On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 511-02-01.
Before Judges Baime, Newman and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On leave granted the State appeals from entry of an order on May 11, 2001, granting the motion of defendant, Robert L. Johnson, suppressing marijuana seized from defendant's bedroom during execution of a search warrant issued as part of a temporary restraining order (TRO) entered on September 28, 2000, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, and from an order dated June 11, 2001, denying its motion for reconsideration.
We find that the procedures employed in the Family Part in this case yielded an insufficient basis to establish reasonable cause for issuance of the search warrant. Accordingly, we rule that the Law Division properly granted defendant's motion to suppress, and now affirm.
The procedural circumstances leading to issuance of the search warrant in this case are likely to recur, primarily due to the large volume of domestic violence cases in our court system, their emergent nature, and bona fide pursuit of the legislative and judicial goal to assure victims of domestic violence the maximum protection that the law can provide. See Cesare v. Cesare, 154 N.J. 394, 399 (1998); N.J.S.A. 2C:25-18. Our constitutional mandate to provide all persons judicial protection against unreasonable searches and seizures requires that we balance that goal and mandate through the utilization of proper procedures. We find nothing incompatible with the issuance of orders containing warrants authorizing searches to seize weapons in order to protect victims of domestic violence from the risk of harm, while at the same time maintaining our constitutional safeguard against unreasonable searches and seizures.
We begin our analysis of the standards applicable to a request for issuance of a search warrant in a domestic violence case with a discussion of established principles. Searches undertaken to promote legitimate state interests unrelated to the acquisition of evidence of criminality or in furtherance of a criminal prosecution are, under appropriate circumstances, permissible under the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution. See, e.g., Skinner v. Railway Labor Executives Ass'n., 489 U.S. 602, 633, 109 S. Ct. 1402, 1421-22, 103 L. Ed. 639, 633-34 (1989)(drug testing of railway employees permissible under circumstances that suggested drug, alcohol or other substance abuse might have been involved in an on-the-job incident); New Jersey v. T.L.O., 469 U.S. 325, 341- 42, 105 S. Ct. 733, 742-43, 83 L. Ed.2d 720, 734-36 (1985)(search of a student by a school official justified where there are reasonable grounds for suspecting that the search will turn up evidence that the student is violating either the law or the rules of the school); Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 188-91 (1993)(requirement that officer submit to mandatory drug testing valid based on an individualized reasonable suspicion that the officer had used drugs); Tamburelli v. Hudson Cty. Police, 326 N.J. Super. 551, 555 (App. Div. 1999) (reasonable, individualized suspicion standard applied when determining whether a police officer had been lawfully tested for the presence of cocaine in his urine), certif. denied, 163 N.J. 397 (2000); State v. Garbin, 325 N.J. Super. 521, 525-26 (App. Div. 1999)(community caretaking function may provide requisite authority for entry into a private residence without a warrant), certif. denied, 164 N.J. 560 (2000); S.S. v. E.S., 243 N.J. Super. 1, 14 (App. Div. 1990), aff'd, 124 N.J. 391 (1991)(articulable suspicion standard applied in non-consensual blood testing where purpose is to determine parentage); New Jersey Div. of Youth & Family Svcs. v. Wunnenberg, 167 N.J. Super. 578, 584-85 (App. Div.) (criminal "probable cause" standard inapplicable where DYFS applies for permission to enter premises where it reasonably believes a child is being subjected to abuse or neglect), certif. denied, 81 N.J. 354 (1979).
Under such circumstances, the issue is not whether the constitutional prohibitions against unreasonable searches and seizures are applicable -- they are. Rather, the focus is on the appropriate standards to determine whether the ordered search and seizure was reasonable. What is reasonable obviously depends upon the context within which the search takes place.
Our initial inquiry centers on the purpose for issuance of the search warrant at issue. The purpose of a search warrant issued pursuant to N.J.S.A. 2C:25-28j is to protect the victim of domestic violence from further violence, and not to discover evidence of criminality. Accordingly, the analysis of whether the issuance of a domestic violence search warrant passes constitutional muster should not be based on traditional notions of probable cause, which requires a well-grounded suspicion that a crime has been or is being committed. See State v. Waltz, 61 N.J. 83, 87 (1972). Given this specific purpose of a search authorized pursuant to N.J.S.A. 2C:25-18j, we hold that to support issuance of a search warrant pursuant to that section, the judge must find there exists reasonable cause to believe that, (1) the defendant has committed an act of domestic violence, (2) the defendant possesses or has access to a firearm or other weapon delineated in N.J.S.A. 2C:39-1r, and (3) the defendant's possession or access to the weapon poses a heightened risk of injury to the victim. Additionally, a description of the weapon and its believed location must be reasonably specified in the warrant. We are satisfied that these requirements are consistent with the constitutional guarantees against unreasonable searches and seizures afforded to a defendant by the United States and New Jersey Constitutions.
