On appeal from Superior Court of New Jersey, Law Division, Union County.
King, Brody and Ashbey. The opinion of the court was delivered by Brody, J.A.D. Ashbey, J.A.D., concurring and dissenting.
We granted the State's motion for leave to appeal an order suppressing evidence. Defendant is charged with possession of less than 25 grams of marijuana, a disorderly persons offense. N.J.S.A. 24:21-20a(4). The marijuana was in plain view on a bureau in his bedroom. The issue is whether shortly before he saw the marijuana, police officer Michael Mathis, the only witness at the suppression hearing, had lawfully arrested defendant pursuant to the Prevention of Domestic Violence Act (the act), N.J.S.A. 2C:25-1 et seq., and therefore had the right to accompany defendant to his bedroom.
Officer Mathis was on patrol in his radio car on Saturday, June 6, 1987, when at about 2 p.m. he was dispatched to defendant's home in response to a domestic dispute complaint made by defendant's sister, Dolores. The dispatcher advised Officer Mathis that Dolores had called the police to say that she had a domestic violence restraining order against defendant and "she felt that her life was being threatened by Rory being inside the house."
Acting on Dolores's complaint, a Superior Court judge on May 28 had issued ex parte a temporary restraining order barring defendant from their home*fn1 and prohibiting him from
"having any contact with the plaintiff or harassing plaintiff or plaintiff's relatives in any way. . . ."*fn2
The order required defendant and his sister to appear for a hearing on June 2. The sheriff officer's return of service at the foot of a copy of the filed order shows that only Dolores was served. The dispatcher did not tell Officer Mathis, presumably because she did not know, that the court had vacated the temporary restraining order on June 2 because neither party appeared.
When the officer arrived at defendant's home,*fn3 he waited for another officer who also had been dispatched there. Departmental procedures call for dispatching at least two officers to the scene of a domestic dispute because of the potential for sudden violence. Officer Mathis described those procedures in his direct examination:
Q What is the procedure when you are called to a domestic dispute?
A Separate both parties, calm things down, find out the stories, make sure they're aren't any cuts, people aren't beat up and basically find out what's going on. And if there's any restraining order on either party, go from there.
Q What is your responsibility with respect to the individuals involved as far as safety?
A To protect them from being harmed by each other, separate them and also protect ourselves. We have to keep our eyes on them because they can turn on you at any time.
When the other officer arrived, Officer Mathis left his patrol car and they both walked up the driveway. As they neared the house, the officers "heard two individuals arguing, male and female, two voices as we approached the front door." Officer Mathis testified that the voices were "loud," "shouting."
Q Describe it besides shouting, if you can?
A I kept hearing Dolores saying, "I want you out of the house. I want you out of the house."
I can't recall what Rory was saying. He's hard to understand at times.
After Officer Mathis knocked on the door, Dolores invited him in and "advised me as we entered that there was a restraining order on Rory and she said she wanted him out of the house at that time."
Defendant was standing quietly in the living room in his pajamas. His sister sat down on a couch.
Q When you entered the house and you saw that Dolores had sat back down to the couch and Rory was calm, were you satisfied that any danger that might have been was suppressed?
A Dolores actually didn't -- she sat on the couch but she still kept shouting she wanted Rory out of the house.
Q She didn't say anything else?
Q What action did you take after that?
A I advised Rory that he would have to come back to headquarters with me.
He asked me if he could get his clothes because he was partially dressed, all he was wearing was pajama bottoms, no shirt, no shoes.
Q After Dolores Scott requested that her brother be taken out of the house did Rory say anything?
A No, he was very cooperative, willing to leave.
Q He offered no resistance?
Q Did you ask Rory any questions at that time?
A No, I just told Rory he had to come back to headquarters with me. He requested to get some clothes, comb his hair.
Officer Mathis followed defendant into his bedroom because department procedure is to follow -- whenever domestic, to follow the individuals around the house for our own protection in case they pick up a gun or knife.
When he entered the bedroom, Officer Mathis saw the marijuana on defendant's bureau.
The officer neither saw nor heard evidence that defendant had been violent. Although not in his report of the incident, he testified that Dolores told him that she feared for the life of her year-old baby if defendant was ...