NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-05-0381.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Defendant Charles A. Lewis appeals from the denial of his motion to suppress drug evidence found by police as they executed a protective search warrant contained in a temporary restraining order issued pursuant to the New Jersey Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. In a single point, he argues on appeal:
THE TRIAL COURT ERRED IN FINDING THAT THE WARRANTLESS SEIZURE OF THE DRUGS WAS JUSTIFIED UNDER THE PLAIN VIEW EXCEPTION BECAUSE THE RECORD FAILED TO ESTABLISH THAT IT WAS IMMEDIATELY APPARENT TO OFFICER SUTER THAT THE BAGGY CONTAINED CONTRABAND.
We note no testimony was presented in this matter. Rather, for the purpose of the suppression motion, the facts presented in the report of Officer Tim Suter of the Paulsboro Police Department regarding the incident were not disputed.
Paulsboro Police Sergeant Gilcrest, Officer Vasta, and Officer Suter went to defendant's residence to serve a temporary restraining order, entered pursuant to the PDVA. The order contained authorization for the police serving the restraining order to conduct a search for weapons, pursuant to N.J.S.A. 2C:25-28j, based on the victim's ex parte testimony before the Family Part, stating defendant had threatened to shoot her and possessed a gun which he kept in a blue tote in his bedroom in his grandmother's residence, or, alternatively, buried in the backyard.
The police arrived at the designated residence and defendant's sister answered the door and retrieved defendant's aunt, both of whom resided in the house. The officers were granted entry by the women. After explaining they were there to serve defendant, the women stated he was not at home and no one else was in the home. The officers heard movement and other noises from the second floor. Again they asked the women if anyone else was in the home, and both repeated, "no." In an effort to secure their safety, as well as the safety of the occupants, Officers Vasta and Suter went upstairs to investigate the noises. There they found defendant sitting on his bed, wearing a heavy coat and hat, and looking "extremely nervous." A blue tote, as described in the warrant, sat on the floor near him. After escorting defendant downstairs, Officers Suter and Gilcrest returned to the bedroom to begin the search. The blue tote was padlocked in the middle, but the latches on both sides of the box were open. Officer Suter lifted one side and "immediately saw a silver with black handle revolver[, ]" along with a "clear baggy which contained numerous smaller yellow bags and other clear bags tied in bundles."
Hearing a commotion downstairs, Officer Suter removed the gun from the blue tote and secured it in his waistband. He descended the stairs "[b]elieving there was a problem[.]" When the situation was resolved, Officer Suter returned to the upstairs bedroom to retrieve the clear and yellow bags he ...