Opinion
DOCKET NO. A-2161-13T2
12-12-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DONALD PETERSON, Defendant-Respondent.
Nathan C. Howe, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Howe, of counsel and on the brief). Michael J. Rogers argued the cause for respondent (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-07-0564. Nathan C. Howe, Assistant Prosecutor, argued the cause for appellant (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Howe, of counsel and on the brief). Michael J. Rogers argued the cause for respondent (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the brief). The opinion of the court was delivered by MAVEN, J.A.D.
By leave granted, the State appeals from an order suppressing evidence, namely a Winchester rifle, seized from defendant's apartment. For reasons that follow, we reverse the order suppressing the evidence based upon our de novo review of the record and application of the inevitable discovery exception to the exclusionary rule, which we conclude supports the lawfulness of the warrantless seizure.
I.
These are the pertinent uncontested facts developed at a two-day suppression hearing. Shortly before 6:00 a.m. on March 8, 2012, defendant called 9-1-1 to report that he had found an unconscious sixteen-year-old boy lying on the sidewalk in front of his townhouse. Detective Michael Schutta of the Somerset County Prosecutor's Office Major Crimes Unit and officers from the Hillsborough Police Department responded to the scene.
Defendant consented to an initial search of his apartment. The brief search failed to disclose anything of evidential value. Thereafter, Schutta transported defendant to the Hillsborough Police Department, where he was detained and given his Miranda warnings. Schutta and another detective interviewed defendant in three recorded sessions from 9:26 a.m. until approximately 11:31 a.m. Although there were breaks in the sessions, defendant was re-Mirandized each time. The focus of the interviews was the suspicious death of the boy and defendant's possible involvement. During the interviews, defendant voluntarily told the officers that he had a criminal history, which included a term of imprisonment. He mentioned that some of the local policemen he knew, who apparently knew of his criminal record, would on occasion ask how he was doing because he was on parole.
Meanwhile, Detective Nowacki from the Hillsborough Police Department and Detective Scozzafava from the Prosecutor's Office applied for a search warrant for defendant's apartment in connection with the suspicious death. Detectives sought evidence placing the victim inside defendant's apartment or vehicles, establishing defendant's contact with the victim, or showing the victim's death was a homicide because it was drug-induced or the result of alcohol. The items to be seized were specifically described in the search warrant.
According to Schutta, after he informed defendant that other officers were applying for a search warrant for his apartment, defendant spontaneously stated that he had his deceased father's rifle in his apartment and that he was prohibited from having it. Sergeant Whipple of the Somerset County Prosecutor's Office, Schutta's supervisor, also heard the conversation as he walked past the interview room. Schutta did not attempt to amend the search warrant application to include the rifle or apply for a separate warrant for the rifle.
The warrant was issued at 11:45 a.m. The warrant directed police to seize:
Hair, Fibers, fingerprints, bodily fluids, DNA, other microscopic/forensic evidence or physical evidence connecting one individual/object/location to another individual/object/location.Moreover, the warrant identified the locations to be searched at defendant's apartment, including "all common or storage areas accessible to the occupants of Apt. 3."
Any/all evidence pertaining to the crime of Homicide (2C:11-2 et seq.)[;] drug induced death (2C:35-9)[;] obstructing (2C:29-1)[;] Hindering (2C:29-3)[;] Tampering with evidence (2C:28-6)[; and] Alcohol to minors (2C:33-15 & 2C:33-17)
T-Mobile cell phone, IPod, keys, wallet or other personal property belonging to [J.M.].
Alcohol, bottles, CDS or CDS paraphernalia.
Schutta and Whipple arrived at the apartment and waited for Scozzafava and Nowacki to arrive with the warrant. Schutta testified that he told Whipple "we're going to find a rifle in the apartment."
Schutta testified that other officers had run a criminal history on defendant but he had not reviewed the information. When Nowacki and Scozzafava arrived, the officers entered the apartment and began to search for evidence related to the suspicious death of the boy.
