Opinion
DOCKET NO. A-4124-15T4
08-05-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. MICHAEL RIVERA, Defendant-Respondent.
Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for appellant (Vered Adoni, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Evan F. Nappen, attorney for respondent (Louis P. Nappen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 15-11-1488. Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for appellant (Vered Adoni, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Evan F. Nappen, attorney for respondent (Louis P. Nappen, on the brief). PER CURIAM
On leave granted, we consider the State's interlocutory appeal of the trial court's April 21, 2016 order granting defendant's motion to suppress weapons and other evidence seized by police from his shared residence after a domestic violence incident with his girlfriend. For the reasons that follow, we affirm the suppression of an assault rifle found in a gun safe that was removed from the premises, but reverse the suppression of a stun gun that the victim contends was used by defendant to harm her.
The sole witness who testified at the suppression hearing was Officer James Thompson of the Lodi Police Department. According to Officer Thompson, the department received a 9-1-1 call on May 24, 2015 from defendant's then-girlfriend, L.T. At the time L.T. and her child were residing in the dwelling with defendant. The record suggests the couple was apparently in the process of breaking up.
L.T. alleged that defendant had recently committed acts of domestic violence on her. As the facts were later developed in the investigation, L.T. and defendant had an argument, causing her to go into the bathroom and attempt to swallow pills. Defendant allegedly intervened and tried to take the pills away from her. According to L.T., defendant took out a "Taser" stun gun and fired it at her stomach. He then allegedly grabbed her left hand, twisted her arm behind her back, bent back her thumb, and forcibly held her in that position for about ten minutes.
L.T. stated in her 9-1-1 call that she was concerned for her safety and that of her child because defendant kept weapons on the premises. Officer Thompson was accordingly dispatched to the premises. L.T. was present, but defendant was not. She pointed out to the officer a shared closet that contained a locked black safe and a case which L.T. stated defendant used to store guns. She also showed the officer unlocked transparent ammunition cans, one of which was later determined to contain hollow point bullets.
In addition, L.T. handed Officer Thompson the stun gun that she said defendant had fired at her stomach. She showed the officer a mark on her abdomen that had been left by the stun gun, which the officer agreed was consistent with an injury sustained after being "tazed."
Pursuant to his authority under the pertinent provision of the Prevention of Domestic Violence Act ("PDVA"), N.J.S.A. 2C:25-21(d)(1), to "seize any weapon that is contraband, evidence, or an instrumentality of a crime," the officer confiscated the safe and case, ammunition, and the stun gun from the premises, and brought them to the police station for safekeeping in accordance with L.T.'s wishes. The police then applied for a search warrant to open the locked cases. After a criminal judge issued the warrant, the police then opened the cases and found inside several items, including an assault rifle.
The judge was not the same judge who presided over this suppression hearing.
Defendant was thereafter charged with third-degree possession of a weapon, N.J.S.A. 2C:39-4(d) (count one); fourth-degree unlawful possession of a stun gun, N.J.S.A. 2C:39-3(h) (count two); second-degree possession of an assault rifle, N.J.S.A. 2C:39-5(f) (count three); and three counts of fourth-degree unlawful possession of large capacity magazines, N.J.S.A. 2C:39-3(j) (counts four, five, and six). Defendant moved to suppress these items, which resulted in the hearing we have already described. Defendant did not testify or present any witnesses.
On April 21, 2016, the trial court issued a written decision granting defendant's motion. The court found Officer Thompson, who had testified "in a confident and detailed fashion[,]" to be credible. The court noted that the officer had testified consistently before the grand jury concerning his observations and actions at the residence. In fact, for purposes of the suppression issues that are before us, the parties essentially do not factually dispute the officer's account. They instead differ concerning the legal consequences in this criminal case of the seizure of the weapons and ammunition obtained in response to a domestic violence report.
The trial court agreed with the State that the police had the authority to confiscate the safe and case, ammunition and stun gun under the PDVA, specifically N.J.S.A. 2C:25-21(d)(1). Rejecting defendant's contrary argument, the court ruled that the officer had probable cause "to believe that an act of domestic violence ha[d] been committed," which provided the officer with the authority to "seize any weapon that is contraband, evidence or an instrumentality of crime." N.J.S.A. 2C:25-21(d)(1). We agree that L.T.'s description of the domestic violence incident to the officer, coupled with the visible marks on her stomach, provided ample grounds under the statute to support that probable cause finding.
The trial court also concluded, however, that the State lacked the right to use the seized items in this criminal prosecution. The court relied on this court's opinion in State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003), and the Supreme Court's opinion in State v. Harris, 211 N.J. 566 (2012). These cases delineate the interplay between, on the one hand, the State's authority to seize weapons under the PDVA for domestic violence prevention purposes and, on the other hand, the admissibility of such seized items as proof against an accused in a criminal prosecution.
Perkins, supra, 358 N.J. Super. at 151, is in many, but not all, respects similar to the facts of this case. In Perkins, the defendant's wife called 9-1-1 after a domestic violence incident and told the police that her husband, a gun collector, kept several firearms in the home. Id. at 154. The police did not obtain a warrant but instead went out to the residence to investigate. Ibid. The victim, who appeared to be very upset, greeted the police at the front door. Ibid. She had a red mark visible on the side of her face. Ibid. The police entered the house with the wife's permission and encountered the defendant in bed, who admitted to the wife's version of the events. Id. at 154-55. The police then located in plain view a collection of firearms that were leaning up against the wall, pointing up towards the ceiling. Id. at 155. The police confiscated the weapons pursuant to the PDVA. Ibid. As it turned out, one of the weapons was a military rifle classified as an illegal assault rifle. Id. at 156. The defendant was thereafter charged with weapons offenses. Ibid. He moved to suppress the weapons uncovered in the warrantless search. Ibid.
