Opinion
DOCKET NO. A-1593-10T4
2013-09-16
STATE OF NEW JERSEY, Plaintiff-Appellant, v. CARMELO PEREZ, Defendant-Respondent
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Gina Giordano, Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-08-1467.
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Gina Giordano, Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
The opinion of the court was delivered by FUENTES, P.J.A.D.
Defendant Carmelo Perez pleaded guilty to second degree possession of a firearm by a person previously convicted of one of the crimes enumerated in N.J.S.A. 2C:39-7(b), expressly reserving his right to seek appellate review of the trial court's decision to deny his motion to suppress evidence pursuant to Rule 3:5-7(d). Prior to sentencing, the court reversed its earlier ruling and granted defendant's motion to suppress a firearm seized by the police at defendant's residence at the time of his arrest.
Defendant was previously convicted of distribution or possession with intent to distribute a controlled dangerous substance within 1,000 feet of a school, in violation of N.J.S.A. 2C:35-7.
Consequently, the court vacated defendant's guilty plea. In reaching this result, the motion judge inexplicably rejected his prior factual findings justifying the seizure of the weapon under the plain view doctrine. The judge found the limited warrantless search of defendant's residence, conducted by the police officers who responded to a 9-1-1 call alleging domestic violence with a firearm, exceeded the scope of permissible conduct by the police sanctioned by our Supreme Court in State v. Davila, 203 N.J. 97 (2010).
By leave granted, the State appeals arguing that the trial judge misapplied the Court's holding in Davila because, under these circumstances, the police officers were legally justified in conducting a limited warrantless search of defendant's residence and seizing the weapon found therein pursuant to N.J.S.A. 2C:21-25d. We agree and reverse. The record shows that the police officers had both probable cause and exigent circumstances to conduct a limited warrantless search of defendant's apartment to locate and seize a shotgun that had been allegedly used by defendant to commit an act of domestic violence against his wife. The actions taken by the police here are expressly authorized under the Prevention of Domestic Violence Act. State v. Cassidy, 179 N.J. 150, 163-64 (2004); N.J.S.A. 2C:25-21d.
We also hold that the motion judge violated his obligation under Rule 1:7-4(a) and (b), when he failed to provide any explanation for his decision to reject material factual findings he had made ten months earlier in support of his first ruling denying defendant's motion to suppress. We therefore reinstate the trial court's original order upholding the validity of the limited warrantless search of defendant's residence conducted by the responding officers as authorized under N.J.S.A. 2C:25-21d and approved by the Court in Cassidy, as well as the seizure of the shotgun allegedly used by defendant to commit an act of domestic violence against his wife.
I
At approximately 10:28 p.m. on May 22, 2009, Union City Police Officer Corey Corbo responded to a 9-1-1 call of "domestic [violence] involving a gun." Because the caller specifically mentioned a firearm, Corbo testified that upon arriving at the address indicated by the 9-1-1 dispatcher "we entered [the building] tactically." According to Corbo, when defendant opened the door of the apartment identified by the 9-1-1 caller, "[w]e at gunpoint, . . . had him get down to the ground. He was handcuffed."
Because Corbo used the pronoun "we" to describe his activities, we infer he was accompanied by at least one other police officer. We note, however, that Corbo did not definitively state how many police officers initially responded to the 9-1-1 call.
We further infer that in using the word "tactically," Corbo meant that he and his fellow officers proceeded cautiously, with their weapons drawn.
Corbo then "sat [defendant] down on the sofa" and proceeded to talk to the other people in the apartment to investigate what prompted the 9-1-1 call. The first person Corbo spoke to was a woman whom the officer described as defendant's wife. Corbo described her demeanor as "visibly upset;" she also denied that anything untoward had occurred. A young boy, identified as defendant's son "Jeffrey," was also in the apartment. Corbo testified that Jeffrey was "visibly upset. Crying, shaking. Obviously upset."
The name is fictitious to protect the child's privacy.
Corbo also discovered a second child "in the shower" at the time he entered defendant's apartment. Corbo described this child as defendant's "youngest son." Although he did not recall the child's name, Corbo testified that the boy "came out in the middle of the investigation." The only other reference to this child in the record is found in defendant's testimony. We will describe the role this child played in the case when we summarize defendant's testimony.
Given Jeffrey's emotional state, Corbo initially focused his concern on this child. He asked Jeffrey "if everything was okay, if there was anything we could do." Noticing the child's hesitancy to respond, Corbo said:
I asked him if he was the person that call [sic] 911. And he stated that he did. And I asked him if - - if he saw a gun. And he proceeded to tell me that his parents were having a heated argument in Spanish. He understands some Spanish, but not . . . the details, but it was an obvious heated argument.
And when his mother mentioned that she was going to call the police, [Jeffrey] stated Mr. Perez walked into the bedroom, then
walked out of the bedroom holding a shotgun pumping it repeatedly screaming, "Call the police!_Call the police!" (Emphasis added).
By this time, other officers had arrived and were inside defendant's apartment. Among the newly arrived officers was Union City Police Detective Ruben Rodriguez. According to Corbo, after Rodriguez heard Jeffrey say that defendant had come out of the bedroom holding a shotgun and threatening his mother, Rodriguez immediately went inside the bedroom while Corbo took Jeffrey to another area of the apartment. Rodriguez soon came out of the bedroom holding a sawed-off shotgun.
Rodriguez's account of the events that led him to locate and seize the shotgun is not entirely consistent with Corbo's testimony. Rodriguez agreed, however, with Corbo's description of the demeanor of defendant's wife. Rodriguez described her as uncooperative.
She wasn't answering any of our questions. Then I proceeded to the bedroom where Officer Corbo was speaking to a child in the bedroom. The child was very upset, crying, talking to Officer Corbo. And in the midst of that, the child mentioned that the father had pointed a shotgun at the mother.
. . . .
After I spoke to the child and he mentioned that his father had pointed a shotgun at the mother, I exited the bedroom and I proceeded to Mr. Perez who was sitting on the sofa in the living room handcuffed. I advised him
of his Miranda rights, and I asked him did - - is there a gun inside the apartment. Your child is saying that you pointed a gun at the mother.
. . . .
Q. And what, if anything, did he say in response to that?
A. He was very irate in the beginning. He kept on cursing. He didn't want to cooperate. I believe it's because he heard - - he must have heard his child crying. I'm not sure of that. However, he just then admitted. He said, "Yeah. The damn gun is inside the - - ceiling."
Q. And upon receiving that information from Mr. Perez, what did you - - what, if anything, did you do next?
A. We proceeded into the bedroom and we looked up to the ceiling. And it was a drop ceiling, and we saw one of the panels shifted with partial space and we saw the barrel - - not the barrel. I'm sorry. The stock of the shotgun emanating from the ceiling.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant testified in his own defense at the suppression hearing. His account of events corroborated in part and disputed in part the version given by the State's witnesses. Defendant admitted that he and his wife were arguing in Spanish. Although defendant described in detail what prompted the argument, the substance of the dispute is not relevant to this appeal. Defendant admitted that in the course of the argument he "got upset," and went inside his bedroom to retrieve a shotgun he kept "under the bed." He then "came out of the room" holding the weapon and told his wife: "Call him, call him." According to defendant, he was referring to his brother-in-law who defendant claimed was the cause of the argument with his wife because this man owed him money.
Defendant denied he pointed the shotgun at anyone. He continued to argue with his wife in Spanish when he "noticed that my biggest son, [Jeffrey], he stepped out of the computer, [sic] and he went and locked himself in the room." According to defendant, his youngest son, who at this point had been watching television from the couch, approached his mother and told him: "Daddy, I don't like you right now;" his wife screamed at defendant: "Are you crazy?" At this point, defendant testified:
I just turn around, went back to my room, closed the door. I climb on my bed. I put the shotgun in the ceiling. I cover back the ceiling. I step off my bed. I take all my clothes off.
