STATE OF NEW JERSEY v. DEMETRIUS COPE RAASHID HABSHIN RASHEED COPE DEMETRIUS COPE DEMETRIAS COPE

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DEMETRIUS C. COPE, a/k/a RAASHID HABSHIN, RASHEED COPE, DEMETRIUS M. COPE, and DEMETRIAS COPE, Defendant–Appellant.

DOCKET NO. A–2165–11T3

Decided: March 21, 2014

Before Judges Sabatino and Rothstadt. John Vincent Saykanic, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;  Mr. Saykanic, on the brief). Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney;  Ms. Schuster, of counsel and on the brief).

Defendant Demetrius C. Cope appeals from his conviction after a jury found him guilty of a second-degree weapons charge.   The charges stemmed from a police officer's discovery and seizure of a SX Model SKS 762 caliber rifle from defendant's home on July 5, 2006.   Initially the officer was lawfully in the home to execute an arrest warrant on an unrelated charge.   After the officer secured defendant, he conducted a “protective sweep” during which he discovered the weapon on the residence's back porch balcony in a camouflage bag.   Subsequent to defendant's arrest, a grand jury indicted and charged him with possession of a firearm by a convicted person in the second degree, N.J.S.A. 2C:39–7b, among other offenses.1

In this appeal, defendant argues that the trial court made several erroneous rulings that warrant the reversal of his conviction.   Defendant also argues that improper and prejudicial comments made by the prosecutor during his summation warrant a reversal.   The court's rulings were made in response to motions filed by both the State and defendant prior to the commencement of the trial.   They included defendant's motion to suppress evidence (principally the seized rifle) as well as his motion to bar the admission into evidence of his prior convictions, and the State's motion to bar the testimony of a defense witness and to prevent the admission of an affidavit from that witness.

After the trial court conducted a hearing on the motion to suppress evidence, it denied defendant's motion.   The court found that despite the absence of a search warrant, the police properly discovered and seized the weapon as part of their “protective sweep” of defendant's home and because they discovered the weapon in “plain view.”

The court also conducted a N.J.R.E. 104 hearing as to the admissibility of the testimony and/or affidavit of a proposed defense witness, Dante Santiago, who claimed to have hidden the rifle at defendant's apartment, without defendant's knowledge.   The court initially determined that Santiago's testimony was admissible.   However, after further consideration of evidence presented by the State concerning Santiago's criminal record, the court barred his testimony and the introduction of Santiago's affidavit because it found that it was more likely than not Santiago was incarcerated at the time he allegedly hid the weapon at defendant's home.   Additionally, the court held a Sands 2 hearing to consider the admissibility of certain of defendant's prior convictions.   Over defendant's objections, the court admitted evidence of defendant's prior convictions that were more than ten years older than his indictment.

Finally, during summations defendant objected to certain portions of the prosecutor's closing arguments, on the basis that that they improperly infringed on his right to remain silent and to have an attorney, shifted the burden of proof, and improperly referred to his prior convictions.   The court overruled each of these objections.

After his conviction, the court sentenced defendant to twelve years imprisonment, with a parole ineligibility period of six years.   Additionally, the court did not award defendant gap time credits at sentencing, but stated that they would be further reviewed.

On appeal defendant raises the following issues for our consideration:

Point I

THE COURT BELOW ERRED IN BARRING THE TRIAL TESTIMONY (AND, IN THE ALTERNATIVE, THE AFFIDAVIT) OF DANTE SANTIAGO;  THE BARRING OF SANTIAGO'S TESTIMONY OR AFFIDAVIT DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT WITNESSES UNDER THE DUE PROCESS AND COMPULSORY PROCESS PROVISIONS OF THE FEDERAL AND STATE CONSTITUTIONS (N.J. CONST.   ART. I, ¶ 1 AND U.S. CONST.   AMENDS.  V, VI, XIV, § 1).

Point II

THE CONVICTION MUST BE REVERSED AND THE RIFLE SEIZED MUST BE SUPPRESSED AS THERE ARE NO VALID EXCEPTIONS TO THE WARRANT REQUIREMENT AND NO CONSENT TO SEARCH (U.S. CONST.   AMEND.  IV;  N.J. CONST.   ART. I, ¶ 7);  EVEN IF THE OFFICERS HAD LEGALLY ENTERED THE APARTMENT, THE SECOND ENTRY ONTO THE BALCONY CANNOT BE JUSTIFIED UNDER THE CONSENT, “PROTECTIVE SWEEP,” OR “PLAIN VIEW” THEORIES.

SUBPOINT A

THE SEARCH AND SEIZURE OF THE RIFLE WAS NOT JUSTIFIED UNDER THE “PROTECTIVE SEARCH” EXCEPTION TO THE WARRANT REQUIRMENT.

