STATE OF NEW JERSEY,

v.

CHARLES W. CAIN,

Defendant/Appellant.

SUPERIOR COURT OF NEW JERSEY LAW DIVISION/CRIMINAL PART CAPE MAY COUNTY

Municipal Court Appeal No.

On Appeal From: North Wildwood Municipal Court Judgment of Conviction 2/9/12

. Criminal Action

DEFENDANT'S BRIEF AND APPENDIX ON DE NOVO APPEAL

JACOBS & BARBONE, P.A. A Professional Corporation

Attorneys at Law 1125 Pacific Avenue

Atlantic City, New Jersey 08401 (609) 348-1125

Attorneys for Defendant jacobsbarboneecomcast.net

On the Brief:

Louis M. Barbone, Esquire

TABLE OF CONTENTS

Page

Table of Authorities iii

Procedural History 1

Statement of Facts 3

A. Preliminary Statement 3

B. The Alleged Observations by Ptl. Bums. 4

C. The Threat of Layoffs Incites the PBA Three Days 5 before Cain's Seizure.

D. The Objective Evidence and Reasonable Inferences

9 Therefrom, Made Incredible, Any Finding That It Was More Likely Than Not True That Bums Took Up a Stationary Position and Observed Reckless Driving.

1. The Only Tag in Testa's Parking Lot Run by 9 Sgt. Gehring was Defendant Cain's.

2. The Burns and Gehring Cell Phone Conspiracy. 11

3. Bums' Incredible Testimony on Why He Selected 16 Old River Road as a Stationary DWI Enforcement Location.

4. The Admittedly Rehearsed Police Testimony and 18 Consistent Denials of Cain's Identity.

5. The Objective Evidence Proving There Was No 19 Stationary Observation Point by Ptl. Bums.

Legal Argument

22

Point I

22

The Trial De Novo Standard. 22

Point II 23

The Stop, Seizure and Arrest of Defendant Cain Was Warrantless and therefore Presumptively Invalid.

Point III 24

The State Failed to Prove by the Credible Preponderance of the Evidence the Applicability of the Automobile Warrant Exception.

TABLE OF AUTHORITIES

Case Page

Delaware v. Prouse, 99 S.Ct. 1391,1401, 440 U.S. 664, 663 (1979) 24

King v. Ryan, 262 N.J. Super. 401, 411-412 (App. Div. 1993) 23

State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) 23

State v. Amelio, 197 N.J. 207, 211 (2008) 24

State v. Johnson, 42 N.J. 146, 157 (1964) 23

State v. Locurto, 157 N.J. 463, 470 (1999) 25

State v. Ross, 189 N.J. Super. 67, 71 (App. Div.), cert. denied 95 23 N.J. 197 (1983)

State v. States, 44 N.J. 285, 293 (1965) 22

State v. Wilson, 178 N.J. 7, 12-13 (2003) 24,25

Rules & Statues

R. 1:7-4(b) 3

R. 3:23-3 2

R. 3:23-5 3

R. 3:23-8(a) 22

Other Authorities

New Jersey Constitution 3

E.:

iii

PROCEDURAL HISTORY

On January 22, 2011 Charles Cain was issued traffic summonses in the Hamilton

Township Municipal Court for driving while intoxicated, refusing an Alcotest, reckless

driving, careless driving and speeding. (Summons Nos. 200628 — 632).

On February 10, 2011 the Hon. Valerie H. Armstrong, A.J.S.C., transferred all

proceedings to the Presiding judge of the Municipal Court, the Hon. Louis J. Belasco, Jr.

for disposition in the North Wildwood Municipal Court,

On March 23, 2011, defendant filed a motion to dismiss or compel discovery in

the alternative.

On June 6, 2011, the parties appeared in the North Wildwood Municipal Court

and the Court entertained argument on the outstanding discovery issues (1T, transcript

June 6, 2011).

On June 14, 2011, the Court entered an Order granting defendant's motion to

compel production of Ptl. Burns' cell phone billing records.

On September 26, 2011, defendant filed a motion to suppress his warrantless

stop, seizure and arrest.

On October 3, 2011, the Court convened a' motion to suppress in the North

Wildwood Municipal Court (2T, transcript October 3, 2011, Vol. I). The State's only

witness was Det. Peter Burns. (2T8:21). The State rested thereafter. (3T, transcript

October 3, 2011, Vol. II, 206:3).

On October 3, 2011, the defendant began his case on motion to suppress by

calling Sgt. Christopher Gehring. (31207:12).

On November 23, 2011, motion to suppress continued with defense witnesses.

Specifically, Raymond Blowers (4T4:7), Frank Emper (4T26); Jeffrey Ebert (4T48); Sgt.

Ciambrone (4T88); Richard DeFeo (4T114); Mayor Amy Gatto (4T135); and, private

investigator Gregory Crescenzo (4T177). 1

On December 13, 2011 (6T), the defense rested (6T3:18), and the State called

two rebuttal witnesses: Det. Peter Burns (6T4:4) and Dana Brady (6T34:21).

Counsel closed to the Court on December 13, 2011, defense counsel at 6T:49

and the State at 6T91:24.

On January 19, 2012 the Court rendered its decision on the record (7T), denying

defendant's motion to suppress.

On February 9, 2012, defendant entered a plea of guilty to the charge of driving

while intoxicated and refusing the Alcotest. On the DWI, the Court imposed a three

month suspension of driving privileges, fines, costs and assessments totaling $614.00,

and ordered the defendant's service of twelve hours in the Intoxicated Driver Resource

Center.

On the refusal, the Court ordered a concurrent suspension of seven months,

additional fines, costs and assessments of $406.00 and imposed the mandatory

minimum six month Interlock ignition requirement upon license restoration. The

remaining traffic offenses were dismissed.

On February 10, 2012, defendant filed his Notice of de novo appeal pursuant to

R. 3:23-3.

The conclusion of Crescenzo's cross-examination appears in 5T, transcript of November 23, 2011. Vol.

2

Defendant simultaneously filed an application for emergent stay of the municipal

court's execution of sentence with the Superior Court, Law Division, Criminal Part, Cape

May County.

On February 17, 2012, the Court entered an Order denying the stay.

On March 7, 2012, defendant moved for reconsideration of the Court's denial

pursuant to R. 1:7-4(b) and R. 3:23-5.

On March 16, 2012, the Court denied defendant's motion for reconsideration.

STATEMENT OF FACTS

A. Preliminary Statement

On January 22, 2011, Ptl. Bums of the Hamilton Township Police Department

seized Charles Cain and his Toyota SUV at 1:35 a.m. on a dark and desolate stretch of

Clarkstown Road in Mays Landing, New Jersey. Defendant moved to suppress the fruits

of that seizure as being the product of a warrantless search and seizure in violation of

Article I, Para. 7 of the New Jersey Constitution.

The Court convened a plenary hearing over the course of two trial days. The

respective positions of the parties were diametrically opposed. The State maintained

that Ptl. Bums effected the stop of the defendant's vehicle based upon reasonable and

articulable facts demonstrating a violation of motor vehicle laws. Specifically, that while

conducting a DWI enforcement detail beginning at 1:00 a.m. on January 22, Ptl. Bums

took up a stationary surveillance position on Clarkstown Road, observed the defendant

driving recklessly and immediately pursued and stopped the defendant on that basis.

Defendant Cain maintained that the officer's testimony was a lie, and that the

State failed miserably to establish by the credible preponderance of the evidence that

3

the officer ever observed any driving conduct that would be objectively suspect.

Specifically, defendant Cain proved that the stop of his motor vehicle was the result of

planned and concerted action by Ptl. Burns and his supervisor, Sgt. Gehring, initiated

and effected to send Deputy Mayor Cain a very clear message about laying off eleven

Hamilton Township police officers as he had announced on January 18, 2011.

The issue before the municipal court was not a determination of Ofc. Burns'

subjective intent. Instead, defendant adduced independent and objective evidence and

testimony that made the State's burden of establishing a warrant exception impossible.

Ptl. Burns never observed the defendant's motor vehicle from any stationary

surveillance post.

