October 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE K. GAY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH GAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Ind. No. 04-04-0727.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Decided June 25, 2008
Before Judges Skillman and LeWinn.
On June 25, 2008, we filed an opinion reversing defendants' convictions for first-degree robbery and related offenses, and remanded these matters for a new trial. On August 20, 2008, defendant Lawrence Gay filed a motion seeking clarification of our opinion and direction regarding the issue of a motion to suppress that he had raised in a supplemental brief on appeal that had not been addressed in our opinion. Defendant Kenneth Gay has joined in the motion. We now grant the motion and file this supplemental opinion resolving this outstanding issue. Immediately prior to jury selection, Lawrence Gay made an oral motion to suppress a rubber mask seized by Freehold Police Officer Mark Denham in a search of both defendants' rooms at the Village Inn that occurred some eight months after the robberies.*fn1 This search was in connection with a narcotics investigation in Freehold that was unrelated to the robberies in Brick Township.
In Lawrence Gay's room, Denham found a rubber Stone Cold Steve Austin Halloween mask that he took as evidence. In Kenneth Gay's room, Denham found a silver gun, a bulletproof vest and another rubber mask; the officer took the vest and gun, but not the mask, as evidence.
The basis of defendant's suppression motion was that the affidavit supporting Denham's search warrant did not contain sufficient facts to justify the seizure of the rubber Halloween mask. Defendant argued:
I would carry the argument over that [the mask] is not an indicia of drug deals. Money, currency, body armor and guns would be. The mask wouldn't be. It was beyond the scope of the information for the affidavit. Beyond the scope of the search warrant. And in this case is vitally important. Because this piece of evidence, that mask which was photographed and put on the return warrant, will coincide with some of the testimony of the victims as to the type of mask involved. That's the limited piece of evidence that I'm seeking to exclude.
When pressed by the trial judge to cite legal support for this argument, counsel responded: "I don't have any law, Judge, to support that. I haven't looked up any law. No specific law." The prosecutor argued:
The two individuals seated here are known drug traffickers from prior convictions. They are in fact well known to the Freehold Police Department.
[W]hen they are looking for contraband, weapons[,] they come across masks. First of all, the masks are totally out of character. Secondly, the suspicion is that these gentlemen go up to north Jersey and use the masks to rip off other drug dealers. This is in their mind. They have a reasonable suspicion that these masks are used in the business of . . . moving contraband.
In denying the motion to suppress, the trial judge stated:
[W]hile at first blush it may appear in this case that a rubber Halloween mask is out of context with the transactional day-to-day activity of a drug dealer, . . . it was suggested to me, based on common experience . . ., that so is body armor. And so is, a lot of times, handguns.
And it is not far afield to understand in this day and age that trafficking in drugs also includes ripping off or robbing other people who traffic in drugs on a regular basis. . . .
In addition to that, if you think that when you are searching an older gentleman's room, and I don't know exactly how old Mr. Lawrence Gay is -- and I don't mean to refer to you as an old man, sir, but you are certainly not a child. And in the context of having a Halloween mask in your premises is something that is out of the ordinary.
I believe that it is within the prospects of an item that could be utilized in illegal transactions and is not excludable from the confines of this search warrant. And, therefore, substantively, I will not suppress the mask found in Room 104 [of the Village Inn].
Under the totality of the circumstances, we conclude that the trial judge properly denied the motion to suppress for the reasons stated in his oral decision. "Although the description of items in a warrant must be sufficiently definite to prevent searches conducted at the whim of an officer, . . . a warrant granting an officer some discretion in searching for items that fall within a named category is not necessarily invalid." State v. Reldan, 100 N.J. 187, 196 n.2 (1985). If a warrant is not deemed invalid for "granting an officer some discretion[,]" we conclude that neither should the seizure of items pursuant to that warrant be invalidated so long as those items "fall within a named category[.]" Ibid.
The warrant in this case referred to "property . . . possessed, controlled, designed, intended for use in violation of the penal laws of the State of New Jersey; [and] which has been used in connection with the violation of the penal laws of the State of New Jersey[.]" This property was further defined as "consisting of . . . any and all evidence of . . . the distribution of Controlled Dangerous Substances." As the trial judge noted, a mask is no more "out of context with the transactional day-to-day activity of a drug dealer . . . [than] body armor . . . [and] handguns." Therefore, the judge concluded, the mask fell within "a named category" of property described in the warrant. We agree.
Defendant's reliance upon State v. Muldowney, 60 N.J. 594 (1972), and State v. Dye, 60 N.J. 518 (1972), is misplaced. Muldowney involved a search warrant so broadly drafted that it "gave no guidelines to the officer as to what kind of items were to be seized." 60 N.J. at 600. The Supreme Court found such a warrant to be "constitutionally intolerable[.]" Ibid.
In Dye, the defendant challenged a wiretap order as overly broad because it authorized the interception of telephone conversations that were unrelated to the underlying offense of bookmaking. 60 N.J. at 526. In affirming the defendant's conviction, the Court noted:
[W]here articles of personal property are seized pursuant to a valid warrant, and the seizure of some of them is illegal as beyond the scope of the warrant, those illegally taken may be suppressed, or excluded at the trial, but those within the warrant do not become so tainted as to bar their receipt in evidence.
[Id. at 537.]
Since we conclude the rubber mask was not "beyond the scope of the warrant," we find no "taint" barring its "receipt in evidence." Ibid.
Accordingly, we affirm the denial of the motion to suppress.