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State v. Cassidy

March 30, 2004


On certification to the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

LaVECCHIA, J., writing for a unanimous Court.

The issue in this criminal appeal is whether weapons seized as a result of a search conducted pursuant to a defective ex parte domestic violence temporary restraining order may be used in defendant's subsequent criminal prosecution for possession of illegal firearms.

Defendant, Thomas Cassidy, was involved in a year-long romantic relationship with Natalie DeGennaro. According to DeGennaro, their relationship was volatile and Cassidy had become verbally and physically abusive with her on several occasions. When she attempted to break off the relationship in November 1995, Cassidy threw DeGennaro into a door. Subsequent attempts to end the relationship also failed. DeGennaro finally ended the relationship after another physical assault. Specifically, on February 15, 1996, Cassidy and a friend visited DeGennaro at her place of employment. When DeGennaro asked Cassidy to leave, he refused and responded by placing his hand over her mouth and nose, and pushing her against a wall. When she tried to loosen his grip on her, Cassidy grabbed DeGennaro by the neck and shoved her against the wall again. As a result, DeGennaro suffered physical and emotional injuries requiring medical treatment.

One month later, at the urging of her co-workers, DeGennaro reported the February 15th incident to the police. In addition to describing the events of that day, DeGennaro told Officer Casey of the Newton Police Department that Cassidy had attempted to telephone her on several subsequent occasions and had repeatedly told her since the February incident that if couldn't have her, then no one could. Based on DeGennaro's report to him, as well as his belief that she appeared genuinely fearful for her life, Officer Casey informed DeGennaro that she could seek a domestic violence restraining order. While taking DeGennaro's statement, Officer Casey also learned that Cassidy had several shotguns and pistols in his bedroom at his parents' Stillwater home where he resided. A written statement incorporating that information was completed and signed by DeGennaro to support the complaint against Cassidy.

Officer Casey telephoned the municipal court judge to seek a temporary restraining order (TRO) on an ex parte basis. Although the judge spoke with both Casey and DeGennaro, he did not swear-in or administer an oath to either individual. The judge also did not tape or otherwise record the substance of his conversation with Casey and DeGennaro. Nevertheless, he determined that probable cause existed for the issuance of an ex parte TRO. He instructed Officer Casey to complete the pre-prepared form order for a TRO and authorized the police to search for and seize weapons. The judge authorized execution of the TRO that night (March 14, 1996) and simultaneously issued a domestic violence complaint against Cassidy.

Officer Casey and a Stillwater police officer went to Cassidy's home that evening to execute the TRO. After being awakened, Cassidy led the officers to a safe in which he stored the firearms. The officers retrieved thirty-five firearms from the safe, some of which were illegally possessed. The following day, Cassidy voluntarily turned over several large magazines not seized the evening before.

Based on the February 15, 1996, choking incident, Cassidy was subsequently charged with simple assault. He was convicted on February 4, 1997. Approximately one month later, the domestic violence complaint against him was amended to include that incident and, based on Cassidy's assault conviction, a final restraining order (FRO) was entered. When Cassidy's conviction was later reversed on appeal, the FRO was dissolved.

While the domestic violence charges were proceeding, Cassidy was indicted on five counts of third-degree unlawful possession of an assault firearm and six counts of fourth-degree unlawful possession of large capacity magazines. He moved to suppress the firearm evidence obtained as a result of the March 14, 1996, execution of the TRO. The motion court concluded that the TRO was invalid because it was based on unsworn telephonic testimony, but nevertheless found the search to be valid because of the presence of exigent circumstances. Therefore, the court denied the suppression motion. Following a two-day trial, Cassidy was convicted on most of the charges and was subsequently sentenced to concurrent terms of probation.

The Appellate Division affirmed the convictions in an unpublished opinion. Although the panel recognized the defective nature of the process related to the issuance of the TRO and accompanying search warrant, it reasoned that the purpose of the search was not to discover evidence of criminal wrongdoing, but rather was undertaken in furtherance of the Domestic Violence Act's intent to provide maximum protection to domestic violence victims. In that setting, the panel concluded that the Act required only a standard of reasonableness for the search and that that standard was met in this case. In any event, the Appellate Division determined that the search was justified under the emergency-aid exception to the warrant requirement.

The Supreme Court granted Cassidy's petition for certification.

HELD: Weapons seized as a result of a search conducted pursuant to a defective ex parte domestic violence temporary restraining order may not be used in defendant's subsequent criminal prosecution for possession of illegal firearms where the search did not fall within any of the recognized exceptions to the warrant requirement.

1. To further the purpose of authorizing maximum protection to victims of domestic violence, the Prevention of Domestic Violence Act permits the issuance of an emergency TRO on an ex parte basis, based on the sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules. The Act expressly incorporates compliance with the court rules governing applications made by telephonic or other electronic means of communication. The procedural requirements for a telephonic search warrant are fundamental to the substantive validity of the warrant and a telephonic authorization will be deemed the functional equivalent of a written warrant only when all of the procedural safeguards to assure the underlying reliability of the judge's decision to authorize the search have been met. (pp. 8-10)

2. Although the warrant to search Cassidy's home arose in the context of a domestic violence restraining order, for all intents and purposes, it is a telephonic warrant and for purposes of a criminal prosecution, must be judged by those standards. Because the evidence in this case was seized pursuant to a defectively authorized warrant, it must be regarded as the equivalent of a warrantless search and can produce admissible evidence only if one of the exceptions to the warrant requirement applies. (pp. 10-11)

3. The predominant exception to the warrant requirement that courts have recognized is for "exigent circumstances," which coupled with the existence of probable cause, will excuse a police officer's failure to have secured a written warrant prior to search for criminal wrongdoing. (pp. 11-13)

4. Warrantless searches also have been permitted under the emergency aid exception to the warrant requirement, assuming the existence of an emergency as viewed objectively; a search not motivated by a desire to find evidence; and a nexus between the search and the emergency. (pp. 13-14)

5. The facts in this case do not establish exigency such that a warrant was not needed. There was no assertion to support a reasonable belief that evidence was about to be destroyed and although Cassidy was believed to possess firearms, there was no allegation that he had attempted or threatened to use them, and no allegation to support an immediate threat. (pp. 14-15)

6. There was no live emergency in this case to support the application of the emergency aid exception to the warrant requirement. Although there was a reasonable basis to believe that relief in the form of restraints was necessary to provide DeGennaro with the assurance of protection, the situation was not volatile at that moment and there was no objectively apparent need to take immediate action at the Cassidy home. The proceeding before the issuing court below did not comply with the requirements for the proper issuance of a TRO under the Act and the emergency aid exception to the warrant requirement may not be used now to remedy the technical and substantive deficiencies of the warrant that authorized the search of Cassidy's home. (pp. 15-18)

7. Cassidy's alleged consent to the turning over of his magazines suffers from the taint of the illegal search and seizure, notwithstanding that he consulted with ...

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