STATE OF NEW JERSEY v. ARTHUR L. HOYLE, a/k/a SKINNYMAN HOYLE, and ARTHUR HOYLE

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).







3 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







4 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







5 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







6 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







7 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







8 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.







9 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







10 A-0116-15T1





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)).







11 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







12 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.









13 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







14 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. . . .







15 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,







16 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.