August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT C. SMITH, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
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 the magazines were lawfully seized by the police officers.
Pursuant to N.J.S.A. 2C:25-28(j) and 2C:25-29(b)(16), a judge of the Family Part is authorized to issue a warrant to search for weapons in a domestic violence case because of the legislative and judicial goal of assuring the safety of victims of domestic violence by maximum protection available by law. State v. Cassidy, 179 N.J. 150, 157 (2004); State v. Johnson, 352 N.J. Super. 15, 18 (App. Div. 2002). Moreover, the Legislature provided that relief be available promptly so that the Act permits a victim to apply an emergency TRO on an ex parte basis. N.J.S.A. 2C:25-28(f). Moreover, a TRO includes "forbidding the defendant from possessing any firearm or other weapon... ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located... and for any other appropriate relief." N.J.S.A. 2C:25-28(j).
Since the purpose of a warrant pursuant to N.J.S.A. 2C:25-28(j) is to protect the victim from further violence and to discover evidence of criminality, the analysis of whether the issuance of a domestic violence search warrant is constitutionally permissible is not based on the traditional notions of probable cause, which requires a well-grounded suspicion that a crime is being committed. A domestic violence warrant is upheld where there is reasonable cause to believe (1) an act of domestic violence has been committed by defendant, (2) the defendant possesses or has access to a firearm or other weapon, and (3) defendant's possession or access to the weapon poses a heightened or increased risk of danger to the victim. Johnson, supra, 352 N.J. Super. at 20.
Defendant does not challenge the validity of the domestic violence search warrant for the seizure of weapons found by the patrolmen when executing the warrant, but that the high capacity ammunition magazines were not admissible under the plain view doctrine.
Both defendant and the prosecutor agreed that State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003), is central to this case. We held in Perkins that a search and seizure of firearms was proper under the Act to protect a victim of domestic violence from further violence but that the seizure of one of the guns, a thirty caliber M-1 carbine, classified as an "assault firearm" under N.J.S.A. 2C:39-1(w)(1), was not seized in accordance with the requirements for a constitutionally permissible seizure under the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution.
In Perkins, supra, the defendant's wife called 9-1-1 to say that her husband had assaulted her and was a gun collector who possessed "a lot of weapons." The wife told police where the gun collection was kept and another location where firearms could be located. When police arrived, the defendant was in bed. With alcohol on his breath, he admitted his wife's version of events of that evening. The police searched the house for defendant's gun collection and found a substantial number of firearms, knives and swords, most of which were not secured in a safe location. The police took weapons into custody including an assault weapon which formed the basis for the criminal charge against defendant.
We held that the search and seizure was valid because the officers had probable cause to believe that the defendant committed an act of domestic violence, reasonable cause to believe he had access to weapons, that the access posed a heightened risk of injury to the victim, and that the officers acted reasonably under the circumstances. Id. at 160.
Nonetheless, we further concluded that the seizure justified by the concern for the safety of the victim did not permit the use of the seized assault weapon in the criminal prosecution because the State could not demonstrate an applicable exception to the constitutional requirement for a search warrant. We rejected the State's contention that the contraband was discovered in plain view while the officers were properly in the house conducting a search and there was no evidence it was "immediately apparent" that the officers recognized the criminal nature of the assault weapon when it was seized. Id. at 162.
The plain view exception to the warrant requirement applies when (1) the officer is lawfully in the viewing area, (2) the officer discovers that evidence "inadvertently," meaning that the officer neither knew in advance where the evidence was located nor intended beforehand to seize it, and (3) it was "immediately apparent" to the officer that items in plain view were contraband, evidence of a crime, or otherwise subject to seizure. Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 470, 91 S.Ct. 2022, 2037-40, 29 L.Ed. 2d 564, 582-85 (1971); State v. Johnson, 171 N.J. 192, 206-07 (2002); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984).
Since the defendant does not dispute the validity of the TRO and makes no claim that the officers' presence at his residence was improper, the first requirement of the plain view doctrine is not in dispute. However, defendant contends that the second requirement of inadvertence was not met since the officers knew that they were going to the residence to search for weapons and that magazines were reasonably expected to be found. Defendant misconceives the point.
Patrolman Matthews did not know in advance that illegal high capacity ammunition magazines were in the possession of the defendant. The officers were seeking to remove guns and other weapons defendant may have possessed rather than looking for evidence of criminality. In upholding the credibility of Patrolman Matthews, Judge Chaiet determined that the officers had no idea that "these particular magazines would be in the gun locker." The fact that the defendant kept contraband with his other weapons was not anticipated by the officers. Lawfully in the viewing area, they were not obliged to close their eyes to evidence of criminality. See Bruzzese, supra, 94 N.J. at 237. The two questions that the court must consider before determining whether the inadvertence requirement is satisfied is (1) did the police know in advance where the evidence was located and (2) did they intend beforehand to seize it. Id. at 236. There is simply no indication that the police expected to find illegal high capacity magazines during the TRO search.
Defendant next argues that the third requirement of the plain view doctrine was not met because the magazine was not immediately recognized as contraband. He bases his argument on the testimony of Patrolman Matthews that the magazines would not be illegal if blocked and that he could not determine by sight whether or not these magazines were blocked until he conducted a test with a stick at police headquarters. However, Matthews also testified that at the scene he used a flashlight to look inside the magazines and did not see a block. Moreover, at least one magazine was still wrapped in its initial packaging. Since Matthews testified that a block would have to be inserted after purchase, it can be concluded that an unopened magazine could not have been blocked.
The United States Supreme Court discussed the third prong of the plain view test in Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed. 2d 502, 513 (1983). The Court stated that in order to seize evidence in plain view, the police officer must have probable cause to associate the property with criminal activity. In adopting the Texas v. Brown test, the New Jersey Supreme Court stated:
We do not believe that a police officer lawfully in the viewing area must close his eyes to suspicious evidence in plain view. The Supreme Court's rule merely requires that "the facts available to the officer would 'warrant demand of reasonable caution in the belief' (citation omitted) that certain items may be contraband, or stolen property or useful as evidence of a crime, it does not demand any showing that such belief be correct or more likely true than false." [Bruzzese, supra, 94 N.J. at 237.]
The Supreme Court's three plain view requirements comport with the overall constitutional standard of reasonableness. Id. at 237-38. Here Patrolman Matthews immediately recognized the magazines as contraband. He said that the high capacity magazines immediately "caught [his] eye" because they were "a banana clip" shape to fit a SKS rifle and were thereby illegal in New Jersey. Therefore, we find that Judge Chaiet properly concluded that the magazines were admissible as evidence at defendant's criminal trial and denied the motion to suppress.
The remaining argument by defendant is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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