We now turn to the facts and circumstances that led to issuance of the September 28, 2000 TRO containing the search warrant at issue. Defendant and Sheila D. Johnson are married. They have three children: Erica and Angela, born on September 28, 1995; and Tyrea, born on January 25, 1992. At the time the TRO was issued, defendant and Sheila had been separated since April 2000; defendant was residing at 7605 Tripoli Avenue in Delair, the home of his parents; Sheila and the three children were residing at 244 LaCascata in Clementon.
On September 28, 2000, Sheila filed a domestic violence complaint against defendant in the Family Part under docket number FV-04-1205-01-B, alleging that defendant committed acts of harassment against her, consisting of the following:
PLAINTIFF STATES THAT DEF HAS BEEN HARASSING HER FOR MANY MONTHS BY CALLING PLA ON HER CELL PHONE, PAGER, LEAVING VERBALLY ABUSIVE MESSAGES. DEF ALSO CURSES, AND CALLS PLA NAMES IN FRONT OF THE CHILDREN. ON 9-24-00 DEF CALLED PLAINTIFF AT HOME, AND CALLED PLA AN "F'N CUNT." : DEF GRABBED PLA BY THROAT & CHOKED PLAINTIFF (IN '93 OR '94).
The complaint recited that defendant had obtained a domestic violence TRO against Sheila on September 22, 2000 under docket number FV-04-1136-01; that case was still pending.
Upon signing the complaint, Sheila elected to go before a Domestic Violence Hearing Officer (DVHO). *fn1 Sheila was sworn and testified before the DVHO. She explained that defendant had been afforded parenting time with the children under the September 22, 2000 TRO he had obtained against her, and that defendant called her on Sunday, September 24, 2000 to arrange for his parenting-time sessions. Sheila testified she gave defendant two parenting-time options to consider. Defendant then telephoned Sheila again on that day and an argument ensued, during which Sheila alleged defendant was abusive and harassing toward her. Sheila also testified that prior to the September 24th calls, defendant had telephoned on several occasions, leaving abusive and threatening messages on her answering machine. After considering Sheila's testimony, the DVHO advised Sheila she would recommend that the court issue a TRO.
The DVHO then went through the form of the proposed TRO with Sheila concerning the specifics of the requested restraints against defendant including no contact provisions, locations that defendant would be prohibited from, and designation of a contact person for defendant and Sheila to arrange for parenting time sessions. Based on Sheila's testimony, the DVHO added the following handwritten addition to Sheila's description of the prior history on the complaint portion of the TRO: *fn2 "Def told Plt in June, 'you think you have it bad now just wait.'" The following colloquy then ensued between the DVHO and Sheila:
HEARING OFFICER: You're saying he has a hand gun?
MS. JOHNSON: Yes. HEARING OFFICER: And you're not sure where it is?
MS. JOHNSON: No. HEARING OFFICER: Could it be at his residence?
MS. JOHNSON: It could be. HEARING OFFICER: Could it be in his vehicle?
MS. JOHNSON: Could be. HEARING OFFICER: Could it be with a third party?
MS. JOHNSON: Could be. HEARING OFFICER: All right. When was the last time you heard about the hand gun? MS. JOHNSON: In (indiscernible approx. two words) the day I was moving out.
HEARING OFFICER: And when was that? MS. JOHNSON: I moved out April 3rd, so it could have been either April 5th or April 3rd when I was (indiscernible approx. two words).
HEARING OFFICER: All right. I'm going to have to do a warrant for the gun.
MS. JOHNSON: Okay. HEARING OFFICER: The police will be authorized to search for any and all weapons.
MS. JOHNSON: (indiscernibles)? HEARING OFFICER: The pocket knife - - he's not even going to be allowed to carry a weapon under the terms of the order. I wouldn't normally do a warrant for that, only because he can get it anywhere. But the gun concerns me. So they'll be authorized to search his person, his residence. Can you give me the address again?