B. The Alleged Observations by Ptl. Burns.

At the time of motor vehicle stop, Peter Burns was a patrol officer in the Hamilton

Township Police Department for five and a half years. (2T9:11). He was academy

trained and Alcotest certified with some one hundred DWI arrests under his belt.

(2T11:4). By the time of his testimony before the municipal court on October 3, 2011

(2T), Ptl. Burns had been laid off from the Hamilton Township Police Department

because of its budget crisis, and was then hired as a detective for the Atlantic County

Prosecutor. (2T9:4).

On January 21, 2011, Ptl. Bums worked two independent details. The first was at

the Regal Cinemas in Mays Landing from 7:00 p.m. to 1:00 p.m. (2T18:6). The second

was a DWI detail beginning at 1:00 a.m. and lasting until 5:00 a.m. (2T19:4). The

patrolman's motor vehicle stop of defendant Cain came within thirty minutes of his

beginning that DWI detail at 1:35 a.m.

4

According to Ofc. Burns, he took up a stationary surveillance position in his patrol

car on Old River Road at 1:30 a.m. on January 22, 2011. 2 (2138:17). Immediately

thereafter, he observed a motor vehicle coming towards him northbound "at a high rate

of speed with its high beams on". (2T38:23). He activated his radar and received a

reading of forty miles per hour. He then saw the vehicle as it "veered across the midline

toward his patrol car'. (2T39:3). At that point, he believed that he was going to get hit.

As Ofc. Bums began to prepare himself to "avoid the impact", the motor vehicle veered

back to the correct side of the road. (2T39:6). As a result, the patrolman made a u-turn

from his position in the mouth of a private driveway on Old River Road and began to

"accelerate to try and catch up" to Cain's vehicle. (2T42:8). While in pursuit of that

vehicle, he observed it was not staying to the right and at an S curve it was entirely on

the left hand side of the roadway. (2T43:15). At one point during the pursuit he activated

his radar again and got a second reading of forty-two miles per hour. (2143:6). The

patrolman thereafter activated his lights and stopped defendant's vehicle. (2143:7).

As such, Plt. Burns swears that the motor vehicle exceeded the speed limit and

drove on the wrong side of the road, thereby justifying the stop. (2T50:19).

C. The Threat of Layoffs Incites the PBA Three Days before Cain's Seizure.

On Tuesday night, January 18, 2011 the Township Committee of Hamilton

Township met in public session. The purpose of the meeting was for the finance

committee members, namely defendant Charles Cain as Deputy Mayor and Mayor Amy

Gatto, to announce massive public employee layoffs necessitated by the Township's

2 His testimony is not consistent. Burns says on direct that he's in position at 1:30 a.m. (2138:17). On cross, when confronted with his cell phone logs, he changes that time to conform with his second cell phone call to Sgt. Gehring at 1:26 a.m. He then claims the stationary position was accomplished at 1:25 a.m., just before his second cell call to the sergeant. On cross, the patrolman "specifically recalls" parking and then calling Sgt. Gehring. (21127:3-128:7).

5

budget crisis (D-15). The meeting included a power point presentation graphically

displaying the gross layoffs required throughout the Township and specifically

identifying the need for eleven PBA layoffs. (4T140-141 and D-16). Charles Cain and

Mayor Gatto took the role of "fiscal vitality" proponents at that reorganization meeting.

(4T142:9). Both spoke in the course of that public meeting to a "packed house". The

Mayor recalled that it was "standing room only" and the atmosphere was "tense".

(41143:19). Mayor Gatto also observed a large contingent of Hamilton Township police

officers at the meeting "standing on the left side of the room", "seated and standing all

around the walls". (2T144:6). She specifically recalled that Ptl. Peter Burns sat in

the front row of the audience. (21144:23).

Mayor Gatto grew up in Mays Landing, New Jersey and knew many officers

personally. She also had specific contact with Officer Bums approximately three years

before this meeting. He responded to a "fender-bender" and she thereafter offered to

buy him a cup of coffee at the Wawa and commended his conduct to his chief.

(21147:10-148:13).

Immediately after that meeting, the Mayor, defendant Cain and many of the

police officers went back to the Pub, a restaurant down the road. The Mayor

specifically recalled Ptl. Burns being at the Pub. (4T150-151). In the course of her

stay at the Pub, she went over and spoke directly with Sgt. Ciambrone who was seated

with the officers against the back wall of the tavern. (41153:8).

As Mayor Gatto explained it, the January 18, 2011 meeting was followed by a

swift PBA response. On January 27, 2011 the PBA posted an economic boycott of

Deputy Mayor Charles Cain and his business, the English Creek Auto Plaza. (D-19).

6

That post was immediately sent to the Mayor's Facebook wall. (4T160:7). The message

of the Mainland PBA was clear:

Members of law enforcement and families and friends should boycott the English Creek Auto Plaza in Egg Harbor Township owned by Hamilton Township Committeeman Charles Cain.

(4T161:2 and D-19).

The PBA post was verified by its President, Raymond Theriault in an email to the

Mayor on March 8, 2011. (D19, p2). The President of the PBA admitted it was authentic,

but it was being taken down on "advice of the PBA attorneys". (4T162-163).

The economic boycott of Charles Cain was followed by a threat letter delivered to

the Mayor at her offices in Hamilton Township and was captioned as: "HTPD to do List".

(D-18 and 4T147:1). The letter was specific to both the Mayor and Charles Cain

indicating an "X" on the line for: "Deputy Mayor Charles Cain DWI X". (47156:3; D-

18).

Ptl. Bums testified in the State's case in chief that he did not attend the January

18, 2011 meeting, nor did he go to the Pub after that meeting. (2T105). In fact, Ptl.

Bums was called in rebuttal by the State at which point he produced what he claimed

were dispatch records proving he worked the evening shift on January 18, 2011 and

could not attend the meeting while on duty. (6T6:8). The documents produced, S14 and

15, included dispatch records for January 15 through 18. On cross-examination the

officer admitted he didn't prepare the documents, nor did he put any of the information

on the documents. (6T23:3). He also was forced to admit that his "proof, namely S15,

was riddled with errors. In fact, Ptl. Burns declared the documents were wrong (6T25:5),

and he could not explain why. (6T26:1). The patrolman told the Court that it was a

dispatcher-computer issue although he was never a dispatcher and had never printed or

seen the records before. (6T27-28). The same errors were carried on the summary of

the document which caused Ptl. Bums to again testify that the document was "wrong".

(6T29:10). In sum, the "errors" on the documents indicated that officer did not

commence duty on January 18 th until 12:19 a.m., directly refuting his testimony.

Ofc. Bums did admit on cross-examination that he knew of the January 18, 2011

meeting, had in fact seen the power point presentation and also knew that Rice notices

were being issued to all police officers. (21106:7; D-6). According to Ptl. Bums, he

heard about that meeting, the budget report, as well as the township's financial crisis. At

the time of his motor vehicle stop of Charles Cain, he knew that the township was

proposing the layoff of eleven police officers (21105:9), and its "possible he discussed it

with Sgt. Ciambrone". (21115:4).

The meeting minutes of January 18, 2011 (D15) as well as the written version of

the power point presentation (D16) detailed public comment by Sgt. Ciambrone of the

Hamilton Township Police Department. The sergeant testified that he indeed attended

the January 18, 2011 meeting (4T89:20) and spoke. (4190:2). The sergeant confirmed

that police layoffs were "absolutely" the topic of conversation, namely eleven proposed

police layoffs. (4T94:7). The sergeant also admitted that the problem as it related to the

police department was that "the officers think they are being laid off'. (4T96:13). Sgt.

Ciambrone also confirmed that many officers were at the meeting. As to Ptl. Burns, he

could not be "100% sure". (4T98:21). He did know that Sgt. Gehring did not appear at

the meeting. It was a "show of solidarity to council", namely a concerted effort by the

police department to have as many officers as possible go to that meeting. (41104:3).

8

The sergeant estimated that between ten and fifteen did appear. (4T101:17). After the

meeting Sgt. Ciambrone went to the Pub with a number of other officers and a lot of

other people from the meeting. (4T105-106). He could not remember whether Ptl. Burns

or Sgt. Gehring were at the Pub. (4T107-108).

