Opinion
DOCKET NO. A-5619-13T4
02-10-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL J. BURNETTE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-12-1819. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by ESPINOSA, J.A.D.
A search warrant was issued that authorized the search of the home of defendant Paul J. Burnette for firearms, resulting in the recovery of a modified Sig Sauer Rifle 556 with a threaded barrel and bayonet mount. Defendant appeals from the denial of his motion to suppress that evidence. We affirm.
In July 2011, defendant pled guilty to one count of aggravated assault, N.J.S.A. 2C:12-1(b)(5), pursuant to a plea agreement. He was sentenced to two years' probation with various conditions. As a result of this conviction, defendant was not permitted to "purchase[], own[], possess[] or control[] a firearm." N.J.S.A. 2C:39-7.
The affidavit submitted in support of the application for the search warrant described defendant's initial arrest for driving under the influence, N.J.S.A. 39:4-50; his behavior at the police station that led to aggravated assault and obstruction charges against him; and his arraignment, at which his conduct led to additional charges and a court-ordered risk assessment of his mental status. The psychologist who completed the assessment reported that defendant was comfortable challenging the rules and regulations of society and that there was objective evidence suggesting the presence of a severe mental illness or thought disorder.
The affidavit stated defendant was stopped for motor vehicle violations four times during the period from March through September 2012. His responses to these interactions and municipal court appearances can fairly be characterized as unorthodox as they included continuing assertions of his status as a sovereign citizen and sending invoices to a municipal court judge and to one police officer for $1 million each.
The affidavit then provided the pertinent details regarding defendant's firearm purchases. He was issued a firearms purchase identification card and handgun purchase permit in October 1998. In the years prior to his 2011 conviction, he was issued changes of address for his firearms identification card and made the following purchases from one firearms dealer:
| 1/21/00 | Bushmaster XM15, serial # L177656 |
| 7/31/08 | Mossberg pump shotgun,serial # G532954 |
| 7/27/09 | Sig Sauer Sum 556 serial # J5034739 |
| 12/21/10 | Benjamin Air Rifle 392,serial # N010701145 |
| 1/6/11 | RWS Diana, serial # 01250961 |
The affiant stated, "A check with the CJIS Master Name Index, Firearms search revealed that Paul Burnette is the owner of a Sig Sauer model P239, 9 mm handgun, serial # SA30892 which was purchased in January 2000." The affiant then opined that he had "probable cause to believe that defendant is the current owner of a Sig Sauer 9 mm handgun," in violation of N.J.S.A. 2C:39-7 and, further, that he had probable cause to believe defendant "may be the owner of" the other firearms listed above.
After his suppression motion was denied, defendant entered a guilty plea to unlawful possession of an assault rifle, N.J.S.A. 2C:39-5(f), pursuant to a plea agreement and was sentenced to three years with a minimum period of parole ineligibility of three years.
In his appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING MR. BURNETTE'S MOTION TO SUPPRESS EVIDENCE, AS THE SEARCH WARRANT WAS ISSUED WITHOUT PROBABLE CAUSE AND IS THEREFORE INVALID.
Defendant filed a pro se supplemental letter brief in which he challenged the jurisdiction of the court and any administrative agency and argued, among other things:
INVESTIGATOR VANDERMARK DURING HIS INVESTIGATION NEVER EYEWITNESSED, NOR DOSE [SIC] HE HAVE AN EYEWITNESS TO THE LAW BEING VIOLATED. THE CENTRAL QUESTION IS WHETHER "ALL THE CIRCUMSTANCES EXHIBITED TO [THE MAGISTRATE] REASONABLY CONDUCE THE BELIEF THAT THE LAW WAS BEING VIOLATED AT THE TIME THE WARRANT ISSUED." STATE V. BLAUROCK, 143 N.J. SUPER. 476, 479 (APP. DIV. 1976).
The arguments raised in defendant's pro se supplemental letter brief warrant no discussion. R. 2:11-3(e)(2).
Because the search was executed pursuant to a warrant, it enjoys a presumption of validity. State v. Marshall, 199 N.J. 602, 612 (2009). Defendant's burden in challenging the search is "to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). The substantial deference we accord the discretionary determination that results in the issuance of a search warrant weighs heavily in our review. "[W]hen the adequacy of the facts offered to show probable cause is challenged after a search made pursuant to a warrant, and their adequacy appears to be marginal, the doubt should ordinarily be resolved by sustaining the search." Id. at 388-89 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)). As one commentator described the analysis, "Marginal cases will be decided in the State's favor when it has secured a warrant and in defendant's favor when the search is warrantless." Byrnes, N.J. Arrest, Search & Seizure at 81 (2016) (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L.Ed. 2d, 684, 689 (1965)). "That is because the warrant provides clear evidence of the legitimacy of the officer's purpose." Kasabucki, supra, 52 N.J. at 116.
Defendant argues the affidavit failed to establish probable cause to believe he unlawfully possessed a firearm in October 2012 because it was based upon stale information. He contends the lawful purchases of firearms prior to his aggravated assault conviction fail to show he continued to possess the firearms in October 2012.
We agree with defendant that the information regarding his claim to sovereign citizen status, the question raised about his mental status, his skirmishes with law enforcement and history of motor vehicle violations have little bearing on the existence of probable cause. The inclusion of those facts did have some bearing on whether the officer's request for a no-knock warrant should be granted.
Defendant suggests the affidavit is deficient because there was no contemporary evidence from an eyewitness who observed him in possession of a firearm or ammunition or overheard him make a statement that indicated he possessed a firearm after his conviction. Defendant speculates that he "very well could have divested himself of the firearms at an anonymous gun buyback event, or given them to a friend or relative." These contentions fail to satisfy the heavy burden defendant carries in challenging the warrant.
The sufficiency of the affidavit is measured by what probability it supports, not by whether better evidence might have made a stronger case. And, the affiant was not required to exclude undocumented possibilities in order to present an application that established probable cause.
"In dealing with probable cause, . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983)).
The affidavit includes the statement that the CJIS Master Name Index "revealed that Paul Burnette is the owner of" the Sig Sauer 9 mm handgun purchased in January 2000. (Emphasis added). This is a statement of fact that existed as of the time the warrant was sought. That fact provided support for a reasonable person to believe it was probable defendant "is the current owner" of a Sig Sauer 9 mm handgun. Given the substantial deference we give to searches conducted pursuant to a warrant, even if the factual support is "marginal," we find no grounds to reverse the trial judge's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION