On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 97-01-0113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2007
Before Judges Coburn, Fuentes and Chambers.
On this appeal, we review an order denying defendant's motion to suppress a handgun seized by the police.
A jury found defendant guilty of second degree possession by a convicted person of the handgun at issue. N.J.S.A. 2C:39-7(b)(1). The judge imposed an extended term sentence of imprisonment for twenty years with ten years of parole ineligibility. We affirmed, State v. Hayes, No. A-5624-97T4 (App. Div. Sept. 30, 1999), and the Supreme Court denied certification, State v. Hayes, 163 N.J. 75 (2000). Defendant filed a timely petition for post-conviction relief, alleging ineffective assistance of counsel for failure to move before trial for suppression of the handgun. His petition was denied on May 6, 2003, and he appealed. Another panel held that defendant had established a colorable Fourth Amendment claim and remanded for a plenary hearing on the suppression issue pursuant to State v. Johnson, 365 N.J. Super. 27 (App. Div. 2003). State v. Hayes, No. A-5313-02T3 (App. Div. Mar. 29, 2004) (slip op. at 7). That panel further indicated that the judge could consider the testimony presented at trial and such additional evidence on the validity of the search as the parties might offer. Id. at 9 (slip op.). The hearing began on December 2, 2004, with the taking of testimony offered by the State. On February 3, 2005, the matter was argued and the motion was denied. Defendant appeals, and we reverse.
The material facts are not in dispute. Around 5:00 p.m. on December 19, 1996, an anonymous person called the Atlantic City Police Department. The person said that Marcus Hayes was in apartment B at 1804 Missouri Avenue, that he was armed with a handgun, and that the police should be careful. The call was made from a location about half a block from the Missouri Avenue address. This information was immediately conveyed by radio to Detective Lionel Jones, who knew that there were numerous outstanding warrants for Hayes's arrest. He also knew Hayes personally, having arrested him on a number of occasions for drug offenses, and he was aware of intelligence gathered by the police department indicating that Hayes was usually armed.
Jones and four other officers immediately went to apartment B, which Jones knew was a small two-story structure with a living room, dining room and kitchen on the first floor and two bedrooms on the second floor. Jones approached the front door and looked through the living room window. He saw defendant, whom he recognized immediately, lying on the couch, watching television. A young child was on the floor. Jones knocked on the door, announced that it was the police, and told the lessee, Jamilla Davis, to open the door. Defendant looked at the door and ran upstairs. Jones forced the door open, and he and other officers ran upstairs. They found two young children in one bedroom and defendant hiding under a mattress in the other bedroom.
After a struggle, they handcuffed defendant and searched him and the nearby accessible area for the handgun without success. They brought defendant to the police car while one officer stayed with Davis and her children in the kitchen. After defendant was secured in the police car, Jones immediately returned to the apartment, where he or one of the other officers went to the living room and searched the couch. Under a pillow on the couch, the police found a fully-loaded .38 caliber semi-automatic handgun. The safety was off and the hammer was cocked, ready to be fired.
Davis lived in the apartment with her three children, ages one, four and six. Although defendant was not her boyfriend, he was a friend and frequent social guest in the apartment. On this occasion, he had arrived after noon and had spent the few hours before his arrest watching television from the couch or playing with the children in the living room. There was no evidence that he had ever been an overnight guest in the apartment.
Article I, paragraph 7 of the New Jersey Constitution, like the Fourth Amendment to the United States Constitution, guarantees freedom from unreasonable searches and seizures. But from time to time our State Supreme Court has afforded the citizens of this State with "greater protection against unreasonable searches and seizures than accorded under the Federal Constitution." State v. Johnson, ___ N.J. ___, ____ (2008) (slip op. at 14). Thus, as is relevant here, under the State Constitution defendants charged with possessory offenses have standing to challenge a search and seizure "regardless of whether they had an expectation of privacy in the area searched." Id. at 19-20 (slip op.) ...