Despite the obvious grammatical errors, we have opted to quote defendant's testimony without alteration in the interest of clarity.
In response to further questioning by his attorney, defendant insisted that he took great care to conceal the shotgun in his bedroom's tile ceiling. He left every ceiling tile in its proper place, and did not leave any part of the weapon exposed or visible in any way. As part of his direct testimony, defendant admitted that he lied to the police when they first asked if he had a firearm in the apartment. He only admitted to having possessed the weapon after he saw the shotgun on top of the bed in his bedroom.
Against this record, the motion judge wrote a memorandum of opinion dated January 4, 2010, upholding the propriety of the officer's conduct and the legality of the search and seizure of the weapon. As a matter of credibility, the judge made the following factual findings in support of his ruling:
While [Officer Corbo was] speaking with the defendant's son, the son indicated that he had called 9-1-1 because he had witnessed his father with a shotgun during an argument between the defendant and the defendant's wife. In light of the report of a firearm in the residence, the police officers secured the residence to ensure their safety while awaiting a search warrant for the residence. In the process of securing the residence, the officers entered a bedroom and observed a partially removed ceiling tile and observed the handle of a gun through the opening in the ceiling. The officers then completely removed the ceiling tile and secured a sawed-off 12 gauge shotgun and ten Remington slugs.
After acknowledging that a warrantless search of a home is presumptively unconstitutional and invalid, State v. Wilson, 178 N.J. 7, 12 (2003), the motion judge noted that the police officers here were confronted with exigent circumstances warranting an immediate, albeit limited, search of the home to ensure their safety and the safety of the residents, who in this case included minor children. The judge explicitly found that the police officers, who responded to the 9-1-1 call of domestic violence involving a firearm, discovered the weapon when one of the officers saw the handle of the shotgun protruding from the bedroom's tile ceiling. Based on this finding, the judge invoked the "plain view" doctrine to conclude that the search and seizure of the shotgun and ammunition were proper. As the judge explained:
The plain view doctrine allows an officer to seize an item that falls within the officer's sight when (1) the officer is legally in a position to view the item; (2) the discovery of the evidence is inadvertent; and (3) the officer has probable cause to associate the item with criminal activity. State v. Bruzzese, 94 N.J. 210, 236-37 (1983); State v. Padilla, 321 N.J. Super. 96, 109-110 (App. Div. 1999); State v. Damplis, 282 N.J. Super. 471, 477-78 (App. Div. 1995).
Addressing each of the elements of the plain view doctrine, the motion judge found: (1) Detective Rodriguez was legally in defendant's bedroom when, (2) he "inadvertently discovered that the ceiling tile had been partially removed and that removal had exposed the handle of a firearm to the officer's sight," and (3) defendant's own testimony linked the shotgun with an act of domestic violence. The judge thus upheld the validity of the search based on both exigent circumstances and the plain view doctrine. After the court made this ruling, defendant decided to plead guilty to count five of Indictment 09-08-1476, charging him with violating N.J.S.A. 2C:39-7(b), conditioned upon the right to seek appellate review of the motion judge's ruling under Rule 3:5-7(d). Although the appellate record does not include a transcript of the plea hearing, the State does not dispute the conditional nature of defendant's decision to plead guilty.
On October 15, 2010, ten months after issuing his written decision denying defendant's motion to suppress, the same judge granted defendant's "application" for reconsideration, and vacated defendant's guilty plea to second degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7(b). We use the term "application" to distinguish it from a formal motion for reconsideration. As noted by the assistant prosecutor at the start of the October 15, 2010 hearing, "[Defense] [c]ounsel and I spoke earlier in the morning session, and I don't know that we're even on a consensus as to where we are procedurally." The judge responded that "the defense [had] submitted further legal argument as to why the search was illegal."
