                                 NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3275-17T4
                                                                     A-3382-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GEORGE T. THOMPSON,

          Defendant-Appellant.


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRIAN D. THOMPSON,
a/k/a BOO THOMPSON,

          Defendant-Appellant.


                   Submitted May 6, 2019 – Decided June 19, 2019

                   Before Judges Messano and Rose.
            On appeal from Superior Court of New Jersey, Law
            Division, Cape May County, Indictment No. 15-12-
            1009.

            Stefankiewicz & Belasco, LLC, attorneys for appellant
            in A-3275-17 (David A. Stefankiewicz, on the briefs).

            Wayne Powell, attorney for appellant in A-3382-17.

            Jeffrey H. Sutherland, Cape May County Prosecutor,
            attorney for respondent (Gretchen A. Pickering,
            Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

      These two appeals, calendared back-to-back and consolidated for

purposes of our opinion, arise out of a single indictment charging defendants

George T. Thompson and his brother, Brian D. Thompson, 1 with several

weapons-related offenses. The charges ensued from an early morning 9-1-1 call

reporting gunshots were fired near an intersection in Middle Township.

Defendants lived with their mother in a nearby home.

      Following the denial of their joint motion to suppress evidence,

defendants pled guilty to separate counts of the indictment, charging second-

degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)

and N.J.S.A. 2C:58-4, pursuant to negotiated plea agreements with the State.


1
  Because defendants share the same last name, we refer to them throughout this
opinion by their first names. In doing so, we intend no disrespect.
                                                                       A-3275-17T4
                                      2
On February 15, 2018, the court sentenced both defendants in accordance with

the State's recommendations. Defendants now appeal from a June 17, 2016 Law

Division order denying their suppression motion; neither defendant challenges

his sentence.

      On appeal, George raises the following points for our consideration:

            POINT I

            THE   POLICE  TRESPASSED   UPON   THE
            CURTILAGE OF THE [THOMPSON] HOME TO
            CONDUCT THE SEARCH OF THE VEHICLES
            THEREON, AND, THEREFORE, THE EVIDENCE
            WHICH DERIVED FROM THIS ILLEGAL ENTRY
            MUST BE SUPPRESSED.

            POINT II

            THE POLICE UNLAWFULLY ENTERED THE
            THOMPSON RESIDENCE WITHOUT WARRANT
            [SIC] AND ALL EVIDENCE WHICH DERIVED
            THEREFROM MUST BE SUPPRESSED.

            POINT III

            EVEN IF THE COURT CONCLUDES THAT
            GEORGE'S CAR WAS NOT ON PROTECTED
            CURTILAGE THE SEARCH OF IT AND THE
            ENSUING WARRANT MUST BE EXCLUDED AS
            FRUITS OF THE POISONOUS TREE DUE TO THE
            ANTECEDENT ILLEGALITY.




                                                                       A-3275-17T4
                                      3
      POINT IV

      THE SEARCH WARRANT AS TO GEORGE'S CAR
      WAS TAINTED BY FALSE, MISLEADING AND
      ILL-GOTTEN EVIDENCE AND IS, THEREFORE,
      INVALID AND/OR OTHERWISE ENTITLES
      [GEORGE] TO A TESTIMONIAL HEARING TO
      CHALLENGE THE INFORMATION THEREIN.

      POINT V

      EVEN WITH THE FALSE, MISLEADING AND ILL-
      GOTTEN EVIDENCE THE SEARCH WARRANT
      APPLICATION STILL LACKED SUFFICIENT
      INFORMATION TO ESTABLISH PROBABLE
      CAUSE TO SEARCH GEORGE'S CAR AND
      THEREFORE    ALL     EVIDENCE    SEIZED
      THEREFROM MUST BE SUPPRESSED.

Brian offers the following arguments in his brief:

      POINT I

      THE COURT BELOW COMMITTED ERROR BY
      DENYING [BRIAN]'S MOTION TO SUPPRESS THE
      EVIDENCE SEIZED

      A. THE WARRANTLESS ENTRY ONTO THE
      CURTILAGE OF [THE THOMPSON] HOME AND
      SEARCH OF A VEHICLE LOCATED THERE
      CONSTITUTED A VIOLATION OF [BRIAN'S]
      CONSTITUTIONAL RIGHT TO BE FREE FROM
      UNREASONABLE SEARCHES AND SEIZURES.

