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State v. Hemenway

Supreme Court of New Jersey

July 24, 2019

State of New Jersey, Plaintiff-Respondent,
v.
James Hemenway a/k/a James A. Hemenway and Jason Payne, Defendant-Appellant.

          Argued March 26, 2019

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 454 N.J.Super. 303 (App. Div. 2018).

          Edward C. Bertuccio argued the cause for appellant (Kalavruzos, Mumola, Hartman & Lento, attorneys; Edward C. Bertuccio and W. Les Hartman, of counsel and on the brief, and Jessica A. Wilson, on the brief).

          David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the briefs).

          Frank Muroski, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Frank Muroski, of counsel and on the brief).

          Ronald K. Chen argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Rutgers Constitutional Rights Clinic Center for Law and Justice and American Civil Liberties Union of New Jersey Foundation, attorneys; Jeanne LoCicero and Alexander Shalom, of counsel and on the brief, and Ronald K. Chen, on the brief).

          ALBIN, J., writing for the Court.

         The Prevention of Domestic Violence Act (Domestic Violence Act or Act), N.J.S.A. 2C:25-17 to -35, empowers a judge to issue a temporary restraining order (TRO) to protect a victim of domestic violence and to enter an order authorizing the police to search for and seize from the defendant's home, or any other place, weapons that may pose a threat to the victim. In this appeal, the Court considers whether the reasonable cause standard for the issuance of a domestic violence search warrant for weapons set forth in N.J.S.A. 2C:25-28(j) and a 2002 case is incompatible with the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution.

         In June 2012, D.S. filed a domestic violence complaint against defendant James Hemenway and requested a TRO barring him from having contact with her and members of her family, as well as from possessing "firearms, knives, & [a Taser]." D.S. appeared before a Family Part judge, who asked: "[D]o you have a[n] awareness that he has any weapons?" When D.S. said "yes," the court asked, "What kind of weapons do you claim he has?" D.S. replied, "Handguns, knives." The court: "A handgun?" D.S.: "Knives, blades." The court: "Handguns?" D.S.: "Switchblades." D.S. stated that Hemenway kept those weapons in his three cars and his apartment. The court entered a TRO and authorized the issuance of a warrant to "search for and seize . . . handguns, knives, switchblades" from Hemenway's home and three vehicles. The court did not articulate a reasonable cause or probable cause basis for believing that Hemenway possessed firearms or switchblades or that they would be found in the places to be searched.

         On June 29, 2012, two Old Bridge police officers advised Hemenway outside his apartment that they possessed a TRO and a warrant to search his residence for weapons. The officers did not allow Hemenway to call his attorney, and Hemenway then refused their order to allow them entry to his apartment. Hemenway was arrested for obstructing the execution of the domestic violence warrant. Officers entered the apartment and observed what appeared to be marijuana and cocaine. Based on that discovery, a detective applied for and received a telephonic search warrant for the residence and the vehicles. The police searched and recovered drugs, bullets, and cash. No handguns or switchblades were found. Defendant was charged with four drug offenses.

         The trial court denied Hemenway's motion to suppress, concluding that the telephonic criminal search warrant application set forth probable cause for the issuance of a warrant to search Hemenway's residence and that the domestic violence warrant provided an adequate and independent basis for the search of the vehicles. Hemenway appealed, challenging the validity of the domestic violence and telephonic search warrants. The Appellate Division affirmed the denial of Hemenway's motion to suppress. 454 N.J.Super. 303, 307 (App. Div. 2018). The Court granted Hemenway's petition for certification. 236 N.J. 42 (2018).

         HELD: The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2)probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3)probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion.

         1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in nearly identical language, both guarantee "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and that "no Warrants shall issue, but upon probable cause." Whether a government official is armed with a criminal warrant or a civil or administrative warrant, physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Because a warrantless search is presumptively invalid, the burden falls on the State to demonstrate that the search is justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. One principal exception to the warrant requirement, as applied to the search of a home, is the exigent circumstances doctrine, which allows warrantless entry if police officers possess an objectively reasonable basis to believe that prompt action is needed to meet an imminent danger. Entry into the home must be premised on a search warrant issued on probable cause or on an exception to the warrant requirement, such as consent or exigent circumstances. (pp. 14-18)

         2. The State claims that, under the special needs doctrine, a judicial order for the seizure of weapons under the Domestic Violence Act does not have to comport with the probable cause requirement. But neither the United States Supreme Court nor the Supreme Court of New Jersey has ever sanctioned the issuance of a warrant for the search of a home on less than probable cause under the special needs doctrine, except in the case of probationers. The special needs doctrine is applied in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. (pp. 18-20)