After summarizing some of the preliminary events that prompted the police to respond to defendant's residence, the judge cited the Supreme Court decision in Davila, supra, which the Court had released for publication two months earlier on July 14, 2010, and stated:
So, the bottom line is this: I don't believe the police that Mr. Perez told them the gun was in the bedroom, nor do I believe it was in plain view. I know it was in the bedroom, and that they went in and got it because the kid told them that's where it was. But, you know, their testimony is so dancing around what they perceive to be their obligation, it's clearly not credible.
The kid told them the gun was in there, and they went to get it. Let's take it from this point - - from that point forward. Once they know they have absolute probable cause to be in the home, they have absolute probable cause to search the bedroom.
. . . .
But . . . once they have the probable cause and they're inside the home, they are not yet in the bedroom. Under the law before Davila, they could do [a] protective sweep. And if it was plain view and they find it, then this [is] over. But after my decision, Davila comes out. It says you can't do a protective sweep unless you have good cause to believe that someone's in the house hiding that can harm you. So, that changes my opinion on that.
So, right now the issue is was there exigent circumstances to go into the bedroom. That is the issue. That is the exact issue . . . with those facts that I found. All right. The defense is going to argue there weren't,
pick up the phone and get a warrant to go into the bedroom. The State is saying they're exigent.
. . . .
But, I mean what makes this case law unique is because between the time of sentence and a time of plea and hearing is Davila came out in the middle.
I can't see - - I think there was no exigent circumstances not to get a warrant to go in the bedroom. And I'll be honest with you, I looked. I really looked hard. I even went so far as to - - grasping at straws, I went so far as to look at the Domestic Violence Act wherein you're allowed to look for weapons if you're on a DV call. But even in that case that didn't apply here either because there was a warrant requirement[.] (Emphasis added).
Later in the colloquy with counsel, the judge specifically identifies Cassidy, supra, as the case he found inapplicable under these facts.
After reiterating his belief that the police officers had probable cause to seize the shotgun, the judge concluded the search was invalid because the police were obligated to secure a telephonic warrant. The judge suppressed the weapon and vacated defendant's guilty plea to N.J.S.A. 2C:39-7. He thereafter informed the State it was free to go forward with the case based only on the testimony of the witnesses who claimed to have seen defendant point a shotgun at his wife.
II
We are compelled to start our analysis by noting the motion judge's inexplicable rejection of the findings of fact he made after the evidentiary hearing and thereafter unambiguously memorialized in his letter-opinion dated January 4, 2010. In his first ruling, the judge found credible the testimony of the police officers who responded to the 9-1-1 emergency call. The judge found credible Officer Corbo's testimony that Jeffrey told him that he witnessed his father point a shotgun at his mother in the midst of an emotionally heated verbal dispute in Spanish. Although the child did not understand the root causes of his parents' dispute, he clearly described an extremely serious act of domestic violence perpetrated by his armed and angry father against his emotionally upset mother.
Defendant's violence also directly affected both of his minor children, as defendant himself admitted when he testified that his youngest boy told him: "Daddy, I don't like you right now." The motion judge found the record supported the account of events Jeffrey described to Officer Corbo. The judge particularly noted Corbo's testimony describing the child as visibly distraught and in a highly vulnerable emotional state.
The motion judge cited the Court's holding in Davila as the main reason for his decision to reject his prior carefully- written factual findings. The judge's reliance on Davila is not only legally incorrect but most importantly fails to provide a plausible justification for rejecting testimonial evidence he previously found credible. We will start our discussion of these issues by explaining the inapplicability of the Court's holding in Davila.
In Davila, our Supreme Court granted certification to address certain questions left unanswered by the United States Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). 203 N.J. at 101. Specifically, in Buie, "the United States Supreme Court recognized that law enforcement officers must be able to conduct, when necessary for safety's sake, a 'quick and limited search' of a dwelling incident to an arrest, and authorized a 'protective sweep' exception to the Fourth Amendment's warrant requirement." Ibid. (citing Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281.)
