STATE OF NEW JERSEY v. SHANNON WALLACE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANNON WALLACE,

Defendant-Appellant.

_________________________________

October 1, 2013

Submitted September 23, 2013 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-08-1714.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This is defendant Shannon Wallace's third appeal to this court. In State v. Wallace, No. A-6001-02 (App. Div. Oct. 22, 2004) (Wallace I), we provisionally affirmed Wallace's conviction and sentence,1 subject to a remand for the trial judge to explain his ruling permitting the admissibility of contraband and documents that were not in plain view. In State v. Wallace, No. A-4239-06 (App. Div. Aug. 25, 2009) (Wallace II), we agreed with Wallace that our earlier mandate had not been followed because the remand hearing was conducted by the judge who had denied Wallace's pre-trial suppression motion, rather than the trial judge. We again remanded, for a hearing to be conducted by the trial judge, to determine whether the non-plain view items seized "from under the mattress and the bed were admissible at trial." Wallace II, supra, slip op. at 6. After a remand hearing was conducted by the trial judge, a December 10, 2009 order was entered denying Wallace's motion to suppress. Wallace appeals from that determination, claiming that the trial court committed serious errors of fact and law. We affirm.

I.

A.

Although familiarity with our two earlier opinions is assumed, we recite the salient facts:

These charges arose out of defendant's arrest on January 22, 2001 when Parole Officer Thomas High arrived at a residence he knew defendant occupied. Along with eight other parole officers, High intended to serve an arrest warrant for violation of parole. The residence was within one thousand feet of a school.

High had supervised defendant since 2000 and had made numerous "home visits" to this address. High knew from past visits that defendant occupied a second floor bedroom from which High saw him "peek out" on January 22, 2001. When the officers entered the house, they went to the second floor bedroom, where one of the officers saw a clip of eight vials of suspected cocaine on a dresser. A drawer in the dresser was partially opened and contained a black semi-automatic handgun. Other officers found a bundle of drugs and a knife in the bedroom. Under the mattress, along with other mail addressed to defendant, they found a certificate from the Parole Department addressed to defendant indicating that he had completed a ninety-day reporting program. One thousand empty vials were found under the bed.

Defendant was not in the second floor bedroom when the officers entered it. One of the officers went to the attic and found defendant hiding behind a clothes rack. When defendant was seized and arrested, he did not have any shoes on. His girlfriend, who was present at the time, indicated to the officers that defendant's shoes were in the bedroom closet. His work boots were retrieved from that closet.

[Wallace II, supra, slip op. at 2-3.]

B.

On remand, the trial judge pointed to what he believed were certain factual errors made by us in Wallace I and repeated in Wallace II, and others made by the suppression motion judge when he denied Wallace's motion in 2002. Notwithstanding these disagreements, see Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961) (holding that "[t]rial judges are privileged to disagree with" appellate courts, but "the privilege does not extend to non-compliance"), the trial judge followed our mandate by (1) scouring the motion and trial records, (2) explaining any perceived inconsistencies in testimony between the two proceedings, and (3) ruling on the admissibility of the drug paraphernalia and printed materials at trial.

Among his conclusions, the trial judge declared that the 1000 empty vials were not found under the bed, but instead were detected "in plain view, on the floor, to the left of the bed." However, he recognized that the observation of the vials occurred only after the bed's mattress and box spring were lifted, which presumably made the plain view of them that much easier.

As for the paperwork found beneath the mattress, the trial judge remarked that none of it was seized by the parole officers and it was neither specifically identified nor introduced into evidence at trial. On the other hand, the nature of the paperwork, including the certificate issued by parole authorities, was brought to the attention of the jury, as was the nature of other papers, including mail addressed to Wallace.

The trial judge also explained that the search of Wallace's room occurred after Wallace had been apprehended and arrested while hiding in the attic, clad only "in his underwear, without shoes or socks." This finding was necessary because the suppression motion judge had found, erroneously, that the search occurred before Wallace was arrested.

