On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1832-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Collester.
Following the denial of a motion to suppress evidence, defendant Robert C. Smith pled guilty to one count of N.J.S.A. 2C:39-3(j), fourth-degree possession of a prohibited weapon. At time of sentence a disorderly persons charge of obstruction under N.J.S.A. 2C:29-1(b) was dismissed. The judge declined to impose a probationary term and fined defendant $500 in addition to mandatory fees and fines.
Defendant appeals the denial of his motion to suppress by making the following arguments:
POINT I - THE COURT BELOW ERRED BY DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BECAUSE THE MAGAZINE AT ISSUE WAS SEIZED PURSUANT TO A DOMESTIC VIOLENCE TRO SEARCH AND SHOULD HAVE BEEN SUPPRESSED.
POINT II - IT IS FUNDAMENTALLY UNFAIR TO PERMIT A PLAIN VIEW EXCEPTION TO EVIDENCE DISCOVERED UNDER A N.J.S. 2C:12-25D TRO WARRANT WHEN A CLEAR UNTAMPERED CHAIN OF CUSTODY BY THE APPELLANT OVER THE EVIDENCE CAN NOT BE ESTABLISHED.
On May 11, 2007, defendant's wife filed a complaint under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, seeking a temporary restraining order (TRO) against defendant based on acts of domestic violence including criminal mischief, harassment, and stalking. She further stated in the complaint that defendant possessed "rifles, handguns, shotguns, up to 60 weapons and ammunition" at their residence in Freehold. The TRO was executed by a Superior Court judge on May 11, 2007, after finding sufficient grounds for exigent circumstances and an immediate danger of domestic violence. The printed TRO form contained a provision titled "WARRANT TO SEARCH FOR AND SEIZE WEAPONS FOR SAFEKEEPING," which operates as a search warrant to be executed by any law enforcement officer having jurisdiction to search for and seize any weapons or permits for weapons.
Howell Township Patrol Officer Thomas Matthews testified at the suppression hearing on May 14, 2007, that he assisted Patrolman Moore in the serving of the TRO on defendant at his workplace. Defendant then accompanied the officers to his Freehold home for the officers to execute the search for weapons authorized by the TRO. Defendant told the officers he had given most of his weapons away to his sons and only had some Civil War swords. Entering the home, the officers took possession of one sword that was in plain view and a BB gun next to the sword.
The officers soon determined that defendant was not forthcoming about weapons in his possession. Patrolman Moore looked under his bed and found four rifles in two hard-shell cases. Patrolman Matthews opened a drawer in defendant's nightstand and found two handguns in a leather case. Defendant was placed under arrest for obstruction based on giving false information about the guns.
The officers continued their search of the home and then proceeded to the garage where they found a gun case. Upon opening the case, the officers saw twelve guns on the right hand door of the safe and several ammunition magazines on the left. Patrolman Matthews testified that some high-capacity rifle magazines immediately "caught [his] eye." Based on his experience and personal knowledge of firearms, Matthews knew that the magazines had a capacity of about thirty rounds and were illegal in New Jersey. Matthews said he recognized the magazines as high capacity because they were a "banana clip shape" and was familiar with the rifle that they fit, a Yugoslavian SKS7.62X39 rifle. With the high capacity magazines in his hand he went to speak to the defendant. He testified defendant said, "I'm stupid for keeping them."
On cross-examination, Patrolman Matthews acknowledged that the TRO warrant did not specifically include magazines. He further said that the magazines were empty of bullets and that one was still wrapped in its original packaging while the other two were in zip-lock bags. He testified that a high capacity magazine can be "blocked" from the inside or outside after purchase, and the magazines would be illegal only if they were not blocked. He admitted that he could not know for sure by looking at the magazines that they were in fact blocked. At the scene he used a flashlight to look inside the magazine and did not see a block. Later at headquarters he confirmed that there was no block by inserting a stick in the magazines.
Following the testimony of Patrolman Matthews and the arguments of counsel, Judge Paul F. Chaiet denied the suppression motion on grounds that the search fell within the plain view exception to the warrant requirement and that ...