Schutta found a rifle in a leather rifle case in a closet located between the kitchen and living room. Other items seized from the apartment included shotgun shells, a magazine loaded with rifle rounds, a compound bow, four hunting knives, and a machete. Nowacki found a box of razor arrow heads.
Police found no evidence to support defendant's involvement in a homicide. However, as a result of the seizure, a grand jury returned Indictment No. 12-07-00564-I, charging defendant with two counts under N.J.S.A. 2C:39-7, of prohibiting certain persons not to have weapons: a fourth-degree offense for possession of the machete, N.J.S.A. 2C:39-7(a), and a second-degree offense for possession of a firearm, N.J.S.A. 2C:39-7(b).
II.
Following the indictment, defendant filed a motion to suppress the rifle, arguing the search exceeded the scope of the issued search warrant because the particularity requirement mandated that the warrant list the items to be seized by the police, and in this case the warrant did not identify the seizure of the rifle. He argued no exception to the warrant requirement applied, and noted that even if the rifle was in plain view, its detection was not inadvertent given Schutta's prior knowledge of its existence in the apartment. Additionally, defendant argued the firearm was not per se contraband.
The State argued that the search warrant permitted the police to look for evidence anywhere in the apartment the police deemed appropriate, thereby providing police a legitimate reason to be in the closet where the rifle was found in plain view. Alternatively, the State maintained that the seizure was validated by a "contraband exception" to the warrant requirement because defendant was a convicted felon and unlawfully possessed the rifle. Finally, the State argued that the police would have been justified in seizing the weapon and running its serial number through the National Crime Information Center (NCIC) database even if defendant had not told the police he had a gun in his apartment because running a serial number was "not a search."
In a bench decision, supplemented by a statement of reasons filed pursuant to Rule 2:5-1, the court suppressed the seizure of the rifle. The judge rejected application of the plain view doctrine because he found the discovery of the rifle was not inadvertent, an essential requirement for application of the plain view doctrine under New Jersey law. State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The judge also determined the other plain view exceptions for inherently dangerous objects, contraband or stolen goods did not apply. Furthermore, the court rejected the State's argument that the police had the right to seize the gun and run its serial number into the national database. The judge found the warrant failed to particularly describe the rifle as an item to be seized, as required under both federal and state constitutional dictates and that the seizure of the rifle did not otherwise fall within any of the recognized exceptions of the warrant. As such, the judge granted defendant's motion and suppressed the evidence. This appeal followed.
III.
On appeal, the State presents two arguments,
POINT I
THE INADVERTENCY REQUIREMENT OF THE PLAIN VIEW DOCTRINE SERVES NO CONSTITUTIONAL PURPOSE, PARTICULARLY IN THE CONTEXT OF POLICE DISCOVERY OF CONTRABAND OR DANGEROUS ITEMS DURING THE EXECUTION OF A LAWFUL SEARCH WARRANT
POINT II
THE TRIAL COURT'S SUPPLEMENTAL DECISION IMPROPERLY EVADES THE APPLICATION OF THE PLAIN VIEW EXCEPTION
We have considered the arguments advanced by the State in light of the record and governing legal principles and, for the reasons expressed by the motion judge, agree that the seizure could not be justified under the plain view exception to the warrant requirement, or because the weapon seized was contraband or a dangerous object. We also reject the State's invitation to abrogate the inadvertence prong of the plain view exception. Nonetheless, we are satisfied the motion judge erred in granting defendant's motion. We conclude the judge erred in rejecting the warrant as not satisfying the particularity requirements of state and federal law. Further, because the scope of the search warrant included evidence of the victim's presence in defendant's residence prior to his death, the rifle, located in the closet, would have been readily discovered. Accordingly, the inevitable discovery doctrine applies to allow the weapon's seizure.
