On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-569-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Yannotti and LeWinn.
Defendant was charged with unlawful weapons possession contrary to N.J.S.A. 2C:39-5f, and unlawful possession of large capacity ammunition magazines contrary to N.J.S.A. 2C:39-3j. The police had seized the weapons and ammunition when executing a search warrant issued with a domestic violence temporary restraining order (TRO). Following a hearing, the trial court denied defendant's motion to suppress all weapons and ammunition. Defendant then entered a guilty plea to one count of possession of a large capacity ammunition magazine and expressly reserved his right to appeal the denial of the suppression motion pursuant to R. 3:5-7(d). This appeal ensued.
The evidence presented at the suppression hearing established the following facts. On August 28, 2005, defendant's wife summoned police to the marital residence and informed the responding officer, Marciano, that she wished to obtain a TRO against defendant. She described an incident that had occurred earlier that day, when she observed defendant exiting a motel with another female and had an argument with him that led to his telling her, "Go home, and you will see what happens." She told Marciano they had a prior history of domestic violence, and she considered defendant's statement particularly threatening because she knew he owned numerous weapons and he had threatened her with the use of firearms in the past.
Defendant's wife then led Marciano to the basement of the parties' home to show him defendant's firearms. Upon following her to the basement, Marciano observed approximately twenty guns, including assault firearms, and various boxes of ammunition. He contacted police headquarters but made no effort to seize any weapons at that time. As a result of Marciano's call, Officer Martone responded to the residence and was assigned to stand guard outside the home while Marciano transported defendant's wife to police headquarters to obtain a TRO.
The municipal court judge testified that he took defendant's wife's testimony by telephone and she told him under oath that defendant had approximately twenty-three weapons in the residence. Since this TRO was obtained telephonically, the municipal court judge did not personally fill out the form; Officer Haroldson did so upon instruction from the judge. Because of the large number of weapons, the judge did not ask either defendant's wife or the police officer to describe each one with specificity.
The judge instructed the police officer to write "23 weapons" in the search warrant provision of the TRO; however, when presented with the order at the suppression hearing, he noted that language was missing. Both his handwritten notes taken contemporaneously with defendant's wife's sworn testimony and his review of the tape of that testimony contained references to twenty-three weapons located in the residence.
Upon issuance of the TRO, Haroldson accompanied defendant's wife back to the residence and executed the search warrant.
Martone, who was still outside the residence, entered with Haroldson and defendant's wife. Martone and Haroldson went to the basement where they observed numerous guns, gun parts and ammunition strewn around the area. They also observed a countertop covered with guns and ammunition and a locked safe in the corner. Defendant's wife knew the lock combination and opened the safe for the officers who found additional weapons inside. The officers placed all seized weapons and ammunition in the police vehicles and transported them to headquarters for inventory. At no time during any of these events did defendant return to the marital residence.
In denying the suppression motion, the trial judge first found that the police and municipal court judge followed proper procedures in the issuance of the TRO with a search warrant provision as authorized by N.J.S.A. 2C:25-28j. He then determined that the "initial search was valid, incident of, [at] the invitation of the victim, who was alleging an act of domestic violence."
Defendant raises the following points on appeal:
I. THE SEARCH SHOULD BE CONSIDERED A WARRANTLESS SEARCH BECAUSE THE SEARCH WAS CONDUCTED PRIOR TO THE ISSUANCE OF A SEARCH WARRANT OR A ...