      B. POLICE WERE WITHOUT VALID CONSENT TO
      ENTER THE [THOMPSON] HOME AND ANY
      EVIDENCE RESULTING FROM THE UNLAWFUL
      INTRUSION SHOULD HAVE BEEN SUPPRESSED.

                                                     A-3275-17T4
                                 4
            C. THE ARREST OF [BRIAN] WAS WITHOUT
            PROBABLE CAUSE AND WAS OTHERWISE
            UNLAWFUL AS POLICE WERE WITHOUT A
            WARRANT TO ARREST HIM IN HIS HOME.

      We reject defendants' contentions, with the exception of George's Point II

and Brian's Point IB, finding police entry into the Thompson home was unlawful

and the evidence seized therein should have been suppressed. We therefore

affirm in part and reverse in part.

                                       I.

      We derive the salient facts from the record developed at the suppression

hearing. Three members of the Middle Township Police Department (MTPD)

testified on behalf of the State: Patrolman Joseph Gamble; Corporal Phillip

Johnson; and Detective Kenneth Martin. Among other items, the State moved

into evidence, without objection, photographs and an aerial view of the exterior

of the Thompson residence and surrounding area. Defendants did not testify nor

present any evidence.

      At approximately 2:55 a.m. on August 9, 2015, MTPD officers were

dispatched to an intersection in Middle Township, after a caller reported

gunshots had been fired from the direction of "a large house party" in the area.

Upon his arrival at the scene, Officer Jonas McInnis radioed that he heard a

gunshot. About twenty to fifty people "were scattering" from the area when

                                                                        A-3275-17T4
                                       5
police approached. They were unwilling to speak with police. Gamble met with

McInnis, who "was trying to gain control of some of the subjects in the

surrounding area." McInnis had detained one suspect and told Gamble he was

also looking for Brian, who was known to the MTPD for his "adverse contacts"

and because he had been the victim of a shooting.

      While searching for Brian, Gamble recovered a spent cartridge amid

debris in the street near the corner of the intersection. Gamble testified that the

cartridge looked as though it recently had been discharged because it was clean

and shiny. The cartridge was labeled "9X19."

      Gamble then noticed Brian, who was standing next to a blue Mercury sport

utility vehicle (SUV). The SUV was parked on the grass in a side lot more than

twelve yards from the Thompson home and about ten to fifteen feet from the

street. Other vehicles were parked in the lot. Gamble approached Brian, asking

"why he was at the vehicle" which "made [Brian] walk away" from the car.

Using his flashlight to see whether anyone was inside the car, Gamble noticed

an AR-15 rifle laying across the rear seat. Dispatch confirmed the SUV was

registered to Brian.

      After Gamble observed the rifle, he saw Brian walking toward the front

door of the Thompson residence. Gamble and McInnis then knocked on the


                                                                           A-3275-17T4
                                        6
door, which was answered by defendants' mother. While the officers were

speaking with her, they saw Brian standing in the rear of the living room, about

twenty feet from the door. The officers asked Brian to step outside. Instead of

complying with their request, Brian "stood there. He reached his hand in his

pocket, threw a few items on the ground behind him as [the officers] went in to

get him." Those items included two .223 ammunition rounds, which matched

an AR-15 rifle. Gamble had taken "one step" inside the residence when he saw

Brian toss the items to the floor. The officers immediately arrested Brian inside

the home and recovered an additional .223 round during a protective pat down.

      On cross-examination by Brian's counsel, Gamble said defendants' mother

gave consent for the officers to enter the home while she was speaking with

McInnis at the front door, but he could not recall their exact conversation.

Gamble acknowledged his report did not mention he and McInnis entered the

Thompson residence based on the consent of defendants' mother. No testimony

was elicited as to whether defendants' mother was advised she had the right to

refuse consent.

      Meanwhile, MTPD officers looked inside most of the cars in the vicinity,

especially in areas "where people were walking."       A black Lincoln sedan,

registered to George, was parked partially "at the foot of the [Thompson]


                                                                         A-3275-17T4
                                       7
driveway . . . almost on the street." The front of the car was parked on the

Thompson's lawn, appearing as though it had "crashed into the tree . . . in the

front yard." Using a flashlight, Johnson looked inside the sedan and saw "a bag

on the floor . . . [that] looked like it contained . . . a box . . . [of] bullets."

      Thereafter, police towed Brian's SUV and George's sedan to the MTPD

impound lot while Martin applied for warrants to search both vehicles. Pertinent

to this appeal, Martin's affidavits indicated Brian's vehicle was "parked in a

vacant lot" next to the Thompson property. The affidavits also stated the MTPD

"observed a black duffle bag containing an ammunition box labeled 9X19" on

the floor of George's vehicle.

      Following issuance of the search warrants, officers recovered from Brian's

SUV the AR-15 assault rifle Gamble had observed on the rear seat; a .38 caliber

revolver; and a case, scope and ammunition box for the AR-15 rifle. A search

of George's sedan revealed a .45 caliber handgun, two loaded magazines for that

handgun, twenty-six rounds of nine millimeter bullets, and thirty-six rounds of

hollow-point bullets. The nine millimeter ammunition matched the 9X19 spent

cartridge Gamble recovered earlier from the street.

      After the hearing concluded, the motion judge reserved decision.

Thereafter, the judge rendered an oral opinion, denying defendants' motion. On


                                                                                A-3275-17T4
                                           8
June 16, 2016, the judge issued a supplemental written opinion correcting

certain factual findings, but reaching the same conclusion.

       After reviewing the record and canvassing the relevant case law, the judge

made credibility and factual findings, which were largely consistent with the

recitation of facts set forth above. The judge found "all three law enforcement

officers who testified were highly credible and reliable." Ultimately, the judge

determined both motor vehicles were located outside the protected curtilage of

the Thompson home; the officers had reasonable suspicion to stop Brian;

defendants' mother granted the officers permission to enter the Thompson home;

and any discrepancies in Martin's search warrant affidavit did not necessitate a

Franks2 hearing.

                                       II.

       Well-settled legal principles guide our analysis. Our review of a trial

court's decision on a suppression motion is circumscribed. We defer to the

court's factual and credibility findings, as long as they are supported by

sufficient credible evidence in the record. State v. Dunbar, 229 N.J. 521, 538

(2017). Deference is afforded because the "findings of the trial judge . . . are

substantially influenced by his [or her] opportunity to hear and see the witnesses


2
    Franks v. Delaware, 438 U.S. 154 (1978).
                                                                          A-3275-17T4
                                        9
and to have the 'feel' of the case, which a reviewing court cannot enjoy." State

v. Reece, 222 N.J. 154, 166 (2015) (first alteration in original) (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)). We disregard a trial court's factual and

credibility findings only if clearly mistaken. State v. Hubbard, 222 N.J. 249,

262 (2015). "We accord no deference, however, to a trial court's interpretation

of law, which we review de novo." Dunbar, 229 N.J. at 538.

                                        A.

      Initially, we address defendants' overlapping arguments that their motor

vehicles were located on the Thompson home's protected curtilage and, as such,

the officers had no right to search the vehicles without first obtaining warrants.

      In New Jersey, it is well settled that "[c]ertain lands adjacent to a dwelling

called the 'curtilage' have always been viewed as falling within the coverage of

the Fourth Amendment." State v. Johnson, 171 N.J. 192, 208 (2002) (alteration

in original). However, "[a]n area within the curtilage to which the public is

welcome, such as a walkway leading to an entrance to a home, is not afforded

Fourth Amendment protection because the resident has given implicit consent

to visitors to approach the home that way." State v. Domicz, 188 N.J. 285, 302

(2006); see also Johnson, 171 N.J. at 209 (declaring the Fourth Amendment is

not offended "when the police come on to private property to conduct an


                                                                            A-3275-17T4
                                       10
investigation or for some other legitimate purpose and restrict their movements

to places visitors could be expected to go"). In addition to walkways, curtilage

may also include porches and driveways. Domicz, 188 N.J. at 302.

      The appropriate inquiry is whether the officers have intruded into an area

the resident seeks to preserve as private. Accordingly, when the police restrict

their movements on private property to places visitors could be expected to

enter, observations they make from such vantage points are not protected by the

Fourth Amendment. Johnson, 171 N.J. at 209. No user of curtilage that can be

accessed by multiple persons can have a reasonable expectation of privacy in

that area. Ibid.

      As the motion judge recognized here, the extent to which curtilage is

protected against unreasonable searches and seizures depends on the well -

known factors set forth by the United States Supreme Court in United States v.

Dunn (Dunn factors):

            [T]he proximity of the area claimed to be curtilage 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.

            [480 U.S. 294, 301 (1987).]



                                                                        A-3275-17T4
                                      11
New Jersey courts have utilized the Dunn factors in determining the propriety

of a search in curtilage. See Domicz, 188 N.J. at 302; Johnson, 171 N.J. at 208-

09; State v. Lane, 393 N.J. Super. 132, 145 (App. Div. 2007).

      However, as support for their arguments, defendants cite Collins v.

Virginia, ___ U.S. ___, 138 S.Ct. 1663 (2018). Collins, which was decided by

the United States Supreme Court nearly two years after the motion judge

rendered her decision here, specifically addressed whether the automobile

exception applies to a vehicle parked in a partially enclosed section of a

residential driveway. Id. at 1670-73. Notably, the defendant's motorcycle was

parked under a tarp in the top portion of the driveway, which was "enclosed on

two sides by a brick wall about the height of a car and [on] a third side by the

house." Id. at 1670. Under those facts, the Court determined the curtilage of

the house included the top portion of the driveway because it was "an area

adjacent to the home and to which the activity of home life extends." Id. at 1671

(internal quotation marks omitted) (quoting Florida v. Jardines, 569 U.S. 1, 7

(2013)).

      Conversely, the facts of the present case support the motion judge's

conclusion that neither vehicle was located within the Thompson home's




                                                                         A-3275-17T4
                                      12
protected curtilage. In particular, applying the Dunn factors to Brian's SUV, the

judge aptly determined the vehicle

            was outside the curtilage because, as Gamble testified,
            it was several yards away from the house itself, not
            within an area enclosed by the house fence, there was
            no objective indication that the spot where the car was
            parked was used for intimate activities associated with
            the home, and there was no protection from observation
            by those standing on the sidewalk or in the street.
            Indeed, other individuals even had their cars parked
            around the same spot and were coming and going as
            officers arrived on the scene.

The judge also found "[f]or the same reasons" that George's sedan "was not

located in the protect[ed] curtilage either."

      From our review of the record, we conclude the totality of the

circumstances sufficiently supports the judge's findings, which were based on

the judge's assessment of the demeanor of the witnesses as they testified and the

judge's feel of the case. Accordingly, we defer to her findings. Reece, 222 N.J.

at 166. We simply note George's car was even more removed from the curtilage

of the Thompson home than was Brian's. As Gamble testified, the sedan was

"barely on the driveway . . . part[ly] on the driveway, part[ly] on the grassy

area[.]"

      Moreover, police had a duty to investigate the early morning 9-1-1 call of

gunshots fired from the direction of a large party in a residential neighborhood.
                                                                         A-3275-17T4
                                        13
That call was corroborated by the events that quickly unfolded after officers

were dispatched to the scene: McInnis heard a gunshot; the crowd scattered and

was uncooperative; Gamble recovered a "fresh spent round"; and Brian walked

away from Gamble when questioned about his reason for being near the SUV.

Accordingly, the officers' entry onto the Thompson property also was justified

by the exigency of those circumstances. See State v. Hathaway, 222 N.J. 453,

468 (2015) (quoting State v. Pena-Flores, 198 N.J. 6, 30 (2009)) (recognizing

"'exigent circumstances are present when law enforcement officers do not have

sufficient time to obtain any form of warrant' because of the immediate and

urgent circumstances confronting them").

                                      B.

      Next, we consider defendants' arguments that police unlawfully entered

the Thompson home. Defendants maintain the State failed to establish their

mother permitted police to enter the home: George cites Gamble's inability to

recount the conversation between McInnis and defendants' mother, during which

she allegedly gave consent; Brian contends the State failed to establish her

consent was voluntary and that she was informed she had a right to refuse

consent to enter.




                                                                       A-3275-17T4
                                     14
      Under New Jersey law, the police are not obligated to advise a person of

his or her right to refuse, at least where, as here, the person being asked for

consent is not in custody.       State v. Johnson, 68 N.J. 349, 354 (1975).

Interpreting Johnson on precisely this point, we have explicitly held "Johnson

does not compel the police to specifically advise the property owner . . . of the

affirmative right to refuse an inspection." State v. Farmer, 366 N.J. Super. 307,

314 (App. Div. 2004).

      Nonetheless, "[w]hile the State need not prove that the third person was

informed of a right to refuse consent, the State has the burden of demonstrating

knowledge on the part of the third party that he had a choice in the matter." State

v. Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985) (citations omitted).

"[T]he State is required to prove voluntariness by clear and positive testimony."

Ibid. (citing State v. King, 44 N.J. 346, 352 (1965)); see also State v. Chapman,

332 N.J. Super. 452, 466 (App. Div. 2000) (alteration in original)

("Voluntariness is a question of fact to be determined from all the circumstances

. . . ."); Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).

      In the present case, the judge concluded defendants' mother granted the

officers permission to enter the Thompson home. The judge did not, however,

make any specific findings regarding the voluntariness of her consent. From the


                                                                           A-3275-17T4
                                       15
scant testimony elicited from Gamble, who did not speak directly with

defendants' mother nor specifically recall the conversation between her and

McInnis, it is difficult to discern whether she knew she "had a choice in the

matter." See Douglas, 204 N.J. Super. at 277. Indeed, the prosecutor did not

ask Gamble any questions whatsoever relating to consent.         Nor was any

testimony adduced about defendants' mother's demeanor or the duration of her

conversation with McInnis before police entered the Thompson home. Rather,

the sequence of events suggests Gamble saw Brian in the living room as soon as

defendants' mother opened the door; Gamble asked Brian to exit; instead Brian

discarded the ammunition, all of which occurred while Gamble had one step

inside the door.     The record therefore does not establish, directly or

circumstantially, that defendants' mother voluntarily permitted police to enter

her residence.

      Accordingly, we are constrained to suppress the evidence seized from the

Thompson home. Although we disagree with the trial judge's determination

regarding consent, we hasten to add our decision has no impact on the validity

of the searches of either vehicle. 3 Excising the references to the ammunition


3
  Arguably, police could have seized the AR-15 rifle from Brian's SUV without
first obtaining a search warrant pursuant to the plain-view exception to the


                                                                        A-3275-17T4
                                     16
seized from the Thompson home from both search warrant affidavits d oes not

defeat probable cause for their issuance. As we have long recognized

            otherwise admissible evidence should not be excluded
            because a portion of the warrant authorizes the seizure
            of [evidence] . . . in excess of that justified by the
            supporting affidavit. The proper remedy is 'redaction,'
            the striking of those portions of the warrant which are
            invalid for want of probable cause, and preserving those
            severable portions that satisfy the Fourth Amendment,
            and our state constitutional counterpart.

            [State v. Burnett, 232 N.J. Super. 211, 217 (App. Div.
            1989).]

See also United States v. Christine, 687 F.2d 749, 754 (3d Cir. 1982) ("Materials

seized under the authority of those parts of the warrant struck for invalidity must

be suppressed, but the court need not suppress materials seized pursuant to the

valid portions of the warrant.").

                                       III.

      Lastly, we address George's challenges to the validity of the search

warrant for his sedan and his renewed request for a Franks hearing. George

claims Martin's affidavit failed to establish probable because, among other

things, it contained two material misstatements: (1) the misidentification of the




warrant requirement. See, e.g., State v. Gonzales, 227 N.J. 77, 102-03 (2016);
State v. Mann, 203 N.J. 328, 341 (2010).
                                                                           A-3275-17T4
                                       17
grassy area on which Brian's car was located as a "vacant lot"; and (2) the

reference to the specific type of ammunition, i.e., "9X19," when Johnson's report

generically referenced that he viewed "a box of ammunition" in George's car.

      We are unpersuaded by George's challenges to the search warrant

affidavit, recognizing we review a trial judge's ruling regarding the need for a

Franks evidentiary hearing for abuse of discretion. See State v. Broom-Smith,

406 N.J. Super. 228, 239 (App. Div. 2009). We do not substitute our "own

judgment for that of the trial court, unless the trial court's ruling was so wide of

the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J.

138, 147 (2001) (internal quotation marks omitted).

      A reviewing court gives substantial deference to a judge's determination

that probable cause existed to issue a search warrant. State v. Mosner, 407 N.J.

Super. 40, 61 (App. Div. 2009). "A search warrant is presumed to be valid, and

defendant bears the burden of demonstrating that the warrant was issued without

probable cause[.]" Ibid. (alteration in original) (quoting State v. Evers, 175 N.J.

355, 381 (2003)). "Doubt as to the validity of the warrant 'should ordinarily be

resolved by sustaining the search.'" State v. Keyes, 184 N.J. 541, 554 (2005)

(quoting State v. Jones, 179 N.J. 377, 389 (2004)).