SUBPOINT B

THE EVIDENCE SEIZED MUST BE SUPPRESSED AS THE SEARCH AND SEIZURE IN THIS CASE VIOLATED BOTH THE STATE AND FEDERAL CONSTITUTIONS;  THE “PLAIN VIEW” EXCEPTION DOES NOT APPLY (U.S. CONST.   AMEND IV;  N.J. CONST.   ART. I, PARA 7).

POINT III

THE PROSECUTOR'S SUMMATION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL;  THE PROSECUTOR I) IMPROPERLY INFRINGED UPON THE DEFENDANT'S RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL;  II) IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT;  AND III) IMPROPERLY REFERENCED THE DEFENDANT'S PRIOR CONVICTIONS.

POINT IV

THE TRIAL COURT ERRED IN ADMITTING THE 1991 AND 1995 CONVICTIONS AS THESE CONVICTIONS ARE TOO REMOTE.

POINT V

THE SENTENCING JUDGE ERRED IN NOT CREDITING THE DEFENDANT WITH HIS PROPER GAP TIME CREDITS UNDER N.J.S.A. 2C:44–5(B) DATING FROM NOVEMBER 25, 2009, OR WITH JAIL CREDITS PURSUANT TO RULE 3:21–8.

After carefully considering the record and the applicable legal standards, we are satisfied that the trial court mistakenly exercised its discretion when it barred Santiago's testimony and also erred when it denied defendant's suppression motion.   We therefore reverse those determinations, vacate the conviction and remand for a new trial.   We also reverse the court's rulings regarding the introduction of defendant's prior convictions and entrust the trial court to consider their admission at the new trial applying the recent amendments to our evidence rules regarding the admissibility of prior convictions.  N.J.R.E. 609.3

I.

We begin with a recognition that our scope of review varies depending upon whether the issue raised on appeal concerns findings of fact or, alternatively, conclusions of law.   As to the former, we must uphold the factual findings and credibility determinations of the trial judge if they are supported by “sufficient, credible evidence,” State v. Yohnnson, 204 N.J. 43, 62 (2010), and “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.”  State v. Johnson, 42 N.J. 146, 161 (1964).   Moreover, “[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings,” State v. Morton, 155 N.J. 383, 453 (1998), which should not be disturbed absent a showing of abuse of discretion — “a clear error of judgment.”  State v. Koedatich, 112 N.J. 225, 313 (1988).

Still, if the trial court's findings are so clearly mistaken or unwarranted “that the interests of justice demand intervention and correction,” then the Court may review the record “as if it were deciding the matter at inception and make its own findings and conclusions.”  Johnson, supra, 42 N.J. at 162.   We will also intercede if the trial court has misapplied its discretion in a manner that deprives defendant of a fair trial.   See State v. Williams, 214 N.J.Super. 12, 22 (App.Div.1986) (reversing conviction because trial court erroneously excluded defendant's evidence of similar other crimes committed by another individual that tended to negate defendant's guilt), certif. denied, 107 N.J. 629 (1987).   Moreover, “a reviewing court owes no deference to the trial court in deciding matters of law.”  State v. Mann, 203 N.J. 328, 337 (2010).

II.

A.

The trial court conducted a Rule 104 hearing to determine if Santiago would be allowed to testify.   Santiago's involvement stemmed from his handwritten letter, dated April 22, 2011 and notarized by Lieutenant Jerry L. Coleman, Jr., in which he claimed ownership of the seized rifle, and stated that he hid it in defendant's apartment without defendant's knowledge.   Specifically, the letter states that Santiago had been contacted in 2006 by an old acquaintance of his, who advised him of a job in construction with defendant.   He followed up, and began working with defendant on a remodeling job in a flooded basement in Edgewater Park, New Jersey.   As the letter then states,

I'm not sure of the exact dates, or the exact address of the jo[b] site since it's been quite some time since then (years)․  What I am sure of is that I only ended up working thre[e] days on the job since I fucked up by doing some bullsh[it] that I regret severely on my third day at work which all in all, is basically the reason why I'm writing this statement today.

It's known never to mix business with pleasures, but unfortunately for me that's exactly what I did on my third day of work.   On my third day at work I not only brought an “SK” with me (gun), but without permission I also decide[d] to stash it on the boss man's balcony until work was finished because I was going to sell it to an associate of mine that resides in North Camden.

According to Santiago, he returned later that night to recover the gun, but then saw the police “runni[ng] down the place.”   Therefore, he wrote the letter because he could not “allow for an innocent man to go to prison because of something that didn't even belong to him.”   He then ended with a note:

For legal purposes, I'm waiving my rights for authorities to need my attorney's permission to speak with me.   If need be, I “Dante Esteban Santiago” am giving the authorities permission to come and speak with me, so please feel free ․

Based on the letter, Detective Sergeant William McGovern conducted a videotaped interview of Santiago at the Burlington County Prosecutor's Office.   At the start of the interview, McGovern advised Santiago of his Miranda 4 rights.   McGovern then began his interview:

Q [McGovern]. All right you say that you dropped the gun off at, uh, Demetrius ․

A [Santiago].   I don't wish to talk now.

