On appeal from the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)
State v. Carlton Harris (A-111-10) (067929)
Argued January 4, 2012 -- Decided August 16, 2012
WEFING, P.J.A.D. (temporarily assigned), writing for a majority Court.
In this appeal, the Court determines whether weapons recovered from a defendant's premises during a search conducted pursuant to a warrant issued upon "reasonable cause" under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, may be admitted in a subsequent criminal prosecution of defendant for possession of those weapons consistent with Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution, which require "probable cause" to issue a warrant to search a home.
On August 12, 2009, W.J. sought a temporary restraining order against defendant. In her certified complaint, she stated they had had a dating relationship; defendant had been stalking her; and he came to her home, punched her in the face, and later returned with a gun, threatening to kill her. Following W.J.'s appearance, the trial court completed the part of the domestic violence restraining order that authorizes the officers to search for weapons, including two 9 mm firearms, one .45 or .38 caliber firearm, and an automatic rifle and ammunition belt. Police served the order and search warrant that evening. Defendant was immediately detailed. The officers searched and found a Cetme .308 caliber assault rifle and five large capacity magazines in the third floor attic, a Colt Anaconda .45 revolver in a safe, and a Ruger P89 handgun on top of a cabinet. A National Crime Information Center (NCIC) database search revealed that the Colt had been reported stolen. Defendant was charged with several crimes including possession of a loaded assault rifle, large capacity ammunition magazines, and a stolen revolver.
Defendant moved to suppress, arguing that because the items were found during a search conducted pursuant to a warrant issued under the domestic violence statute, they could not be used as evidence in a later criminal case. The trial court granted the motion, concluding that a search under the domestic violence statute is constitutional only because it serves "a legitimate state interest," and thus evidence gathered during the search cannot have criminal repercussions. The Appellate Division affirmed the suppression of the handguns, noting that the warrant did not issue upon probable cause, but upon the lesser standard of reasonable cause; the purpose of the search had been to provide protection to W.J., rather than to uncover evidence of criminal conduct; the handguns were not within the searching officers' plain view; and the fact that the Colt revolver was stolen was not immediately apparent but required further investigation through the State Police database. The panel recognized, however, that police may immediately have known it was illegal to possess an assault rifle and large capacity magazines. Thus, it reversed the suppression of those items and remanded for further proceedings. The Court granted leave to appeal. 206 N.J. 327 (2011).
HELD: Items seized during a search conducted pursuant to a warrant issued under the Prevention of Domestic Violence Act can serve as the basis for a subsequent criminal prosecution if their illegal nature is immediately apparent. A firearm's serial number is visible simply by looking at the weapon. Recording that number does not constitute a seizure, and entry of that number into the NCIC system and review of the results does not constitute a search. Whether the officers could recognize immediately that the assault rifle and large capacity magazines were illegal to possess are factual determinations that must be remanded to the trial court.