We held in Perkins that the warrantless seizure of the weapons for safekeeping and protection of the victim did not violate the Fourth Amendment or cognate search-and-seizure principles of the New Jersey Constitution. Id. at 159-60. We found that the officers had probable cause to believe that an act of domestic violence had occurred, as well as a reasonable basis to believe that defendant had access to the weapons. Ibid. Given those factors, the temporary seizure of the weapons, even in the absence of a warrant, was justified to protect the victim from the risk of severe bodily injury. Id. at 160; see also N.J.S.A. 2C:25-21(d)(1)(b).
We distinguished in Perkins the police's safekeeping authority in the domestic violence context from whether the weapons confiscated after such a warrantless domestic violence search could be admitted at the defendant's criminal prosecution. Id. at 160-62. We held that weapons that are "inadvertently discovered in plain view" and which are "immediately apparent" to the officers as being illegal contraband at the time of seizure may be used in a subsequent criminal prosecution. Id. at 162. However, because the "criminal nature" of the assault weapon in particular had not been "immediately apparent" to the officers at the time they seized it, we affirmed the suppression of that evidence in the defendant's criminal case. Ibid.
The Supreme Court reiterated these governing principles in Harris, supra, 211 N.J. at 566. Unlike Perkins and the present case, Harris involved a search of the defendant's shared residence pursuant to a warrant. Id. at 572-73. The warrant was issued by the Family Part under the PDVA when the defendant's girlfriend requested a temporary restraining order. Ibid. The victim had sought that relief after she was allegedly punched by the defendant and he had threatened to kill her, brandishing a gun. Ibid. The Family Part judge approved a search of the residence for weapons under a different provision within the PDVA, N.J.S.A. 2C:25-28(j), which authorizes "the search for and seizure of any such weapon at any location where [the court] has reasonable cause to believe the weapon is located[.]"
The Court in Harris reaffirmed the basic tenet of Perkins that the State may not use in a later criminal prosecution evidence of weapons confiscated from a residence while investigating a domestic violence incident, unless "the illegal nature of the seized weapons was immediately apparent" to the investigating officers. Id. at 587. Conversely, the Court noted that, absent some other recognized constitutional justification under search-and-seizure doctrine, the fruits of the search would be inadmissible if "a further search was required to determine [the weapons'] illegality." Ibid. On this point, the Court held that the actions of the police officers in checking the serial number of a firearm from a weapons database to determine if it was lost, stolen, or reported to be used in a crime was not an additional "search" that would preclude the seized weapon from being used in the defendant's criminal prosecution. Id. at 587-90.
Applying these principles here, we first note that the State concedes that the ammunition magazines seized from defendant's residence without a warrant are not admissible at his criminal trial because "their illegality was not immediately apparent to the officer but only became so after he investigated the items at the police department."
By contrast, we conclude that the stun gun may be admitted at defendant's criminal trial because the record shows that it was immediately apparent to Officer Thompson that the stun gun had been used in the reported attack of L.T., as corroborated by the marks on her stomach that she displayed to the officer. We disagree with the trial court that the stun gun must be excluded because L.T. "led" the officer to that item. The testimony from the hearing reflects that L.T. voluntarily showed the stun gun to the officer, without any indication that the item was taken from a locked container or some private area of the premises within the defendant's exclusive control. The officer did not need to search the premises or open any closed or sealed boxes or containers. There is no indication that he planned or orchestrated the presentation of the stun gun to him. See United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (finding no constitutional search and seizure violation where a private citizen provides items to law enforcement officials without prompting). On the whole, these circumstances meet the plain-view standards set forth in Perkins and in Harris. We therefore reverse this aspect of the trial court's decision.
Our analysis makes it unnecessary to address whether the United States Supreme Court's recent opinion in Caetano v. Massachusetts, 577 U.S. ___, 136 S. Ct. 1027, 194 L. Ed. 2d 99 (2016) (finding Second Amendment principles apply to state laws banning or regulating stun guns) affects this case. The fact that it was "immediately apparent" to the officer that the stun gun had been recently used for unlawful purposes to injure the victim makes it inconsequential to address the constitutional issue as to whether possession of a stun gun can be per se illegal under N.J.S.A. 2C:39-3(h). --------
Turning to the assault rifle, we agree with the trial court and defendant that this item cannot be admitted at defendant's criminal trial. We recognize that, after the locked gun safe and case were confiscated, the police obtained a search warrant from a criminal judge to open those containers. Although the affidavit the State presented in support of that warrant has not been supplied to us in this record, we have no doubt that the criminal judge relied on the outcome of the warrantless domestic violence search in determining that there was probable cause to believe that the containers were likely to hold illegal firearms.
Defendant had a reasonable expectation of privacy on the locked and closed safe and case not being removed from his home in order to facilitate a further criminal prosecution against him. It would circumvent the constitutional principles delineated in Perkins and Harris to allow the State to "bootstrap" a criminal search warrant upon a warrantless domestic violence search and seizure. See also State v. Dispoto, 189 N.J. 108, 123 (2007) (likewise disapproving of such a "bootstrap" mechanism, albeit in a context where the domestic violence search was invalid). The exception should not be allowed to swallow up the rule. We therefore affirm the trial court's suppression of the assault rifle contained in the locked gun safe or case.
Affirmed in part, reversed in part, and remanded for further proceedings. Jurisdiction is not retained. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION