Opinion
DOCKET NO. A-1323-15T1
06-17-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. CAIRE EVANS, Defendant-Respondent.
Sean F. Dalton, Gloucester County Prosecutor, attorney for appellant (Michelle R. Jeneby, Assistant Prosecutor, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 15-05-0375. Sean F. Dalton, Gloucester County Prosecutor, attorney for appellant (Michelle R. Jeneby, Assistant Prosecutor, on the brief). Respondent has not filed a brief. PER CURIAM
On leave granted, the State appeals from a portion of an October 13, 2015 order granting defendant's motion filed in his criminal prosecution to suppress a handgun seized during a search authorized by a warrant issued under section 28(j) of the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse.
I.
The facts were developed at a one-day evidentiary hearing, during which the State presented testimony from four Washington Township police officers and defendant elected not to testify and did not call any witnesses.
On March 15, 2015, S.M. sought and obtained a temporary restraining order (TRO) against defendant under the PDVA. The domestic violence complaint alleged:
We use initials to protect privacy interests. See R. 1:38-3(c).
The plaintiff has been receiving on going text messages from the defendant stating the following: "You gonna make me shot ya dumbass one day" "for something happens to you that can't be reversed[.]" Plaintiff also stated the defendant always carries a gun.The municipal judge who issued the TRO and complaint, also issued a warrant for the search and seizure of any weapons, including any "handgun," found at the two residences S.M. identified defendant used.
On March 16, 2015, three police officers went to the residence located in Washington Township to serve the TRO and execute the search warrant. When the officers knocked on the door, defendant answered and he was served with the TRO. Defendant was then informed that the residence would be searched. The police then entered the apartment, which was rented to J.C., the mother of defendant's daughter.
Inside the apartment, the police found what appeared to be marijuana, various pills and drug paraphernalia. An officer testified that these items were found in several rooms in the apartment in plain view. An officer also opened a tote box and found a 9mm Taurus handgun, a magazine containing hollow point bullets, and a bullet-proof vest. The police then arrested and informed defendant of his Miranda rights and asked for consent to search the entire apartment and "any and all contents within" the rooms. Defendant signed a written consent to search form, on which he acknowledged that he understood that he could refuse to consent, he was consenting of his own free will, no threats or promises had been made, he could stop the search at any time and anything found could be used as evidence against him. J.C. also signed a consent to search form. Defendant then stated that anything found would belong to him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In further searches, the police found suspected cocaine, Oxycodone pills, more suspected marijuana, digital scales, latex gloves and plastic bags commonly used to package and distribute narcotics. The police seized all the items found during their searches, including the handgun.
Defendant was then taken into custody, and a criminal background check was run using the National Crime Information Center (NCIC) database. The NCIC check revealed that defendant had previously been convicted of an indictable offense. Thereafter, defendant was indicted for (1) third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); (2) third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5(b)(3); (3) fourth-degree possession of an unlawful device, to wit: hollow point bullets, N.J.S.A. 2C:39-3(f); and (4) second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a).
Defendant moved to suppress all the evidence seized from the apartment. After considering all of the testimony and evidence submitted at the hearing, the motion judge granted the motion in part and denied it in part. Specifically, the judge suppressed the handgun and ruled that all the other evidence would not be suppressed. In making that ruling, the judge did not make credibility findings. Instead, the judge appeared to accept the testimony of the police officers, and made a determination that the handgun could not be used in defendant's criminal prosecution because it had been seized pursuant to a warrant issued under the PDVA. In that regard, the judge cited State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003), and reasoned that a handgun could be seized to prevent any harm to the domestic violence victim, but the gun could not be used as evidence in a criminal prosecution. The motion judge also distinguished, without expressly naming, State v. Harris, 211 N.J. 566 (2012). Concerning Harris, the judge reasoned that that case was inapplicable because in this case it was not clear to the police at the time they seized the handgun that defendant was a convicted criminal who could not possess a weapon. The police only came to learn of defendant's criminal record after he was arrested. Consequently, the motion judge reasoned that the facts in Harris were distinguishable and the handgun should be suppressed.
In addition to the testimony from the four police officers, the State also submitted as evidence the two consent forms signed by defendant and J.C., and photographs of all the evidence seized.
The order entered by the judge states: "Defendant's motion to suppress evidence is granted as to the firearm seized only. Defendant's motion to suppress evidence is denied as to all other evidence seized at [the] time of the search." In the oral decision placed on the record, however, the judge stated that the bullet-proof vest was also being suppressed because it was not illegal to possess one. --------
II.
