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Description: Trenton, New Jersey criminal defense lawyer represented defendant charged with unlawful possession of a firearm by a convicted felon.

On April 14, 2019, Ocean Township Police arrived at 401 Parker Avenue (the “Parker Property”) to investigate a reported attempted residential burglary. (See Government's Ex. A, GPS Tracking Warrant Affidavit, ¶ 9.) The homeowner reported that an individual had removed the electrical meter from the west side of the residence. Video footage captured by the homeowner's surveillance cameras showed an unidentified subject dressed in dark clothing, red shoes, gloves, and a dark cloth face covering with white accents on the property during the morning of April 12, 2019, at approximately 10:03 AM. (Id. ¶ 10.) The subject entered the property via a gate on the east side of the property and proceeded to walk west through the backyard to the electrical panel. (Id.)

At approximately 10:26 AM, the Parker Property's surveillance cameras showed the subject walking east through the backyard to the gate on the east side of the property. (Id.) Surveillance video also showed the subject's head tilted to the right with his ear towards his right shoulder as he walked through the property. (Id. ¶ 9.) Additional video surveillance from several nearby residences depicted the same subject seen in video surveillance from the Parker Property. (Id. ¶¶ 12-21.)

A surveillance video from a residence across the street from the eastern driveway of the Parker Property on Runyon Avenue (the “Runyon Property”) also captured footage on April 12, 2019 at the following approximate times between 10 and 10:30 AM:

• 10:03 AM - A burgundy Dodge Dakota is seen traveling south on Sheridan Avenue past the eastern driveway of the Parker Property.

• 10:24 AM - The burgundy Dodge makes a “K turn” on Sheridan Avenue and travels north on Sheridan Avenue towards the Parker Property.

• 10:25 AM - The burgundy Dodge is seen traveling north on Sheridan Avenue out of view of the security camera.

• 10:26 AM - The burgundy Dodge is seen backing up on Sheridan Avenue before proceeding north at a slow rate towards the Parker Property. Less than a minute later, an unknown subject is seen walking from the Parker Property's eastern driveway towards where the burgundy Dodge was last seen. The burgundy Dodge is then seen travelling north on Sheridan Avenue and out of view of the camera.

(Id. ¶¶ 12-24.) Surveillance videos from two additional residences on Parker Avenue depicted the burgundy Dodge Dakota travelling west on Parker Avenue at 9:30 AM and 10:16 AM. (Id. ¶¶ 16-21.) Using law enforcement databases, law enforcement identified the burgundy Dodge as a 1995 Dodge Dakota bearing a New Jersey license plate, registered to JJM Associates 1 LLP.[1] (Id. ¶¶ 24-25.) Photographs of the Dodge, captured by Automatic License Plate Recognition systems (ALPR), revealed that the vehicle had an extended bed, damage to the rear driver's side bumper, a tinted rear window with multiple stickers on the driver's side of the rear window, a “4x4” sticker on the passenger side of the truck bed, square shaped headlights, and an aftermarket light bar mounted to the front of the vehicle. (Id.) Law enforcement also learned of another attempted burglary on Larchwood Avenue (the “Larchwood Property”) in the neighboring town of West Long Branch that had been attempted in a similar fashion approximately 12 hours later by a subject wearing a similar face covering to the subject captured on surveillance at the Parker Property. (Id. ¶ 11.) Surveillance video from the Larchwood Property captured images of a long vehicle with square headlights and an aftermarket light bar on the front of the grill. (Id.)

Based largely on footage from these surveillance videos, Detective Michael Legg drafted an application and affidavit for a Communications Data Warrant (CDW) authorizing the installation and use of a GPS tracking device on the Dodge Dakota (the “GPS Tracking Warrant”). The New Jersey Superior Court found probable cause existed and issued the CDW for the Dodge Dakota.

After obtaining the first CDW for the installation of the GPS tracking device, but before installing the tracker, law enforcement discovered that McLeod had been issued a motor vehicle ticket while operating another vehicle registered to JJM Associates in 2018, and that the Dodge Dakota had been issued a parking ticket while parked near Defendant's residence in Irvington, New Jersey. (See Government's Ex. C, Dodge Dakota Search Affidavit, ¶¶ 3(bb)-(cc).)

On April 30, 2019, law enforcement installed the GPS tracking device on the Dodge Dakota. (Id. ¶ 3(ee).) A few days later, on May 2, 2019, detectives located the Dodge Dakota in Irvington, New Jersey, and observed McLeod exit his Irvington residence and enter the Dodge Dakota. (Id. ¶ 3(gg).) At the time, McLeod was wearing red shoes similar to those worn by the suspect from the surveillance video at the Parker residence. (Id.) The GPS tracking device, however, did not function properly at other times, and went offline for extended periods of time. (Id. ¶ 3(ee)-(jj).) As a result, pursuant to the first CDW, law enforcement replaced the malfunctioning GPS with another GPS tracking device. (Id. ¶ 3(kk).)

On May 23, 2019, law enforcement located the Dodge Dakota at a service station in Asbury Park. At the time, law enforcement had learned that McLeod had active warrants for his arrest on unrelated, municipal court matters. (Id. ¶ 3(mm).) Law enforcement observed McLeod arrive to the service station as a passenger in a different vehicle operated by another individual. McLeod then exited the vehicle and removed a small green and black Adidas bag. Law enforcement subsequently observed McLeod approach the Dodge Dakota, place the Adidas bag in the bed of the truck, and enter the driver's side of the Dodge. After McLeod entered the vehicle, law enforcement arrested McLeod pursuant to the municipal court warrants. (Id.) Following McLeod's arrest, he was interviewed about the burglaries. Law enforcement seized the Dodge Dakota, and Defendant's cell phone and red shoes incident to his arrest. Defendant did not authorize his consent for law enforcement to search the vehicle or his cell phone. The truck was impounded pending further investigation and the cell phone and shoes were secured in an evidence locker. (Id.) McLeod denied any knowledge of, or participation in, the burglaries and was released on his own recognizance. (Id. ¶ 3(nn).)

Thereafter, law enforcement drafted applications and affidavits for warrants to search the Dodge Dakota and Defendant's cell phone. On May 28, 2019, the Monmouth County Superior Court found probable cause existed and issued the search warrants for the Dodge Dakota and Defendant's cell phone. (See Government Exs. D (Search Warrant Dodge Dakota) and F (Search Warrant Cell Phone).) On or about May 29, 2019, law enforcement executed the search warrant on the Dodge Dakota and found the green and black Adidas bag, which contained a semi-automatic pistol, two magazines, and approximately 25 rounds of ammunition. (See Government's Ex. G, Storage Locker Affidavit, ¶ 3(pp).) The search also revealed a large knife, window punch tool, electrical equipment, a flashlight, and a pair of black gloves, as well as 31 checks made payable to a limited liability corporation. (Id.)

Law enforcement also conducted a physical examination of Defendant's cell phone, pursuant to the cell phone search warrant, and discovered text messages that appeared to be in reference to television sales by Defendant. (Id. ¶ 3(qq)-(rr).) Additionally, law enforcement observed that a call had been placed from Defendant's cell phone on April 12, 2019, at the same time that the subject was observed on surveillance during the attempted burglary. (Id. ¶ 3(qq).)

On or about May 28, 2019, law enforcement issued a criminal complaint charging Defendant with, inter alia, unlawful possession of the firearm recovered from the Adidas bag. In connection with those charges, law enforcement obtained a warrant for Defendant's arrest. Prior to Defendant's arrest, law enforcement also obtained additional search warrants for Defendant's Irvington residence and a storage locker that McLeod had rented at a storage facility in Monmouth County. (See Government's Exs. G (Affidavit Storage Locker), H (Search Warrant Storage Locker), I (Affidavit Residence), and J (Search Warrant Residence).)

On June 3, 2019, law enforcement arrested Defendant pursuant to the arrest warrant issued in connection with the May 28 complaint. Thereafter, law enforcement interviewed Defendant. During the video-recorded interview, Defendant denied ownership and knowledge of the firearm that was found in the green and black Adidas bag. However, during processing, Defendant admitted to law enforcement that he “knew that gun was in there.” (Government Br. in Opp'n to Defendant's Pretrial Motions (“Govt. Br. in Opp'n to Omnibus Mot.”), p. 11.) Subsequently, on June 5, 2019, the New Jersey Superior Court issued a second communications data warrant authorizing the release of Defendant's cell phone records, including historical cell cite location information. (See Government's Ex. L, Search Warrant Communications Data.) On September 26, 2019, a federal grand jury charged Defendant with unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Defendant argues that probable cause was lacking for the issuance of the GPS Tracking Warrant and the Dodge Search Warrant, and that the affidavits presented with respect to each of the warrants contained information that was obtained in reckless disregard for the truth entitling him to a hearing under Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In addition, Defendant requests a hearing to determine the admissibility of his post-arrest statements made on May 23, 2019 and June 3, 2019. As to 404(b) evidence, the Government seeks to introduce evidence relating to law enforcement's investigation into the attempted burglary at the Parker Property as background information and to demonstrate motive. The Court addresses the parties' arguments as they relate to each motion, in turn.

Outcome: "For the foregoing reasons, Defendant's motion to suppress is DENIED, the Government's 404(b) motion is GRANTED in part and DENIED in part.

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