         3. The Domestic Violence Act provides access to both civil and criminal remedies and sanctions. One such remedy is to prevent a person judged to be a domestic violence abuser from having access to a weapon, including a firearm, which poses an imminent threat to a victim who has sought the protection of our courts. See N.J.S.A. 2C:25-28(j). The court is thus empowered to "order[] the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located." N.J.S.A. 2C:25-28(j) (emphasis added). (pp. 20-22)

         4. The language of the Domestic Violence Act, standing alone, lacks clear standards to guide a court in ordering a civil warrant for the seizure of weapons. Through judicial interpretation of the Act's provisions, New Jersey courts have imposed standards to conform the Act to the Federal and State Constitutions. See State v. Johnson, 352 N.J.Super. 15, 20 (App. Div. 2002); see also State v. Dispoto, 189 N.J. 108, 120-21 (2007). In Johnson, the Appellate Division set a reasonableness standard rather than the traditional probable cause standard for its three-part test. 352 N.J.Super. at 19-20. In Dispoto, the Court disapproved of one part of the Johnson standard, holding that "before a domestic violence temporary restraining order and accompanying search warrant can be issued, the court must find probable cause to believe that an offense of domestic violence has occurred." 189 N.J. at 120, 121 n.3 (emphasis added). The validity of the two other parts of the Johnson standard and the constitutionality of N.J.S.A. 2C:25-28(j) are now squarely before the Court. (pp. 22-24)

         5. A search warrant for weapons under N.J.S.A. 2C:25-28(j) is a civil warrant aimed not at recovering evidence of a crime, but rather at seizing weapons that may pose an imminent risk to a domestic violence victim. But the Fourth Amendment and Article I, Paragraph 7's prohibition against unreasonable searches and seizures and their command that warrants issue upon probable cause apply not only to criminal investigations but also to searches related to civil or administrative investigations. (pp. 24-26)

         6. The important goals of the Domestic Violence Act can be achieved within our constitutional scheme of ordered liberty. The sanctity of the home can be preserved while providing thorough safeguards to domestic violence victims. The Court notes that other jurisdictions have conformed their domestic violence statutory schemes to the Fourth Amendment and that N.J.S.A. 2C:25-28(j)'s authorization of a search warrant issued on less than probable cause apparently is unique to New Jersey. (pp. 26-29)

         7. The special needs doctrine has applied almost uniformly to those exceptional circumstances involving warrantless searches and seizures. In this case, a domestic violence victim appeared before a court seeking a TRO and a warrant to seize weapons from an alleged abuser. This is not an exceptional circumstance that renders the warrant and probable cause requirement impracticable. (pp. 29-30)

         8. In Johnson and Dispoto, the courts engrafted standards onto the spare language of N.J.S.A. 2C:25-28(j) to save it from a constitutional challenge. The standards that the Court adopts today will ensure that N.J.S.A. 2C:25-28(j) conforms to the Federal and State Constitutions, while safeguarding domestic violence victims. Before issuing a search warrant for weapons as part of a TRO under the Domestic Violence Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. One long-established definition for probable cause for a criminal search warrant is a well-grounded suspicion. As with any other search warrant, hearsay may be sufficient to establish probable cause, so long as there are facts which give the statement an appearance of trustworthiness. Courts can credit information received directly from a citizen source. Because domestic violence victims are often unrepresented, under considerable stress, in fear of their alleged abusers, and may have language barriers, courts must be patient and take the time necessary to make a complete record. The court should ask the victim questions that will elicit the victim's basis of knowledge that the defendant possesses weapons and that the weapons will be found at a home or other location. Additionally, the court may make reasonable inferences and accredit trustworthy hearsay when establishing a victim's basis of knowledge regarding the abuser's ownership and location of weapons. (pp. 30-33)

         9. Applying those principles as well as the then-existing standards for issuing a domestic violence warrant, the Court finds that the search warrant issued here does not comport with the Fourth Amendment or Article I, Paragraph 7 of the State Constitution. The family court issued the search warrant for weapons based on a deficient record and without making the necessary findings to justify the warrant's issuance. Therefore, the search of Hemenway's home was unreasonable under the Federal and State Constitutions. All evidence derived from the search of his home, including the drugs and cash, must be suppressed based on the defective domestic violence warrant. The fruits of the unlawful search of the home were used to form the factual basis for the issuance of the criminal search warrants. Thus, the evidence secured from those searches must be suppressed as well. The Court reaches that conclusion not only based on the Fourth Amendment, but also, separately, based on Article I, Paragraph 7 of the State Constitution. Hemenway now has the option to withdraw his guilty plea in view of the order suppressing all evidence derived from the defective domestic violence warrant. (pp. 33-36)

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN's opinion.

