STATE OF NEW JERSEY v. DESMOND DONALDSON

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5101-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DESMOND DONALDSON,

Defendant-Appellant.

_______________________________________________________________

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June 29, 2006

Submitted March 22, 2006 Decided
 
Before Judges Parker and Grall.

On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment No. 04-08-824.

Basile & Testa, attorneys for appellant
(Michael L. Testa, of counsel; Maria V.
Go, on the brief).

Zulima V. Farber, Attorney General of New
Jersey, attorney for respondent (Johanna
Barba Jones, Deputy Attorney General, of
counsel and on the brief).

PER CURIAM

Defendant Desmond Donaldson appeals from an order entered on January 13, 2005 denying his motion to suppress, after which he pled guilty to second degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(10). On May 27, 2005, the plea agreement was modified and defendant was sentenced to a third degree offense. He was sentenced to a term of three years.
These charges arose as a result of events set in motion when defendant filed a domestic violence complaint against his former girlfriend, Hattie Moye, on June 7, 2004 and a temporary restraining order (TRO) was issued. Moye filed a cross-domestic violence complaint against defendant on June 17, 2004 and a TRO was issued against defendant. The next day, June 18, 2004, pursuant to the search warrant provision in Moye's TRO, the Bridgeton Police Department searched defendant's residence, vehicle and person for a handgun Moye claimed was in his possession. No weapons were found but a large amount of marijuana was discovered in the attic of defendant's home and seized.
After he was charged with possession of marijuana with intent to distribute, defendant moved to suppress the evidence. No witnesses testified at the suppression hearing. Rather, defendant argued that the warrant lacked probable cause because the TRO was dismissed after a final hearing and the warrant did not authorize a search for and seizure of a controlled dangerous substance (CDS). Defendant argued further that Moye was not a credible informant because she was retaliating against defendant for his having filed the domestic violence complaint. Defendant maintained that the dismissal of the TRO against defendant after a final hearing based upon plaintiff's lack of credibility essentially invalidated the warrant. The State countered that the issuance of the TRO was akin to finding probable cause for a warrant.
In a written decision dated January 18, 2005, the motion judge noted that "the State and the defense concurred that the facts relating to the search herein were not in dispute, rather, the provisions of the Temporary Restraining Order under FV-06-001402-04 control whether or not the Defendant's application for suppression of evidence should be granted." The warrant provision of the TRO issued against defendant specifically stated:
WARRANT TO SEARCH FOR AND TO SEIZE WEAPONS FOR SAFEKEEPING TO ANY LAW ENFORCEMENT OFFICER HAVING JURISDICTION: This Order shall serve as a warrant to search for and seize any issued permit to carry a firearm, application to purchase a firearm and firearms purchaser identification card issued to the defendant and the following firearm(s) or other weapon(s):

REVOLVER

1. You are hereby commanded to search for the above described weapons and/or permits to carry a firearm, application to purchase a firearm and firearms purchaser identification card and to serve a copy of this order upon the person at the premises or location described as: [defendant's person,] residence 127 Church Street, Bridgeton [and vehicle].

2. You are hereby ordered in the event you seize any of the weapons described above, to give a receipt for the property seized to the person from whom they were taken or in whose possession they were found, or in the absence of such a person to have a copy of this Order together with such receipt in or upon said structure from which the property was taken.

3. You are authorized to execute this order immediately or as soon thereafter as practicable: (X) anytime; ( ) other:________

4. You are further ordered after the execution of this Order, to promptly provide the court with a written inventory of the property seized per this Order.
 
