On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 09-11-01260.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
Defendant John Brek appeals from an October 19, 2010 Law Division order denying his motion for the return of weapons and other personal property seized by the State during a consent search of his home. Having considered the record and the applicable law, we reverse and remand to the trial court for the return of defendant's property.
The facts that gave rise to this controversy are not in dispute. In October 2009, defendant worked as a security guard for a private company at Newark Liberty International Airport. Vice-President Biden had recently flown into the airport, and President Obama was scheduled to arrive the next day on Air Force One.
Defendant and two other individuals who worked at the airport were standing at a lunch truck near the runway where the President's plane was scheduled to land, when defendant remarked how easy it would be for someone to shoot the President. He pointed out that anyone with a gun could fire at the President, as he left his plane, from surrounding locations, such as defendant's work post, the roofs of nearby buildings or the fenced area enclosing the runway. The men defendant spoke to were sufficiently alarmed by his statements to report them immediately to the Port Authority police.
Within hours, law enforcement personnel questioned defendant and, with his consent, searched his residence. There, law enforcement discovered and seized about seventy weapons, including rifles, handguns, hunting knives, crossbow and arrow sets, hollow point bullets and other ammunition, as well as permits and storage cases. A record check revealed that one of the guns had been stolen from Alabama. Defendant was arrested and charged with terroristic threats against the President, N.J.S.A. 2C:12-3b, receiving stolen property, N.J.S.A. 2C:20-7a, and unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f(1). A restraining order was issued barring defendant from any contact with the President or his family.
Defendant is from a family of hunters and had an extensive and valuable gun collection. With the exception of one gun which, unknown to defendant, was reportedly stolen from Alabama, defendant legally possessed the other guns and had the appropriate firearms permits. No weapon was found in defendant's possession when he was arrested at his place of employment.
While defendant was incarcerated, he was evaluated by two mental health professionals. The prison counselor who examined defendant in early November 2009 found:
Despite current situation and incarceration, the inmate appeared relatively well-adjusted and psychiatrically stable at this time. The inmate appeared mildly anxious, which seemed appropriate for his current situation. He was able to contract for safety with this writer and did not appear to be a danger to himself or others.
The prison psychiatrist concurred with the finding that defendant was stable and was not a risk to himself or others.
Shortly thereafter, psychologist Dr. Robert Daley evaluated defendant in the jail at the request of defense counsel. Dr. Daley determined that, other than the anxiety defendant was feeling from being in jail, he had no other significant, severe, or incapacitating mental disorder. Review of the relevant history and examination of Mr. Brek, including psychological testing, fails to reveal evidence of significant maladaptive personality traits or ...