Our Supreme Court in Davila was asked to consider, for the first time, whether the legal principles expressed by the United States Supreme Court in Buie applied "in a non-arrest setting in which entry was based on consent." 203 N.J. at 101. The Davila Court framed the issue as follows:
[O]nce the investigating officers' door knock was answered and an apartment occupant
consented to speak to the officers, [are] the officers . . . entitled to conduct a protective sweep of the entire apartment because the crime under investigation involved a double murder and the officers at the doorway thought that they might find perpetrators of the murders in the apartment[?]
[Ibid.]
In determining the proper response to this constitutional query, the Court also considered "the State's admission that the officers knew when they went to the apartment that they lacked both probable cause to arrest and probable cause to search the premises." Ibid. (Emphasis added).
Writing for a unanimous Court, Justice LaVecchia answered the question thusly:
A protective sweep may only occur when (1) police officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is conducted quickly; and (2) it is restricted to places or areas where the person posing a danger could hide. Importantly, when an arrest is not the basis for officer entry, the legitimacy of the police presence must be carefully examined as well as the asserted reasons for the protective sweep. Enhanced precautions are necessary to stem the possibility that a protective sweep is nothing more than an unconstitutional warrantless search. The police cannot create the danger that becomes
the basis for a protective sweep, but rather must be able to point to dangerous circumstances that developed once the officers were at the scene. Where police are present in a home in a non-arrest context, there is too great a potential for the pretextual use of a protective sweep to turn an important tool for officer safety into an opportunity for an impermissible law enforcement raid.
[Id. at 102-03.]
As this passage clearly shows, the Court's holding in Davila is not relevant to legal issues raised in this case, or in any way explains or justifies the motion judge's decision to reevaluate the credibility of the State's witnesses. In fact, contrary to the explicit requirements of Rule 1:7-4, the judge did not cite to any evidence or offer any rationale to clarify or explain his vexing decision to reverse his previously clearly articulated factual findings.
We acknowledge that a judge who sits as a trier of fact has the prerogative to change his or her mind with respect to assessing the credibility of a witness. Upon further reflection, the judge may find he or she overlooked certain inconsistencies in the prior testimony. The judge can also review again the audio, visual, and/or written record of the witness's testimony and find previously unnoticed indicia of a lack of candor by the witness. Finally, the parties may bring new evidence to the judge's attention that may trigger a reevaluation of a witness's testimony.
Having said this, we do not suggest or imply that this list of possible explanations exhausts the myriad of plausible scenarios that may arise to explain a judge's reassessment of a witness's credibility. However, when a judge decides to set aside his or her legal ruling based on a reassessment of the credibility of a material part of a witness's testimony, the judge has an obligation to the litigants and to a potential reviewing court to explain in detail the basis supporting such a reassessment. R. 1:7-4(b). Absent a cogent explanation, such a reassessment cannot stand.
Here, the motion judge originally took the time and effort to write a letter-opinion explaining the factual and legal basis supporting his first decision to deny defendant's motion to suppress the shotgun. Ten months later, the same judge announced from the bench his decision to reverse himself, ostensibly based on a change in the law reflected by the Supreme Court's decision in Davila. This time, instead of delivering his decision in a letter-opinion, the judge decided to explain his ruling as part of a colloquy with counsel. This informal oral format at times drifted into disjointed passages, (as impromptu oral exchanges have the tendency to do), making the appellate review process considerably more difficult. What is clear from this record, however, is that the judge did not make any attempt to explain his rejection of his January 4, 2010 factual findings.
What followed from this obscurity, however, was not unexpected. Having discredited the factual basis upon which his previous legal reasoning rested, the judge rejected the plain view doctrine as legal justification for the police officer's conduct. Under these circumstances, we are compelled to repudiate this entire process and declare its ultimate outcome legally unsustainable.