MS. JOHNSON: 76 (indiscernibles) Berlin. HEARING OFFICER: Okay. Does he have any other addresses where the gun could be? MS. JOHNSON: (indiscernibles)
HEARING OFFICER: And where are they? MS. JOHNSON: I believe they're in (indiscernibles) K-Mart at the Airport Circle, Pennsauken. I think it's (indiscernible approx. two words).
HEARING OFFICER: Okay. They're in his name?
MS. JOHNSON: I don't know. I don't even know (indiscernible approx. two words), but it's in a gray box (indiscernible approx two words).
HEARING OFFICER: All right. I'm going to have . . . to specify, they can't search the whole facility. So in the name of Robert Johnson, it's a two story tudor?
MS. JOHNSON: Yes. HEARING OFFICER: All right. His vehicle. What does he drive?
MS. JOHNSON: A burgundy Beretta. HEARING OFFICER: Or any other location the officer believes weapons are located or have been moved.
The form of TRO recommended by the hearing officer contained various restraints, and prohibited defendant from possessing any and all weapons. Specifically, the order noted that defendant "HAS A HANDGUN (KEPT IN GRAY BOX, LOCATION UNKNOWN)." The hearing officer also completed the search warrant portion of the TRO appearing on page 3 thereof, *fn3 that states:
(X) WARRANT TO SEARCH FOR AND TO SEIZE WEAPONS FOR SAFEKEEPING TO ANY LAW ENFORCEMENT OFFICER HAVING JURISDICTION: This order shall serve as a warrant to search for and seize any issued permit to carry a firearm, application to purchase a firearm and firearms purchaser identification card issued to the defendant and the following described firearms or weapons:
1. You are hereby commanded to search for the above described weapons and/or permits to carry a firearm, application to purchase a firearm and firearms purchaser identification card, and to serve a copy of this order upon the person at the premises or location described as Def's person, Def's residence 7605 Tripoli Ave, Delair; & Storage Units Public Storage Airport Circle, Pennsauken in Name of Robert Johnson (Gray Box); Def's vehicle, Burg. Beretta
2. You are hereby ordered in the event that you seize any of the weapons described above, to give a receipt for the property seized to the person from whom they were taken or in whose possession they were found or in the absence of such a person to leave a copy of this order together with such receipt in or upon the structure from which the property was taken.
3. You are authorized to execute this order immediately or as soon thereafter as is practicable (X) Anytime; ( ) Other: or any other location the officer believes weapons are located or have been moved.
4. After execution of this order, you are ordered to forthwith make a prompt return to this Court with a written inventory of the property seized.
The completed form of TRO was then presented by the hearing officer to a Family Part judge, who reviewed the file and executed the TRO, as prepared by the hearing officer, scheduling the complaint for a final hearing on October 4, 2000. The TRO also recites, in a pre-printed portion thereof, in pertinent part:
SUFFICIENT GROUNDS AND EXIGENT CIRCUMSTANCES HAVE BEEN FOUND BY THIS COURT THAT AN IMMEDIATE DANGER OF DOMESTIC VIOLENCE EXISTS AND THAT AN EMERGENCY RESTRAINING ORDER IS NECESSARY PURSUANT TO R. 5:7A(b) AND N.J.S.A. 2C:25-28 TO PREVENT THE OCCURRENCE OR RECUR-RENCE OF DOMESTIC VIOLENCE, INCLUDING THE SEARCH FOR AND SEIZURE OF FIREARMS AND OTHER WEAPONS, WHERE APPROPRIATE.
Although there was no testimony taken at the suppression hearing, the following facts concerning the subject search and the seizure of evidence appear in the State's opposing brief.
Subsequent to the issuance of the TRO, on September 28, 2000, Officers Goschler, Kozarski and Plianthos, and Sergeant Nichols of the Pennsauken Police Department responded to defendant's residence at 7605 Tripoli Avenue to serve the TRO and execute the warrant portion. Defendant answered the door, the police officers explained they were there to serve him with the TRO and to execute the search warrant, "and the defendant consented to a search of his room." Defendant disputes that he gave his consent to the search of his bedroom and that disputed fact remains unresolved. The officers contend defendant denied that he presently had any firearm, but stated he had previously owned a handgun. Defendant denies he advised ...