Our standard of review in this case is plenary. A trial court's interpretation of the law and the consequences that flow from established facts are not entitled to any special deference. State v. Lamb, 218 N.J. 300, 313 (2014). Where, as here, the trial judge had no factual disputes to resolve on credibility grounds and only legal conclusions to draw, we are not required to defer to the trial judge's findings. State v. Bruno, 323 N.J. Super. 322, 331 (App. Div. 1999) (internal citation and quotations omitted).
A.
We begin by addressing the motion judge's conclusion that the warrant failed to meet the particularity requirement pursuant to Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 1289, 157 L. Ed. 2d 1068, 1078 (2004). The particularity requirement of a search warrant is firmly established by the Fourth Amendment of the United States Constitution, as well as the nearly identical language of our state constitution, which declares that "no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized." N.J. Const. Art. I, P7. Generally it mandates that "the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925).
The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found."
[State v. Marshall, 199 N.J. 602, 611 (2009) (quoting Maryland v. Garrison, 480 U.S. 79, 85, 107 S. Ct. 1013, 1017, 94 L. Ed. 2d 72, 81 (1987) (quoting United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172, 72 L. Ed. 2d 572, 593 (1982)).]
In this case, the judge failed to properly consider the scope of the warrant by focusing primarily on the fact that neither the application nor the warrant specifically mentioned a rifle as an item to be seized. We have previously addressed the "breadth" issue and recognized that "the scope of a lawful search is defined by the object of the investigation and the places in which there is probable cause to believe that it may be found." State v. Sheehan, 217 N.J. Super 20, 28 (App. Div. 1987) (citing State v. Reldan, 100 N.J. 187, 195 (1985)). Thus, we have concluded that where probable cause permitted the search of an entire premise, seizure of any evidence found anywhere within the premises is lawful. Id. at 30-31. In State v. Jones, 308 N.J. Super. 15 (1998), the warrant permitted a search for "[a]ny paperwork, including letters, papers or other writings that may establish a motive" for the murder of the woman. We concluded the warrant was specific in describing the type of writings sought, permitting the seizure of the defendant's unpublished novel that expressed his obsession with certain types of women.
Here, the object of the investigation was the search for, among other things, hair, fibers, fingerprints, and DNA linking the decedent to defendant's apartment. Any of these items could have been found on items in a closet, generally and on the rifle case or rifle specifically. The judge's focus on the other listed items in the warrant, resulted in an incorrect determination that the omission of a rifle among the listed items precluded its seizure. We conclude the judge improperly assessed the warrant. The warrant was not deficient and its breadth did not violate the Groh particularity requirement. Accordingly, the search for the items listed in the warrant resulted in the lawful seizure of the rifle.
B.
The State argues in Point I that this court should abrogate the inadvertence requirement of the plain view doctrine and apply the United States Supreme Court's holding in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). The State contends this is "a case of first impression" and asserts that our Court has suggested "that the inadvertence requirement under New Jersey law has been limited, if not altogether abolished."
In Horton, the Supreme Court eliminated the federal constitutional requirement for inadvertency that formed the basis for the trial court's decision that evidence of the rifle must be suppressed. Horton, supra, 496 U.S. at 140. The change in federal law occurred after our Court's decision in Bruzzese, upon which the trial court also relied to support its decision. While the State correctly asserts that no court in this state has specifically considered the effect of the federal law abrogation of the inadvertence requirements on the specific protections granted by the State Constitution, Art. I, ¶ 7, equally certain is our Supreme Court, although given the opportunity, has not countenanced the elimination of inadvertence when analyzing the applicability of the plain view doctrine. See State v. Gamble, 218 N.J. 412 (2014) (declining to address this exact argument).
Moreover, the State's argument ignores New Jersey's well-established history of affording its citizens greater protection against unreasonable searches and seizures under our state constitution than is afforded by the Fourth Amendment. State v. Earls, 214 N.J. 564, 568, 584 (2013). The Court has determined that federal constitutional law "establish[es] not the ceiling but only "the floor of minimum constitutional protection." State v. Eckel, 185 N.J. 523, 538 (2006) (quoting State v. Gilmore, 103 N.J. 508, 524 (1986)). In that vein, our Supreme Court has neither abolished nor limited the inadvertency requirement under the New Jersey Constitution. Gamble, supra, 218 N.J. at 412.