          OPINION

          ALBIN JUSTICE

         No principle is more firmly rooted in our Federal and State Constitutions than the right of the people to be free from unreasonable searches of their homes. That constitutional commandment compels the police to secure a warrant based on probable cause before entering and searching a home, unless exigent circumstances justify suspending the warrant requirement. All statutes must conform to that fundamental constitutional principle.

         The Prevention of Domestic Violence Act (Domestic Violence Act or Act), N.J.S.A. 2C:25-17 to -35, empowers a judge to issue a temporary restraining order (TRO) to protect a victim of domestic violence and to enter an order authorizing the police to search for and seize from the defendant's home, or any other place, weapons that may pose a threat to the victim. The issue here is that the Domestic Violence Act permits a judge to enter the order for the seizure of weapons from a home on less than probable cause. N.J.S.A. 2C:25-28(j).

         In this case, based on the victim's written domestic violence complaint and testimony, the court issued a TRO against defendant James Hemenway and entered an order for the seizure of certain weapons, such as handguns, from his home and cars. The court, however, did not make the requisite probable cause finding mandated by our constitutional jurisprudence to justify the search. In executing the domestic violence search warrant, the police uncovered not guns but drugs, which led to Hemenway's arrest and prosecution for drug offenses.

         Following the dictates of the Act, the trial court denied Hemenway's motion to suppress evidence related to the drug offenses found in his home and cars, and the Appellate Division affirmed.

         Combatting domestic violence is an important societal and legislative goal. However, the Domestic Violence Act's standard for the issuance of an order for the search for weapons, particularly in a defendant's home, cannot be squared with the probable cause requirement of our State and Federal Constitutions. Accordingly, we now hold that the beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms.

         The Act can be conformed to those constitutional norms and still fulfill its protective purpose. We therefore shall require that, before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is "necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought," see N.J.S.A. 2C:25-28(f); and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion.

         In this case, we must reverse the denial of Hemenway's motion to suppress because the domestic violence warrant issued to search his home and cars was not based on the Constitution's probable cause requirement or even the lesser reasonable cause requirement. We therefore remand to the trial court for proceedings consistent with this opinion.

         I.

         A.

         Hemenway was charged in a four-count indictment with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3); and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11). The police discovered drugs while searching Hemenway's home for weapons pursuant to an order -- the equivalent of a warrant -- entered as part of a domestic violence TRO. Based on that discovery, the police secured a criminal search warrant for Hemenway's home and cars and seized drugs and drug-related evidence from both places.

         Hemenway moved to suppress the evidence seized from his home and cars, challenging both the validity of the domestic violence warrant to seize weapons and the later-issued criminal search warrant. The trial court conducted a three-day suppression hearing. Our review of the record is limited to the events surrounding the issuance of the domestic violence TRO and the related order to seize weapons from Hemenway's home and cars.

         On June 28, 2012, D.S. filed a domestic violence complaint in the Union County Courthouse alleging that Hemenway committed the offenses of assault, terroristic threats, criminal mischief, criminal trespass, and harassment. She claimed that they had a previous dating relationship.[1] In the complaint, D.S. contended that on June 27, Hemenway entered her apartment unannounced through the living room window, damaging the air conditioner. After directing a volley of "foul language" at her, Hemenway pushed D.S., causing her to fall. When D.S.'s mother intervened, Hemenway punched and scratched the mother. D.S. further alleged that Hemenway attempted to strangle her, threatened to kill her and her family, threatened to have someone throw acid on her face, and shocked her with a Taser gun. At the end of this violent confrontation, Hemenway sat on a couch next to D.S., apologized, and said he loved her.

         According to D.S.'s complaint, the next morning, on June 28, she and Hemenway met in a bank parking lot. There, she gave Hemenway money, and he threatened, "You will never see your mother. I will kill her!! I will destroy you & your family."

         In the domestic violence complaint, D.S. requested a TRO barring Hemenway from having contact with her and members of her family and possessing "firearms, knives, & [a Taser]." D.S. appeared before a Family Part judge and recounted some of the events described in her complaint. Through a translator, D.S. had the following exchange with the court concerning weapons possessed by Hemenway:

[THE COURT:] [D]o you have a[n] awareness that he has any weapons?
[D.S.:] Yes.
[THE COURT:] What kind of weapons do you claim he has?
[D.S.:] Handguns, ...

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