1. The Prevention of Domestic Violence Act was enacted to protect individuals who suffer abuse from their spouses, family members, cohabitants, and those with whom they had a dating relationship or a child. The statute provides that an officer responding to a scene of domestic violence must inquire whether weapons are on the premises and may seize weapons that are "contraband, evidence or an instrumentality of crime"; and if the officer "reasonably believes" the weapon "would expose the victim to a risk of serious bodily injury," the officer must seize it. N.J.S.A. 2C:25-21(d)(1). Another part of the statute deals with weapons when a plaintiff files a complaint for a temporary restraining order and states that the alleged abuser may have weapons. N.J.S.A 2C:25-28(j) provides that the court may order "the search for and seizure of any such weapon at any location [it] has reasonable cause to believe the weapon is located." Here, the search and seizure was conducted under N.J.S.A 2C:25-28(j). (pp. 13-15)
2. The federal and state constitutions protect against unreasonable intrusions into the home. A warrantless search of a home is presumptively unreasonable. Exceptions to the general rule that a warrant based on probable cause must be issued prior to any search or seizure include items in plain view and searches or seizures that occur while police are rendering emergency aid. The special needs exception applies when a search furthers an important state interest and is conducted for reasons unrelated to investigating and prosecuting criminal activity. (pp. 16-18)
3. The case relied upon by the trial and appellate courts, State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003), arose under N.J.S.A. 2C:25-21(d), not N.J.S.A. 2C:25-28(j). In Perkins, the defendant's wife reported to 9-1-1 that her husband had hit her with a telephone. Responding officers found many weapons, leading to criminal charges for possessing an assault firearm. In finding suppression appropriate, the panel noted that police had not obtained any warrant; searches under the special needs exception "are permissible because they promote an important State interest"; and the warrantless search was constitutional if the results are not used in a criminal prosecution. The panel noted that absent a threat to use a weapon, the search is not based on suspicion that a crime has been committed. Here, in contrast, the search was conducted only after W.J. gave sworn testimony that resulted in the issuance of a domestic violence warrant. Her testimony included a statement that defendant had, in fact, threatened to shoot her. In State v. Dispoto, 189 N.J. 108 (2007), the Court did not hold as a matter of law that evidence seized under a domestic violence search warrant was not admissible in a subsequent criminal prosecution. Instead, it held that an invalid domestic violence search warrant "may not be used as a bootstrap mechanism to obtain evidence to sustain issuance of a criminal search warrant." Here, the domestic violence search warrant was entirely proper. (pp. 18-24)
4. Whether the weapons found during the domestic violence search of defendant's premises are admissible in his later criminal trial depends, in part, on whether their illegal nature was immediately apparent without a further search. A check of the Colt revolver's serial number in the police database is neither a seizure nor a search. Federal law requires manufacturers to identify each firearm by serial number. State law requires every handgun sale to be recorded with details including the serial number. In Arizona v. Hicks, 480 U.S. 321 (1987), the U.S. Supreme Court held that "the mere recording" of serial numbers from stereo equipment was not a seizure, but movement of the equipment to view the numbers constituted a search that was a "new invasion" of privacy unjustified by the exigent circumstance that had validated the warrantless entry into the premises. By contrast, the serial number of a firearm is visible simply by looking at the weapon. Thus, pursuant to Hicks, recording that number did not constitute a seizure. Further, entry of that number into the NCIC system and a review of the results did not constitute a search. There is no principled distinction between that review and a check of a motor vehicle's license plate numbers. If a motorist has no reasonable expectation of privacy in numbers displayed on his automobile, an individual possessing a firearm can have no reasonable expectation of privacy in the serial number displayed on his weapon. Also, the exclusionary rule's purposes -- to assure that the law does not provide an incentive for police misconduct and to protect judicial integrity -- would not be furthered by applying the rule in this case, where there was no misconduct. (pp. 24-30)
5. The record is silent as to whether the officers could recognize immediately that the assault rifle and large capacity magazines were illegal to possess. The trial court must make those factual determinations. (pp. 30-32)
The judgment of the Appellate Division is REVERSED IN PART and AFFIRMED IN PART and the matter is REMANDED to the trial court for further proceedings.
JUSTICE ALBIN, DISSENTING,joined by JUSTICE LaVECCHIA, expresses the view that the constitutional probable-cause warrant requirement for the search of a home applies whether a search is conducted pursuant to a criminal investigation or a civil scheme such as the Prevention of Domestic Violence Act; and no exception permits issuance of a warrant under N.J.S.A. 2C:25-28(j) to search a home on less than probable cause.
CHIEF JUSTICE RABNER and JUSTICES HOENS and PATTERSON join in JUDGE WEFING's opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins.
JUDGE WEFING (temporarily assigned) delivered the opinion of the Court.
In this appeal, we are called upon to consider the relationship between a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28(j), which permits issuance of a warrant upon reasonable cause, and Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution, both of which state that no warrant may issue "except upon probable cause." Specifically, we must decide whether weapons recovered from a defendant's premises during a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28(j) may be admitted in a subsequent criminal prosecution of defendant for possession of those weapons. The trial court decided that such weapons may not be so admitted and granted defendant's motion to suppress. The Appellate Division affirmed that result in part and remanded in part for further proceedings. Although we concur with the Appellate Division that further proceedings are required in one respect, we are satisfied that it was error to grant defendant the relief of suppression.