The testimony served to establish the intense factual precursor and the response

by the Hamilton Township Police Department and its PBA to the proposed layoff of

eleven police officers by Mayor Gatto and Defendant Cain.

D. The Objective Evidence and Reasonable Inferences Therefrom, Made Incredible, Any Finding That It Was More Likely Than Not True That Burns Took Up a Stationary Position and Observed Reckless Driving.

Ptl. Bums consistently denied any concerted effort or plan with his supervisor,

Sgt. Gehring, to target the Deputy Mayor once he left a bar known as Testa's Pub at

about 1:30 a.m. According to Ptl. Burns, he did not know Charles Cain nor did he know

where Cain lived. In fact, he knew nothing about him. (2T117:7). The patrolman denied

hovering around the area of Testa's Pub and being told by Sgt. Gehring that Charles

Cain was inside. He simply was doing his job in attempting to apprehend suspected

drunk drivers. The plethora of independent and objectively established facts which

eviscerated the officer's claim is summarized as follows.

1. The Motor Vehicle Lookup in Testa's Parking Lot of Only Cain's SUV.

Sgt. Gehring and his platoon began duty on January 21, 2011 at 11:30 p.m. and

worked until 8:00 a.m. (3T211:10). By the time he went to roll call for his shift, he knew

all about the council meeting of January 18 th , the Township's budget crisis and the

proposed layoff of police officers. (3T213:1). He heard about it via "emails and stuff like

that" from the PBA shop steward "in house". (3T213-214).

9

Within thirty minutes of coming on duty January 21, 2011, Sgt. Gehring began his

patrol at Testa's Pub. He testified that it was his procedure to check "the bar areas" so

that he could get a grip on the crowds for appropriate staffing. (3T220:2). He entered

the parking lot of Testa's and spotted a Toyota SUV parked alongside of River Road in

the bar's parking lot with dealer tags. (3T217:11). According to Sgt. Gehring, that was

"odd to him". (3T217:22). As such, he ran that tag through dispatch. The sergeant was

clear in testifying about his concern: "maybe it was stolen". (3T227:21).

As the consolidated dispatch audio and videotapes proved however, Sgt.

Gehring never requested or received any information about whether that SUV was

stolen. Instead, Sgt. Gehring simply requested a "lookup on DZ124" at 12:10 a.m. on

January 22, 2011. (D-4). (Sgt. Gehring 7a). The response was that the vehicle was

registered to the English Creek Auto Plaza. The sergeant never asked for an NCIC

lookup and never received any information whatsoever as to whether the vehicle was

stolen or not. According to Gehring, the lookup satisfied him and he continued to drive

around the building of Testa's taking no further action. (3T221:14). The sergeant did

nothing else to identify who inside of Testa's was operating the vehicle with dealer tags

at midnight (3T229:6), nor did he run another lookup on any other vehicle at Testa's.

(3T231:1). The sergeant confirmed that the only dispatch information he got was that

the vehicle's registration was to the Auto Plaza. (3T227:8). Although the sergeant said

that "it come back negative NCIC", that information was never given by dispatch,

because it was never requested. (13-4: "Sierra 9 look-up 02124").

The actual dispatch CD, or at least that part of the CD where Sgt. Gehring runs

Cain's tag has been excerpted and put on a microcassette for the Court's convenience.

10

The microcassette is attached to the back cover of the defendant's brief. It is undeniable

that Sgt. Gehring never asked for any NCIC or stolen vehicle check from dispatch, and

therefore never received any. Instead, the sergeant's request is:

"New Jersey lookup — Delta, Zulu, India 2 4. . ."

The dispatcher's response is precisely as follows:

"Delta Zulu India 2 4 comes back to the Auto Plaza, Egg Harbor Township. . ."

There is no other request or transmission.

Sgt. Gehring's testimony was directly disputed by bar manager Jeffrey Ebert. Mr.

Ebert had managed and bartended at Testa's for the last three years. He confirmed that

it was not unusual for police to be on the roadway or sometimes in the parking lot of

Testa's. (4T81:19). While it was normal for officers to drive by (4T85:13), the actions of

Sgt. Gehring while Charles Cain was inside of Testa's was anything but normal:

A. Well, normal meaning obviously they would drive by the bar - -

Q. Yes.

A. - - but not normal so where you could come on the property and drive slow, look through the window, go through the lot, come back and kinda leave your presence out there for a little bit till I walked out. Not in the course of that night, I didn't walk out, but that's what I witnessed.

(4T85:13).

2. The Burns and Gehring Cell Phone Conspiracy.

Sgt. Gehring knew as of 12:05 a.m. on January 22 that Charles Cain was inside

of Testa's. The sergeant denies that. (3T209:4). Like Ptl. Bums, Sgt. Gehring maintains

that he didn't even know who the Mayor or Deputy Mayor were in name, or by sight.

11

Officer Burns came on duty for the DWI detail at 1:00 am. He signed on for duty

at 12:55 a.m. (D4, 6a). Within one minute, Ptl. Burns uses his personal cell phone to

call Sgt. Gehring at 1:01 a.m. (2T36:19). 3 According to Bums, it was to report on the

movie detail and to talk about "family stuff'. (Ibid. 2T37:6). The call lasts for a total of

two minutes. Ofc. Burns denies that Sgt. Gehring told him anything about Cain being at

Testa's. (2T38:13). Yet, at almost precisely the time defendant Cain exits Testa's with

his wife and neighbor and gets into his Toyota SUV, a second call is placed by Ptl.

Burns' to Sgt. Gehring. 4 At 1:26 a.m., Ptl. Bums calls again and speaks for three

minutes in this "follow-up call" to continue the "family stuff' conversation. (2T37:18)(S-

10). According to Ptl. Burns, when he places that second call to Sgt. Gehring, he is

already at his stationary position in the mouth of a driVeway on Old River Road.

Ptl. Burns admits that he had full access to the police radio which has two

channels, one of which could have been communication between himself and Sgt.

Gehring off of the main channel. (2T57:14-58:25). Additionally, Ptl. Burns had the ability

to "i-call" Sgt. Gehring for any private conversation that he wanted to have. (Ibid., 59:5).

Bums did neither. Instead, he used his private cell phone, otherwise immune from

discovery. 5

During the twenty-five minutes that elapsed between the first and second cell

phone calls, both Bums and Gehring hovered in the area of Testa's Pub. Five minutes

after his first call to Gehring, Burns made a motor vehicle stop on a silver Audi on Route

3 He thinks he did that because Gehring had "i-called" him. (2T98:17). 4 The distance from Old River Road to the place of the motor vehicle stop was 1.7 miles. Assuming travel speed of 25 miles per hour, it would take Cain 4.08 minutes to arrive at the place of stop (D20). As the prosecutor explored with defendant's private investigator, that calculation is subject to variables (4T181-182). Nonetheless the seizure was at 1:35 a.m., entirely consistent with Cain's departure from Testa's at about 1:25 a.m. 5 Defendant had to move to compel Burns' private cell phone records and secured a court order to get them when the State refused production. (1 T, transcript June 6, 2011).

12

559 at 1:10 a.m. (2T74:16). At that location he is less than a mile from Testa's. Although

Burns never clears from that motor vehicle stop, and never advises dispatch, he went to

where Sgt. Gehring had also stopped a motor vehicle at Sugar Hill Subs (closer to

Testa's), beginning at 1:05 a.m. (2T83:17, and D-4, Burns 6b and Gehring 7c). That

contact between the officers was apparently not enough time to conclude the 'family

stuff" conversation, given Burns' second call at 1:26 a.m. Nonetheless, Ptl. Bums leaves

the site of Gehring's motor vehicle stop and is on his way back to Testa's at 1:19:22. At

that point dispatch asks Bums if he ever cleared his motor vehicle stop on Route 559.

(2T83:24). According to Burns he spent approximately five minutes at his stop of the

Audi, left that location about 1:15, and then went to Sgt. Gehring's location closer to

Testa's and stayed for approximately two minutes. (2187:3-21).

Immediately thereafter, Ptl. Burns crosses the intersection of Route 559 and

Atlantic Avenue (D-21, where Testa's is located) and is almost struck by a black Toyota

Tacoma pickup truck. According to Burns, that pickup, truck "almost hit him" as it entered

the intersection from Atlantic Avenue. (2188:24; D-21). Notwithstanding the fact that Ptl.

