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State v. Perkins

March 10, 2003

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



On appeal from the Superior Court of New Jersey, Law Division, Warren County, 02-06- 299-I.

Before Judges Petrella, Lintner and Bilder.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 18, 2003

On June 19, 2002, a Warren County Grand Jury returned an indictment charging defendant, Frank G. Perkins, with third- degree unlawful possession of an assault weapon, N.J.S.A. 2C:39-5f. Defendant's motion to suppress the seized firearm was granted. We granted the State's motion for leave to appeal on November 12, 2002. We now affirm.

The facts are substantially undisputed. At 8:21 p.m. on January 24, 2002, defendant's wife called 911 complaining that her husband "smacked" her in the head with a telephone. She told the operator that her husband had been drinking and that he "has a lot of weapons" because he is a gun collector. She informed the operator that her husband's gun collection was located in a front bedroom but that he also may have had a firearm in the back bedroom where he was located at the time. The information was relayed to the Blairstown Township Police Department.

Sergeant Daniel Henderson, along with Officers Tom Ellis, Steven Browns and Tony Zeremba, responded to defendant's house. The victim, who appeared to be very upset, met them at the front door. She had a red mark on the right side of her face. Browns and Zeremba stayed with the victim while Henderson and Ellis proceeded to the back bedroom to look for defendant. Henderson and Ellis drew their weapons because they were told that defendant might be armed. They found defendant in bed, and he acted surprised to see them. Henderson told defendant why they were there, and defendant admitted his wife's version of the events. Believing that there was a weapon in the bedroom, they escorted defendant downstairs to the kitchen. Both Henderson and Ellis testified that they smelled alcohol on defendant's breath.

Browns then conducted an investigation of the house, during which he located defendant's gun collection consisting of approximately eighty-five firearms. The firearms were not secured in a safe but were leaning up against three of the walls, pointing upwards toward the ceiling. There were also some knives and swords located on a glass shelf, as well as some handguns and ammunition on a shelf in the closet. After checking with the Prosecutor's Office, Henderson directed that the guns, as well as any other weapons in the house, be taken into custody for safekeeping pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Neither the police nor the prosecutor sought a warrant for the seizure of the weapons. Acting upon information supplied by the victim, the police also investigated a gun safe located in the garage, but Henderson could not recall if the safe was locked or if they seized any guns from the safe.

Although the victim refused to seek a restraining order, she gave a voluntary statement at headquarters, which provided more details about how the incident precipitated. According to the victim, she had let their two dogs outside that night, and they ran away for three hours. As a result, her husband became "stressed out," had "too much to drink" and "became verbally abusive." He told her that she "wasn't a good wife[,] that he was an unhappy husband, [and] that [she] didn't care if he was unhappy." She asked him why he was unhappy, and he told her "to look in the mirror, just look at yourself in the mirror and you'll know." He then began to question her about sexual abuse she suffered as a child. She then threatened to call his ex-son-in-law and current business partner, "Jimmy . . . to perhaps talk some sense into him." Defendant then "went to hit [her] in the face area and . . . pushed the telephone receiver into [her] right eye causing it to become red and tear." She then called the police.

One of the guns seized from defendant was a .30 caliber M-1 Carbine, a United States military rifle. The M-1 Carbine is classified as an "assault firearm" under N.J.S.A. 2C:39- 1w(1). On February 21, 2002, the Prosecutor's Office requested that the United States Bureau of Alcohol, Tobacco and Firearms (ATF) conduct a trace of the firearm. On March 20, 2202, the trace was received confirming that the firearm was in fact a military weapon.

The order memorializing the suppression of the seized weapon was issued by the motion judge on September 24, 2002. The order also provided that any items seized and determined to be contraband be destroyed in accordance with law and that any application for the return of the remaining firearms and knives be governed by the Act. On November 12, 2002, the judge amplified his decision, R. 2:5-1(b), stating that "the seizure could be upheld to advance the purposes of the Domestic Violence Act but that the evidence which was seized, in violation of all of the defendant's Fourth Amendment rights, could not be used in a criminal prosecution." He further stated that "there was absolutely no probable cause to justify the seizure on Fourth Amendment grounds."

On appeal, the State raises the following point:

THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE PROPERLY SEIZED UNDER THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT DURING A ...


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