Q. You don't ․

A.  I wanna get on stand I'll [undecipherable]

McGovern then attempted to discuss Camden County Jail records, which indicated to him that Santiago was in custody during the events of July 5, 2006.   To this, Santiago replied, “I did not mention no dates.”   He stated again that he had left the gun at defendant's house, but he was unsure of the date because it happened five years ago.   Furthermore, he echoed his sentiments as expressed in the letter, “Do you think it's right for somebody to go to jail for something that wasn't theirs?”

Then, McGovern again confronted Santiago with his jail records:

Q. This is a document from Camden County Jail, OK. It says you, you got committed on May 16th, 2006 and you got discharged on November 16, 2006.

A. OK

Q. Is that you?

A. That me in the picture, yeah that's my picture.

Q. All right, so if you dropped the gun off it had to be before May, right?

A. I'm not sure of the date exactly․

A ․ it's about 5 years.

Q. OK. So you got asked on the stand, you wouldn't be sure.

A. (Undecipherable) and like my statement says I am unsure of the dates.   See your job is to get me to twist my words․

After this exchange, McGovern and Santiago discussed the possibility that Santiago had left the gun at the apartment before his commitment in May 2006.   However, Santiago never explicitly conceded that point.

Another Officer, Detective Donlon, then asked,

Q․  Dante what's your, uh, what's the purpose of you writing this letter, why did you write it?

A. I plead the 5th.

Q. What's that?

A. I plead the 5th.

Q. OK

A.  The purpose, I don't know, it not while I'm in the courtroom on the stand to not see an innocent man go to jail for something that does not belong to him.

Later, during the Rule 104 hearing, Santiago was called to testify as to whether he intended to invoke his Fifth Amendment right to remain silent if he took the stand at trial.   His attitude toward the prosecution was generally evasive, and accusatory.   However, he confirmed that he had told detectives during the interview of his intention to remain silent, but that “[i]t was more like I didn't want to answer that question at that time.”   Also, he was more forthcoming when directly questioned by the court:

Q. [The Court] ․ if you were to be called to testify —

A.  I will get up here and tell nothing but the truth.   I do not need a lawyer.

Q. Okay. So the question is are you intending to answer their questions and testify?

A. Of course, to the fullest.

Q. You're not going to say I take the Fifth, I don't want to talk?

A. No, none of that, nothing.   I'm going to answer each and every question to the best of my knowledge.

His attitude notwithstanding, the court was satisfied after this initial hearing that Santiago should be allowed to testify.

The State then filed a new brief, in which it argued for “[a] more thorough and searching ․ hearing” for Santiago, to ensure that he did not intend to invoke his Fifth Amendment Rights.   The State argued in its brief that Santiago had taken an “unusually aggressive and evasive demeanor” in the courtroom, and had feigned a misunderstanding of the prosecutor's questions;  moreover, the facts alleged in his purported testimony and affidavit were in conflict with his jail records and a September 1, 2006 judgment of conviction, which credited him for time spent in custody from June 22, 2006 to August 31, 2006.   However, in the alternative, the State said that it did not oppose the admission of Santiago's handwritten affidavit as “a statement against penal interest.”   N.J.R.E. 803(c)(25).

Accordingly, the court held another Rule 104 hearing.   In advance of Santiago testifying, the defense provided the court with Camden County Jail documents (“CCJ documents”) pertaining to Santiago.   According to defense counsel, these documents indicated that Santiago had been assigned to a particular jail unit until June 10, 2006, and that there was no further indication of an assignment until October 3, 2006.   According to the defense, that gap in entries indicated that Santiago received credit during that time for being in “SLAP,” which is a community service program for offenders that serves as an alternative to incarceration.

The State then presented Santiago's certified September 1, 2006 Judgment of Conviction, asserting that the document “speaks for itself.”   The court agreed, finding the judgment of conviction was authentic under N.J.R.E. 803(c)(8), and therefore admissible;  however, the CCJ documents were deemed inadmissible, as the judge did not “think the Department of Corrections records actually ․ indicate that the defendant was confined or the Bureau of Criminal Identification comes in under the case law so that's my ruling.” 5

The court then heard testimony from Santiago, who was asked if he had been in custody in July 2006.   Once again, his reply was evasive:  “I could have been, I could not․  I don't know exact dates, you know?   I know 2006 date so far back but I know I was, SLAP program, I was on a program in 2006, the exact incarceration date and release date I'm unsure of.”   However, Santiago did admit to being convicted of burglary — as stated in his judgment of conviction;  that he pled guilty to that charge;  and that he had been sentenced for that charge, since “[t]here's no other way for me to get SLAP unless the judge issued it to me.”

Following his testimony, the State again referred the court to Santiago's judgment of conviction, which corroborated Santiago's statement:  the document indicated that Santiago had received credit for pretrial confinement from June 22, 2006 to August 31, 2006, and that he had been convicted on September 1, 2006.   The defense suggested that “the gun could have been placed defendant's home at some time before and [defendant] in his life and his life-style may not very well have seen it.”

Based on the foregoing, the court ultimately found that Santiago had been incarcerated from June 22, 2006 to August 31, 2006, and that he was sentenced on September 1, 2006.   The court rejected defense counsel's argument that the gun could have been placed there at any time prior to Santiago's incarceration, in light of the timeframe that Santiago himself had provided:

He said my third day of work.   And that really is an impossibility in light of the Judgment of Conviction which is absolutely an authenticated document and his own testimony that I could not have received SLAP until I was sentenced ․ so I really do believe that it is necessary for the Court to preclude this testimony in its entirety.

For the same reasons, the court also ruled that Santiago's affidavit would be excluded.

B.

Although we surely recognize the impeachable aspects of Santiago's account, the trial court nevertheless erred in excluding his testimony altogether as a defense witness who, if believed by the jury, could have exonerated defendant.   As a result, barring his testimony constituted a violation of defendant's right to present witnesses under the due process and compulsory process provisions of the New Jersey Constitution, N.J. Const. art.   I, ¶ 1, and the Federal Constitution.   U.S. Const. amends.   V, VI, XIV, § 1. A defendant is entitled to prove his innocence by offering proof that someone else committed, or otherwise caused, the crime.   See Koedatich, supra, 112 N.J. at 297.   This right is not only guaranteed under the due process clause of the Fourteenth Amendment, but is also recognized by the courts of this State.  Id. at 298.

However, such evidence may still be barred if it is deemed irrelevant, unreliable or misleading.  N.J.R.E. 401, 403;  State v. Chen, 208 N.J. 307, 318 (2011).   Trial courts must perform “a gatekeeping role to ensure that unreliable, misleading evidence is not admitted.”  Ibid. They must “ensure that certain unreliable evidence is not presented to the jury.”  Id. at 319.   Courts are required to perform their “gatekeeping function to guarantee that only relevant, probative, and competent evidence that is sufficiently reliable not to run afoul of Rule 403 may be considered by the finder of fact.”  Ibid. In performing that function, even “relevant evidence may be excluded [by the court] if its probative value is substantially outweighed by the risk of ․ undue prejudice, confusion of issues, or misleading the jury.”  N.J.R.E. 403.   Determinations as to admissibility rest within the sound discretion of the court.   See State v. Harvey, 151 N.J. 117, 166 (1997);  State v. Sturdivant, 31 N.J. 165, 179 (1959).

We are satisfied, however, that in this instance, the trial court mistakenly exercised that discretion.   The court incorrectly determined that, because Santiago's testimony was not in the court's assessment credible, it was inadmissible.   As a result, the trial court mistakenly ruled that a reasonable jury could not conclude that Santiago placed the weapon in defendant's home because according to his judgment of conviction he was incarcerated at the time he allegedly placed the weapon in defendant's home.

We believe that any question raised about Santiago's whereabouts during the subject time period went to his testimony's credibility rather than to completely negating its foundation.   See N.J.R.E. 602;  State v. Feaster, 156 N.J. 1, 78–79 (1998) (holding that inaccurate jail records did not bar State's witness from testifying about conversation between witness and the defendant where witness provided enough details to establish foundation that he and defendant had occasion to speak to each other while in jail).  “Any perceived inadequacies in [the witness'] testimony concern the weight it was to be accorded by the jury, not its admissibility.”  Id. at 79.

In addition, we believe that the “inadequacies” created by Santiago's criminal records should have been considered by a jury and weighed against the fact that his statements arguably were inherently reliable as statements against his interest.  N.J.R.E. 803(c)(25).  “[A] statement in which a party confesses to having committed a crime subjects the declarant to criminal liability, and therefore constitutes a statement that is against interest.”  State v. White, 158 N.J. 230, 238 (1999).   Any inculpatory statements made by a witness that exculpate a defendant are to be admitted based upon the character of the statement rather than issues raised about the witness's credibility.  Id. at 244.  “[E]xtrinsic circumstances of reliability ․ have no bearing on admissibility.”  Id. at 246.   It is for the jury to “undertake an unfettered and full consideration of all the circumstances surrounding the declarant's confession and disregard the statement or any part thereof if it finds the statement not credible.”  Ibid.

Santiago's testimony, however inconsistent with the information appearing on his judgment of conviction, contained a statement made against his penal interest and, therefore, was potentially reliable and exculpatory and thus, should have been presented to the jury.   Santiago's statement that he placed the weapon where police found it was enough to create questions of fact and credibility for the jury to determine, not a reason for the judge to bar his testimony altogether.   The inconsistency was insufficient to bar his testimony when he admitted to possessing the illegal weapon and secreting it at defendant's residence.   This was critical exonerating proof that, despite its apparent inconsistency with the judgment of conviction, should have been presented to the jury.

Defendant's conviction must be vacated and he be granted a new trial at which Santiago will be permitted to testify or in the alternative, if not produced as a witness, his affidavit shall be otherwise admitted in accordance with our rules of evidence.

III.

We now turn to the admissibility of the fruits of the warrantless search and seizure.   Although we have already remanded for a new trial on other grounds, we address the suppression issue by way of guidance to the trial court and the parties.   Based on the evidence presented at defendant's suppression hearing, the State may not introduce as evidence, at the new trial, the gun or rifle bag seized from defendant's residence.   We are satisfied that their introduction must be barred because they were discovered and seized as a result of a warrantless search that did not fall into any of the recognized exceptions to the warrant requirement.

A.

At the suppression hearing, the State presented the testimony of one witness,6 Sergeant David Brintzinghoffer of the Burlington Township Police Department.   At the time of defendant's arrest on July 5, 2006, Brintzinghoffer was a street crimes unit detective.   On that day, Brintzinghoffer received information that there was an outstanding arrest warrant 7 for defendant, that he resided at an apartment in Burlington Township and that he might be armed.

Defendant's apartment is on the second floor of a multi-unit building.   It can be accessed by a front door at ground level, which then opens into a walkway;  this walkway ends at a stairway, which leads up into the living room.   There is a balcony on the open porch in the back of the apartment.

At approximately 6:20 p.m. Brintzinghoffer and five other officers—Gollnick,8 Robert Fenimore, Richard Sullivan, Christopher Ent, and Charles Tiggett –arrived at defendant's apartment.   Brintzinghoffer, who was in charge of the operation, assigned himself, Gollnick, and Fenimore to the front of the building.   He assigned Tiggett, Sullivan, and Ent to watch the rear of the building, facing the balcony-side of the apartment.

After knocking the first time, Brintzinghoffer testified to hearing “a male voice saying who is it.”   He also heard “a commotion ․ up to the left,” which he described as “something ․ being moved or ․ multiple people inside the apartment.”   In response, he advised those inside that he had a warrant.   Then, “[s]econds later,” he heard Officer Sullivan say that [defendant] had just come out onto the second floor back porch, before going back inside.   Brintzinghoffer “[b]anged on the door again,” to which a female voice responded, “hold on.”   He again advised that he had an arrest warrant for defendant, and that he would kick in the door if he was not answered.   Defendant's (adult) daughter eventually opened the front door.

Gollnick then secured and stayed with the daughter, while Brintzinghoffer and Fenimore ascended the stairs.   They found defendant lying on a couch in the living room, and ordered him to the ground.   Defendant complied, and the officers arrested and secured him without resistance.

Fenimore stayed with defendant as Brintzinghoffer walked throughout the apartment, looking into the bedroom, the bathroom, and the living room.   Gollnick, who had since brought defendant's daughter back into the apartment, looked through the kitchen.   The purpose of this “sweep,” according to Brintzinghoffer, was “officer safety” — to ensure that there were no other persons in the apartment who might do harm to the officers.

To this end, Brintzinghoffer also went to check the back porch as he was familiar with the layout of the apartments in the building, and therefore knew that there was a storage closet on the back porch where someone could hide.   After stepping out onto the back porch, Brintzinghoffer noticed what he believed to be “a camouflage rifle bag” on the ground, blocking the entrance to the storage closet.   He knew there was a rifle in the bag because “through [his] training and experience [the police] had rifles and they were in similar rifle bags.”   He then picked up the bag, and based on its appearance, weight, feel, and length, Brintzinghoffer concluded that there was a rifle inside.

He immediately opened the bag to make sure the rifle was secure—more specifically, to see if there was a magazine in place, or a round in the chamber.   When he opened the bag, he found a SX Model SKS 762 caliber rifle inside, though he could not tell if it was loaded.   Additionally, the bag contained “numerous rounds of ammunition, other magazines, speed loaders, [and] rounds.”   Brintzinghoffer, who is admittedly “not a rifle guy,” called for another detective to help secure the rifle.   That detective — a former SWAT team member and hunter — ultimately secured the rifle before putting it back into the bag.

The police then secured the apartment.   The rifle was left in its bag at the apartment with two officers.   Sullivan and Fenimore secured the outside and front door.   Other officers took defendant and his daughter to the station, and Brintzinghoffer followed and began an investigation as to the rifle.

