On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 09-02-0356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
Defendant Asmar Troy was charged with second-degree possession of a weapon, N.J.S.A. 2C:39-5(b). The trial court granted defendant's motion to suppress the evidence obtained in a warrantless seizure. By leave granted, the State appeals, arguing the gun was properly seized. We agree and reverse.
These are the facts, as recited by the court following the suppression hearing.*fn1 On July 22, 2008, Lieutenant Jest of the East Orange Police Department responded to a call to investigate a reported trespassing at South Clinton Street. Detectives B. Wynn, Jr. and J. Bocchino arrived on the scene to assist in the investigation. Jest ordered Wynn and Bocchino to the front entrance of the house while he moved to the rear. When the officers knocked on the front door, Wynn observed three or four males running from the kitchen area up an interior stairwell. Jest also saw a group of males, who had been headed toward the rear exit, turn around and ascend the stairs.
After the men ran up the steps, the homeowner's niece, who resided in the premises, answered the door. Wynn recognized the woman and spoke to her. Wynn then heard a window being opened on the side of the house. He stepped toward the area and illuminated it with his flashlight. Wynn saw a black male with long dreadlocks, later identified as defendant, lean out the window and toss an object toward the backyard. Wynn radioed Jest, who stated he had also observed the event and had nearly been hit with the projectile. Jest recovered the object -- a.38 caliber handgun loaded with seven live rounds.
The homeowner, Cleaster Murray, was called to the front door. She told the officers the males did not have her permission to be in the home and she had attempted to remove them earlier that evening. Her niece corroborated that the men were in the home unlawfully. Wynn and Bocchino removed three males and a female from inside the house. The homeowner explained the female was also a relative and she was released. Jest detained two other men who attempted to flee through the back door.
The men were charged with defiant trespass, N.J.S.A. 2C:18-3(b). Defendant was arrested and additionally charged with second-degree possession of a weapon, N.J.S.A. 2C:39-5(b).
Defendant moved to suppress the gun, arguing the police lacked "constitutional justification" for entry into the backyard; thus, collection of the weapon was an unlawful warrantless seizure. In contrast, the State contended the weapon was properly admitted under the plain view exception to the warrant requirement or, in the alternative, that defendant had abandoned the weapon by throwing it out the window.
Following a hearing, the trial court granted defendant's motion, concluding the seizure did not fall under the plain view exception. The motion judge found the discovery of the gun was inadvertent and the weapon was recognized as suggestive of criminal activity. Further, she determined Wynn was lawfully on the front porch when he observed the object thrown from the window. However, he could not identify it as a gun. Jest, who recovered the weapon, was in a different position and saw the object was a gun but did not testify. Examining the evidence reporting Jest's location, the motion judge determined insufficient evidence existed to show he was lawfully in a position to make the plain view discovery and seize the weapon. In rendering her findings, the motion judge commented:
Detective W[ynn] did not testify to the layout of this backyard. It is unknown whether there's a fence.... There has been nothing put forward as to the use of the yard or whether the home was rented or owned by the defendant.
Lieutenant Jes[t] did not testify at the hearing. Detective W[ynn] did state on cross-examination that there was a fence that separated the house from the next house. Assuming that this fence continued back past the yard, the backyard in fact had been part of the curt[i]lage of the house. That the item seized was found within the curt[i]lage however does not foreclose the applicability of the plain view exception [in] that the curt[i]lage may ...