On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-02-0544.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 29, 2010
Before Judges Cuff and Fasciale.
Following denial of his motion to suppress, defendant Bruce R. Rice entered a plea to second degree aggravated assault (serious bodily injury), contrary to N.J.S.A. 2C:12-1b(1). He is serving a five-year term of imprisonment subject to a No Early Release Act (NERA)*fn1 85% parole ineligibility term.
On November 11, 2007, at approximately 10:30 p.m., Asbury Park police officers responded to 129 Elizabeth Avenue in Asbury Park to a report of shots fired. At the time, the police were three houses away investigating an unoccupied but running Dodge truck in front of 119 Elizabeth Avenue.
When the officers arrived at 129 Elizabeth Avenue, they spoke to Terry Ann Ellis. She lived in one of the apartments in the building. She reported she had heard a shot fired and her friend, Jazar Lewis, ran into her apartment. Lewis told Ellis he had just been shot, and "[he couldn't] believe he is trying to shoot me." In response to a question posed by Ellis, Lewis told her that defendant was the person who shot at him. Lewis left Ellis's apartment before police arrived. He returned while police were still on the premises but was uncooperative. Ellis informed police that defendant lived at 119 Elizabeth Avenue, and she had seen him in the Dodge truck earlier that evening.
A visual inspection of 129 Elizabeth Avenue revealed what appeared to be a bullet hole in the screen entrance door. Police found a bullet on the kitchen floor near the refrigerator that had initially hit a kitchen cabinet. Police estimated that the bullet appeared to be "a small caliber projectile," approximately .32 caliber or less.
In the early morning hours of November 12, police received another report of a shot fired at 119 Elizabeth Avenue, the home of defendant. Sergeant White of the Asbury Park Police received information that Lewis, the alleged victim of the November 11 shooting, shot at defendant's residence with a .44 or .45 caliber handgun. Having received information from neighborhood sources that defendant kept a rifle under the back porch of his residence, Sgt. White entered the yard of 119 Elizabeth Avenue, looked under the porch, but did not find a weapon.
Sergeant White described 119 Elizabeth Avenue as a two-story, two-family residence. The house has a common front door and porch. In addition, there is a driveway on the north side of the residence. Along the north side of the residence a flight of stairs allows access to the second floor apartment. There is also a back porch and a back door accessible from the driveway. A fence on the property does not block access to the driveway, the stairs to the second floor, or the backyard from the driveway.
The following morning, Sgt. White identified a spot from which he could observe the backyard of defendant's house. From the parking lot of a nearby church, White observed defendant enter his backyard, bend down next to the porch, slide a brown rifle under the porch, and walk to the front of the house. Within a matter of minutes, White and two officers arrived at defendant's house. Two officers remained with defendant, and White walked into the backyard and looked under the porch. He observed the butt of a rifle protruding from underneath the porch. Another officer, Sgt. Barnes, remained by the back porch, and White proceeded to the front of the house and arrested defendant.
Defendant filed a motion to suppress the rifle seized by police. He argued that police obtained evidence through a series of warrantless searches in the absence of any exigent circumstances to excuse the obligation to obtain a search warrant. The State argued that defendant had no expectation of privacy for the area under the porch of a two-family house, and exigent circumstances existed due to the reports of at least two recent shootings at defendant's residence and at a neighboring residence. The State argued that given the recent exchange of gunfire, the police should not be required to station an officer to guard the weapon while police obtain a search warrant.
The motion judge agreed. He found that police learned from a variety of sources that defendant and Lewis were exchanging gunfire in the course of an ongoing argument about a woman. The judge found that defendant had no expectation of privacy in his backyard because he lived in a multi-family dwelling, carried the weapon without any attempt to conceal it, placed it under the porch that was visible from other properties, and was accessible to others who entered the yard.
The motion judge also held that a warrant was not required because the rifle was plainly visible to others. He found that White was lawfully in the parking lot of the nearby church, from which he had a largely unobstructed view of the backyard and porch. He also found that Sgt. White did not know in advance that he would find a rifle. The judge noted that White did not find a rifle under the porch when he entered the property and looked under the porch on another occasion. The judge found that White observed the butt of a rifle in plain view as he walked down the driveway and approached the back porch. Finally, the judge found that Sgt. White immediately appreciated that the rifle was the weapon used in recent episodes of gunfire in ...