On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 02-02-153 and 02-02-154.
Before Judges Havey, Fall,*fn1 and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following bifurcated trials by jury, defendant Andre Johnson was found guilty of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (Middlesex County Indictment No. 02-02-153) and then second-degree prior-felon in possession of a weapon, N.J.S.A. 2C:39-7(b) (Middlesex County Indictment No. 02-02-154). Defendant moved for a new trial on the ground that defense counsel was ineffective for failing to file a meritorious motion to suppress evidence of the handgun.*fn2 After a hearing, his motion for a new trial was denied. Thereafter, defendant was sentenced to a seven-year term with a five-year parole bar on the prior-felon weapon-possession conviction, and to concurrent terms of four-years with a two year parole bar on the unlawful possession of a weapon conviction and to eighteen months on the hindering apprehension conviction. Appropriate fees and penalties were also imposed.
On appeal, defendant raises the following issue for our consideration:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO FILE A CLEARLY MERITORIOUS MOTION TO SUPPRESS THE GUN WHICH WAS ILLEGALLY SEIZED WITHOUT A SEARCH WARRANT.
The salient facts adduced at trial, and upon which defendant relies in support of his argument that he has a meritorious Fourth Amendment claim, are as follows. After receiving a domestic violence complaint on December 8, 2001 alleging that Johnny Holloway, Jr. was in possession of a handgun, police went to his father's residence, where they believed he had retreated, to execute two arrest warrants for domestic violence and making terroristic threats. At 11:00 a.m., several police officers arrived at the home and asked the owner, Johnny Holloway, Sr., for permission to enter after first advising him that they had multiple warrants for his son's arrest and were concerned over the presence of a handgun. Holloway, Sr. responded that his son was upstairs in the shower and that he had no problem with the police entering his home to secure his son's arrest.
Holloway, Sr. remained outside the home as requested while the police entered, went upstairs, arrested Holloway, Jr., and frisked him for the weapon. When no gun was found and the arrestee failed to respond to police inquiries about its whereabouts, Patrolman Henry took Holloway, Jr. outside and put him in the squad car, then went back into the home to begin searching for the gun.
In the meantime, Sergeant McCormick encountered defendant on the telephone in the kitchen. When defendant ignored repeated requests to hang up, Sergeant McCormick grabbed the phone out of his hand, hung it up, and frisked defendant. When asked why he was in the home, defendant replied that he was"just visiting" and asked, in turn, whether the police had a search warrant. Sergeant McCormick explained that the owner of the premises had given them permission to enter, that they had active warrants for Holloway, Jr.'s arrest, and there was a gun involved. Sergeant McCormick then asked defendant to do him"a favor" and leave the house because the police needed thirty minutes to complete their investigation.
After complaining about the absence of a search warrant, defendant eventually agreed to leave and said he needed to"gather [his] stuff." According to Sergeant McCormick, defendant reached into a closet, grabbed some clothes to put on, gathered a brand new, boxed DVD player, put a small cardboard box (12 X 4 inches) into an empty, red-white-and-blue duffel bag and zippered it shut. As defendant started to walk toward the door with the bag and DVD player in hand, Sergeant McCormick stopped him and questioned him about why he put the cardboard box into the bag. After receiving conflicting answers from defendant, Sergeant McCormick seized the bag, pulled out the cardboard box, opened it, and found a loaded handgun inside. Defendant was arrested.
Defendant's version of this event was far different. Holloway, Jr. is his half-brother and defendant had been visiting with his mother and stepfather for three weeks. Responding to the police request to leave, defendant picked up his new, unused DVD player in its original box. In front of the DVD player was an"American bag" that he had never seen before and that he picked up and moved out of the way. When Sergeant McCormick asked him what was inside, defendant gave it to him and continued out of the home.
At no time did defense counsel file a motion to suppress evidence of the handgun. Once defendant was convicted of unlawful possession of the handgun and hindering apprehension, a second trial was held on the prior-felon handgun-possession charge and the State introduced evidence that defendant had a drug conviction from a 1981 incident. He was convicted of the prior-felon handgun charge as well. Thereafter a hearing was held on defendant's motion for a new trial, prior to sentencing, addressing his contention that he had a meritorious Fourth Amendment claim and that his trial counsel was ineffective for failing to pursue that claim. At the hearing on defendant's motion, trial counsel testified that he believed a motion to suppress would have lacked merit because, in his view, the owner of the home had consented to police entry. In denying defendant's motion for a new trial, the judge relied on another view, namely, that there was no need for a search warrant"because the police were looking for someone who had a gun."
We consider the issue raised by defendant on this appeal in light of this background. First, we reject outright the State's counter-argument that defendant waived his Sixth Amendment claim of ineffective assistance of counsel by not litigating below his Fourth Amendment claim to suppress the handgun found in his possession. There is absolutely no merit to the contention that defendant should not be allowed to vindicate on appeal his constitutional right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence that is often the most probative information bearing on the defendant's guilt or innocence. Although failure to move to suppress evidence constitutes a waiver of any objection at trial to the admission of evidence on the ground that it was unlawfully obtained, R. 3:5-7(f); State v. Cox, 114 N.J. Super. 556, 559-60 (App. Div.), certif. denied, 58 N.J. 93 (1971), and of the right to question the search on appeal on Fourth Amendment grounds, State v. Robinson, 224 N.J. Super. 495, 499 (App. Div. 1988), this procedural bar does not extend to Sixth Amendment claims of ineffective assistance of counsel where based on counsel's very failure to timely file a suppression motion. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305 (1986). Defendant's Sixth Amendment claim of ineffective assistance of counsel is not in fact a Fourth Amendment claim directly ...