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State v. Chippero

December 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RICHARD CHIPPERO, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether a probable cause determination to search a home where the suspect lives may be valid irrespective of whether there is probable cause to arrest that particular individual.

On July 23, 1991, Ermina Rose Tocci was found stabbed to death in her North Brunswick mobile home at 51 Poe Road. Two days after the discovery of the Tocci homicide, the police investigation into the case was aided by information provided by a disinterested citizen and former neighbor of Tocci, Kevin McMenemy. McMenemy contacted the North Brunswick police on July 25th to inform them that on the day that Tocci was murdered, he was waiting nearby to pick up his stepdaughter at 45 Poe Road. While waiting in his car, McMenemy observed a Caucasian man run from the vicinity of the front of the victim's home to the entrance of a mobile home next door. McMenemy described the man as stocky, about 5'8" tall, with sandy or dirty blond hair that was not "terribly long in the back, but it did cover his ears," and a mustache. He noticed that the man seemed to be "sweaty"; his clothing appeared to be "clammy" and sticking to him. He was wearing a gray short-sleeved tee shirt and darker colored shorts. In response to questioning, McMenemy denied seeing any blood stains on either the man or his clothing. He also told the police that when he returned his daughter to her home after lunch he saw the same man wearing different clothing and riding a bicycle.

The same day that the police obtained the information from McMenemy, they sought and obtained a search warrant for defendant's home from the Honorable Robert P. Figarotta, J.S.C. Although the police did not know who McMenemy had seen going into 49 Poe Road, they knew that the twenty-three-year-old defendant lived there with his eleven-year-old brother, his mother, his stepfather, and his grandmother. Judge Figarotta issued a search warrant for a "single edged knife approximately one (1) inch wide, bloody clothing, gray short sleeved shirt, [and] dark colored shorts." The warrant further described the premises to be searched. When officers arrived to execute the search warrant, defendant's grandmother allowed them entry into the home. Defendant was not present. Based on information provided by defendant's brother, some investigators went to find defendant while others remained to execute the search. The residence was searched and several items were seized. Meanwhile defendant was located at Farrington Lake. After an investigator identified himself as a police officer, defendant acknowledged that he was Richard Chippero. The officers patted him down, handcuffed him, and transported him to the prosecutor's office where he waived his Miranda rights and signed a Miranda waiver card. After approximately nine hours of interrogation, defendant confessed to raping and murdering Tocci.

Defendant was indicted for second-degree possession of a weapon for an unlawful purpose, second-degree burglary, first-degree aggravated sexual assault, purposeful or knowing murder, felony murder, and third-degree hindering apprehension or prosecution. On February 24, 1994, the Honorable Barnett E. Hoffman, J.S.C., denied defendant's motion to suppress the items obtained from the search of his home. On May 8, 1995, the Honorable John S. Kuhlthau, J.S.C., denied defendant's motion to suppress admission of his confession.

A jury convicted defendant on all counts except the burglary charge. The court sentenced defendant to two concurrent life terms with a fifty-five-year parole disqualifier. On appeal, defendant challenged the admissibility of his confession but did not raise the validity of the search warrant. The Appellate Division upheld the conviction and sentence. The panel accepted, as the factual predicate to the parties' arguments, that defendant had been subjected to an illegal arrest, but found that the passage of time between the arrest and confession broke the causal connection between the two and purged the confession of any taint from the illegal arrest. The Supreme Court reversed and remanded for a new trial. The Court found that nothing that occurred during defendant's lengthy interrogation freed his confession from the taint of his illegal arrest and that therefore suppression was necessary. State v. Chippero, 164 N.J. 342 (2000) (Chippero I).