Our standard of review of a motion judge's findings in a suppression hearing is well-settled.
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review.
[State v. Rockford, 213 N.J. 424, 440 (2013) (Internal citations omitted).]
Here, the record is devoid of any plausible explanation or support for the motion judge's reevaluation of his earlier ruling. We are thus not bound by the legal conclusions that led the judge to erroneously suppress the shotgun found in defendant's apartment and seized by the police officer who responded to the 9-1-1 call. We are satisfied that the record supports that the responding police officers had probable cause to believe that an act of domestic violence had been committed. The record also shows that the officers had sufficient grounds to reasonably believe that a weapon was present on the premises.
Returning our attention to the salient facts as originally found by the judge in his January 4, 2010 letter-opinion, we are satisfied that Detective Rodriguez had probable cause to conclude that defendant's shotgun was concealed in the tile ceiling of his bedroom. Jeffrey's account of the events that led him to call 9-1-1 unquestionably gave the responding police officers probable cause to believe defendant used this shotgun to menace or harass his wife, while in the presence of his children.
In Cassidy, the Court addressed whether weapons seized pursuant to a search conducted under an invalid ex parte temporary restraining order (TRO) issued under the Prevention of Domestic Violence Act can be used against the defendant in a subsequent criminal prosecution. 179 N.J. at 153. The TRO was invalid because it was based on un-sworn ex parte telephonic testimony in violation of N.J.S.A. 2C:25-28h and Rule 5:7A(b). See also State v. Valencia, 93 N.J. 126, 139 (1983).
The complaining witness in Cassidy alleged the defendant had physically assaulted her one month before she filed her domestic violence complaint. Cassidy, supra, 179 N.J. at 154. After taking her statement, a police officer "telephoned the municipal court judge to seek a TRO on an ex parte basis." Id. at 155. Although the judge spoke to both the police officer and the complaining witness, "the judge did not swear-in either individual nor did he administer an oath to either." Ibid. After conducting these indisputably procedurally defective telephonic proceedings, the judge issued a TRO and authorized the police to execute it "that night between 12:00 p.m. and 1:00 a.m." Ibid. The TRO also authorized and directed the police to seize all weapons found on the defendant's possession. Ibid.
After obtaining additional assistance from a neighboring police department, the police officers arrived at the defendant's residence at approximately 12:50 a.m. Ibid. The defendant's father answered the door. Ibid. The officers explained to this gentleman that a domestic violence TRO had been issued against his son restraining him from having any contacts with the complaining witness. The officers also told him "that they were required to seize [the] defendant's weapons." Id. at 156.
After the defendant was awakened from his bed,
[the] defendant spoke with the officers and allowed them to follow him to a backroom where he kept a safe. Thirty-five firearms were retrieved from the safe. The officers also observed several large magazines in the safe, but did not seize them. They explained that they believed that the requirements of the TRO would be satisfied by removal of the weapons. The officers also searched under [the] defendant's bed and inside a footlocker, but neither location yielded any weapons. The next day, at [the police officer's] request, [the] defendant agreed to turn over the magazines not taken the previous night.
[Ibid.]
Against these facts, the Court in Cassidy granted the defendant's motion to suppress. In so doing, the Court took great care to distinguish the salient facts in Cassidy, from situations where
removal of weapons will be necessary to protect a victim. When an officer has "probable cause" to believe an act of domestic violence has been committed, the officer may "question persons present to determine whether there are weapons on the premises" and seize any weapon that the officer reasonably believes would expose the victim to harm. N.J.S.A. 2C:25-21d (emphasis in original). That language appears to contemplate that the questioning and removal of weapons will occur in the context of a response to the scene of an ongoing, or recent, act of domestic
violence. Hence it would be more akin to the "live" emergency with which the police were confronted in Scott, supra. In this case there was no live emergency.
[Id. at 163-64. (Emphasis added.]
State v. Scott, 231 N.J. Super. 258, 275 (App. Div. 1989) (Ashbey, J.A.D., concurring and dissenting), rev'd on dissent, 118 N.J. 406 (1990). In Scott, Judge Ashbey dissented, arguing that the emergency aid exception applied in a situation where the victim called the police to remove the defendant pursuant to a restraining order. Judge Ashbey believed the victim's statements that she feared for the immediate safety of herself and her one-year-old child, coupled with the responding police officer's personal knowledge of the defendant's mental instability, were sufficient to trigger the emergency aid exception. Id. at 269-70.
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The concern expressed by the Court in Cassidy mirrors the salient facts we confront here. Officer Corbo responded to a scene of domestic violence in which an emotionally distraught child had dialed 9-1-1 because his father had pointed shotgun at his mother, while the two were involved in a heated verbal dispute. Under these circumstances, the responding officers were not only authorized, but indeed arguably obligated under N.J.S.A. 2C:25-21d to conduct a limited warrantless search of defendant's apartment to ascertain the location of the weapon and to seize the shotgun once it was discovered. This weapon exposed all of the victims of the domestic violence, including the minor children present, to a risk of serious bodily injury or death. The legal principles endorsed by the Supreme Court in Davila do not in any way undermine or invalidate the actions taken by the police officers in this case under Cassidy and N.J.S.A. 2C:25-21d.
Finally, in the interest of clarity, we note that this case is also distinguishable from the facts supporting the Court's decision in State v. Edmonds, 211 N.J. 117 (2012). In Edmonds, the police received a 9-1-1 call alleging "'a domestic dispute possibly involving a handgun.'" Id. at 121. Upon arrival, the responding officers were met outside the residence by a woman who told them "that there was no problem in her home and that her eleven-year-old son was inside alone." Ibid. The officers entered the apartment against the woman's will to ensure the safety of the child. Ibid. Once inside, the officers found the child was unharmed, "without any visible injuries or signs of distress and no indication of a domestic disturbance inside the apartment." Ibid.
Despite these undisputed facts, the officers "removed [the] defendant . . . from an adjoining room, where he was watching television, and frisked him." Ibid. Lacking any evidence that an act of domestic violence had occurred, the officers conducted a warrantless search of the area where the defendant had been sitting, and found a handgun "under a pillow." Ibid.
The trial court in Edmonds suppressed the handgun, finding the warrantless search of the defendant's home under those circumstances "objectively unreasonable" and unjustified by either "the emergency-aid or community-caretaking exception to the constitutional warrant requirement." Ibid. We affirmed on the State's appeal in an unpublished opinion. Ibid.
Our Supreme Court affirmed. Writing for the majority in Edmonds, Justice Albin agreed that sufficient credible evidence in the record supported the trial judge's decision to suppress the handgun.
The search of a home without a warrant is presumptively unreasonable. Once the police determined that there was inadequate evidence to corroborate the report of domestic violence, and the parties' safety was not an issue, there was no objectively reasonable basis to conduct a search under either the community-caretaking or emergency-aid doctrine. At that point, to conduct a search of [the resident's] home, the police had to apply for a warrant based on probable cause.
[Id. at 121-22.]
In sharp contrast to the facts here, the Court emphasized in Edmonds
After [the child] opened the apartment door, the officers did not report that the boy appeared injured or in distress in any way. Nothing in the police report suggests that the officers questioned [the child] before defendant was secured, led from the other room, and patted down. The frisk of [the]
defendant yielded no weapons. Additionally, "there was no demonstrable evidence of . . . domestic violence" inside the apartment. Thus, the objective evidence "began to dispel the existence of an emergency."
[Id. at 125.]
We are satisfied that the actions taken by the responding officers here were authorized by N.J.S.A. 2C:25-21d and in keeping with the Court's holding in Cassidy.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION