On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Ind. No. 04-04-0727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Skillman and LeWinn.
On June 25, 2008, we filed an opinion reversing defendants' convictions for first-degree robbery and related offenses, and remanded these matters for a new trial. On August 20, 2008, defendant Lawrence Gay filed a motion seeking clarification of our opinion and direction regarding the issue of a motion to suppress that he had raised in a supplemental brief on appeal that had not been addressed in our opinion. Defendant Kenneth Gay has joined in the motion. We now grant the motion and file this supplemental opinion resolving this outstanding issue. Immediately prior to jury selection, Lawrence Gay made an oral motion to suppress a rubber mask seized by Freehold Police Officer Mark Denham in a search of both defendants' rooms at the Village Inn that occurred some eight months after the robberies.*fn1 This search was in connection with a narcotics investigation in Freehold that was unrelated to the robberies in Brick Township.
In Lawrence Gay's room, Denham found a rubber Stone Cold Steve Austin Halloween mask that he took as evidence. In Kenneth Gay's room, Denham found a silver gun, a bulletproof vest and another rubber mask; the officer took the vest and gun, but not the mask, as evidence.
The basis of defendant's suppression motion was that the affidavit supporting Denham's search warrant did not contain sufficient facts to justify the seizure of the rubber Halloween mask. Defendant argued:
I would carry the argument over that [the mask] is not an indicia of drug deals. Money, currency, body armor and guns would be. The mask wouldn't be. It was beyond the scope of the information for the affidavit. Beyond the scope of the search warrant. And in this case is vitally important. Because this piece of evidence, that mask which was photographed and put on the return warrant, will coincide with some of the testimony of the victims as to the type of mask involved. That's the limited piece of evidence that I'm seeking to exclude.
When pressed by the trial judge to cite legal support for this argument, counsel responded: "I don't have any law, Judge, to support that. I haven't looked up any law. No specific law." The prosecutor argued:
The two individuals seated here are known drug traffickers from prior convictions. They are in fact well known to the Freehold Police Department.
[W]hen they are looking for contraband, weapons[,] they come across masks. First of all, the masks are totally out of character. Secondly, the suspicion is that these gentlemen go up to north Jersey and use the masks to rip off other drug dealers. This is in their mind. They have a reasonable ...