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State v. Premone

March 06, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
FRANK PREMONE, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-4-773.

Before Judges Skillman, Carchman and Wells.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 14, 2001

Defendant was indicted for capital murder, in violation of N.J.S.A. 2C:11-3a(1) and (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); burglary, in violation of N.J.S.A. 2C:18-2; robbery, in violation of N.J.S.A. 2C:15-1; aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a; unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39- 4d; retaliation against witnesses, in violation of N.J.S.A. 2C:28-5b; and criminal contempt, in violation of N.J.S.A. 2C:29- 9.

Defendant filed a motion to suppress the evidence contained in a shoulder bag that he left behind in a motel room. After an evidentiary hearing, the trial court denied the motion.

Defendant subsequently entered into a plea bargain under which he agreed to plead guilty to non-capital murder, and the State agreed to recommend a sentence of life imprisonment, with thirty years of parole ineligibility, and to dismiss the other charges. The trial court accepted the plea and sentenced defendant in accordance with the plea bargain to life imprisonment, with thirty years of parole ineligibility. The court also imposed a $1,000 VCCB assessment, a $75 SNSF assessment and a $30 LEOTEF assessment.

On appeal, defendant argues that the trial court erred in denying his motion to suppress. Defendant also argues that the $1,000 VCCB penalty imposed upon him as part of the sentence was manifestly excessive.

The victim of the murder was defendant's former girlfriend, Donna Munyon. On December 8, 1996, the police discovered the victim's body, which had been stabbed numerous times, in her apartment in Brigantine. A large quantity of blood was found around the body and in various other locations in the apartment. The Major Crimes Unit in the Atlantic County Prosecutor's Office commenced an investigation of the crime that apparently focused on defendant.

On December 9, 1996, a group of investigators went to the El Rancho Motel in Atlantic City, after receiving information that defendant was staying there. However, the owner of the motel informed the investigators that defendant had checked out the day before. The owner also informed the investigators that defendant had changed his appearance by shaving his mustache and darkening his hair and that he had left a shoulder bag in his room when he checked out.

The owner brought the zippered vinyl bag to the investigators in the motel office. One of the investigators, Sergeant John Burke, asked the owner what the motel normally would do with articles left in a room, and he said they would be kept for some period of time and then discarded. Sergeant Burke unzipped the bag and discovered clothing, toiletries and other personal items inside. The clothing included a pair of jeans covered with blood that was later found to match the blood type of the victim. Sergeant Burke stated that he felt he did not need a search warrant to unzip the bag because it had been abandoned.

When defendant returned to the motel the next day, he was arrested.

At the suppression hearing, the State's primary argument was that the search of the shoulder bag without a warrant was valid because defendant had abandoned the bag by leaving it in the motel room when he checked out. The State also argued that the search was conducted by motel employees and therefore was not subject to Fourth Amendment constraints. In addition, the State argued that defendant's motion to suppress should be denied because the contents of the bag inevitably would have been discovered in the course of the police investigation.

The trial court summarily rejected the State's argument that the search of the bag was valid under the inevitable discovery doctrine:

[I]n order to invoke [the] inevitable discovery . . . rule, the State has to prove by clear and convincing evidence that proper, normal, and specific investigatory procedures . . . would have been pursued . . . in order to complete the investigation in the case, and that under all the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence in . . . question, and that the discovery of the evidence through the use of such procedures would have occurred wholly independently of discovery of such evidence by unlawful means.

To me that means what it says, independent investigation. It doesn't mean . . . simply that they could have obtained the information by applying for and securing a search warrant. . . . Otherwise, . . . you wouldn't need a search warrant simply because you could say, "I could have ...


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