On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-01-0012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued January 14, 2011
Before Judges Axelrad, R. B. Coleman and Lihotz.
The question presented is whether weapons seized utilizing a search warrant issued pursuant to the provisions of the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, may be used in a criminal prosecution for offenses specifically related to the possession of the seized weapons. By our leave granted, plaintiff the State of New Jersey (the State) appeals from a June 15, 2010 Criminal Part order suppressing evidence of criminal conduct obtained in the execution of a PDVA search warrant for weapons, N.J.S.A. 2C:25-28(j). In precluding the use of the evidence, the trial court held the warrant provisions of the PDVA were designed to protect domestic violence victims, not to discover evidence of criminality or to further criminal prosecution.
On appeal, the State argues:
ILLEGAL WEAPONS FOUND DURING THE EXECUTION OF THE JUDICIALLY AUTHORIZED SEARCH WARRANT PORTION OF A TEMPORARY RESTRAINING ORDER ISSUED ACCORDING TO THE PREVENTION OF DOMESTIC VIOLENCE ACT ARE ADMISSIBLE IN A CRIMINAL PROSECUTION.
A. The Weapons Are Admissible Because They Were Seized According to a Valid Special-Needs-Based Search Warrant.
B. State v. Perkins[, 358 N.J. Super. 151 (App. Div. 2003)] Does Not Apply to Warrant-Based Searches.
C. State v. Perkins Should Be Overruled in Light of New Jersey Supreme Court Precedent.
D. Suppressing the Illegal Weapons Found in Defendant's Home Defeats the Main Purpose of the Prevention of Domestic Violence Act, Which is to Give Maximum Protection to Victims and Society.
E. The Exclusionary Rule is Inappropriate for Weapons Lawfully Seized Under the Prevention of Domestic Violence Act.
AS AN ALTERNATIVE ARGUMENT, THE EVIDENCE WAS SEIZED IN PLAIN VIEW DURING THE EXECUTION OF THE SEARCH WARRANT PORTION OF A LAWFULLY ISSUED TEMPORARY RESTRAINING ORDER.
Following our review we affirm in part and reverse in part. We remand the matter to the trial court for additional proceedings.
I. No testimony was provided at the suppression hearing. For the purpose of this appeal, the facts are not in dispute. The charges against defendant Carlton Harris arose when W.J. filed a complaint alleging domestic violence and requesting entry of a restraining order. In her sworn statement supporting her request, W.J. averred she had a dating relationship with defendant, who had committed numerous acts of domestic violence, including beating her in the face, stalking her daily, repeatedly telephoning her at all hours, kicking in her front door, and threatening to kill her and her children while wielding a gun. On August 12, 2009, following consideration of W.J.'s sworn testimony, Judge Anklowitz of the Family Part issued a temporary restraining order (TRO) under the PDVA. N.J.S.A. 2C:25-28(f); see also R. 5:7A(c).
In addition to barring defendant's communication and contact with W.J. and her family, the TRO prohibited defendant's possession of firearms or weapons and included a "warrant to search for and to seize weapons for safekeeping." The provision ordered the search of defendant's home and the seizure of guns and weapons as particularly stated. The form order was completed by the court. The Family Part order, reproducing the court's insertions in italics, provided:
TO ANY LAW ENFORCEMENT OFFICER HAVING JURISDICTION:
This Order shall serve as a warrant to search for and seize any issued permit to carry a firearm, application to purchase a firearm and firearms purchaser identification card issued to the defendant and the following firearm(s) or other weapon(s): Several firearms, incl. but not limited to: 2 9mm., 1 .45cal or 1 .38cal. 1 automatic rifle with ammo belt.
1. You are hereby commanded to search for the above described weapons and/or permits to carry a firearm, application to purchase a firearm and firearms purchaser identification card and to serve a copy of this Order upon the person at the premises or location described as:  Euclid Ave, Trenton, including basement and garage[.]
2. You are hereby ordered in the event you seize any of the weapons described above, to give a receipt for the property seized to the person from whom they were taken or in whose possession they were found, or in the absence of such a person to have a copy of this Order together with such receipt in or upon the said structure from which the property was taken.
3. You are authorized to execute this order immediately or as soon thereafter as is practicable: (x) Anytime; (x) other: See attached order
4. You are further ordered after the execution of this Order, to promptly provide the Court with a written inventory of the property seized per this Order.
As designated in Paragraph 3, a supplemental order was incorporated into the TRO, which included the following provision:
Special Conditions: This is a no knock warrant. There are two pit bulls and possibly booby traps. Officers are also permitted to search '95 Dodge 4x4 pick-up, black with cap, as long as it is parked in driveway or in front of house. Officers should search couch on porch, behind the bar in ...