On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication October 20, 1997.
Before Judges Pressler, Wallace and Carchman. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
Following the denial of his motion to suppress evidence seized during a warrantless search, defendant James E. Younger was tried and found guilty by a jury of the third-degree crime of possession of heroin, N.J.S.A. 2C:35-10a, and the separately charged third-degree crime of possession of that heroin within 1,000 feet of a school, N.J.S.A. 2C:35-10a. The Judge, imposing an extended term, sentenced defendant to a ten-year prison term subject to a five-year parole ineligibility term. Defendant appeals, contending that his suppression motion was denied in error and that reversible error was committed at trial. Concluding that the court erred in denying the motion to suppress, we reverse the judgment of conviction.
The Fourth Amendment issue before us arises out of the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to 33, and, more particularly, N.J.S.A. 2C:25-21d, which authorizes a law enforcement officer having probable cause to believe that an act of domestic violence has been committed to
(a) question persons present to determine whether there are weapons on the premises; and
(b) upon observing or learning that a weapon is present on the premises [to] seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury.
The question raised is the scope of the search that the law enforcement officer may undertake in order to find the weapon that the victim of domestic violence reports to have been in the possession of the person committing the act. We address this question in the context of the evidence adduced at this suppression hearing.
According to his testimony, Freehold patrolman Schulz was dispatched to the home of defendant's grandmother, Elizabeth Younger, during the early hours of November 4, 1994, to investigate a possible act of domestic violence. On his arrival, he determined that Mrs. Younger was the apparent victim, and he placed defendant in his police car to separate him from Mrs. Younger, and "for his own protection," as a crowd had apparently gathered. Mrs. Younger reported to the officer that defendant had punched her in the stomach and had struck her in the head, and Schulz could see a swelling on her forehead. Mrs. Younger also reported that defendant was waving a knife around, threatening to kill her, and that he had a gun in a brown paper bag, which she described as similar to the officer's holstered duty weapon. There were three young children in the house as well, Mrs. Younger's grandchildren who lived with her, one of whom also assertedly reported to the officer that defendant, her uncle, had a gun. Patrolman Schulz then placed defendant, still in the police car, under arrest for domestic violence, and returned to the house to continue his interview with Mrs. Younger. During the course of the interview, she apparently signed, although she cannot read or write, a form provided by the officer explaining the rights of victims of domestic violence. Patrolman Schulz then transported defendant to the police station after arranging for his partner, Patrolman Shamrock, and another officer, Patrolman Beaver, to search for the gun.
According to the testimony of Patrolman Beaver, when he asked Mrs. Younger where the gun might be, she led them to the bedroom where she said that defendant had been sleeping. As we understand the record, the room was actually the bedroom of Mrs. Younger's eleven-year old granddaughter, who had apparently given it up to her uncle, defendant, when he had arrived at the house with his belongings in plastic bags shortly before this act of domestic violence was allegedly committed. In any event, the officers undertook an intensive search of the room and its contents, at first finding nothing incriminating or illegal. Ultimately, Patrolman Beaver noticed a closed pliable vinyl change purse, about three inches by two inches, lying under one of the plastic bags of clothing he had moved. He asserted that he also noticed some sort of identity card sticking out of it. Although he conceded that the purse obviously could not have contained a gun and that anything sharp or hard that might have been inside it could have been felt without opening it, he nevertheless did open it for two reasons: first, to see to whom the identity card belonged, and second, to see if there was any ammunition in the purse. It contained no ammunition. It did contain nine glassine envelopes in which there was a white powdery substance. Patrolman Beaver believed that what he had found was a deck of heroin, and, indeed, the substance proved to be heroin of a total weight of 2.12 grams. That heroin was the gravamen of the possession charges against defendant.
Testifying at the suppression hearing for the defense were Mrs. Younger and her eleven-year-old granddaughter. The import of the granddaughter's testimony was that she had never seen her uncle with a gun and had not told the officers that he had one. She also testified that just before these events, she had placed her uncle's photo identification card, which Patrolman Beaver had testified to have seen sticking out of the change purse, on the bible that lay on the top of her dresser. Mrs. Younger denied that any act of domestic violence had taken place. She testified that she had not called the police and did not know who had. She also denied that defendant had had a gun. Finally, she testified that all that the officers had asked her after defendant was taken away was where he kept his clothes. When she pointed to the bedroom, they simply walked into that room and started to search it.
The trial Judge, concluding that defendant's family was trying to protect him, credited the police testimony. We have no reason, based on this record, not to defer to his factual findings, namely, that the search had taken place in the circumstances as testified to by the officers. See, e.g., Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484, 323 A.2d 495 (1974). We, ...