alterations in original) (quoting Schneider,
163 N.J. at 361). "That showing calls for 'more than a mere suspicion
of guilt,' but 'less evidence than is needed to convict at trial.'"
State v. Ingram,
230 N.J. 190, 213 (2017) (internal citations
omitted).
A court must "consider the totality of the circumstances when
assessing the reasonable probabilities that flow from the evidence
submitted in support of a warrant application." Chippero,
201 N.J. 14, 27 (2009). In making the probable cause determination,
the judge may consider only information which is "contained within
the four corners of the supporting affidavit" or sworn testimony
provided by law enforcement personnel. Schneider,
163 N.J. at 363;
accord State v. Evers,
175 N.J. 355, 380-81 (2001).
Here, the judge issued the arrest warrant on a charge of
unlawful possession of the Hi Point handgun during defendant's
appearance in the video. To obtain the arrest warrant, the State
was required to establish there was probable cause defendant
"knowingly ha[d] in [her] possession" the Hi Point handgun "without
9 A-0408-16T3
first having obtained a permit to carry same." See
N.J.S.A. 2C:39-
5(b); Model Jury Charges (Criminal), "Unlawful Possession Of A
Handgun (N.J.S.A. 2C:39-5(b))" (rev. Feb. 26, 2001).
Defendant argues the evidence presented in support of the
warrant was insufficient to establish probable cause to arrest
defendant for unlawful possession of the Hi Point handgun, and the
court erred by relying on McVicar's testimony because the judge
failed to make a contemporaneous record. The State contends
McVicar's report and testimony established probable cause
defendant had constructive and joint possession of the Hi Point
handgun, and therefore the court correctly denied the suppression
motion.
We reject defendant's contention that the judge's failure to
document McVicar's testimony requires a reversal of the denial of
the suppression motion. Although the judge should have documented
McVicar's testimony because a review of a court's probable cause
determination requires consideration of the affidavits submitted
"as supplemented by sworn testimony before the issuing judge that
is recorded contemporaneously," State v. Marshall,
199 N.J. 602,
611 (2009) (quoting Schneider,
163 N.J. at 363), McVicar's
testimony did not supply information that was not otherwise in his
report. The judge stated only that McVicar testified defendant
was present in the video when the guns were possessed by others,
10 A-0408-16T3
but the report provides the identical information, expressly
stating defendant and twelve other individuals are "present in the
video." Thus, even ignoring McVicar's testimony, his report
permitted the reasonable inference that defendant and the others
listed in the report were present when the Hi Point gun was held,
pointed and brandished by three of the individuals in the video.4
Defendant argues her mere presence in the video did establish
probable cause for unlawful possession of the Hi Point handgun.
The State argues her presence was sufficient to establish unlawful
constructive or joint possession of the handgun5 because the guns
were displayed during a video that promoted the gang and threatened
its opponents.
4
Defendant did not claim before the motion court and does not
contend here that McVicar's report contains any falsehoods. See
State v. Howery,
80 N.J. 563, 567 (1979) (quoting Franks v.
Delaware,
438 U.S. 154, 170 (1978)) (finding defendant may
challenge the veracity of an affidavit supporting a warrant in an
evidentiary hearing upon a "'substantial preliminary showing' of
falsity in the warrant").
5
The State argued before the motion court there was probable
cause defendant unlawfully possessed the handgun based on
accomplice and co-conspirator liability. The State does not make
that argument here. An issue not briefed on appeal is deemed
waived. Jefferson Loan Co. v. Session,
397 N.J. Super. 520, 525
n.4 (App. Div. 2008); Zavodnick v. Leven,
340 N.J. Super. 94, 103
(App. Div. 2001).
11 A-0408-16T3
"[A] person has constructive possession of 'an object when,
although [s]he lacks physical or manual control, the circumstances
permit a reasonable inference that [s]he has knowledge of its
presence, and intends and has the capacity to exercise physical
control or dominion over it during a span of time.'" State v.
Morrison,
188 N.J. 2, 14-15 (2006) (quoting State v. Spivey,
179 N.J. 229, 236 (2004)); see also Model Jury Charges (Criminal),
"Possession (N.J.S.A. 2C:2-1)" (rev. June 20, 2014). "Two persons
have joint possession of an object when they 'share actual or
constructive knowing possession of' that object." Morrison,
188 N.J. at 14 (quoting Model Jury Charges (Criminal), "Possession"
(rev. Apr. 18, 2005)).