Burns was on a DWI detail and that driver's conduct was a "tell-tale" sign of a drunk

driver (2T96:19), RI. Burns testified that he did not stop. After the near miss at the

intersection, Ptl. Bums says he continued on to Mays Landing-Somers Point Road and

began pursuing another vehicle. He made a left onto Old River Road, at Testa's Bar (D-

21 and D-13; 2T89-91). He never stopped at that intersection. (2T93:2). Burns denied

that he was actually sitting in his patrol car across from Testa's when he saw that black

pickup. (2T87:22).

13

Raymond Blowers, who had finished his shift at the Pepsi plant in the Hamilton

Industrial Park, was driving that black Toyota Tacoma. (4T5:14). His shift ended

January 22 at 1:50 a.m. (4T6:7). He began on his normal route, onto Atlantic Avenue

toward the traffic light at Route 559 which was amber (D-13). He was going to try and

make the light but saw a police vehicle and hit his brakes hard. Mr. Blowers saw that

vehicle "down the road a ways". (4T6:22). Mr. Blowers confirmed there was no traffic at

the light or anywhere else (10:3) and that the patrol car he saw was coming towards him

from the marina. (4T10:15). In other words, the patrol vehicle was on Mays Landing-

Somers Point Road (D-21)(or also known as River Road, D-13) coming from Sugar Hill

and Testa's (11:1); the exact opposite direction claimed by Ptl. Burns. Mr. Blowers

confirmed that he was not stopped by any officer at the intersection of Route 559 and

Atlantic, and proceeded past Testa's and on to Route 40 towards the old courthouse. At

that point a police vehicle was behind him on Main Street. (4T12:25). Mr. Blowers

documented his direction on D13 with a red pen, indicating his direction of travel with a

red arrow. (4T15:13). Mr. Blowers was emphatic that there was no patrol vehicle that

approached the intersection from his left hand side when he braked suddenly at the

light. (4T18:12). Mr. Blowers' testimony directly contradicted Ptl. Bums.

Ptl. Burns radioed dispatch at 1:15 a.m. giving the black Tacoma pickup truck

information for another officer to handle. (D-4). Ptl. Burns maintains that he was giving

chase to yet another vehicle that he saw just as he had entered the intersection of

Route 559 and Atlantic Avenue, and was almost struck by the black pickup (D-21).

Bums said he was going to follow that other motor vehicle "for some type of infraction".

(2T88:9). The patrolman could not recall anything about that other vehicle. Although he

14

was giving chase to a vehicle he saw contemporaneously with almost being struck by

the pickup, he had "no idea" what violation that other vehicle committed. (2T94:2-20).

While he admits he was the closest unit to the black pickup, and further that the black

pickup was a "telltale" sign of a DWI (96:11-19), he was fixed on chasing some phantom

vehicle. That of course puts the patrolman on Old River Road, consistent with his claim

of taking a stationary position.

The evidence however, clearly established that a marked Hamilton Township

patrol car was parked across from Testa's immediately before Charles Cain and his

party exited the bar. Bums denies it, as does Gehring. Sgt. Gehring was driving an SUV

and not a patrol car. Further, from between 1:20 and 1:30 a.m., no other police officer is

anywhere near Testa's. (See D-4: Ofc. Esposito is at the Watering Hole, 1 h; Ofc. Clune

is at Route 50 and Hickory Road on a traffic detail, 2a; Ofc. Tantum is at the Black

Horse Pike and Route 40, 3b; Ofc. Schneider is on a property check at Route 50 and

Main Street; Ofc. Smyth is on an assault call at the Atlantic County jail, 5d with Sgt.

Cressey). Indeed, by the department's own dispatch records, the only officer that

could be sitting across from Testa's waiting for Charles Cain was Ptl. Burns.

Frank Emper was a patron of Testa's on January 21 and 22, 2011. He left

Testa's before Charles Cain estimating that he walked out at about 1:05 a.m. (4T29:14).

Mr. Emper marked the spot with an X on D-13 as to where he saw a patrol car parked

at the old gas station across the street from Testa's. (4T33-35). He saw a white male

officer sitting in the patrol car with his dome light on apparently doing paperwork about

thirty yards away from him. It was a black and white police car, not an SUV. There was

no traffic anywhere. (4T37-38).

15

Ptl. Burns maintains that after the near miss with the pickup he continued up Old

River Road to the ultimate point of his stationary position. In so doing, however, Bums

could not recall anything about that phantom vehicle. He didn't remember the infraction,

nor could he recall the make, model or even color of the vehicle he claimed he was

chasing. (2T118:16). Nor could he even remember how far or to where he chased that

vehicle before giving up. (2T124:6). All Ptl. Bums could say was that ultimately he

abandoned pursuit of the phantom vehicle, had no recollection of seeing any other

traffic on Old River Road (2T129:4); yet, he set up a stationary DWI patrol on the

deserted Old River Road, while by his own admission ., traffic was plentiful on Route 559.

(2T130:10).

3. Burns' Incredible Testimony on Why He Selected Old River Road as a Stationary DWI Enforcement Location.

Ptl. Burns testified that site selection for his DWI patrol is entirely within his

discretion. (2T19:22). On direct, he explained that he targets bars, high traffic areas,

and routes that lead to destinations such as Atlantic City. (Ibid.) According to the

patrolman, however, "a factor" for fixing his stationary patrol on Old River Road at 1:30

a.m. (or 1:25 a.m.) on January 22 was the Department's Operation Reports given to

patrol by command staff. The State produced S-3, a "Beat Area 5" sector report from

October of 2010. (2T16:6). On direct, the officer testified that Old River Road near

Clarkstown, the precise place of his stationary patrol, was noted as a target for

enforcement by command staff. That entry appears on the October Beat Area 5

operations report. The problem was young drivers burning rubber and speeding, the

alleged reason he had the idea to target the area. (2T17).

16

Bums' attempt to justify his stationary patrol on a deserted and desolate Old

River Road is telling. Notably, he picked the October 2010 report to support his

stationary location although it was three months old (S-3). On cross-examination, Ptl.

Bums was confronted with operation reports that destroyed his factual predicate. First,

Bums admits that the very same October 2010 report was actually changed mid-month

to Route 40 and River Drive. That is a different location than Old River Road and

Clarkstown. (2T66). In fact, that location is a mile away and a different roadway. (Ibid.,

67:4). At that point Bums said that he could not "really interpret what's written there". (S-

3: "changed to 40/River Drive)(67:12). Although he admits he reviewed the intervening

operation reports, Bums is confronted with the fact that as of November of 2010 there

is no targeted enforcement notation for Old River Road at all. In fact, by November,

the target is River Drive by the bulkhead, a location nowhere near his stationary patrol.

(2T68:24, and D-1). Likewise, in December of 2010 there is no targeted enforcement

area for traffic or DWI patrol. (2T71:10, and D-2). Finally, even for the month in

question, January 2011, there is also no targeted enforcement area for patrol or

DWI detail (2T72:13 and D-3).

As such, Ptl. Burns picked a three month old operations report as the "factor he

could rely upon to legitimize his creation of a stationary DWI patrol on a desolate

highway. Notably, he did that in his January 22, 2011 report, D-22: "That road . . . was

listed on the department operations plan as recently as October 2010. . ."

While all of the early morning enforcement activity occurs on Route 559, and Ptl.

Burns admits to traffic on that artery to and from Egg Harbor Township and Atlantic City,

he nonetheless fixes his stationary patrol on Old River Road; the very road upon which

17

Testa's sits, and which Cain had to drive to reach his home on Clarkstown Road, less

than two miles away.

4. The Admittedly Rehearsed Police Testimony and Consistent Denials of Cain's Identity.

Both Ptl. Burns and Sgt. Gehring denied knowing Charles Cain personally,

knowing what he looks Ike, or even knowing that he was the Deputy Mayor since 2009.

Ptl. Bums maintains that he is not a resident, and has no interest in politics. The fact

that he worked as a patrol officer in the town for 5 1/2 years in no way infused him with

the knowledge of his mayor's or his deputy mayor's identity (2T112:22) . Nonetheless,

the patrolman admits to viewing the power point presentation which conspicuously

featured both Charles Cain and the Mayor on January 18, 2011. (2T106:7).

Sgt. Gehring likewise testified that he was clueless as to who Charles Cain was

on January 22, 2011. Notably, Sgt. Gehring was a sergeant for 3 years, patrol officer for

17 and a detective for 5, all within Hamilton Township. (3T208:6).

When Sgt. Gehring was confronted with the fact that incredibly, Ptl. Burns called

him twice (1:01 a.m. and 1:26 a.m.) on January 22, 2011, he admitted two things. First,

he could not explain why there were two calls from the patrol officer in less than an hour

of his running Cain's tag. His answer was "I don't know, sir". (3T245:6). Further, he was

"not sure exactly" why Burns called a second time. (Ibid., 246:24).

What the sergeant was sure of is that both he and Burns "reviewed the case"

(3T232:4), meaning they sat down and talked about the facts of the case before

testifying. (236:10). The sergeant confirmed that his testimony was the information he

discussed with Ofc. Burns and that they "came to the conclusion that that's what it

was probably about", referring to "family stuff'. (3T247:15-248:12).

18

As to Ofc. Burns, he could not explain why there were two cell phone calls within

twenty-five minutes of each other and less than an hour after Gehring ran Cain's tag,

during one shift, when pursuant to this cell phone records, there were no other calls

between the two of them for any of the other 29 days on the phone billing records, or

within the 17 days memorialized by those records (S-10) prior to Burns layoff on

February 7, 2011.

Assuming the fact that Ptl. Burns' worked in the Township for 5 1/2 years and

Gehring's work in the township for 25 years, in the same building occupied by the

Deputy Mayor, would not render incredible the testimony of absolute ignorance of the

identity of Charles Cain, defendant produced the following. In November of 2009,

Charles Cain was elected to Township Council. For the first time in the history of

municipal elections, the Cain campaign erected 75 monster campaign signs that bore

his face. (D-17). The signs were 4' x 4', placed six months prior to the election in

November and situated by his running mate, Richard DeFeo. (4T:116:14-117:14). The

signs were novel to the extent that no previous candidate had used signs that large, nor

had they put their larger than life pictures on these signs. (4T126:15). Sign placement

was obviously key in literally getting Cain's face out to the public, and so the signs were

erected at strategic locations including major intersections, department stores and one

directly in front of the police department and municipal court. (4T124:22-125:11).

5. The Objective Evidence Proving There Was No Stationary Observation Point by Ptl. Burns.

According to Ptl. Bums, while at his stationary position he was almost squashed

by Cain's vehicle. The patrolman confirmed, he wasn't exaggerating. According to him,

he was "preparing to avoid impact". (2T132:10). He had his hand on the gear shift and

19

his foot on the brake. (132:22). He thought Cain was "going to hit him". (132:18). The

incident was so close that his "heart was pounding". (133:9). At that point says Bums,

he turned around in an attempt to catch up. (133:15).

As demonstrated by the MVR tape, when Ofc. Burns effects the stop of Charles

Cain two minutes later, he is calm, cool and collected. (2T187:4). According to Bums,

that certainly was not his state when he was preparing for impact. (187:7). He actually

greeted the defendant with "Hello sir. . .". (186:12). Burns admitted that he never said a

word about almost being hit or about any dangerous driving by Cain, less than three

minutes after the heart pumping event. (2T186:24).

Critically, it was Burns' testimony that he was trying to catch Cain's vehicle. Yet,

the MVR tape begins at 1:33 and Bums is traveling or at least accelerating at only 23

miles per hour. (2T135:17). Burns admits that when the camera comes on, his car

speedometer registers 24 miles per hour. (138:16). The camera then shows his route of

travel on Old River Road to the intersection of Clarkstown where his top speed is 47

miles per hour without lights on or ever having advised dispatch he was chasing Cain's

vehicle. (2T146:8-25). Once Burns turned the corner onto Clarkstown Road, he had a

clear view and straightaway opportunity to catch up to Cain's vehicle. When asked why

that his highest speed reached on that straightaway was 40 miles an hour or less, the

patrolman's answer was "I don't know". (2T150:6). The MVR tape proves that Ptl.

Burns was not attempting to catch defendant's vehicle. Instead, he was following behind

as if he knew exactly where the vehicle was going. It was not until the officer forsakes

that straightaway opportunity and clears the curves in the road, that he actually

activated his overhead lights.

20

Once the overhead lights are activated, the MVR automatically recaptures and

displays the 60 seconds before the lights came on. (2T143:20). The MVR shows an

initial image captured by the video, namely a mailbox and white picket fence along side

of 344 Old River Road. (D-10; 2T139:14). Burns testimony that he was speeding in an

attempt to catch Cain's vehicle is completely false. The video shows that he was not. It

also shows that Bums changes the location of the alleged "stationary" position at will.

As defendant Cain maintained below, there never was a stationary observation

point, and certainly no observation at a % mile west of Clarkstown Road where the

patrolman claimed to have clocked defendant's vehicle with radar. The multiple and

various statements of that stationary location, simply confirm that Burns was in fact

watching Cain leave Testa's from the Lucky Seven parking lot and thereafter stealthily

followed him at anything but "pursuit" speeds.

Ptl. Bums was confronted with the fact that in his initial written report (D-9 and D-

22), he swore that his stationary patrol was located "approximately % mile west of

Clarkstown Road", on Old River Road. 6 In testimony, Ptl. Burns, when confronted with

an actual map, (D-10), changed that testimony to about one-half of the same distance. ?

(6T187:6) In Court, Ptl. Burns says he was 1/8 of a mile west of Clarkstown Road

(21140-142:10), which jives more accurately with the video image initially broadcast on

the MVR. In other words, when Ofc. Burns realized the graphic display that would have

made it impossible for him to have utilized radar at the stationary position one-quarter of

a mile west of Clarkstown Road, he changes the location by 50%. By the time of his

testimony, Burns also saw the MVR tape, which made inexplicable his patrol speed of

6 That testimony put him at position "A" marked by counsel on D-10. 7 Marked as position "B" on D-10.

21

23 miles per hour at the picket fence when he had already allegedly been chasing the

defendant after his u-turn. Hence, the need to "adjust" his testimony on cross.

In sum, the officer's testimony when compared with the actual images of the

video, changes materially in order to make his courtroom presentation fit. Likewise,

when a defense investigator actually goes to the very spot identified by the patrolman in

court on October 3, 2011 and reconstructs an impossible u-turn, Burns comes back on

rebuttal and says the investigator used the wrong location. In essence, Ptl. Bums gave

the court three different locations of his stationary patrol. The first, a quarter of a

mile west of Clarkstown Road, the second an eighth of a mile west of Clarkstown at

either lot 44 or 44.01, and then the final location that he never connects up with the one

fact he claimed to have known about that stationary location. Burns claimed that he

parked in the driveway of home that was for sale, yet never even attempted to verify

that his third location as displayed in rebuttal was in fact that property. (6T21:24).

LEGAL ARGUMENT

POINT I

THE TRIAL DE NOVO STANDARD.

Defendant's appeal to the Superior Court is de novo. Pursuant to R. 3:23-8(a):

. . . In such cases the trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced.. .

On de novo appeal, the Court is not constrained by the substantial Evidence

Rule, but is instead obligated to make independent findings of fact and conclusions of

law in determining defendant's guilt or innocence. State v. States, 44 N.J. 285, 293

22

(1965); State v. Ross, 189 N.J. Super. 67, 71 (App. Div.), cert. denied 95 N.J. 197

(1983); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011).

As to credibility findings by the Judge below, the Court must give "due although

not necessarily controlling, regard to the opportunity of the municipal court judge to

assess the credibility of the witnesses". State v. Johnson, 42 N.J. 146, 157 (1964).

A de novo trial means a trial anew, where the Superior Court becomes the

independent and fresh judge of the facts. As the Appellate Division explained it decades

ago:

. . . to begin with, the trial judge, although noting his statutory obligation to afford plaintiff a de novo hearing, did not in fact do so but rather applied the appellate substantial-evidence review standard. Without analyzing the evidence adduced before the police committee and the brief supplemental testimony offered by the owner of the stolen car, and without making findings of fact on his own, the judge basically concluded that "the record is consistent with the findings and conclusions of the police committee" —this despite the fact that there were no findings and conclusions.

Obviously, there was no careful sifting and weighing of the evidence and independent findings of fact as are the hallmark of a de novo trial. There was instead only the application of the appellate review standard .. .

King v. Ryan, 262 N.J. Super. 401, 411-412 (App. Div. 1993).

Defendant Cain is therefore entitled to that "careful sifting and weighing" that can

only be accomplished by intimate and exhaustive factual review.

POINT II

THE STOP, SEIZURE AND ARREST OF DEFENDANT CAIN WAS WARRANTLESS AND THEREFORE PRESUMPTIVELY INVALID.

The presumed unconstitutionality of a warrantless search is by now axiomatic:

A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement. The requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the state, as the party seeking to

23

validate a warrantless search, to bring it within one of those recognized exceptions.

In satisfying that burden, the State must demonstrate by a preponderance of the evidence that there was no constitutional violation.. .

State v. Wilson, 178 N.J. 7, 12-13 (2003)(internal citations and quotations omitted).

The seizure of defendant Cain was therefore presumptively unconstitutional.

POINT III

THE STATE FAILED TO PROVE BY THE CREDIBLE PREPONDERANCE OF THE EVIDENCE THE APPLICABILITY OF THE AUTOMOBILE WARRANT EXCEPTION.

More than thirty years ago, the Supreme Court of the United States declared:

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or the occupant of the vehicle is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.. .

We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.

Delaware v. Prouse, 99 S.Ct. 1391,1401, 440 U.S. 664, 663 (1979).

It is clear beyond per adventure that activation of the emergency lights on a

police car and effecting a stop of defendant's motor vehicle is a seizure in the

constitutional sense. State v. Amelio, 197 N.J. 207, 211 (2008). Equally clear is the

standard upon which such a seizure must be analyzed:

It is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that a driver has committed a motor vehicle offense. . . . To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred.

24

State v. Locurto, 157 N.J. 463, 470 (1999).

As such:

In satisfying that burden, the state must demonstrate by a preponderance of the evidence that there was no constitutional violation. State v. Whittington, 142 N.J. super. 45, 51-52 (App. Div. 1976).

State v. Wilson, 178 N.J. 7, 13 (2003).

In this case the State had to adduce credible testimony and evidence that would

permit a finding that it was more likely than not true that Ptl. Burns observed speeding

and reckless driving of the defendant. According to Ptl. Bums, that observation occurred

when he took up a stationary surveillance point in Old River Road, saw the defendant

barreling towards him and activated his radar. In other words, to make that finding of

"articulable and reasonable", the officer's testimony has to be credible.

Defendant Cain has demonstrated by the foregoing statement of the material

facts that mere logic and common sense eviscerates the believability of the officer's

testimony.

Both Ptl. Bums and Sgt. Gehring adamantly deny they knew that Charles Cain

was inside of Testa's on January 22, 2011. Their testimony convinced a municipal court

judge that they acted purely upon facts which unfolded without their orchestration. Both

squarely denied stalking Charles Cain, by hovering over Testa's Pub and awaiting his

exit. Ptl. Burns maintains that it was the pursuit of some unknown vehicle that placed

him on Old River Road and resulted in his decision to take up a stationary observation

point. If all of that is a lie, the Court could not possibly find that the State has proved a

lawful stop and seizure by the preponderance.

25

Every fact upon which the testimony of Ptl. Bums rests, was irretrievably

controverted. The patrolman's testimony was not only internally inconsistent, but was

contrary to every piece of objective and independent evidence. The totality of the record

before the municipal court simply screamed of collusion, premeditation and fabrication.

It is simply incredible that officers working in Hamilton Township for over 51/2 and 20

years respectively, would not know their Mayor or Deputy Mayor. More inconceivable is

the fact that these two officers make that claim in the face of an explosive event in the

Township which occurred on January 18 th , three days before Cain's arrest. Not only was

Charles Cain's photo in life size form on billboards positioned throughout the Township

and directly in front of the police department, the video of his call for the layoff of eleven

police officers was published on the Internet and on the Township's website as of

January 18th. While Ptl. Burns admits that he knew all about that prior to the motor

vehicle stop on January 22, he continued to deny any collusive effort with Sgt. Gehring

to get Cain.

It is not only the inconsistent testimony of these officers that destroys their

credibility, it was their inexplicable conduct, and their denial of the obvious. Ptl. Burns

swore that he identified a stationary observation point based upon the Department's

operation plan. He specifically noted the existence of an October 2010 plan in his

January 22, 2011 report. Burns knew that a stationary DWI patrol on a dark and

deserted Old River Road, would be called into question. He presaged his intent and

plan by inserting that operations report reference into his narrative report. Bums testified

that he had absolutely no knowledge about Sgt. Gehring's identification of Cain's motor

vehicle at Testa's while at the same time being unable to logically explain two cell

26

phone calls to the sergeant on his private cell, within twenty-five minutes; the precise

same timeframe that independent witness Frank Emper sees a patrol vehicle parked

across the street and the precise timeframe when Charles Cain is exiting the bar. The

cell phone records of Ptl. Burns consume almost one month's duration, yet it is this

night at 1:01 a.m. and 1:26 a.m. that there are two cell phone calls by Bums while on

duty to talk about "family stuff'. The patrolman freely admits malfeasance, chatting

about "family stuff' within one minute of beginning his detail, because the truth us

downright reprehensible. These officers targeted a Deputy Mayor because he

performed his public duty and they needed to retaliate.

It is not merely a compelling inference that Sgt. Gehring spotted Cain's vehicle,

confirmed it was an Auto Plaza vehicle, and then kept watch for Cain's departure; it is

the only logical inference. The sergeant's explanation for running one and only one tag

at Testa's lot is simply ridiculous. The sergeant's professed "concern" about a dealer

tag, is directly refuted by the lack of any inquiry about whether that vehicle was stolen. It

simply never happened.

The actual audio communications between Gehring and dispatch absolutely

prove that Gehring lied:

Sgt. Gehring: "New Jersey look up, Delta Zulu India 24.

Dispatcher "Delta Zulu India 24 comes back to the Auto Plaza in Egg Harbor Township"

Sgt. Gehring: "Received".

Dispatch tape excerpt, attached to back cover of defendant's brief in microcassette form for the Court's review.

27

Ptl. Burns adjusted and reformulated the facts as necessary, as he waded

through cross-examination. Internally, Ptl. Bums was all over the place. He began in his

stationary position 1/4 of a mile west of Clarkstown Road, changed it to 1/8 of a mile,

and then to a totally different location once he saw the defense investigator's video

making it impossible to execute a u-turn in the mouth of a driveway, he had identified.

Bums' report initially placed his patrol vehicle at a curve that would make the use of

radar virtually impossible. When shown a life-size map of the roadway, he immediately

adjusted the position to accommodate that testimony. He also confessed that he really

wasn't taught by New Jersey State Police how to operate radar. It was instead an on

on-the-job training session with Ptl. Smith of his own department. (21159:3). He had

never seen the stalker radar manual, the instruction book for the very radar unit inside

of his vehicle on January 22. (2T160:1). He therefore could not answer why he was

using the radar in violation of the manufacturer's specifications, which rendered his

speeding claims meaningless. Specifically, the patrol unit should not be going faster

than the target. (2T153:1 and D-11). Those internal inconsistencies however, pale in

comparison to the objective evidence produced.

Mayor Gatto firmly identified Bums as sitting in the "front row" at the January 18

meeting. Burns denied it. The Mayor also identified him as being at the Pub. He denied

that also. Burns claimed that at the intersection of Route 559 and Atlantic Avenue, he

drove directly in front of Mr. Blowers' vehicle and was almost hit. Mr. Blowers, with no

interest in the case whatsoever, absolutely refuted it. Ptl. Bums tried desperately to

establish any reasonable explanation for why he would have been on Old River Road, if

it wasn't to follow behind defendant Cain. He manufactures a phantom vehicle

28

explanation that was nothing short of ludicrous. He actually testified that notwithstanding

a motor vehicle infraction that was a "tell-tale" sign of a DWI, he ignored it and

continued on to Old River Road to catch a vehicle he could not describe for an infraction

he could not recall.

