Before Judges Baime, Eichen and Wecker.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Warren County.
Following the denial of his motion to suppress evidence, defendant pled guilty to possession of explosives (N.J.S.A. 2C:39-3a), possession of an assault weapon (N.J.S.A. 2C:39-5f), theft by receiving stolen property (N.J.S.A. 2C:20-7), and possession of a defaced firearm (N.J.S.A. 2C:39-3d). The trial court sentenced defendant to a total of four years imprisonment. On appeal, defendant argues (1) the police unlawfully searched his residence, and (2) the sentence imposed is manifestly excessive. We disagree and affirm defendant's convictions.
On April 29, 1994, defendant telephoned CBS television studios in New York City and told Stanley Romaine, the producer of "Forty-Eight Hours," that he possessed a large quantity of explosives. Defendant explained that he intended to surrender the explosives to federal authorities and that he had significant information concerning criminal conduct. When asked whether he had "proof of [his] claim," defendant responded that he had "ample evidence" with him. Defendant agreed to meet Romaine in front of the CBS studios. The police were immediately notified. Defendant appeared at the assigned time and place carrying a black briefcase. Noticing that defendant had placed his right hand in his pocket and concerned that he might be reaching for a weapon, Romaine grabbed him. At this point, defendant suddenly pulled out a pistol, one of two loaded firearms he had on his person. The police quickly appeared, causing defendant to drop the briefcase and flee from the scene. Defendant was apprehended a short distance away after a brief struggle.
Earlier the same day, an explosion had occurred approximately twenty blocks from the CBS studios. One person was killed. The police were thus wary that the two events were somehow related. Consequently, the City's bomb squad was summoned to retrieve the defendant's briefcase. Meanwhile, defendant was transported to police headquarters where he was questioned by Detective Edward Hennessy. After apprising defendant of his constitutional rights, the detective asked him "what was in the briefcase." Defendant did not immediately respond, but instead merely smiled. After a brief pause, defendant requested an attorney. Concerned that defendant's briefcase might contain a bomb, Hennessy disregarded defendant's request and continued his interrogation. Although defendant repeatedly requested and was denied the assistance of a lawyer, he ultimately admitted that additional explosives were stored at his residence in Mansfield Township, New Jersey. At approximately 6:45 p.m., defendant signed a consent to search form which was faxed to Mansfield Township authorities.
Earlier in the afternoon, at approximately five o'clock, Chief Donald Hill of the New York City Police had telephoned Sergeant Patricia Mannon of the Mansfield Police and had informed her of defendant's arrest. Although the exact chronology of events is not entirely clear, it appears that by the time of Chief Hill's call, the New York City bomb squad had retrieved defendant's briefcase and had discovered that it contained explosives. It is also probable, but not certain at this point, that defendant had admitted additional explosives could be found at his home. In any event, Chief Hill described to Mannon the bizarre circumstances surrounding defendant's arrest, including his possession of explosives and firearms. Hill emphasized the possibility that additional explosives might be stored at defendant's residence. Mannon immediately notified the New Jersey State Police bomb squad and the Warren County Prosecutor's office, and then proceeded to defendant's home.
Mannon arrived at defendant's residence shortly after 5:30 p.m. She and other officers "cordoned off" the street and evacuated six nearby residences. Although no one was present in defendant's home, defendant's sister and niece arrived shortly thereafter, but were not permitted to enter the house. Defendant's mother, Mrs. Ruth Pante, arrived at approximately 6:15 p.m. She was told of defendant's arrest and the possible presence of explosives in her residence. Shaken and upset by these events, Mrs. Pante was escorted by Mannon to a neighbor's house. Other officers appeared and questioned Mrs. Pante about her son's activities and his mental and emotional condition. In her testimony at the motion hearing, Mrs. Pante described the officers, some of whom she knew previously, as "comforting and caring, . . . constantly asking if [she] needed [assistance]." Mannon explained that it was important to remove explosives from Mrs. Pante's house. Mrs. Pante asked whether the police had a search warrant. Mannon replied that the police did not have a warrant but would obtain one if necessary. Although Mrs. Pante testified that she was told her son had consented to a search of the residence, Mannon denied that this information was conveyed to her. Mannon claimed that she was unaware that defendant had signed a consent form and thus could not have apprised Mrs. Pante of this fact. In any event, Mrs. Pante was permitted to telephone her employer, the law firm of Shanley and Fisher, where she worked as a legal secretary. After completing her call, a consent to search form was read to Mrs. Pante and was signed at 7:20 p.m.
Before entering the house, the police questioned Mrs. Pante concerning defendant's living quarters. Mrs. Pante described the "layout" of the house, noting that defendant occupied a bedroom on the basement-level floor. She told the police that the door to defendant's bedroom was locked, but that there was a key hanging on a pegboard in the attached garage. She stated that defendant had only recently begun to lock the door to prevent his niece from playing with his computer. Mrs. Pante noted that she used the keys only in emergencies and, although she owned the house, she "gave" defendant "his privacy," and did not "really go down to the downstairs [level] which was his."
At the motion hearing, Mrs. Pante characterized her living arrangement with defendant as that of landlord and tenant. She claimed that defendant either paid rent or performed services in lieu of rent. A bathroom had been installed adjacent to defendant's bedroom and he was the sole user of a small family room also situated in the basement. Mrs. Pante testified that there was a laundry room and hallway facing the stairwell that were used by all members of the household, including her daughter and granddaughter. However, defendant had a separate telephone line, bought his own groceries, prepared his own meals and had his own refrigerator. It does not appear that these facts were conveyed to the police prior to the search.
The search was conducted by the State Police bomb squad and the Federal Bureau of Investigation. Using a key provided by Mrs. Pante, the officers entered the house through the front door. They then proceeded to the lower level and found the key to defendant's bedroom on the pegboard in the attached garage. A door which was unlocked led to a hallway. On the opposite end of the hallway was the door to defendant's bedroom. The door was locked. Before using the key to enter defendant's bedroom, the officers observed several objects scattered about the floor of the hallway. Upon closer inspection, the officers found "a spool of yellow blasting wire . . . [used in] explosive demolition work," "black electric tape," "alligator clips," "nine volt batteries" and several sets of earplugs. Detective Steven McDougall of the State Police bomb squad, who led the search, testified that, based upon the discovery of these commonly used blasting implements, he was "fairly certain . . . [he] was going to find more explosives." Because of the obvious danger, the officers believed that "time was of the essence." Even an otherwise innocuous police radio frequency could set off an explosion. As phrased by Detective McDougall, the officers' "primary purpose [was] to render the situation safe." "Collecting evidence to use in a criminal trial" was considered "secondary to safety."
Using the key, the officers entered defendant's bedroom. They first observed a cardboard box containing 314 electric blasting caps, 100 "hot light fuse caps," 100 "connecters for thermal light-type igniter cords," and several "lengths of fuse wires." Another box contained 893 "non-electric blasting caps." In defendant's closet, the officers discovered a number of firearms including assault weapons. Also in the closet was a closed duffel bag, containing additional firearms and assault weapons and four large-capacity ammunition magazines. Additional weapons were found in the top drawer of a filing cabinet. Among the other items confiscated from defendant's bedroom were pamphlets entitled "Home Workshop Silencer Book," "Improviser's Munitions Black Book," "Death ...