I. The question arises in the following context. After the discovery of a number of weapons during a search of defendant's residence pursuant to a search warrant issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, defendant was indicted for possession of an assault firearm, N.J.S.A. 2C:39-5(f), a crime of the second degree; possession of a loaded rifle, N.J.S.A. 2C:39-5(c)(2), a crime of the third degree; five counts of possession of a large capacity ammunition magazine, N.J.S.A. 2C:39- 3(j), a crime of the fourth degree; unlawful possession of a firearm, a stolen revolver, N.J.S.A. 2C:39-5(b), a crime of the second degree; receiving stolen property, N.J.S.A. 2C:20-7(a), a crime of the third degree; and three counts of certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(3), a crime of the third degree. In his subsequent criminal prosecution, defendant challenged the admissibility of the weapons recovered in this search because the warrant was issued under N.J.S.A. 2C:25-28(j), which authorizes the issuance of a warrant for the search and seizure of weapons "at any location where the judge has reasonable cause to believe the weapon is located." The trial court granted defendant's motion to suppress, a result the Appellate Division in an unpublished opinion affirmed in part and remanded in part. Thereafter, we granted the State's motion for leave to appeal. State v. Harris, 206 N.J. 327 (2011). We granted as well the motions of the American Civil Liberties Union of New Jersey and Association of Criminal Defense Lawyers of New Jersey to appear as amici curiae.
Our understanding of the factual complex rests largely on the pleadings and briefs that were filed, together with the several written opinions. Defendant's motion to suppress was decided on the basis of the parties' briefs and oral argument, as the parties agreed to dispense with the presentation of any testimony. As a result, the record is sparse, and we do not have any credibility assessments by the trial court that decided defendant's suppression motion. Decisions with respect to motions to suppress are uniquely fact-sensitive, and it is not always evident from the outset which facts will ultimately prove to be critical to the analysis. While we recognize that there are indeed instances in which a trial court can analyze and decide a motion to suppress without the benefit of live testimony, those instances are the exception. A trial court need not accept the assurances of the parties that testimony is unnecessary; rather, it remains free to pose its own questions that may arise with respect to the scenario the parties have agreed to present to the court.
With that caveat, we set forth the following factual background that led to defendant's motion to suppress. On August 12, 2009, W.J. sought a temporary restraining order against defendant. In her certified complaint, W.J. stated she and defendant had had a dating relationship. The complaint contains the following factual recitation, evidently typed by court staff on the basis of W.J.'s oral statements to them.
DEF BEAT PLA UP. PLA WAS ABLE TO GET AWAY. PLA CAME BACK TO HER HOME & DEF BEGAN TO BEAT PLA UP DEF PUNCHED IN PLA FACE REPEATEDLY, SPIT IN PLA FACE & CALLED PLA NAMES. DEF LEFT BUT RETURNED AGAIN WITH A GUN & THREATENED TO KILL PLA & HER . . . FAMILY. DEF IS ON DRUGS AND IS DRINKING. PLA WENT TO THE POLICE STATION. WHILE PLA WAS OUT, DEF KICKED PLA DOOR IN. PLA CHILDREN CALLED THE POLICE. DEF LEFT BEFORE THE POLICE ARRIVED. DEF RETURNED A FINAL TIME AND KICKED IN THE DOOR AGAIN DOING SIGNIFICANT DAMAGE TO THE FRAME AND LOCK; ALSO DAMAGED OTHER DOORS IN HOME.
W.J. also alleged in the complaint that defendant had been stalking her on a daily basis, following her, calling her, and driving past her home. She noted that defendant had been arrested three months earlier for assaulting her and that those charges remained pending.