At the station, police questioned both defendant and his daughter.   Also during the investigation, Brintzinghoffer learned that the rifle had been stolen, along with 2,000 rounds of ammunition.   Accordingly, he applied for a search warrant for defendant's home to look for additional weapons or ammunition in the apartment, and for “[p]roof of occupancy of residence” as would tie defendant to the apartment and the rifle.   He spoke with a Superior Court judge as part of the search warrant application:

[The judge] called up on the phone, said, “Can you tell me what's up basically,” you know.  “Can you give me the synopsis version?”   I said—I kind of explained what's going on.   He said, “Do you have the weapon?”   I said, “Yes, sir.”   He says, “Well, I guess you're done.”  “Okay, sir,” and hung up the phone.

Based on that conversation, a search warrant was never issued for defendant's home.

Brintzinghoffer later returned to defendant's home at around 10:38 p.m., and advised the officers that he had been unable to obtain a search warrant.   He told Ent to retrieve the bag and rifle from the apartment, and bring it back to the police station.   The items were then inventoried, photographed, and placed in the evidence locker.

After listening to Brintzinghoffer's testimony, the court considered counsels' arguments.   The defense argued that the State did not satisfy its burden to prove that the sweep of the apartment was justified or that they had “inadvertently” stumbled across the rifle.   Moreover, the defense argued that the judge's denial of the search warrant application was further proof that their discovery and seizure of the gun was not justified.   The State countered that they had satisfied the requirements for a “protective sweep” of the apartment, as well as the “plain view” exception to the rule requiring a warrant for searches and seizures.

The court ultimately agreed with the State.   It found Brintzinghoffer to be credible, because he was straightforward, honest, and even admitted to opening the gun case.   It stated that the “protective sweep” was an “appropriate argument” under the totality of the circumstances, because (1) Brintzinghoffer had been informed that defendant might be armed;  (2) he had heard a “commotion” inside the apartment, which he characterized as being either people moving around, or items being moved;  (3) the officers watching the back of the apartment had seen defendant step out onto the back porch;  and (4) the door was not immediately opened when the officers first knocked.   Thus, in light of these factors, a “protective sweep” was justified, notwithstanding that defendant and his daughter were already secured at the time.

As to the second argument — that the “protective sweep” led to the “plain view” discovery of the rifle case — the court found that the State had satisfied all three required prongs 9 .  First, the court found that the officers were lawfully within the viewing area of the rifle, because they had a legitimate arrest warrant for defendant and they waited for him to be present before entering the residence.   Second, the court found that there was nothing in the evidence to indicate that the discovery was not inadvertent, notwithstanding the fact that they were informed that defendant may be armed.   Third, the court found that there was probable cause to associate the rifle case with a crime, because the officers were aware that defendant was a felon, and the object was immediately identifiable as a rifle case.

Finally, the court found that Brintzinghoffer's telephone conversation with the judge was in pursuit of a search warrant to recover additional items, and not “an after the fact request to get at the gun” to cover his tracks.   Accordingly, the court denied defendant's motion to suppress evidence of the rifle.

B.

Defendant argues that the trial court erred in denying his motion to suppress evidence of the seized rifle, because the State failed to satisfy its burden of justifying the warrantless search of his apartment, and the subsequent discovery of the rifle.   In support, defendant argues that the State did not obtain a valid search warrant, and that it failed to satisfy the elements for discovering the seized weapon in “plain view” during a “protective sweep.”

In near-identical language, both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey State Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provide that “no [w]arrants shall issue, but upon probable cause.”   U.S. Const. amend.   IV;  N.J. Const. art.   I, ¶ 7. Accordingly, “[o]ur constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search.”  State v. Edmonds, 211 N.J. 117, 129 (2012) (citing State v. Frankel, 179 N.J. 586, 597–98, cert. denied sub nom., Frankel v. New Jersey, 543 U.S. 876, 125 S.Ct. 108, 160 L. Ed.2d 128 (2004)).   Moreover, courts have historically applied “a more stringent standard of the Fourth Amendment” in evaluating searches of homes, State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L. Ed.2d 695 (1984), as this is the “chief evil” at which the Amendment is directed.  State v. Davila, 203 N.J. 97, 112 (2010) (quoting United States v. U.S. Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L. Ed.2d 752, 764 (1972)).

Thus, warrantless searches — particularly of a home — are presumptively invalid.  Edmonds, supra, 211 N.J. at 129.   The State bears the burden of proof by a preponderance of evidence, State v. Johnson, 193 N.J. 528, 552 (2008), and must establish one of the “few specifically established and well-delineated exceptions to the warrant requirement.”  State v. Frankel, supra, 179 N.J. at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L. Ed.2d 290, 298–99 (1978)) (internal quotations omitted).   Furthermore, the State's proofs are “subject[ ] to particularly careful scrutiny.”  State v. Bolte, 115 N.J. 579, 583 (1989).

In the instant matter, the State relies on two exceptions to the warrant requirement:  specifically, the State argues that it was justified in its “protective sweep” of the apartment, which thereby led to the discovery of the rifle in “plain view.”   Our review of the record leads us to the conclusion that the “protective sweep” does not apply and, as a result, the rifle bag although in “plain view” could not be searched or seized without a warrant.

