A Superior Court judge has rejected a challenge made by the four defendants in regard to a detective's claims about surveillance videos capturing a license plate number Watch video
NEWARK -- At the start of the investigation into a fatal carjacking at The Mall at Short Hills, authorities in December 2013 obtained warrants for phone records showing communication between two of the four alleged killers in the days surrounding the incident.
Those warrants were based in part on a detective's claim in affidavits that surveillance video footage from the mall captured a vehicle with a specific license plate number that had been used by one of the suspects.
That license plate, however, is not visible in the videos.
Given that discrepancy, the four defendants - Karif Ford, Basim Henry, Hanif Thompson and Kevin Roberts - argued the phone records should be inadmissible at their trial, because the affidavits contained the false statement that the license plate could be seen in the video footage.
But in a Nov. 20 written decision, Superior Court Judge Michael L. Ravin denied the defendants' motion to suppress the records.
Ravin found the language in the affidavits was consistent with the state's assertion that the license plate number was provided by a confidential informant.
The judge's decision states that a "literal reading" of the statement in question "does not imply that the license plate number was visible in the surveillance video."
"Rather, it is consistent with the implication that the license plate number could have been discovered from other sources, which is the State's claim, and that the license plate number was included in the affidavits for descriptive purposes," according to the decision.
The judge also indicated there was other evidence that established probable cause for the warrants.
MORE: Short Hills mall carjacking informant's ID to remain secret
Henry, 34, of South Orange, Thompson, 31, of Irvington, and Ford, 33, and Roberts, 37, both of Newark, are each facing murder, felony murder, carjacking and weapons charges in connection with the Dec. 15, 2013 fatal shooting of 30-year-old Hoboken attorney Dustin Friedland at the upscale mall in Millburn.
The four men are accused of arriving at the mall in a GMC Suburban and carjacking Friedland's Range Rover in a parking deck at the mall.
Friedland's widow, Jamie Schare Friedland - who also was present at the time of the incident, but was not injured - is pursuing a lawsuit against the mall's owners and other defendants in regard to the killing.
Among the evidence in the criminal case, Ford made a statement to police in which he admitted that he and his three co-defendants were involved in the fatal carjacking, court documents state.
The motion to suppress the phone records was initially filed in September by Thompson's attorneys, and the other three defendants later joined in the motion. The motion challenged the admissibility of the phone records connected to Henry and Thompson.
The phone records allegedly involve communications among the defendants related to the carjacking and the records also involve the location information of the defendants when the incident occurred, according to a Sept. 28 brief filed by Thompson's attorneys.
Dustin Friedland and his wife, Jamie Schare Friedland. She is pursuing a lawsuit over the Dec. 15, 2013 fatal shooting of her husband at The Mall at Short Hills. (Facebook) In affidavits to support the warrants for the phone records, Detective Miranda Mathis of the Essex County Prosecutor's Office wrote that surveillance video footage from the mall captured a GMC Suburban bearing the license plate number and speeding out of the parking deck, followed by the carjacked Range Rover.
The affidavits indicate an informant provided the license plate number, identified the female owner of the vehicle and said Henry was the primary operator of the vehicle. The owner was the significant other of Henry's mother, court documents state.
One set of warrants granted access to two phone numbers registered to the vehicle owner, court documents state. One of those numbers was allegedly Henry's cell phone number, court documents state.
Authorities later determined Henry's number had "101 contacts" with a number allegedly belonging to Thompson in the days after the carjacking, court documents state. That number was activated on the morning after the homicide, court documents state.
Detectives then found a second number that had allegedly belonged to Thompson and that also had "79 contacts" with Henry's number between Dec. 11, 2013 and Dec. 16, 2013, court documents state.
The specific nature of the contacts is not outlined in the court documents.
The detective included the claim regarding the surveillance video footage and the license plate number in the affidavits for the phone numbers connected to Henry and at least one of Thompson's numbers, court documents state.
In court documents filed as part of their motion, Thompson's attorneys argued that, without that false statement, there would have been no finding of probable cause to support the warrants.
The attorneys' brief asserts that, without that statement, there would have been no probable cause established "as there was nothing observed on the surveillance videos that linked Basim Henry to the GMC Suburban."
The brief notes that the informant, who provided information on the vehicle, "said nothing about Basim Henry being involved in the murder of (Dustin) Friedland so this statement by itself does not establish probable cause."
Since the records for Henry's number were "illegally obtained," the attorneys claimed the judge should not consider the information obtained from those records to determine whether there was probable cause to obtain the phone records allegedly connected to Thompson, the brief states.
"Furthermore, defense counsel has been unable (to) find any case law where merely having telephonic contacts with someone who is implicated in a crime has been found sufficient to establish probable cause for issuance of a warrant," the brief states, adding that another informant's alleged tip about Thompson was "insufficient to establish probable cause."
But in a Nov. 6 brief, prosecutors claimed that, even if that statement is set aside, the affidavits sufficiently established probable cause, given the other evidence in the case.
Prosecutors noted how police verified the informant's information about the vehicle by confirming it was registered to the vehicle owner and then locating it at the woman's residence, according to the brief. That informant also said Henry and a person named "Sniff" may be involved in criminal activity, the brief states.
As for Thompson's alleged phone numbers, prosecutors noted the contacts with Henry's number and the fact that a second informant had said one of Thompson's numbers belonged to a person named "Niff" who was involved in the homicide, the brief states.
"Clearly based on the numerous contacts, pre- and post-murder, over different phones, and the two separate informants, there was more than enough probable cause to justify the issuance of the warrants for Thompson's phones," the brief states.
Bill Wichert may be reached at bwichert@njadvancemedia.com. Follow him on Twitter @BillWichertNJ. Find NJ.com on Facebook.