While both Ofc. Burns and Sgt. Gehring continued to claim no particularized

surveillance of defendant Cain, the bar manager made it crystal clear that January 22,

2011 was an anomaly. (4149:5). Sgt. Gehring was looking for Charles Cain inside of the

bar. The police presence was indeed different. While it was normal to see Hamilton

Township police vehicles, it was anything but normal for them to be in the lot, drive

slowly around, look in the window, go through the lot and come back. (4T85:13). In

other words, Sgt. Gehring was confirming the Auto Plaza tag with Charles Cain's

presence inside of Testa's. It had nothing to do with a suspected stolen vehicle which

the department's own dispatch audio proved.

The evidence was compelling and palpable — Charles Cain's vehicle was

spotted, confirmed and then surveilled with police precision. The motor vehicle stop was

not based on any "near impact", nor perceived speeding by Ofc. Burns. He was never in

a stationary position to make those alleged "reasonable and articulable" observations.

He was instead driving covertly behind Cain as illustrated by the MVR tape; there was

no intent to "catch-up" at 23 miles per hour. It was not until Cain's SUV negotiated the S

curve, that Burns activated his lights. As Bums testified, by that time Cain was less

than six blocks from home. (2T137:21). Restated, stopping Cain at that point was a

"now or never" proposition.

29

The essence of "fact finding" required an hbnest assessment of the officer's

multiple and inconsistent explanations, as well as an analysis which pits those

explanations against monstrous inconsistencies derived from independent and objective

sources. The plotting and planning of Bums and Gehring was circumstantially

deafening, proven from the police department's own records and from the mouths of

witnesses that had absolutely no interest or stake in the matter. The litany of

inexplicable facts diametrically opposed to Burns' claim of "reasonable and articulable

suspicion" is simply undeniable. These officers rehearsed their testimony for

consumption by the municipal court judge, much like they utilized their police resources

with tactical precision on January 22 to identify, stalk and seize Charles Cain. Any

objective analysis of the facts makes that conclusion impenetrable. The factual findings

by the municipal court simply engineer a justification by cherry-picking those facts to

achieve a desired result. The true analytical conclusion in this case, recognizes the

remarkable inconsistencies in the police testimony, testimony at odds with all of the

other independent and objective evidence, and an exception claimed by the State that

flies in the face of reason and common sense. The ultimate facts in this case are simple

and straightforward:

1. On January 18, 2011 Charles Cain publicly broadcast the impending layoff of eleven Hamilton Township police officers;

2. Three days later Charles Cain is at Testa's Bar having parked his Toyota SUV on the side of the building next to Old River Road;

3. Sgt. Gehring spotted Cain's vehicle in Testa's parking lot and confirmed it by running the tag of the vehicle at midnight;

4. Sgt. Gehring waited until Bums began his DWI detail at 1:00 a.m., i-called Burns and Burns called him on his private cell one minute after beginning the shift;

30

5. Both Burns and Gehring remain a stone's throw from Testa's awaiting Cain's departure;

6. Burns literally keeps watch on Testa's and then calls Gehring a second time once Cain emerges from the front door;

7. Burns ignores "tell-tale" bona fide DWI enforcement, trails behind Cain in an effort to stop his vehicle before he reaches his home less than two miles from Testa's;

8. Burns never observes anything from a stationary position and instead effects the motor vehicle stop immediately before Cain reaches his driveway. In the face of this factual record, the State could not, and did not establish

"reasonable and articulable suspicion" to any degree.

Respectfully submitted,

Jacobs & Barbone, P.A.

Louis M. Barbone

Dated: 6/8/12

31

Theodore F. L. Housel Prosecutor

OFFICE OF THE PROSECUTOR County of Atlantic

RECEIVED JUN 2 0 2012

JOHN R. RAUH, J.S.C.

4997 Unami Boulevard P.O. Box 2002

Mays Landing, NJ 08330

(609) 909-7800 • Fax: (609) 909-7802

June 19, 2012

John R. Rauh, J.S.C. Superior Court of New Jersey 9 North Main Street Cape May Court House, NJ 08210

Re: State v. Charles W. Cain Mun. Ct. App. No. Hearing Date - June 26, 2012

Dear Judge Rauh:

The undersigned asks the Court to accept this letter

in lieu of a brief setting forth the State's position in

the above-referenced matter. The State submits that none

of the three points advanced in the brief recently

submitted on defendant's behalf gives the Court a reason to

reach a result different that the one at which the lower

court arrived.

Defendant's first point is more an exposition on

pertinent law than an argument, and the State will not

quibble with it. The present proceeding certainly requires

this Court to make its own independent findings of the

facts involved in this case on the basis of the record

6.

compiled in the lower court. R. 3:23-8(a); State v.

Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335

N.J. Super. 374, 382-83 (App. Div. 2000). In making these

findings, though, the Court must give due deference to the

lower court's determinations that one witness or another

testified credibly. Johnson, supra at 157; Cerefice, supra

at 383. After all, the lower court had the opportunity to

watch and listen as all witnesses testified below and,

thus, was in the best position to assess the veracity of

each. See State v Locurto, 157 N.J. 463, 472, 474 (1999).

Cerefice, supra at 383. And given the lower court's

superior ability to make determinations about the

credibility of witnesses, this Court should defer to them

absent a showing by defendant that, in making the

determinations, "the judge went so wide of the mark, a

mistake must have been made." Johnson, supra at 162; see

Locurto, supra at 474; Cerefice, supra at 382-83. In the

present matter, this Court should defer to the lower

court's assessments of the credibility of witnesses who

testified below because there simply is nothing before the

Court showing that, in making those assessments, "the judge

went so wide of the mark, a mistake must have been made."

Id.

2

Defendant's second point is one with which the State

agrees. The State bore the burden of proving by a

preponderance of the evidence below that defendant was

stopped on the basis of an articulable and reasonable

suspicion that he had committed a motor vehicle offense.

E.g., Locurto, supra at 470; L. Arnold, "Criminal Practice

and Procedure," 32 N.J. Practice. Sec. 16.9 at 15, Sec.

16.17 at 164-65 (2007-08). The State carried this burden

with evidence showing that defendant's vehicle traveled in

excess of 25 miles per hour on Old River Road and, at one

point, veered as if it were going to hit a stationary

patrol car in which Hamilton Township Police Officer Peter

Burns was monitoring traffic. (2T38-17 to 2T39-11, 2T49-4

to 2T50-23). Those facts gave rise to a reasonable,

articulable suspicion that defendant violated N.J.S.A.

39:4-50, N.J.S.A. 39:4-96, N.J.S.A. 39:4-97, or N.J.S.A.

39:4-99 and, therefore, to justification for the stop of

his vehicle.

In his third point, defendant advances an argument

about police "collusion, premeditation and fabrication"

similar to the one that failed to persuade the court below.

(Db26). Defendant accuses Hamilton Township Police

Sergeant Christopher Gehring and Officer Peter Burns of

"plotting and planning... to identify, stalk and seize" him

and also claims that "mere logic and common sense

eviscerate[)" the credibility of the officers' testimony

regarding the night in question. (Db25, Db30). The State

maintains that this Court should reject defendant's

argument not only for the same reasons the lower court

cited in rejecting it, but also because the officers' sworn

account of January 22, 2011's events is actually much more

compatible with "mere logic and common sense" than

defendant's theory of what occurred on that date.

For instance, though defendant contends Sergeant

Gehring and Officer Burns were motivated to target

defendant because of potential police department layoffs

suggested by defendant, a member of Hamilton Township's

Committee, at a Committee meeting on January 18, 2011, the

evidence was clear that Officer Burns would not have been

affected by those potential layoffs, and that Sergeant

Gehring did not "see eye to eye on things" with the

Policemen's Benevolent Association of which he was a

member. (2T190-7 to 2T192-6, 2T214-3 to 13). If there

actually were some plot among members of Hamilton

Township's police department to retaliate against defendant

for his suggestion of layoffs in the department, then it is

difficult to fathom why it would include in so vitally

important a role one officer, who did not "see eye to eye"

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with the PBA, and be carried out by another who would not

even have been impacted by the potential layoffs.