Following W.J.'s appearance, the trial court completed that portion of the standard domestic violence order that authorized the officers serving the restraining order to conduct a search for weapons.*fn1 It noted the weapons in question included, but were not limited to, two 9 mm firearms, one .45 caliber or .38 caliber firearm, and an automatic rifle with an ammunition belt. The order listed the address to be searched and encompassed both the basement and the garage of the premises. Attached to the domestic violence restraining order was another order, signed by the trial court, which contained the following handwritten special conditions.
This is a NO KNOCK WARRANT! There are two pit bulls and possible booby traps. Officers are also permitted to search '95 Dodge 4 x 4 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 the basement, contents of any safe, including one in basement by back door.
The temporary restraining order and search warrant were served on defendant at approximately 6:45 p.m. that evening. The trial court that considered and ultimately granted defendant's subsequent motion to suppress described the evening's events in the following manner in its written opinion:
The Defendant was immediately identified upon officers' arrival at the residence. He was placed under arrest and detained in the police vehicle while the officers conducted the search. Officers recovered, in the third floor attic, a Cetme .308 caliber assault rifle and five twenty-round large capacity magazines. Additionally, a Colt Anaconda .45 revolver was found inside a safe, using a combination provided by the Defendant. Lastly, with the assistance of an evidence-sniffing dog, a Ruger P89 handgun, two spent casings and one live round were found. The Ruger P89 was recovered on top of a china cabinet. The two spent casings and the live round were found under the floorboards of the third floor attic.
The three recovered weapons were run through the N.J. State Police database on August 13, 2009. The database search revealed that the Colt Anaconda was reported stolen.
The discovery of these items, and the subsequent discovery that one of the weapons had been reported stolen, led to the criminal charges against defendant that we recited at the outset. The second-degree charge of illegal possession of a firearm related to the stolen Colt Anaconda revolver. Defendant was not charged with any crime regarding the Ruger P89, which had also been seized during the search.
Defendant moved to suppress the items recovered in this search. Because the items had been found as a result of a search conducted pursuant to a warrant issued under the domestic violence statute, he contended that they could not be introduced into evidence in a subsequent criminal proceeding. In support of his position, defendant relied principally on State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003). The State countered that Perkins was distinguishable because in that matter the police acted on a telephone complaint of assault; there was neither a sworn complaint alleging domestic violence nor a search warrant of any sort. The State stressed that, here, W.J. had sworn to the truth of her allegations, and a judge had found there was "reasonable cause" to search for weapons.
The trial court agreed with defendant, concluding that "the provisions [of the domestic violence statute] allowing search and seizure are only constitutional because they serve a legitimate state interest and therefore evidence gathered during the search cannot have criminal repercussions for the defendant."
The Appellate Division granted the State's motion for leave to appeal from the trial court order granting defendant's motion to suppress. On appeal, the State argued that the weapons were admissible because they were recovered during a judicially-authorized search pursuant to a valid warrant. It also argued that the weapons were admissible because the officers had found them in plain view during the search. Defendant countered these arguments by maintaining that a warrant under the domestic violence statute is civil in nature because it may issue under reasonable cause, rather than probable cause. This lower civil threshold, he concluded, made items recovered during a search inadmissible in subsequent criminal proceedings, which require satisfaction of the probable cause standard. He also argued that the question of whether the items were seized because they were in plain view could not be answered on the record as it then existed but would require a remand for a hearing.
The Appellate Division rejected the State's argument with respect to the nature of the warrant issued in conjunction with the temporary restraining order. It noted that the warrant did not issue upon probable cause, but upon the lesser standard of reasonable cause. It also noted that the purpose of the search had been to provide protection to W.J., rather than to uncover evidence of criminal conduct on defendant's part. Accordingly, the panel agreed with defendant that the two handguns should be suppressed. It noted they were not within the plain view of the searching officers and the fact that the Colt Anaconda was a stolen weapon was not immediately apparent but required further investigation through the database maintained by the State Police. The panel recognized, however, that the searching officers, as soon as they came upon the assault rifle and the large capacity magazines, may immediately have known that it was illegal for defendant to possess those items. It thus affirmed that portion of the trial court's order that suppressed the two handguns, but it reversed that portion of the trial court order that suppressed the assault rifle and its accompanying magazines and remanded the matter to the trial court for further proceedings. The matter is before this Court because we granted the State's motion for leave to appeal.
The State presents several arguments in support of its position that the trial court and the Appellate Division erred in granting, in any respect, defendant's motion to suppress. The State stresses that all of the weapons in question were recovered while the police were conducting a search that had been judicially authorized by a search warrant issued under N.J.S.A. 2C:25-28(j). It argues that, as a consequence, the recovered weapons are admissible in a subsequent criminal prosecution against defendant because the warrant and the search conducted pursuant to that warrant complied with the special needs doctrine recognized under the Fourth Amendment to the United States Constitution and the New Jersey Constitution.
The State also asserts that despite the reference in N.J.S.A. 2C:25-28(j) to issuing a warrant upon "reasonable cause," the trial court must have found probable cause to issue the warrant because a predicate to the issuance of a temporary restraining order is a finding of probable cause that a defendant has committed an act of domestic violence. It contends in the alternative that a court considering an application for a temporary restraining order may issue a valid search warrant on less than probable cause. An insistence on probable cause in the context of an application for a temporary restraining order under the domestic violence statute would, in the view of the State, create an unjustifiable risk that the weapons of domestic abusers would remain unsecured.
Additionally, the State distinguishes Perkins, supra, because in that matter the police conducted the search without having obtained a warrant of any form. It urges this Court not to extend Perkins to cases in which a valid warrant under the domestic violence statute was obtained prior to the search. It contends that suppression of these weapons would not further any of the purposes that are served by the exclusionary rule.
Defendant, on the other hand, stresses that a search warrant may issue on less than probable cause under the domestic violence statute; this, says defendant, requires that any items seized while executing such a search warrant be held inadmissible in a subsequent criminal proceeding. He notes that there is no requirement under the domestic violence statute of any nexus between a weapon seized pursuant to a domestic violence search warrant and the conduct alleged to constitute an act of domestic violence.
Defendant disputes the State's assertion that the requirement that there must be probable cause to believe an act of domestic violence occurred before a trial court may enter a temporary restraining order necessitates the conclusion that the trial court made a similar conclusion of probable cause with respect to the presence of weapons. He contends that the State's argument conflates separate portions of the domestic violence statute.
Defendant urges us to apply the analysis used in Perkins, supra, and affirm the trial court's suppression order. He stresses that the warrant procedure contained in the domestic violence statute envisions a special needs warrant, that is, a warrant issued with the purpose of protecting an applicant from the risk of violence at the hand of an abuser. In defendant's view, to use the results of a search conducted pursuant to such a warrant in a criminal proceeding would exceed the special need for which the warrant was issued in the first place.
Amicus American Civil Liberties Union of New Jersey echoes defendant's arguments. It also asserts that, contrary to the position of the State, a warrant issued under the domestic violence statute cannot be considered to be a warrant issued on the basis of probable cause. It stresses that the statute permits a warrant to issue to search a home for weapons on the basis of reasonable cause because of the need to protect a victim of domestic violence from the heightened risk of harm posed by the presence of a weapon. It contends that to permit a weapon seized pursuant to such a warrant to be used in a criminal prosecution would exceed the purpose of the search and is, accordingly, impermissible.
Amicus Association of Criminal Defense Lawyers of New Jersey argues that neither the legislative history nor the language of the domestic violence statute supports a subsequent criminal prosecution for offenses unrelated to domestic violence on the basis of items seized during a domestic violence search. It also posits that permitting a subsequent criminal prosecution of an alleged abuser on the basis of items seized during a domestic violence search may shift the focus of officers involved in a domestic violence situation from affording full protection to the alleged victim to marshalling a criminal prosecution against the alleged abuser.
We note at the outset the standard that governs our review of these various contentions.
An appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. An appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal or ...