On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-09-0490.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search of a residence, defendant Michael Lamb entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Pursuant to the plea agreement, the court sentenced defendant to a term of five years, with a three-year period of parole ineligibility, and upon the State's motion, dismissed the balance of the indictment, which included two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a. Defendant now appeals from the denial of his suppression motion. We affirm, as we discern substantial credible evidence to support the trial court's conclusion that the search and seizure of Lamb's handgun was conducted pursuant to the valid consent of Lamb's mother.
Two witnesses testified at the suppression hearing, Pennsville Township Police Detective Greg Acton, and defendant's mother, Karen Marcus.
Det. Acton responded to a report of a shooting by defendant against Miquel Acevedo and Alicia Hill on July 3, 2009. According to Det. Acton - who took taped statements from the alleged victims, and relied on an interviews by his fellow officer - defendant approached Acevedo and his girlfriend, Hill, as they were standing near a parked car in the early evening. He was described as a short white man with dirty blonde hair, wearing a tee-shirt and jeans. He inquired if they knew the whereabouts of a man named Aaron Bradway. Acevedo knew Bradway, but declined to answer.
Defendant left, but then returned in a vehicle driven by a white woman with brown hair. Acevedo said the vehicle was small and silver; Hill described it as small, and dark, either black or dark blue. Defendant introduced himself by name and inquired again about Bradway. When Hill began to respond to Lamb's questions, Acevedo stopped her. Lamb then displayed a black and silver, semi-automatic pistol. Acevedo grabbed the gun and pushed it down toward the interior of the car. The driver then pulled away, Acevedo let go, and then Lamb leaned out the window and discharged a single shot toward Acevedo and Hill. Police later recovered a single .45 spent shell casing in the vicinity.
Based on his prior police record, police determined that Lamb resided at Lot 18 of the South Bridge mobile home community. Det. Acton reconnoitered the area in an unmarked vehicle and found a small, silver-colored vehicle, as Acevedo had described, parked in front of the address. As Det. Acton began to exit his vehicle, he saw a middle-aged white man who had been on the first step of the trailer, immediately run into the trailer and close the door. Det. Acton and Officer Bill Tall began to knock on the door. Two other officers remained outside the perimeter of the trailer.
They heard a man from within loudly command them, "Get the fuck off my property." They knocked again and announced they were looking for Michael Lamb. The door was then opened, and a white man later identified as Steven Marcus, the husband of Lamb's mother, insisted that they leave and said, "Get the fuck off my property. You're not coming in. You don't have a warrant." Det. Acton said that he might have taken a step or two inside the laundry room to which the door opened, or he may have stood in the doorway. He did not recall. Det. Acton asked again for Michael Lamb and Steven Marcus said he was not there.
At that point, a white female in her mid-twenties with brown hair walked toward the door. Police later learned she was Jennifer Garcia. Det. Acton asked her if she was Lamb's girlfriend, and she said she was. As Steven Marcus continued to yell that he get off the property, Det. Acton escorted the young woman out of the trailer. She then told Det. Acton that she was Lamb's girlfriend, and when the officers started banging on the door, Lamb had hid under a bed in the back bedroom. She also said she had seen Lamb with a weapon, but was unsure if he still possessed it. She also recounted the events earlier in the day, explaining that she was driving Lamb in the Deepwater area of Pennsville when Lamb ordered her to pull over. She then described Lamb's two interactions with Acevedo, Lamb's brandishing of a handgun (that he retrieved from the car trunk after the first interchange), and his discharge of the weapon, which she said was "into the air." The woman also informed Det. Acton that along with Lamb and his step-father, the trailer was then occupied by Lamb's mother, Karen Marcus, and three children, between the ages of ten months and eight years.
Police then evacuated the neighboring homes, maintaining a perimeter around the residence. Lieutenant Dave Corman and Sergeant Fred Parkell from the Salem County Prosecutor's office soon arrived. An officer called into the trailer and spoke to, and negotiated with Karen Marcus for five to as many as fifteen minutes. Soon thereafter, Steven Marcus left the trailer. He was then taken into custody and handcuffed and removed from the immediate area.
Det. Acton said the conversations continued with Karen Marcus, who was also arguing with her son. After another ten minutes, Lamb exited the trailer and was placed under arrest.
Det. Acton obtained Garcia's written consent to search her vehicle, but no weapon was recovered. He then spoke to Karen Marcus while she was in her trailer. He requested her consent to search the trailer.
I explained to her the nature of the investigation; that what had apparently occurred in Deepwater; and that we were looking for a firearm. And, at that time, she expressed concern that she didn't want any firearms in her house. And, at that time, I asked her for consent if we would - if she would consent to the search so that we could locate this firearm. And I explained to her that we would be interested in starting the search only in that particular bedroom where Michael was. And, if, you know, if it wasn't in there, then we'd expand it from there; but that we had already checked the vehicle, and it was not in the vehicle.
Det. Acton said he then gave Karen Marcus a written consent form. He advised her she had a right to refuse. She read the form and signed it in his presence at 2:23 a.m. on July 4, 2009. During the subsequent search, Karen Marcus never withdrew her consent. Rather, she told Det. Acton if there was a gun in her house, "she wanted it out of there." Police recovered a Taurus .45 caliber semi-automatic handgun, with a silver-colored slide and a black grip and frame, in a box with a board game. The weapon was loaded with a single magazine that had a six round capacity, but contained five rounds, none in the chamber.
According to Karen Marcus, after her husband opened the door, and the police inquired as to Lamb's whereabouts, Steven Marcus told the officer that Lamb was not there. The officer then asked if Jennifer Garcia was there, Steven Marcus said she was, and then the officer commanded that she come out. Then Steven Marcus asked the officer if he had a warrant, and "the officer said if he had to get a warrant, he was going to rip my f'ing house and everything in it apart." According to Karen Marcus, Steven Marcus then awoke Jennifer Garcia and told her to come to the door, which she did. After Garcia exited, the police commanded Steven Marcus to remain in the trailer after he attempted to see where Garcia was taken. After about forty-five minutes, Steven Marcus attempted to leave the trailer again, and police told him again to remain.
She confirmed Det. Acton's testimony that police called, spoke to her, and requested that Steven Marcus and Lamb come out. She added that the police asked her if there was anyone who could take care of the children, and to exit the trailer with the children, which she refused to do. According to Karen Marcus, she did not know where Lamb was at the time, and Steven Marcus told her to check under the beds. Steven Marcus then exited and was forcefully escorted across a parking area. Karen Marcus located Lamb under the bed, started beating him with a small slat of wood, berating him, and telling him, "You don't bring stuff to my house." Michael then exited.
After that, Lieutenant Krell asked Karen Marcus to come to the back door, which she did. She said officers patted her down to make sure she did not have a weapon, and then ...