October 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHERWIN H. RAYMOND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-06-1057-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Fisher and Sapp-Peterson.
In this appeal, we review the denial of a motion to suppress evidence. Because evidence was obtained pursuant to a warrant executed by a municipal judge not authorized to permit a search in the municipality in question, we reverse and remand for further proceedings.
Although no testimony was heard at the suppression hearing, there appears to be no dispute that in the early evening of May 30, 2005, police officers responded to a call regarding a "disoriented elderly female" wandering about Abbot Avenue in Ridgefield. The officers located the woman and later learned she was Elizabeth Raymond, defendant's wife. According to the judge's decision, the officers took Mrs. Raymond to her home and noticed that both doors were open. After ringing the bell, knocking and calling out "hello" without response from anyone inside, the officers entered the home to see whether anyone was in need of assistance.
The judge stated in his written decision what occurred next:
While no persons were found on the first floor, the officers did discover several unsecured gun cases containing long guns inside. The basement also revealed many unsecured weapons and long gun cases. Additionally, the police discovered a large amount of gun powder in open coffee cans along with some closed tins in the laundry room. Housed nearby to the gunpowder was the gas boiler and gas hot water heater.
While the officers secured the home and awaited Ridgefield Police Detectives, [defendant]... arrived at the scene and was advised of the situation regarding his wife and home. Upon questioning, the defendant indicated that he did not have any weapons on his person or in his vehicle and consented to a search of his vehicle. However, when [one of the officers] approached the vehicle, he observed a gun case and several boxes of ammunition.
[A detective]... arrived at the scene a short time later and determined that a danger was presented by the placement of the gun powder in such close proximity to the pilot lights attached to the boiler and heater. In response, PSE&G was asked by the police to shut off gas service to the home as soon as possible. Additionally, the Bergen County Bomb Squad was called to determine the safety of the premises.
During this time period, the police present at the scene discovered four additional motor vehicles in the driveway[,]
[t]hree of which contained various boxes of ammunition in the passenger compartment. The police also entered the garage through a slightly open door. Inside, the police discovered many spent shotgun shells as well as a white propane gas container. Additionally, gun powder, boxes of ammunition, several rounds of ammunition and small red gas cans were found among piles of debris.
[Other detectives] arrived soon after and reviewed the conditions of the property. [One detective] determined that in order to ensure the safety of the area, all of the ammunition and gun powder was to be removed.
PSE&G also arrived a short time later and shut off the gas service.
At 1:30 p.m. the following day, one of the detectives arrived at the law office of Michael S. Shuhala, the Cliffside Park Municipal Judge. A little more than one hour later, a warrant, which purported to authorize a search of defendant's home in Ridgefield and lockers maintained by defendant and his wife at a recreation center in Ridgefield, was faxed to the police. The police thereafter conducted a search of those locations.
Defendant was indicted and charged with two counts of second-degree causing a risk of injury or damage, N.J.S.A. 2C:17-2(c); one count of third-degree causing a risk of injury or damage, N.J.S.A. 2C:17-2(c); one count of third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); and one count of fourth-degree unlawful possession of an ammunition magazine, N.J.S.A. 2C:39-3(j). Upon the denial of his suppression motion, defendant pled guilty to one count of third-degree causing a risk of injury or damage and one count of fourth-degree unlawful possession of an ammunition magazine. He was sentenced to one-year probationary term; the other counts were dismissed.
Defendant appealed, raising the following arguments for our consideration:
I. THE COURT BELOW ERRED BY NOT SUPPRESSING EVIDENCE OF THE INITIAL WARRANTLESS SEARCH OF THE HOME.
II. LAW ENFORCEMENT HAD NO REASON TO WARRANTLESSLY AND SEPARATELY SEARCH MR. RAYMOND'S GARAGE.
III. NOT ONLY WERE THE ITEMS VIEWED BY POLICE DURING THEIR WARRANTLESS SEARCH OF MR. RAYMOND'S HOME NOT CONTRABAND UNDER NEW JERSEY LAW, BUT MR. RAYMOND HELD A CONSTITUTIONAL RIGHT TO KEEP SUCH ARMS (NOT RAISED BELOW).
IV. THE COURT BELOW ERRED BY FINDING "GOOD FAITH" APPLIES TO A WARRANT SIGNED BY A JUDGE WHO HAD NOT BEEN RE-APPOINTED IN THE MUNICIPALITY WHERE THE SEARCH TOOK PLACE AND WHO SPECIFIED AND INITIALED THAT HE DID NOT REPRESENT THE MUNICIPALITY AT ISSUE.
V.THE COURT BELOW ERRED BY FINDING PROBABLE CAUSE TO ISSUE A WARRANT.
VI. THE EVIDENCE SHOULD HAVE BEEN SUPPRESED BECAUSE OF THE WARRANT'S OTHER NUMEROUS DEFECTS.
We affirm in part, reverse in part and remand for further proceedings.
In the first two points, defendant argues that evidence seized during the warrantless search on the evening of May 30, 2005 should have been suppressed. We initially observe that defendant has not indicated in his appeal brief that the arguments in Points I and II were not raised in the trial court; he has acknowledged in his brief that he failed to raise in the trial court the argument contained in Point III, which also questions the sufficiency of the warrantless search on May 30, 2005.
In examining the contentions raised in Points I and II, we are not satisfied that they were raised in the trial court. Defendant has not included in the appendix a copy of his motion to suppress and his counsel's argument on the return of the motion does not contain a challenge to the warrantless search. Indeed, since the arguments contained in Points I and II necessarily turn on factual matters relating to the existence of an emergency warranting the officers' entry into defendant's home, and what may or may not have been in plain view once the officers had entered, the fact that the parties voluntarily waived the right to present testimony at the suppression hearing strongly suggests the absence of defendant's assertion in the trial court of an inadequacy in the warrantless search. Because defendant has not persuaded us that he raised the arguments contained in Points I and II in the trial court, we decline to consider them now. See R. 3:5-7(f).
We also reject Point III. Defendant there argues that the weapons and ammunition observed by officers during the warrantless search of the home were not contraband and that possession of such items is constitutionally protected, citing District of Columbia v. Heller, __ U.S. __, 128 S.Ct. 2783, 171 L.Ed. 2d 637 (2008). In Crespo v. Crespo, 408 N.J. Super. 25, 41-43 (App. Div. 2009), we held that Heller announced a limitation only on the power of Congress to infringe Second Amendment rights, and has not been found to apply to the states. We continue to adhere to this view, which dispenses with defendant's Point III.
We do agree, however, that the search warrant, which issued on May 31, 2005, was unauthorized and that the evidence thereafter seized should have been suppressed because the Cliffside Park Municipal Judge was not authorized by law to execute a valid search warrant for premises in Ridgefield.
In considering defendant's argument, we start with the understanding that a search warrant issued by a municipal judge who is not expressly authorized to permit a search outside that judge's territorial jurisdiction is invalid. Eleuteri v. Richman, 26 N.J. 506, 508, cert. denied, 358 U.S. 843, 79 S.Ct. 52, 3 L.Ed. 2d 77 (1958); State v. Bell, 166 N.J. Super. 143, 144 (App. Div. 1979). However, so that the administration of criminal justice is not crippled by the unavailability of a municipal judge, the Legislature has since authorized assignment judges to appoint "an acting judge of each of the municipal courts in the vicinage to serve as judge temporarily when the judge of that court is unable to hold the municipal court or for other cause." N.J.S.A. 2B:12-6. See also R. 1:12-3(a); State v. Broom-Smith, 406 N.J. Super. 228, 236-38 (App. Div. 2009). N.J.S.A. 2B:12-6 presupposes that the assignment judge will enter an order to that effect and provide a copy "to the judge of that court and to the Administrative Director of the Courts."
Here, the record reveals that the assignment judge of the Bergen vicinage entered orders on the first day of 2004, as well as the first day of 2006, appointing Judge Shuhala as an acting judge of Ridgefield when the original judge of that municipality either disqualifies himself or, among other reasons, when there is an "inability for any reason of a judge to hear any pending matter before or after trial."*fn1 The order of the assignment judge for 2004 expired at the end of the calendar year*fn2; the order of 2006 was not effective until executed on January 1, 2006. In short, the 2004 order expired on December 31, 2004 and the 2006 order did not become effective until January 1, 2006. These orders did not expressly or even impliedly authorize Judge Shuhala to execute search warrants for premises in Ridgefield during the calendar year 2005. In addition, the State has indicated that it has searched for an order authorizing Judge Shuhala to be an acting judge of Ridgefield, but no such order has been "located." Considering the time that has elapsed since this issue was raised by defendant, we can only assume that the assignment judge never entered an order appointing Judge Shuhala as acting judge of Ridgefield for the calendar year 2005.
The State nevertheless contends that the lapse of one year between the orders that authorized Judge Shuhala to be an acting judge of Ridgefield is inconsequential, citing State v. Jones, 185 N.J. Super. 285 (App. Div. 1982). We disagree and find the circumstances encountered in that case to be materially different from those at hand.
In State v. Jones, we considered the validity of a search of an Englewood home pursuant to a warrant executed by then Westwood Municipal Judge (later Chancery Judge) Gerald Escala on February 24, 1981. Unlike here, the assignment judge's orders making annual appointments of acting municipal judges were not entered on the first day of each calendar year, but not long thereafter. For example, Judge Escala was appointed acting judge of Englewood for the calendar year 1980 by way of an order entered on February 15, 1980. Similarly, the assignment judge's 1981 order was not entered until March 11, 1981. Because the 1980 order terminated the appointment as of December 31, 1980 and the 1981 order was not entered until March 11, 1981, Judge Escala was not expressly authorized to act as a judge for Englewood between January 1, 1981 and March 10, 1981. The warrant there in question was executed during on February 24, 1981, causing defendant to argue the warrant's invalidity.
In minimizing the consequence of the absence of express authority for Judge Escala to issue a warrant for a search in Englewood on February 24, 1981, we recognized that it was only the assignment judge's delay in entering the annual order that suggested an absence of authorization, and we concluded that when an individual "assumes an office legally and in good faith remains in it after his title has ended," he is a de facto officer. 185 N.J. Super. at 288 (quoting Switz v. Middletown Twp., 40 N.J. Super. 217, 236 (App. Div. 1956), modified on other grounds, 23 N.J. 580 (1957)). We thus held that "it is obvious that when he issued the search warrant on February 24, 1981 Judge Escala was a de facto Acting Judge of the Englewood Municipal Court" even though the 1980 order had expired and the 1981 order not yet entered, and upheld the validity of the warrant because Judge Escala "exercis[ed] the powers of that office in good faith." Id. at 289.
Assuming -- without further considering -- that State v. Jones was correctly decided, we find the circumstances presented here to be markedly different. There was no brief hiatus of a few weeks between the issuance of the warrant and the entry of an order appointing the issuing judge to that jurisdiction for that calendar year. Here, it has not been demonstrated that Judge Shuhala was ever appointed to the position of acting judge of Ridgefield for any part of the year 2005.
In addition, Judge Shuhala's manner of executing the search warrant revealed his own subjective belief that he had not been authorized to act. The opening paragraph of the proposed search warrant stated: "Complaint on oath and in writing having been made before me, the Judge of the Municipal Court of the Borough of Ridgefield, New Jersey, County of Bergen, on this 31st day of May 2005...." Judge Shuhala struck the word "Ridgefield" and wrote "Cliffside Park" above it. He also wrote under his signature, at the end of the document, "Judge Municipal Court Cliffside Park" rather than "Acting Municipal Judge Ridgefield." Even if there is merit in the doctrine espoused in State v. Jones -- that a municipal judge in such a circumstance may become a de facto officer by acting in good faith on the belief that the appointment either had occurred or was forthcoming --the actions of Judge Shuhala in executing the warrant revealed that he did not believe he was authorized to perform the duties of an acting judge of Ridgefield. In these circumstances, we find the narrow holding of State v. Jones to be inapplicable and, for that reason, reverse the Law Division judge's determination that the search warrant was valid.
As a result, we affirm the order under review insofar as it denied the motion to suppress the fruits of the warrantless search of May 30, 2005, but we reverse the order insofar as it denied the motion to suppress evidence seized by way of the search warrant.
Affirmed in part; reversed in part; and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.