Constructive possession arises out of an individual's conduct
with regard to the subject item and is "a function of the
relationship and conduct of the parties." State v. Schmidt,
110 N.J. 258, 268, 272 (1998). Immediate control and dominion over
an object are not required; it must be shown a defendant had the
capacity, by direct or indirect means, to gain almost immediate
physical control, and the ability to affect the item during the
time in question. Id. at 270-71; see also State v. Brown,
80 N.J.
587, 597 (1979) (finding constructive possession does not require
"[p]hysical or manual control of the proscribed item . . . as long
as there is an intention to exercise control over it manifested
12 A-0408-16T3
in circumstances where it is reasonable to infer that the capacity
to do so exists"). "[C]onstructive possession[, however,] cannot
be based on mere presence at the place where contraband is located.
There must be other circumstances or statements of defendant
permitting the inference of defendant's control of the
contraband." State v. Whyte,
265 N.J. Super. 518, 523 (App. Div.
1992), aff'd o.b.,
133 N.J. 481 (1993).
"A determination of constructive possession is fact sensitive
and requires careful scrutiny by a court . . . ." State v. Hurdle,
311 N.J. Super. 89, 96 (1998). A court must consider "the totality
of the circumstances, including defendant's presence at the
location of the" contraband "as well as other factors
before . . . an inference of constructive possession [may] be
drawn." Ibid.
Here, McVicar's report did not provide sufficient facts
permitting the court to make the determination there was probable
cause defendant constructively possessed the Hi Point handgun.
Other than describing the six seconds during which three
individuals possessed the Hi Point handgun, the report does not
describe what occurs during the video, the actions of the thirteen
people present, or statements, if any, made by anyone. The report
does not detail defendant's actions while present in the video,
explain if she had an opportunity to observe the others' possession
13 A-0408-16T3
of the weapon, or provide any facts demonstrating an essential
element to a finding she constructively possessed the weapon -
that she had the capacity to gain almost immediate physical control
of the Hi Point handgun or an ability to affect the handgun during
the video. See Schmidt,
110 N.J. at 270. Of course, the video
recording might have revealed circumstances supporting a probable
cause determination, but the State failed to provide the recording
to the judge and instead relied on McVicar's report.
The report states only that defendant was "present in the
video." But since her mere presence alone could not establish she
constructively possessed the handgun, Whyte,
265 N.J. Super. at
523, it could not provide probable cause she committed the crime
of unlawful possession of a handgun.
In sustaining his probable cause determination at the
suppression hearing, the judge relied on the portion of McVicar's
report describing that members of the police department's major
crimes and street crimes units reviewed the video and concluded
its purpose was to promote defendant's gang. The judge reasoned
that defendant knowingly appeared in the video and therefore
constructively possessed the weapons used by her fellow gang
members in support of the gang's promotional efforts.
The judge's reliance on McVicar's summary of the crime units'
conclusions was misplaced. "[P]robable cause is not established
14 A-0408-16T3
by a conclusory affidavit that does not provide . . . sufficient
facts to make an independent determination as to whether the
warrant should issue." Novembrino,
105 N.J. at 109. An affidavit
supporting the issuance of a warrant "must allege specific facts
and not conclusions," id. at 110, because the judge must determine
"the persuasiveness of the facts relied on by a complaining officer
to show probable cause" and "should not accept without question
the complainant's mere conclusion that the person whose arrest is
sought has committed a crime," ibid. (quoting Giordenello v. United
States,
357 U.S. 480, 486 (1958)).
McVicar's report states that the crime units' conclusion was
based on their analysis of the video, but does not detail any
facts upon which the conclusion was based. The State's failure
to provide the video deprived the judge of the opportunity to
determine whether the crime units' conclusion was supported by any
facts. It was therefore error for the court to rely upon the
crime units' wholly conclusory allegations in his determination
of probable cause. Ibid.
We are mindful that affidavits and other sworn submissions
supporting the issuance of arrest warrants are often "prepared in
the midst and haste of criminal investigations, and by police
officers and detectives who are laymen not possessed of the
expertise in draftsmanship to be expected of a member of the bar
15 A-0408-16T3
or bench." State v. Boyd,
44 N.J. 390, 392 (1965). Here, the
State relied on an investigative report which provided scant
details concerning what occurred in the video, and absolutely no
details concerning defendant's actions other than she was present.
In issuing a warrant, a court "cannot infer facts that are not
supported by" the sworn submissions of law enforcement. State v.
Boone, __ N.J. __, __ (2017) (slip op. at 14).
We have carefully considered the report and, for the reasons
noted, are constrained to conclude it failed to provide sufficient
facts supporting the court's determination there was probable
cause that defendant had constructive possession of the Hi Point
handgun. We therefore reverse the court's order denying
defendant's motion to suppress the evidence seized incident to her
arrest, vacate defendant's conviction and sentence, and remand for
further proceedings.
Reversed and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
16 A-0408-16T3
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