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State v. Sotolongo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAUL SOTOLONGO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-569-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 VALID DOMESTIC VIOLENCE RESTRAINING ORDER

II. EVEN THOUGH THE APPELLANT'S WIFE DIRECTED THE POLICE TO THE FIREARMS, THIS DID NOT REPRESENT "CONSENT" TO SEARCH THE PREMISES

III. WITHOUT CONSENT, THE ONLY AVAILABLE EXCEPTION TO THE WARRANT REQUIREMENT ON THESE FACTS IS ARGUABLY THE EMERGENCY AID EXCEPTION

IV. THE EMERGENCY AID EXCEPTION TO THE WARRANT REQUIREMENT DOES NOT APPLY TO THESE FACTS

V. THE FIREARMS SEIZED DURING THE SEARCH SHOULD BE EXCLUDED SINCE THE SEARCH WAS DEFECTIVE

VI. THERE IS NO "GOOD FAITH" EXCEPTION TO THE EXCLUSIONARY RULE

VII. THE SECOND SEARCH, WITH A T.R.O., IS INVALID SINCE IT IS THE FRUIT OF THE POISONOUS TREE

We have carefully considered the record and are convinced there is no merit in these arguments. R. 2:11-3(e)(2). We briefly comment on Points I and II which are related and warrant discussion together. Because we concur with the trial judge's determination that defendant's wife validly consented to the initial police entry leading to disclosure of the weapons at issue, we reject defendant's claim that the evidence against him was obtained by an unlawful search.

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require police officers to obtain a warrant "before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. Cassidy, 179 N.J. 150, 159-160 (2004) (quoting State v. DeLuca, 168 N.J. 626, 631 (2001)). Warrantless searches of a person's home "'must be subjected to particularly careful scrutiny,'" because "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direct[ed]." Cassidy, supra, 179 N.J. at 160 (quoting State v. Hutchins, 116 N.J. 457, 463 (1989)).

"When preceded by valid consent, a warrantless search of property is permissible" under both constitutions. State v. Suazo, 133 N.J. 315, 319 (1993). Such consent must be "voluntary and the consenting party must understand his or her right to refuse." Id. at 319-320.

Under certain circumstances, "valid consent may be obtained from one other than the accused." Id. at 320. "A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." Ibid. (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed. 2d 242, 250 (1974)). "That authority to consent arises from the 'mutual use of the property by persons generally having joint access or control for most purposes.'" Suazo, supra, 133 N.J. at 320 (quoting Matlock, supra, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7, 39 L.Ed. 2d at 250 n.7).

The United States Supreme Court has recently reaffirmed the standards governing valid third-party consent. In Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 1518, 164 L.Ed. 2d 208, 217 (2006), the Court held: "The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained."

The case upon which defendant mainly relies in his brief actually lends support to the conclusion that consent justified the initial search here. In that case, State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985), we synthesized a test, from decisions of our state and federal Supreme Courts, for determining whether a non-defendant third party has given a valid consent to search.

To determine whether a valid consent to search an area was given by a third party the State must first prove that the consent was freely and voluntarily given. Further, the State must prove that the consent to search was obtained from a person who possessed a sufficient relationship with the property searched or the defendant. It must be shown that the third party possessed common authority over or other sufficient relationship to the premises or the effects sought to be inspected.

Defendant's wife clearly satisfies this test and qualifies as a third party authorized to give valid consent to search the premises in question. First, it is clear her consent was "freely and voluntarily given" as she summoned the police to the marital residence for the express purpose of seeking a domestic violence restraining order against defendant, and she advised the police of her fear of defendant because of his weapons possession and history of having threatened her with weapons in the past. Secondly, she obviously "possessed a sufficient relationship with the property searched or the defendant." The property in question was the marital residence and defendant is her husband who, at that time, lived there with her. Finally, as an occupant of that residence, she had "common authority over ... the premises." While she may not have had "common authority" over the "effects sought to be inspected," namely, the weapons and ammunition, she nonetheless had authority and ownership of the premises where those "effects" were located and observed by the police at her invitation. Clearly, under these established standards, defendant's wife's consent to Marciano's entry into the marital residence and then into the basement where numerous weapons lay in plain view, was valid. Her consent thus rendered the police conduct a "valid warrantless entry and search of premises" under the Fourth Amendment.*fn1

Defendant argues that the consent exception is not applicable because the State failed to meet its burden since it did not present testimony by his wife. However, we specifically rejected such a contention in State v. Miller, 159 N.J. Super. 555, 557 (App. Div.), certif. denied, 78 N.J. 329 (1978). In that case defendant had argued that the State did not meet its burden because it did not present testimony at the suppression hearing from the third party who had consented to the search. We held there was "no requirement" that the State produce the third party's testimony. Id. at 559. Here, the State produced the testimony of several police officers including Marciano, the first responding officer who entered the basement of the residence with the consent of defendant's wife, and Martone and Haroldson, whose testimony corroborated that of Marciano.

No seizure of weapons occurred until the police returned to the residence with the TRO. Under the circumstances presented here, we conclude, as did the trial judge, that the police acted appropriately from the initial entry and observation of the weapons to the seizure of those weapons under the authority of the warrant contained in the TRO.

Affirmed.


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