On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-08-1714.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Parker.
Defendant Shannon Wallace appeals from an order entered after a remand proceeding on April 6, 2005 denying his motion to suppress evidence seized without a warrant. After denial of his original motion on May 14, 2002, defendant was tried by a jury and found guilty of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; two counts of third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and -5d; second degree possession of a weapon while committing a drug crime, N.J.S.A. 2C:39-4.1a; fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3d; and second degree possession of a weapon by a prohibited person, N.J.S.A. 2C:39-7b. After the appropriate mergers, defendant was sentenced to an aggregate term of twenty years subject to ten years parole ineligibility.
These charges arose out of defendant's arrest on January 22, 2001 when Parole Officer Thomas High arrived at a residence he knew defendant occupied. Along with eight other parole officers, High intended to serve an arrest warrant for violation of parole. The residence was within one thousand feet of a school.
High had supervised defendant since 2000 and had made numerous "home visits" to this address. High knew from past visits that defendant occupied a second floor bedroom from which High saw him "peek out" on January 22, 2001. When the officers entered the house, they went to the second floor bedroom, where one of the officers saw a clip of eight vials of suspected cocaine on a dresser. A drawer in the dresser was partially opened and contained a black semi-automatic handgun. Other officers found a bundle of drugs and a knife in the bedroom. Under the mattress, along with other mail addressed to defendant, they found a certificate from the Parole Department addressed to defendant indicating that he had completed a ninety-day reporting program. One thousand empty vials were found under the bed.
Defendant was not in the second floor bedroom when the officers entered it. One of the officers went to the attic and found defendant hiding behind a clothes rack. When defendant was seized and arrested, he did not have any shoes on. His girlfriend, who was present at the time, indicated to the officers that defendant's shoes were in the bedroom closet. His work boots were retrieved from that closet.
After hearing the testimony at the suppression hearing, the motion judge found that the officers were authorized to enter the home and the bedroom pursuant to the warrant, regardless of whether that was defendant's official address, because they had seen defendant inside the residence on the date the warrant was served and High had previously made "home visits" to this address.
His motion to suppress having been denied, defendant proceeded to trial. The trial judge determined that all of the evidence seized was admissible under the plain view doctrine, including the evidence found under the bed and mattress.
Defendant appealed his conviction and on October 22, 2004, we remanded the matter for a hearing for the trial judge to explain the rationale for admitting into evidence the non-plain view evidence -- specifically, the one thousand vials found under the bed and the paperwork under the mattress. State v. Wallace, No. A-6001-02 (App. Div. Oct. 22, 2004) (slip op. at 11-12).
A remand hearing was conducted on March 17, 2005 by the judge who had denied defendant's pre-trial suppression motion, rather than the trial judge. The remand judge rendered a decision on the record of that date in which he reviewed the testimony and the evidence presented at the suppression hearing and the applicable case law. The remand judge concluded that the continuation of the search beyond the plain view evidence was valid because "[i]t started with plain view, exigent circumstance -- under exigent circumstances, hot pursuit, valid arrest warrant, and what they had found in plain view which indicated the further dangerousness of the situation."
In this appeal, defendant ...