Indeed, defendant's continued insistence that these

two officers were strongly motivated by political

considerations to target defendant cannot be squared with

the evidence which was actually before the lower court, and

which showed neither officer knew or really cared with whom

they were dealing up until the point when defendant

identified himself at the scene of his vehicle's stop. As

a 17-year member of Hamilton Township's police force,

Sergeant Gehring recognized defendant's name as that of a

member of the Township Committee. (2T208-18 to 2T209-9,

2T210-10 to 12). However, the sergeant did not know what

defendant looked like, where defendant worked, what type of

motor vehicle he drove, that defendant was deputy mayor, or

that defendant had suggested police department layoffs at

the Township Committee's January 18, 2011 meeting. (2T208

to 2T210-25, 2T215-4 to 21, 2T267-1 to 17). Sergeant

Gehring had not attended one Township Committee meeting

during the three years preceding defendant's trial, and the

veracity of all his testimony is perhaps borne out best by

his reactions at the scene of defendant's stop after

defendant informed him that he was Hamilton Township's

deputy mayor. (2T209-15 to 17, 2T278-1 to 2T280-5).

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Similarly, Officer Burns did not know defendant's

name, what defendant looked like, what defendant did for a

living, where defendant lived, or that defendant was

Hamilton Township's deputy mayor. (2T117-7 to 18, 2T194-5

to 19). The officer could specify only two Township

Committee meetings he had attended: one in 2008 or 2009,

at which he received an award for an arrest he made in

2008; and a second in February of 2011, after he learned

that he number of police officers targeted for layoffs had

increased to 13 and included him. (2T191-3 to 2T192-17,

2T194-20 to 21, 2T203-15 to 2T204-17). Officer Burns did

not attend the January 18, 2011 meeting during which the

initial round of eleven layoffs was suggested. (2T190-17 to

2T191-2). In fact, he was on duty, in uniform, from 3:30

p.m. until midnight on the date of the meeting and

performed three documented tasks during the time the

meeting would have been held. (4T6-15 to 4T8-9). Though

Hamilton Township's Mayor purported to recall Officer Burns

seated right before her in the front row of the audience

during the January 18 meeting, the mayor's much more

credible testimony actually concerned her encounter with

the officer at a local Wawa. (3T145-10 to 3T147-20). As

the mayor told it, Officer Burns declined her offer to buy

him coffee at the Wawa in appreciation for assistance the

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officer had rendered at the scene of a motor vehicle

accident in which the mayor was involved a few years

earlier. (3T147-10 to 3T148-13). The probity Office Burns

exhibited in turning down that offer simply would not have

been possessed by the kind of political infighter defendant

claims plotted and planned "to identify, stalk and seize"

him on the night in question. (Db30).

In short, defendant failed to show in the lower court

that either Sergeant Gehring or Officer Burns had any

proverbial "axe to grind" with defendant. Neither officer

knew or really cared with whom they were dealing on the

night in question prior to the point when defendant himself

informed them.

Moreover, these officers' answers to questions

regarding their various communications on the night in

question led the lower court to conclude that the two had

not conspired to target defendant, and they should lead

this Court to the same conclusion. The first communication

between the officers came roughly one hour after Sergeant

Gehring had requested a look up on the license plates to

defendant's vehicle and was initiated not by the sergeant,

but by Officer Burns. (2T36-19 to 25, 2T216-8 to 2T217-10,

2T243-9 to 2T244-11). The communication was by cell phone,

was also just one of three that Officer Burns made to other

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officers on duty between midnight and 1:26 a.m. on January

22, 2011, and was most tellingly terminated so Sergeant

Gehring could effect the stop of a vehicle for a traffic

offense. (2T36-6 to 2T37-17). Officer Burns made a second

call to the sergeant at 1:26 a.m. and resumed the

conversation about their families the two were having when

Sergeant Gehring interrupted it to stop a vehicle. (2T37-18

to 2T38-16, 2T246-24 to 2T248-22). By the time Officer

Burns made the second call to Sergeant Gehring, Officer

Burns had stopped a vehicle himself and had taken up a

position at the mouth to the driveway at 344 Old River

Road. (2T30-22 to 2T34-12, 4T15-10 to 17).

Though defendant proffers these calls and their timing

as proof positive of the two officers' plan to "lay in

wait" for defendant, the State maintains that what each

officer did between the calls fatally undermines any

supposition of a plan between them. This is to say that,

if the officers were just waiting for the moment when

defendant left Testa's, then it is inconceivable that

either of them would have jeopardized their alleged plan by

making a motor vehicle stop with the potential to occupy

him for the balance of his shift that night. If these

officers knew they had defendant almost within their grasp,

then it must be asked why either of them would run the risk

8

of allowing defendant to slip through their fingers while

the officer dealt with a motor vehicle stop far from a site

where defendant's movements could be monitored? Of course,

the obvious answer to this question is that the officers

did not know they had defendant almost within their grasp.

If they did, then neither would have taken the time needed

to stop a vehicle other than that of defendant during the

time when defendant's vehicle was at Testa's.

Finally, there was nothing incredible at all about

Officer Burns's account of how he came to situate his

patrol car on old River Road. As the officer explained it,

he had the discretion to decide where he would patrol on

the drunk driving detail, and he chose the area where he

first observed defendant because, three months earlier, the

area was targeted on account of speeders and young drivers

"burning out their tires in front of one specific house,"

and because Old River Road was a route commonly used by

intoxicated drivers coming from Testa's and trying to avoid

police on the main thoroughfare from Testa's, County Road

559. (2T15-12 to 2T17-23, 2T23-7 to 2T24-8). At some point

between 1:15 a.m. and 1:20 a.m., Officer Burns commenced

traveling down Old River Road, following a vehicle he could

not describe at trial for committing a motor vehicle

infraction he could not remember. (2T88-6 to 14, 2T93-22 to

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2T95-14; D-4). The officer simultaneously saw a black

pick-up truck operated by Raymond Blowers almost run a red

light at the intersection of Atlantic Avenue and 559 and,

within that same time frame, radioed that he was proceeding

on Old River Road and reported Blower's vehicle. Id. (3T7-7

to 3T13-9). Officer Burns failed to catch up to the

vehicle he tried to follow and so stationed his patrol car

in the driveway at 344 Old River Road. (2T33-15 to 2

T34-12). It was from this stationary position that Officer

Burns made his second call to Sergeant Gehring, at 1:26

a.m., resuming the conversation they had been having

earlier. (2T121-18 to 2T128-18).

The State contends that Officer Burns's radioed report

of Blowers's pick-up is significant because, far from

supporting defendant's allegation of a plot to snare him,

the timing of the call totally devastates the theory of any

such plot. This is to say that, if there were such a plot,

and if Officer Burns were, as defendant surmises, sitting

in the Luck 7 Gas Station lot, just awaiting defendant's

departure from Testa's, the officer still could not

possibly know at what time defendant would depart or what

route from Testa's defendant would take. Yet by 1:20 a.m.,

Officer Burns already reported that he was following a car

on Old River Road; and it was not until at least six

1 0

F. Smith ssistant County Prosecutor

c: Louis M. Barbone, Esquir

minutes later that he had his second phone conversation

with Sergeant Gehring lasting three minutes. (S-10; D-4).

It is virtually impossible to reconcile these

communications and their timing with any scenario of the

events at issue other than the one sketched by Officer

Burns's testimony.

In sum, the lower court had the opportunity to watch

and listen as all the witnesses testified below and, after

doing so, determined that the pertinent events of January

21 to 22, 2011 occurred in the way Sergeant Gehring and

Officer Burns testified they did. (5T11-9 to 5T16-7). The

State contends that this Court should make the same

determination not only because of the lower court's

detailed and persuasive credibility findings, but also

because, contrary to defendant's argument, the testimony of

the officers comports fully with "mere logic and common

sense." (5T4-24 to 5T11-8; Db 25). Defendant's suppression

motion accordingly must be denied by the Court.

Respectfully submitted,

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