On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 03-08-0886 and 03-05-0606.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Messano.
In this appeal, we consider the validity of a warrantless search and seizure that occurred soon after a group of masked men, one of whom was armed with an assault weapon, jumped from a black Lexus and robbed Strauss Auto in Hamilton Township. Acting on a witness's statement that a gold Acura was also driving suspiciously in the area, the police arrived at defendant's home, where they found defendant in the driveway ostensibly working under the hood of a gold Acura that matched the description given. After defendant acceded to a request that he accompany the police to the station house for questioning, one officer remained behind.
The warrantless searches in question then started with the remaining officer's observation of a headband in defendant's backyard from his vantage point on the other side of a wooden fence; the headband allegedly matched a headband worn by one of the robbers. The officer then entered the backyard through what he said was an open gate and examined the headband, which, according to the officer, raised concerns about his safety, and caused him to conduct a protective sweep of the yard. In conducting this sweep, the officer claims to have seen a rifle under a couch through the open door of a shed.
Based on these and other circumstances, we are required to consider whether the trial judge correctly held that the plain view exception permitted admission of the headband and whether the protective sweep exception permitted admission of the rifle.
Because we are unable to satisfactorily assess the legitimacy of these searches without more extensive fact finding, we remand to the trial judge for additional proceedings.
Defendant was charged in Indictment No. 03-05-0606 with two counts of first-degree robbery (counts one and two), N.J.S.A. 2C:15-1; two counts of theft by unlawful taking (counts three and four), N.J.S.A. 2C:20-3(a); unlawful possession of an assault firearm (count five), N.J.S.A. 2C:39-5(f); two counts of possession of a weapon for an unlawful purpose (counts six and seven), N.J.S.A. 2C:39-4(a); two counts of aggravated assault (counts eight and nine), N.J.S.A. 2C:12-1(b)(4); and theft by receiving stolen property (count ten), N.J.S.A. 2C:20-7. Defendants Sam Livingston, Jovaughn Jordan, Curtis Buck, and Tara Rawls were also charged in the same indictment with the commissions of the same offenses.
Pursuant to a plea agreement, defendant pled guilty to one count of first-degree robbery.*fn1 The plea agreement was expressly made subject to the outcome of defendant's suppression motion. Defendant also reserved the right to appeal if the judge denied the suppression motion, as did the other defendants, who also pled guilty.*fn2
The trial judge partially granted and partially denied the suppression motion in a written opinion rendered on March 8, 2004. Defendant was sentenced a few months after the ruling on the suppression motion. The trial judge imposed a ten-year term of imprisonment, with an 85% period of parole ineligibility, on the robbery conviction, and a concurrent four-year term of imprisonment on the endangering conviction. All other counts in both indictments were dismissed.
Defendant filed an appeal, raising the following arguments for our consideration:
I. DEFENDANT[']S MOTION TO SUPPRESS THE AUTOMATIC RIFLE AND HEADBAND SEIZED IN DEFENDANT[']S BACKYARD SHOULD HAVE BEEN GRANTED WHERE THE ITEMS, (A) [WERE] THE FRUITS OF AN UNLAWFUL ENTRY AND SEARCH OF A CONSTITUTIONALLY PROTECTED AREA WITHOUT A VALID ARREST OR SEARCH WARRANT AND, (B) WHERE NO EXIGENT CIRCUMSTANCES EXISTED TO ENTER THE HOME (BACKYARD). THE COURT VIOLATED THE FOURTH AMENDMENT AND ITS EXTENSION UNDER NEW JERSEY LAW. THEREFORE ALL EVIDENCE MUST BE SUPPRESSED D[UE] TO THE ILLEGAL ENTRY AND ARREST.
II. THE INDEPENDENT SOURCE RULE CANNOT SUSTAIN WHAT OTHERWISE WAS AN IMPERMISSIBLE SEARCH OF DEFENDANT'S HOME (BACKYARD) WHERE THE OFFICERS COULD NOT PROVE, BY CLEAR AND CONVINCING EVIDENCE, [THAT] THEY WOULD HAVE SOUGHT A SEARCH WARRANT OR CONSENT INDEPENDENT OF THE TAINTED KNOWLEDGE OR EVIDENCE THAT THEY PREVIOUSLY HAD ACQUIRED OR VIEWED.
III. A NEW SENTENCING HEARING IS MANDATED BY THE AUGUST 2, 2005 NEW JERSEY SUPREME COURT RULING IN STATE V. NATALE*fn3 STRIKING NEW JERSEY'S PRESUMPTIVE SENTENCING RULES AS UNCONSTITUTIONAL UNDER THE SIXTH AMENDMENT.
Because we conclude that further proceedings are required regarding defendant's suppression motion, we vacate the order denying the motion and remand for further proceedings.
In his written opinion, the judge found that, at approximately 9:18 p.m. on September 6, 2002, three black men, wearing hoods and masks, emerged from a black Lexus and approached Strauss Auto on South Broad Street in Hamilton Township; a fourth occupant remained in the vehicle. Two of the men, one of whom was armed with an assault rifle, confronted Strauss Auto's assistant manager; the third remained by the door.
The assistant manager was ordered by the robbers to "give [them] the money." While the assistant manager was in the process of opening the safe, one of the robbers snatched a chain from around the assistant manager's neck and also attempted to rip a bracelet from his wrist. Another robber assaulted the assistant manager, removed the bracelet, and took the cash register tills, containing approximately $2,700. One of the robbers also took $290 from a Strauss Auto employee. A witness to the holdup later advised the police that one of the culprits was wearing what he referred to as a "bandana" or "headband" with a "red logo."
Another witness resided on Genesee Street*fn4 near Strauss Auto. He indicated to the police that as he arrived home that night he saw parked in front of his home a gold Acura, which drove off as he arrived. Later, he looked out and again saw the gold Acura parked in front of his home. He took down the license plate number of the vehicle as it drove away again. The witness also indicated that he observed the same gold Acura drive by "ten to twelve times," and also saw a black Lexus pass by twice without its headlights on between 9:00 and 9:15 p.m. This witness called the police; according to its records, the Hamilton Police Department received this call at 9:06 p.m. During this phone call, the witness told the police that a "gold Acura bearing New Jersey license plate number MLL87D was riding around the area slowly looking at the caller's house, black male occupant."
At approximately 9:30 p.m., Detectives Richard Braconi and Shannon Mangione arrived at Strauss Auto to investigate. While there, they were advised by the police dispatcher that a "suspicious auto call" had been received several minutes before the robbery. The detectives were advised by the dispatcher that the license plate number provided by the caller indicated that defendant was the vehicle's owner.
The detectives also then learned that defendant was a Strauss Auto employee, but had only been employed there for a few weeks. The assistant manager advised Detective Braconi that defendant had worked the night shift that evening, but had checked out at 8:07 p.m., and that, at approximately 8:55 p.m., he too had observed defendant drive by on South Broad Street, which he ...