The “protective sweep” exception grew out of recognition that police officers should be able to conduct a “quick and limited” search of a home, where it is incident to an arrest, and necessary for their own safety.  Davila, supra, 203 N.J. at 101 (quoting Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L. Ed.2d 276, 281 (1990)).  “The ‘protective sweep’ is aimed at protecting officers from dangerous individuals.”  Id. at 129.   Therefore, it must be limited and “ ‘narrowly confined to a cursory visual inspection of those places in which a person might be hiding.’ ”  Ibid. (quoting Buie, supra, 494 U.S. at 327, 110 S.Ct. 1094, 108 L. Ed.2d at 287.).   It is not to be used to “ferret out” weapons or contraband, although such items in “plain view” may be seized during the course of the search.  Ibid. at 129 (citing Buie, supra, 494 U.S. at 330, 110 S.Ct. at 1096, 108 L. Ed.2d at 283).

A “protective sweep” may only occur if 1) the police are “lawfully within the private premises for a legitimate purpose”;  2) the police “have a reasonable, articulable suspicion that the area to be swept harbors an individual posing a danger”;  and 3) the search is done quickly, and restricted to those areas where dangerous individuals could hide.  Id. at 102.   In keeping with the stringent standard, a “protective sweep” of a home is not automatically permissible whenever the police are lawfully within a home;  “so broad an exception would swallow whole the protections of the warrant requirement.”   Id. at 121.

For the same reason, an arrestee's “dangerousness is not germane to the inquiry into whether the police may conduct a protective sweep.”  United States v. Colbert, 76 F.3d 773, 777 (6th Cir.1996);  see, e.g., United States v. Gandia, 424 F.3d 255, 264 (2d Cir.2005) (“Officers must point to facts that give rise to an individualized suspicion and cannot rely solely on generalizations that suspects are usually accompanied by dangerous third parties.”), cert. denied, 555 U.S. 930, 129 S.Ct. 312, 172 L. Ed.2d 226 (2008);  Sharrar v. Felsing, 128 F.3d 810, 825 (3rd Cir.1997) (search of residence not justified where officers were informed that arrestee was accompanied by three accomplices, and had removed all four men from the house and taken them into custody, because they “had no basis, let alone the ‘articulable facts' required under Buie, to conclude that others remained inside”);  United States v. Henry, 48 F.3d 1282, 1284 (D.C.Cir.1995) ( “[O]fficers' awareness that [the defendant] had a previous weapons conviction and could be dangerous did not itself directly justify the sweep.   Once [the defendant] was in custody, he no longer posed a threat to the police.”);   United States v. Hatcher, 680 F.2d 438, 444 (6th Cir.1982) (holding “it was error for the district court to conclude that a search of the basement subsequent to the defendant's arrest was justified solely because ‘the subject of drugs is a dangerous one, dangerous for all of those persons involved in it’ ” because “[t]hat reasoning may be too easily applied to any number of categories of criminal arrests, and would permit wholesale abrogation of the Fourth Amendment reasonableness requirement whenever an arrest is made in such subject areas”).  “If ․ courts are allowed to justify “protective sweeps” based on the dangerousness of the arrestee, nearly every arrest taking place in or near a home will include a “protective sweep.”  Colbert, supra, 76 F.3d at 777.

By comparison, we recognize that we have upheld a warrantless search and seizure during a “protective sweep” where officers entered an apartment to arrest two individuals and, after the arrest, the officers overhead “creaking” noises in the attic;  and upon investigating the noise, they discovered seven large bags of marijuana in “plain view.”  State v. Miller, 126 N.J.Super. 572, 576 (App.Div.1974), certif. denied, 68 N.J. 279 (1975).   A similar perception of noises indicative of the presence of third parties, however, was not made by police at defendant's home in the instant matter.

This case presents no issue as to the officers' lawful presence in defendant's home or as to the limited time required for a “protective sweep.”   The police were lawfully within defendant's home pursuant to the arrest warrant, and did not enter the apartment before defendant arrived home.   We are mindful that the trial court credited Brintzinghoffer's testimony, in which he claimed to have done a quick, cursory sweep of the adjoining rooms.   However, we disagree with the trial court as to a finding of an “articulable suspicion” that would support a “protective sweep.”

We are satisfied that the officer's search of the back porch was not supported by any “reasonable, articulable suspicion” that portion of the dwelling harbored another dangerous individual.   None of the findings the trial court relied upon justified a “protective sweep” that included the back porch in this instance.   The back porch was not an area where a person could hide from the police under the circumstances.   It was not only in the open but significantly under the police's surveillance from the point when they arrived at defendant's home until after the arrest and the premises being secured.   In fact, as noted by Brintzinghoffer, an officer saw defendant on the back porch prior to his arrest.   If another individual came out onto the balcony at any time after Brintzinghoffer's arrival with the other officers he or she too would have been seen by the officers stationed in the rear of the premises.   The fact that a storage closet was located on the balcony does not change the result.   If someone was going to hide in the closet, the police conducting the surveillance of the porch presumably would have observed those actions as well.

