On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-04-0645 and 08-04-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 14, 2011 - Decided
Before Judges Lisa, Reisner and Sabatino.
By leave granted, the State appeals from a December 1, 2009 order suppressing evidence of a handgun seized during a warrantless search. We affirm.
This appeal arises from proceedings on remand from our earlier decision in State v. Edmonds, No. A-3367-08 (App. Div. Oct. 7, 2009). In that opinion, we affirmed Judge Frederick P. DeVesa's January 16, 2009 determination that the search which uncovered the handgun was not justified under the emergency aid doctrine. See State v. Frankel, 179 N.J. 586, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004). However, on appeal the State raised an additional argument, premised on a case decided after the trial court rendered its decision. We therefore remanded the case to the trial court to consider whether the search was justified as an exercise of the police community caretaking function, under the recently-decided case of State v. Bogan, 200 N.J. 61 (2009).
Mindful of the sparse record before the trial court, consisting of stipulated documents with no live testimony, our opinion also permitted the trial court "in its discretion, [to] reopen the record for testimony." Edmonds, supra, slip op. at
7. But on remand, the State once again did not present testimony from the police officers who conducted the search, and continued to rely on the existing record.
As described in our earlier opinion, the police received a 9-1-1 call concerning alleged domestic violence possibly involving a firearm. As the prosecutor described the 9-1-1 call at the first argument before Judge DeVesa, "they got a call that a woman was getting beaten and there's a gun involved."*fn1 When the police arrived, the alleged victim, Kamilah Richardson, met them at the downstairs doorway and told them that "there was no problem at the residence." The police report reflected no observation of any physical signs that Richardson had been beaten. She emphatically did not want the police to enter her home, and told them that only her eleven-year-old son was in the apartment.
The police insisted on entering the premises, and found her son unharmed in the living room. However, in a room to the left of the living room, the police noticed defendant sitting in a chair watching television. The police report indicated that defendant was "known" to them, but did not indicate how they knew him. After ordering defendant to stand and "put his hands up," the officers removed defendant from the room where he was watching television. They then patted him down for weapons and found nothing.
After searching defendant and finding no weapons, two officers guarded him while a third officer returned to the room in which defendant had been sitting and started searching that room for weapons. He found a handgun under a pillow on a mattress located on the floor near the chair in which defendant had been sitting. Defendant admitted that the gun was his, and the police arrested him. They also arrested Richardson, the alleged victim of domestic violence, for "obstruction."
On the remand, Judge DeVesa found that in searching the television room the police were not exercising their community caretaking function. Rather, they were impermissibly looking for evidence of crime without a search warrant. In an oral opinion placed on the record on November 17, 2009, the judge concluded:
[O]bviously the police had a duty to respond . . . to Ms. Richardson's apartment and they may have even had the duty to knock on the door or ring the bell just to make sure everything was okay inside. And that would all be part of the community caretaking function, if you will. But it's clear to me that once they got to the apartment, once they saw Ms. Richardson not having any type of injuries or appearing to have been assaulted in any way, once they opened - got to the door and had the child open the door and he, too, did not appear to be in any sort of distress, the community ...