                                                                            A-3275-17T4
                                        18
      For that reason, a defendant is only entitled to a Franks evidentiary hearing

to challenge the veracity of a warrant affidavit when he "makes a substantial

preliminary showing" of either "material misstatements[,]" State v. Howery, 80

N.J. 563, 566 (1979), or "[m]aterial omissions[,]" State v. Marshall, 148 N.J. 89,

193 (1997), in a search warrant affidavit. See also Pressler & Verniero, Current

N.J. Court Rules, cmt. 3 on R. 3:5-3 (2019). A misstatement is material if the

warrant affidavit "no longer contains facts sufficient to establish probable cause"

in its absence.   Howery, 80 N.J. at 568 (citing Franks, 438 U.S. at 171).

However, if probable cause exists despite the errant information, the search

warrant remains valid and a hearing is not necessary. See ibid.

      "The limitations imposed by Franks are not insignificant." Id. at 567. The

burden placed on the defendant is onerous because "a Franks hearing is not

directed at picking apart minor technical problems with a warrant application[,]"

but rather, "it is aimed at warrants obtained through intentional wrongdoing by

law enforcement agents."      Broom-Smith, 406 N.J. Super. at 240.        Thus, a

defendant must identify "with specificity the portions of the warrant that are

claimed to be untrue" and support the allegations with "an offer of proof

including reliable statements by witnesses, [which] must be proved by a

preponderance of the evidence." Howery, 80 N.J. at 567-68 (citation omitted).


                                                                           A-3275-17T4
                                       19
      In the present case, the motion judge concluded George failed to meet his

burden for a Franks hearing. Specifically addressing the affidavit's inaccurate

reference to the "vacant lot," the judge found,

            there was no fraud on the part of law enforcement in
            applying for the warrant and there were no
            misrepresentations made. The information was reliable
            to the best of the officer's ability, supporting claims
            were provided to the issuing judge, the information was
            fresh, and . . . there was no illegally obtained
            information in the affidavit.

      We agree. During cross-examination, Martin explained his familiarity

with the lot: "I've worked [for MTPD] for [sixteen] years. I've always just seen

that as the vacant lot next to the Thompson house. I've never . . . had any

reason to believe it was part of their property." The aerial photograph of the

Thompson property and vicinity corroborates Martin's testimony. Indeed, the

record is devoid of any indication that the lot was developed, enclosed, or

otherwise indicative of residential use. Accordingly, Martin's misnaming of the

lot was an inconsequential misstatement and a far cry from the "material

misstatements" contemplated by Franks. See 438 U.S. at 171.

      Nor are we persuaded George established the affidavit's specific reference

to the "ammunition box labeled 9X19" was a material misstatement or

falsehood. To support his argument, George claims Johnson equivocated about


                                                                        A-3275-17T4
                                       20
his ability to observe the box of ammunition on the floor of George's sedan.

Seizing on Johnson's answers during cross-examination that the box "looked

similar to a box of ammunition[,]"4 and he told "that" to Martin, George

maintains Martin "prematurely viewed" the box of ammunition before obtaining

the search warrant. His argument, however, is unsupported by the record.

George failed to produce sufficiently reliable proof of Martin's purported

wrongdoing. Rather, George relies on parsed portions of Johnson's testimony.

Notably, George failed to question Martin whatsoever about the source of the

statement.

      Although the motion judge did not specifically address George's argument

concerning the box of ammunition, she determined Martin was a reliable and

credible witness, and George generally failed to demonstrate Martin acted in bad

faith or made false and misleading statements to obtain the warrants. See State

v. Martinez, 387 N.J. Super. 129, 140 (App. Div. 2006) (deferring to the judge's

credibility findings that there was no intentional falsehood or reckless disregard


4
  To further support his argument, George filed a reply appendix, including a
poor-quality photograph of the bag containing ammunition. The photograph is
unmarked and, as such, it is unclear whether it is the same photograph that was
shown to Johnson at the hearing, i.e., a photograph marked "2D-3" for
identification. Regardless, because George did not move any exhibits into
evidence at the hearing, the photograph is inappropriate for our review. See
Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
                                                                          A-3275-17T4
                                       21
of truth in a search warrant affidavit). Because defendant did not make a

substantial preliminary showing of a material misstatement in the search warrant

affidavit, we discern no abuse of discretion by the trial judge.

      To the extent we have not specifically addressed George's remaining

arguments, we find they lack sufficient merit to warrant discussion in our

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

      Affirmed in part; reversed in part. We do not retain jurisdiction.




                                                                           A-3275-17T4
                                       22