On appeal, the State argues that the motion judge erred in her legal interpretation of the law as explained by our Supreme Court in State v. Harris. We agree.
This appeal presents the application of the law to undisputed facts. Accordingly, we apply a de novo standard of review. State v. Gamble, 218 N.J. 412, 426 (2014). In contrast, when a trial judge makes findings of facts on a motion to suppress, an appellate court accords deference to those findings. State v. Dunbar, 434 N.J. Super. 522, 526 (App. Div. 2014). While the motion judge made findings concerning certain facts, those facts are not in dispute. More significantly, the State is challenging the motion judge's application of those undisputed facts to the law.
The issue on this appeal is whether a handgun seized from defendant's possession during a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28(j) can be admitted in a subsequent criminal prosecution of defendant as a certain person not to possess a weapon. The answer to that question is controlled by the Court's analysis and ultimate ruling in Harris.
In Harris, the Supreme Court held that "weapons recovered from a defendant's premises during a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28(j) may be admitted in a subsequent criminal prosecution of defendant for possession of those weapons." Harris, supra, 211 N.J. at 571, 589-90. As in this case, Harris involved the execution of a search warrant issued after a TRO was entered and pursuant to N.J.S.A. 2C:25-28(j) of the PDVA. Id. at 571. The Supreme Court explained that evidence seized under a domestic violence search warrant was not per se inadmissible in a subsequent criminal prosecution. Instead, the Court explained if the domestic violence search warrant was properly executed, the illegal nature of the seized evidence was "immediately apparent," and there was "no further invasion of a protectable privacy interest," then the evidence was admissible in the subsequent criminal prosecution. Id. at 587.
The defendant in Harris was indicted for, among other crimes, possession of a stolen firearm. Id. at 571. When the firearm was initially seized, it was not apparent that the firearm had been stolen. Id. at 587. Instead, the police discovered that the firearm had been stolen when they later ran a check using the NCIC Gun File database. Id. at 588. The Court held that the NCIC check was not a further search that invaded the defendant's reasonable privacy expectations. Id. at 589. The Court explained that because the serial numbers on the firearm could be seen simply by looking at the firearm, the entry of the serial numbers into the NCIC database was not a constitutionally protected search. Ibid. Specifically, the Court explained:
As we view the matter, resolution of defendant's challenge turns on whether the illegal nature of the weapons was immediately apparent. That, in turn, depends on whether the police, in checking the serial numbers of the weapons, conducted a further search, beyond that authorized by the domestic violence search warrant.
. . . .
Here, by contrast, the serial number of a firearm is visible simply by looking at the weapon; there is no need to disassemble any portion of it to learn its serial number. Recording that number, pursuant to [Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)], did not constitute a seizure.
. . . .
Indeed, this Court has recognized that "the NCIC database is comprised of matters of public record" and that, as a result, "an NCIC check is not a search under the federal or state constitutions."
[Id. at 580, 589 (quoting State v. Sloane, 193 N.J. 423, 436 (2008)).]
In granting the motion to suppress the handgun in this case, the motion judge focused exclusively on the immediacy language found in Harris. As a consequence, the judge held that because the police did not know defendant was a convicted criminal when they seized the handgun, the illegal possession of the handgun by defendant at the time was not immediately apparent. The motion judge, however, incorrectly ignored the Supreme Court explanation in Harris of what it means by immediately apparent. In particular, the motion judge ignored the Court's teaching that if there is no further illegal search, the lawful seizure of a weapon pursuant to a warrant issued under the PDVA can be used in a subsequent criminal prosecution.
Here, the police conducted no further search to learn that defendant was a convicted felon. Instead, after the handgun had been lawfully seized, the police ran a criminal background check of defendant using the NCIC database. That check revealed that defendant had prior criminal convictions that made it illegal for him to possess a weapon. As was the case in Harris, this NCIC check was not a further search as to which defendant had any expectation of privacy. Instead, the police lawfully checked defendant's criminal history and the information they learned, coupled with the lawful seizure of the handgun, disclosed information establishing defendant's alleged criminal possession of that weapon.
Moreover, like in Harris, the facts in this case do not show that there was any improper conduct in the execution of the PDVA warrant. Consequently, we do not have a situation where the domestic violence search was being "used as a bootstrap mechanism to obtain evidence to sustain issuance of a criminal search warrant." Id. at 586 (quoting State v. Dispoto, 189 N.J. 108, 123 (2007)). In short, applying the Court's holding in Harris, we reverse the decision to suppress the handgun seized by the police officers during a search authorized by a warrant issued under N.J.S.A. 25-28(j) of the PDVA.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION