STATE OF NEW JERSEY v. JONATHAN MCEACHIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3880-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN MCEACHIN,

Defendant-Appellant.

_________________________________

April 19, 2011

 

Submitted March 30, 2011 - Decided

 

Before Judges Sapp-Peterson and Fasciale.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-12-1596.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, on the brief).

 

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the motion judge failed to conduct an evidentiary hearing on defendant's motion to suppress, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The judge sentenced defendant to three years in prison with a one year term of parole ineligibility. Defendant appeals from that conviction, argues that the material facts were disputed, and contends that the judge erred by not taking testimony. We agree and reverse.

Because the judge denied defendant's request for an evidentiary hearing, the judge considered the briefs filed by the parties, a police report, and oral argument by the attorneys. We discern the following facts from those sources.

The State contended that three undercover detectives were dispatched to an area in response to complaints of people "hanging out and selling narcotics." When they arrived in an unmarked police car, one detective observed defendant hold a "shiny, silver item" and show it to another man. The detective could not identify the object. The detectives pulled over, exited the car, approached both men, and identified themselves as police officers. At that point, one detective identified the object as a gun and observed defendant attempt to conceal it. The detective handcuffed defendant and arrested him.

The police report verified that the three detectives were in the area because of complaints concerning drug sales. The report states that one detective observed defendant showing a "shiny silver item" to the other man, and that the detective did not know what the object was until he exited the car, approached defendant, and announced he was a policeman.

Defense counsel hotly contested the facts in his brief in support of the motion and during oral argument before the motion judge. In his counter-statement of facts defense counsel explained that:

This case is about a pretextual stop and search that was the product of racial profiling and perceive[ed] gang affiliation, not a reasonable and articulable suspicion of plain view observation. . . . [T]he detectives claim to have observed [the other man] and [defendant], both dark[-]skinned African-Americans and cousins to one another, standing face to face, next to a tree. The police allege to have observed [defendant] holding a shiny item which they have unreasonably assumed was a gun.

 

Significantly, none of the three officers had their guns drawn when they approached [the men], nor did they call for back-up prior to approaching them.

. . . .

 

Without waiving any of his constitutional rights, [defendant] admits to possession of the firearm which was concealed in his pants at all relevant times. He had the firearm for self-defense because his younger brother . . . had been shot and killed one month prior . . . .

 

(emphasis added).

 

Defense counsel also stated in his counter-statement of facts that defendant was wearing a short sleeve shirt which exposed numerous tattoos on his arms, and suggested that "[t]attoos on young Black and Latino men are commonly associated with gang affiliation."

At oral argument before the judge, defense counsel emphasized that the material facts were in dispute. He repeated his argument that the case is about "a pretextual stop and search that was the product of racial profiling and perceived gang affiliation," and stated that "all three of these officers were white and that the two individuals . . . were African-American."

In denying the request for an evidentiary suppression hearing the judge stated:

[Defense counsel] argues that an evidentiary hearing is required because how do we know that this -- A, whether they saw a shiny object at all and if the -- if the shiny object wasn't perhaps something else because certainly if it was just, I don't know, a reflection off of a wristwatch or something like that[, then] that certainly would not be a basis for approaching this defendant and seizing the -- the handgun.

. . . .

 

Credibility [of the detective] is in dispute, but I have received no sworn affidavit to the contrary.

 

On appeal, defendant raises the following point:

POINT I

THE TRIAL JUDGE ERRED BY DENYING THE DEFENDANT'S REQUEST TO HOLD AN EVIDENTIARY HEARING AND PRESENT TESTIMONY AT THE SUPPRESSION HEARING, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7

 

"Consistent with the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, police officers must obtain a warrant . . . before searching a person's property, unless the search 'falls within one of the recognized exceptions to the warrant requirement.'" State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)); see also State v. Robinson, 200 N.J. 1, 3 (2009) ("[t]he warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects"). A warrantless search is presumed invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Rule 3:5-7(b) and (c) govern the obligation to file briefs concerning motions to suppress, and addresses when a hearing is required. The rule provides in pertinent part:

(b) . . . If the search was made without a warrant, the State shall, within 15 days of the filing of the motion, file a brief, including a statement of the facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing.

 

(c) . . . If material facts are disputed, testimony thereon shall be taken in open court.

 

(emphasis added).

The rule makes clear that an evidentiary hearing is only required when material facts are in dispute. State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J. 589 (1996). The judge acknowledged that the credibility of the officer was in dispute and mentioned that he had "no sworn affidavit to the contrary." There is no such requirement, however, that to demonstrate a material disputed fact, one must produce an affidavit. All that is required is a counter-statement of facts contained within a brief. R. 3:5-7(b); State v. Torres, 154 N.J. Super. 169, 173 (App. Div. 1977).

Here, defense counsel's brief states that "according to both defendant and his cousin . . . , neither of whom has a criminal record which could be used to impeach their credibility," the gun was not in plain view. The judge stated that the shiny object could be something else, such as a "reflection off of a wristwatch or something like that," and "that certainly would not be a basis for approaching this defendant and seizing the -- the handgun." We conclude, therefore, that a suppression hearing is required because the material facts are disputed.

Reversed and remanded for further proceedings. We do not retain jurisdiction.