C.
We now turn to consider the application of the inevitable discovery doctrine as a basis to uphold the seizure of the rifle. The State touched on this issue during the motion hearing, however, the trial court did not squarely address it in its ruling. The State argued that in a warranted search police officers have "foreknowledge" that there is going to be evidence of criminal activity. As such, it suggested the court examine "[whether] the police [were] properly executing a search warrant, were they looking in a place where what was described in the search warrant could be found, and whether looking at it [the item seized] [it was] reasonable to associate it with criminal activity." The trial judge determined the executing officers were permitted to search the entire premises, including the closet, yet suppressed the rifle.
As previously discussed, the judge considered certain exceptions to the warrant requirement and concluded the seized evidence was subject to exclusion. However, the judge stopped short of considering whether the inevitable discovery exception to the exclusionary rule, when applied under the circumstances of this case, would render the rifle admissible.
In order to invoke the inevitable discovery doctrine, the State has to prove that
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.The State's burden of proof is the "clear and convincing" standard rather than the more lenient federal "preponderance of the evidence" standard. Sugar II, supra, 100 N.J. at 240.
[State v. Sugar (Sugar III), 108 N.J. 151, 156-57 (1987) (quoting State v. Sugar (Sugar II), 100 N.J. 214, 235 (1985)), certif. denied, 122 N.J. 187 (1990).]
Applying the three Sugar III factors to this case, the record evidence supports a conclusion that the rifle would have been inevitably discovered. The trial judge found that the police has probable cause to seek a search warrant for the rifle once defendant informed Det. Schutta that he was a convicted felon and had a rifle in his apartment. Though the police did not seek to amend the first warrant application or seek its own warrant, "proper, normal and specific investigatory procedures" would likely have resulted in the issuance of a warrant to search the apartment for the rifle.
Based on defendant's statement, the warrant application and affidavit would likely have described, as places to be searched, the apartment and closet where defendant stated the rifle was stored. Hence, it is reasonable to conclude that had a warrant been issued, and properly executed, the rifle would have been found in the closet and seized. Lastly, the search for the rifle was unrelated to the warrant issued for the suspicious death. Rather, the rifle was putative evidence of the certain persons not to possess weapons offense, N.J.S.A. 2C:39-7. On that independent basis, the discovery of the evidence through a separate warrant "would have occurred wholly independently of the discovery of such evidence" by the use of the issued warrant.
We are satisfied that the elements of inevitable discovery are satisfied in this case; a warrant for the rifle would have issued based on defendant's admission, the rifle was located in an area defendant had identified, and any officer could have and would have searched the closet, and located and seized the rifle, even if Schutta had not done so. On this basis, the order suppressing the rifle must be reversed.
D.
Two additional bases support the seizure of the rifle. The transcript of defendant's interrogation shows that Schutta warned him that his parole officer would have to be notified of the situation. When notified, his parole officer would have been entitled to conduct a warrantless search of his apartment based only on a reasonable, articulable suspicion that evidence of a parole violation would be found. N.J.A.C. 10A:71-6.4(a)(18). The rifle would likely have been discovered during that search.
Lastly, we disagree with the motion judge's rejection of the State's argument that the officers could have checked the rifle's serial number and seized it. Even if Schutta had not been present, it is likely that one of the other officers would have checked the serial number of any weapon they found on the premises against the national database. A check of a weapon's serial number is neither a seizure nor a search. State v. Harris, 211 N.J. 566, 587 (2012). Presumably such a check would have shown that the weapon was registered to defendant's father, as defendant had volunteered during his questioning, and provided yet another basis for its seizure.
Any remaining arguments, to the extent we have not addressed them, lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
In light of our review, we reverse the suppression of the evidence and remand for trial. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).