Prior to the start of defendant's second trial, he moved again to suppress the evidence obtained from the search of his mobile home. Defendant argued, in part, that the search warrant signed by Judge Figarotta was not supported by sufficient evidence, adding now that his position had support from Chippero I's determination that the State lacked probable cause to arrest him at the time of execution of the search warrant. The motion was denied and at the retrial, the evidence seized from defendant's home was admitted. A jury again convicted defendant of purposeful or knowing murder, as well as second-degree possession of a weapon for an unlawful purpose. The court sentenced defendant to a life term with a thirty-year parole disqualifier.

In the appeal from his second conviction, defendant raised a number of arguments, including that the court erred in denying his pre-second-trial motion to suppress. Defendant's argument again pivoted off the premise in Chippero I that the State lacked probable cause to arrest him on July 25, 1991, which he contended eviscerated the legitimacy of the finding of probable cause to search his home that same day. The Appellate Division remanded the matter for the Law Division to determine whether the lack of probable cause to arrest affected the validity of Judge Figarotta's determination of probable cause to issue the search warrant. The Honorable Deborah J. Venezia, J.S.C., concluded that the validity of Judge Figarotta's determination remained unaffected by what later transpired in Chippero I.

Before the Appellate Division, defendant reasserted his arguments. In reviewing defendant's second conviction, the panel held that a finding of probable cause to issue a search warrant for 49 Poe Road simply could not be supported in light of the statement in Chippero I that defendant's arrest was without probable cause.

And, as the panel emphasized, nothing in the Chippero I "opinion or otherwise" suggests "that the probable cause to arrest, which was lacking, can be distinguished from the probable cause to search."

The Supreme Court granted the State's petition for certification.

HELD: Although the evidence that justifies both an arrest and the issuance of a search warrant must support a finding of probable cause, the two probable cause determinations are not identical. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding of the lack of proof for the other. Accordingly, nothing in the Supreme Court's earlier holding in this case (Chippero I) should be perceived as having compelled the suppression of the evidence seized from defendant's home.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect against unreasonable searches and seizures by requiring a showing of probable cause to issue a warrant. In respect of that crucial probable cause determination, it is well settled that the issuing magistrate is required to make the determination based on only that information which is "contained within the four corners of the supporting affidavit" or sworn testimony provided by law enforcement personnel. Issuing courts must consider the totality of the circumstances when assessing the reasonable probabilities that flow from the evidence submitted in support of a warrant application. Whether in the arrest context or in a search context, it is the same standard of proof that controls: probable cause. However, although the conclusions that justify an arrest and that justify the issuance of a search warrant must be supported by evidence of the same degree -- probable cause -- the conclusions themselves are not identical. Fundamentally, arrest warrants and search warrants protect different interests. A search warrant seeking evidence in support of a police investigation into a crime protects individual privacy interests of a suspect, or of a third party, against unreasonable intrusion by police, whereas, an arrest warrant protects against unreasonable seizure of and the resultant loss of liberty to an individual believed to have committed a crime. Thus, the factual predicate for a showing of probable cause to arrest may not be necessarily the same as that required for probable cause to search, as many courts have noted. This Court joins those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding that there is a lack of support for the other. Simply put, a probable cause determination to search a home where the suspect lives may be valid irrespective of whether probable cause to arrest that particular individual has crystallized. (Pp. 11-20)

2. In the present case, it is readily apparent that there is no basis to hold, as a matter of law, that Chippero I compels the suppression of the evidence seized from 49 Poe Road. The critical and only question is whether a sufficient showing of probable cause to search was presented to the warrant-issuing judge. The Court concludes that the issuing judge could have found from the record that a reasonable probability existed to show that the person McMenemy saw may have had a connection with the crime and may have had on him, or on his clothing, evidence connected to the sexual assault and murder. That showing provided a substantial basis for the probable-cause-to-search determination that was made by the court on July 25, 1991. The obligation to ensure that the issuing judge had sufficient evidence to support his determination of probable cause to search the 49 Poe Road premises for the items authorized has been met. (Pp. 20-22)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate Division for consideration of defendant's unaddressed points on appeal.

CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in ...


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