The motion judge rejected defendant's argument that State v. Johnson, 352 N.J. Super. 15 (App. Div. 2002), provided authority for the motion judge to reverse the findings of the domestic violence judge who issued the TRO and warrant against defendant. The trial judge also rejected defendant's argument that State v. Perkins, 358 N.J. Super. 151 (App. Div. 2003), stood "for the proposition that the contraband was not the subject of the search warrant and, therefore, should be suppressed." Rather, he determined that Perkins held "that evidence found pursuant to searches authorized by N.J.S.A. 2C:21d(1) and N.J.S.A. 2C:25-28j pass constitutional muster so long as the seized items were not used in criminal prosecution 'unless the factual circumstances justify a search under a recognized exception to the warrant requirement . . . .' It then reaffirmed that the plain view exception to the warrant requirement applies in domestic violence cases." (quoting Perkins, supra, 358 N.J. Super. at 161).
In Perkins, we did, indeed, hold that "evidence that is inadvertently discovered in plain view in the course of an otherwise valid search is subject to seizure and is admissible in a criminal prosecution." Id. at 161-62. The facts in Perkins were substantially undisputed: The "defendant's wife called 9-1-1 complaining that her husband 'smacked' her in the head with a telephone. She told the operator that her husband had been drinking and that he 'has a lot of weapons' because he is a gun collector. She informed the operator that her husband's gun collection was located in a front bedroom but that he also may have had a firearm in the back bedroom where he was located at the time." Id. at 154. The wife refused to seek a restraining order. Nevertheless, the police went to defendant's house where they encountered the wife and found defendant in bed. Id. at 154-55. The police told defendant about his wife's call and the officers, "[b]elieving that there was a weapon in the bedroom, . . . escorted defendant downstairs to the kitchen." Id. at 155.
The police then "conducted an investigation of the house, during which [they] located defendant's gun collection consisting of approximately eighty-five firearms . . . . leaning up against three of the walls, pointing upwards toward the ceiling. There were also some knives and swords located on a glass shelf, as well as some handguns and ammunition on a shelf in the closet." Ibid. All of the weapons were seized "for safekeeping pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Neither the police nor the prosecutor sought a warrant for the seizure of the weapons." Ibid.
We found the warrantless search valid because (1) it fell within the "special needs" exception to the warrant requirement; (2) "the officers had reasonable cause to believe that defendant had access to weapons;" (3) "the officers had reasonable cause to believe that defendant's access to the weapons posed a 'heightened risk of injury to the victim;'" and (4) "under the totality of the circumstances the officers acted reasonably." Id. at 159-60.
Johnson, however, is substantially closer to the facts of the present case. There, the defendant's wife filed a cross-domestic violence complaint in which she indicated that the defendant had a handgun which "could be" at his residence, in his vehicle or with a third party. 352 N.J. Super. at 21-22. The TRO authorized a search of the defendant's person, residence, vehicle and a storage locker in the name of a third person for the weapon. Id. at 23-24.
In executing the warrant, the police searched the defendant's bedroom and found a red box located between the bed and nightstand in which they found "two clear plastic bags with green vegetation that field-tested positive for marijuana." Id. at 25. The defendant was arrested and charged with possession of marijuana. No weapons were found during the search of his residence or the storage unit. Ibid.
In the criminal matter, the defendant moved to suppress the evidence seized. The motion was denied and the defendant appealed. In reviewing the record, we found that "the procedures employed [in issuing the TRO] were insufficient to establish [sufficient facts] in the record." Id. at 39. Because the complaint was taken by a domestic violence hearing officer (DVHO), the Family Part judge did not have a written summary, a transcript or an affidavit that would enable him "to analyze whether there was reasonable cause to believe that defendant had access to a weapon and, if so, whether that access posed a danger or heightened risk of injury to [his wife]." Id. at 39-40. Because the Family Part judge took no testimony before issuing the TRO, he could not assess whether there was sufficient credible evidence for "reasonable cause" to believe that an act of domestic violence had occurred and that defendant was in possession of or had access to a firearm. Id. at 40. Consequently, we found the warrant invalid on the ground that it was not supported by sufficient reasonable cause. Ibid.
In State v. Cassidy, 179 N.J. 150 (2004), the Supreme Court found that a warrant included in a TRO was invalid because the issuing judge who spoke to the domestic violence complainant by telephone did not swear her in and did not record his conversations with her or the officer who took the complaint. Id. at 155. Having found the warrant invalid, the Court rejected the State's argument that the warrantless search was justified under the exigent circumstance of having found thirty-five weapons in the defendant's home. Id. at 156. The Court stated that "the assurances of trustworthiness that we insist upon in the decisional process" are "fundamental to the substantive validity of the warrant." Id. at 158.
Here, Moye testified at the domestic violence hearing:
I realized [the defendant] . . . put a restraining order on me and he [knew] I had fines that I didn't pay. And I had a warrant on [me]. He went on and did it

. . . .

So since you did that to me, I'm going to go ahead and do it to you. I'm going to go ahead and give [defendant's wife] the pictures [evidencing their relationship.] So that's what I did.
 
Defendant presented evidence of three e-mails sent by Moye to his wife, all of which demonstrated her lack of credibility. In the e-mails, Moye threatened to file false complaints with the police alleging that defendant assaulted and raped her; threatened to put defendant in jail; and threatened defendant's wife directly. At the conclusion of the domestic violence hearing on the cross-complaints, Moye's TRO was dismissed and defendant was granted a final restraining order (FRO).
After defendant's suppression motion was denied, he entered a guilty plea and appealed. In his appeal, he argues:
POINT ONE
 
THE SEARCH OF DONALDSON'S RESIDENCE, PERSON AND VEHICLE FAILED TO PASS CONSTITUTIONAL SCRUTINY, THEREFORE THE MARIJUANA FOUND IN THE DONALDSON HOME MUST BE SUPPRESSED.

A. Based on Moye's application for the TRO and taking into consideration the Judge Geiger's earlier findings of fact as to Moye's credibility and "game plan", no reasonable trier of act could find that there is reasonable cause to enter a TRO with a weapons search.

B. The scope of search warrant was overbroad and therefore the evidence must be suppressed.

C. The marijuana must be suppressed because it is evidence found during an unlawful search.
 
In essence, defendant argues that Moye's allegations in the domestic violence complaint were lacking in credibility such that the warrant was invalid and the marijuana must be suppressed because it was seized during an unlawful search. In considering the suppression motion, the judge stated several times that the TRO transcript was inadequate. For example, he stated that "when I read the transcript there are no facts spread on the record for the TRO," and that "we have what's in the record which is fairly sparse I agree." The judge seemed to believe he was bound by the Family Part's determination of probable cause to issue the TRO and the included search warrant. That is not the case, however.
On a motion in a criminal proceeding to suppress evidence seized pursuant to a warrant, the motion judge must determine whether there was sufficient probable cause to issue the warrant. State v. Johnson, 352 N.J. Super. 15, 39-40 (App. Div. 2002); and see State v. Cassidy, 179 N.J. 150, 158 (2004). If probable cause is lacking in the record, the warrant is deficient and the evidence must be suppressed. Johnson, supra, 352 N.J. Super. at 39-40.
In Johnson, we held that "issuance of a search warrant as authorized by N.J.S.A. 2C:25-28j does not violate Fourth Amendment principles, assuming there is evidence of the requisite degree of specificity concerning the description of the weapon and its location and that information is contained in the warrant." 352 N.J. Super. at 39. Based on the motion judge's summary of Moye's testimony on her application for the TRO, she told the judge that defendant told her he had a gun that he kept in his basement. The motion judge did not address the breadth of the authorization included in this warrant in light of the testimony presented by Moye on her application for the TRO. For that reason, we remand this matter to the motion judge for further consideration of defendant's suppression motion in light of Johnson.
Remanded for further proceedings in accordance with this opinion.

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