The officer did not see or hear anything that led him to believe a person was hiding on the back porch balcony.   Brintzinghoffer's hearing a “commotion” or the fact that defendant did not immediately open the door also did not establish articulable facts justifying concern for an officer's safety that would justify “taking the precaution of a limited protective sweep” that extended to the back porch.  Davila, supra, 203 N.J. at 117.   As to the “commotion,” Brintzinghoffer characterized the sound as either people talking, or something being moved.   However, he did not, for example, hear two separate, distinct male voices;  nor did he hear a noise in another part of the apartment, after having secured defendant and his daughter.   See Miller, supra, 126 N.J.Super. at 576 (“We hold that the police did have the right under the circumstances ․ to investigate noises in an area distant from the point of arrest and to seize contraband which came into his ‘plain view’ during the course of that investigation.”).   He went out on to the back porch balcony only because he had a hunch that someone could be hiding in the storage closet, not because he actually heard a noise or saw someone in that area.10  As to the remaining factor, it is unclear how defendant's not immediately answering the door created a suspicion that there were additional persons in the apartment.

Without an “articulable suspicion” to support a belief that someone was on the back porch balcony, once defendant was secured, if a further search was warranted, the officer's only lawful choice was to secure the premises and apply for a search warrant or simply leave.  Johnson, supra, 193 N.J. at 555–56.   Instead, Brintzinghoffer conducted a search that exceeded that which was necessary for a valid “protective sweep” under the circumstances.

Reversed and remanded.11

FOOTNOTES

1.  FN1. The same indictment charged defendant with unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39–5f;  possession of a prohibited weapon and device (large capacity magazine) in the fourth degree, N.J.S.A. 2C:39–3j;  and receiving stolen property, N.J.S.A. 2C:20–7a but, according to the State, these charges were apparently dismissed before trial although not clearly stated in the record.   The jury ultimately convicted defendant of the single charge:  possession of a firearm by a convicted person in the second degree, N.J.S.A. 2C:39–7b.

2.  FN2. State v. Sands, 76 N.J. 127, 140–41 (1978) (admission of prior conviction evidence is subject to the sound discretion of the court).

3.  FN3. Pursuant to the Court's September 16, 2013 order, Rule 609 is amended to become effective July 1, 2014, subject to the Evidence Act, N.J.S.A. 2A:84A–36 (evidence rules take effect “subject to cancellation at any time up to such effective date by joint resolution to that effect adopted by the Senate and General Assembly and signed by the Governor.”)

4.  FN4. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

5.  FN5. The Camden County Jail documents were not self-authenticating, N.J.R.E. 902(a) and (b), because they are not signed or certified.   Nevertheless, such rules do not strictly apply to a hearing held in order to determine the admissibility of evidence at trial.  N.J.R.E. 104(a).

6.  FN6. On the same date, the court conducted a separate N.J.R.E. 404 hearing relating to evidence seized during the execution of a search warrant at another location, on a later date.   That separate ruling is not a subject of this appeal.

7.  FN7. The record does not disclose the underlying charges for the arrest warrant.

8.  FN8. Our review of the record does not disclose Officer Gollnick's first name.

9.  FN9. See footnote ten, infra.

10.  FN10. If the officer had heard or seen something, the discovery of the weapon would have been in “plain view.”   This exception to the warrant requirement applies when 1) police are lawfully within the viewing area of the evidence;  2) they have discovered the evidence inadvertently;  and 3) they have probable cause to associate the item with criminal activity.   Bruzzese, supra, 94 N.J. at 236.As to the third prong, “[s]ome objects or containers, although by themselves not sufficiently probative of criminal activity, may by their configuration or design proclaim their contents to an observer.”  State v. Demeter, 124 N.J. 374, 381 (1991) (citing Arkansas v. Sanders, 442 U.S. 753, 764 n.13, 99 S.Ct. 2586, 2593 n.13, 61 L. Ed.2d 235, 245 n.13 (1979) (“[S]ome containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”)).   The nature of such objects “bespeak their contents” and thus their owners cannot retain a reasonable expectation of privacy.   Id. at 382.   Therefore, had Brintzinghoffer been lawfully present on the porch, the seizing and opening of the rifle bag would have been justified.

11.  FN11. Because we have ordered that defendant receive a new trial, we need not address the balance of defendant's arguments.   We trust the trial court will address the evidential use of defendant's prior convictions in accordance with the recently amended provisions of Rule 609, assuming they become effective as ordered, and calculate defendant's jail and “gap” time credits correctly if and when he is ever re-sentenced.

PER CURIAM

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