Armed with these conclusions, the trial judge determined that any inconsistencies in testimony were not material to his admissibility calculus. Rather, because of the convergence of Wallace's status as a parolee, see N.J.A.C. 10A:72-6.3(a) (outlining when a parole officer may conduct a search of a parolee's residence), and the "chaotic and inherently dangerous" exigent situation inside the dwelling, the officers' conduct in not obtaining a search warrant (and in seizing the disputed items of evidence) was not violative of the Fourth Amendment.

Wallace challenges the trial judge's factual conclusions that the paperwork was immaterial and the 1000 vials were in plain view. Wallace also takes issue with the determination that where the seizures took place was his "residence," within the meaning of N.J.A.C. 10A:72-6.3. Lastly, he contends that no exigency existed to justify the continued search.

The trial judge recognized that Wallace had lived, and been supervised by his parole officer, at the locale for several months, and had only recently been forced to leave because of a restraining order. He further noted the circumstances of Wallace being (1) seen in the early morning hours in the room he had been living in, (2) discovered in the attic in a state of dishabille, and (3) provided (after the arrest) with footwear retrieved from the same room. These factors convinced the trial judge that Wallace's residence for purposes of the administrative regulation was where he was found, even if he were barred therefrom by a restraining order.

II.

Our Supreme Court has explained the standard of review applicable to a motion to suppress:

In reviewing a motion to suppress, we defer to the trial court's findings of fact. See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" (quoting State v. Johnson, 42 N.J. [146,] 162 [(1964)]). However, we need not defer to a trial or appellate court's interpretation of the law. See State v. Gandhi, 201 N.J. 161, 176 (2010). We review such legal issues de novo. Ibid.

[State v. Shaw, 213 N.J. 398, 411 (2012).]

Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008) (citing Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984)); see also State v. Elders, 192 N.J. 224, 246 (2007). Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting Elders, supra, 192 N.J. at 246).

Searches conducted by parole officers acting without a warrant and on grounds not amounting to probable cause have been deemed constitutional under the "special needs" exception to the warrant requirement. In Griffin v. Wisconsin, 483 U.S. 868, 873-76, 107 S. Ct. 3164, 3168-70, 97 L. Ed. 2d 709, 717-19 (1987), the Supreme Court held that there was no violation of the Fourth Amendment where a probation officer searched a probationer's home in conformity with a Wisconsin regulation, of which the probationer had notice, authorizing such searches without a warrant on the basis of articulable facts insufficient to establish probable cause. The Supreme Court determined that operation of the state's probation system presents a "special need" for supervision, beyond the state's interest in detection of crime, to "assure that [probation] restrictions are in fact observed." Id. at 875, 107 S. Ct. at 3169, 97 L. Ed. 2d at 718. Ultimately, the Supreme Court concluded that this "special need" outweighs the diminished reasonable expectation of privacy enjoyed by a probationer subject to the regulation. Ibid.

The "special needs" exception recognized in Griffin has been applied to a search of a parolee's home conducted by parole officers acting in accordance with state law. See State v. Maples, 346 N.J. Super. 408, 412 (App. Div. 2002) (addressing the constitutionality of a parole search conducted pursuant to N.J.A.C. 10A:26-6.3(a),2 which required reasonable suspicion of a parole violation and approval of the parole officer's supervisor, and discussing decisions of other jurisdictions).

N.J.A.C. 10A:72-6.3(a) provides, in relevant part, as follows:

(a) A parole officer may conduct a search of a parolee's residence when:

1. There is a reasonable articulable suspicion to believe that evidence of a violation of a condition of parole would be found in the residence or contraband which includes any item that the parolee cannot possess under the conditions of parole is located in the residence; and

2. An Assistant District Parole Supervisor or a higher level supervisor provides prior approval for the search or circumstances exist which require immediate action without prior approval from a supervisor.

In light of our scope of review, we are satisfied that the trial judge made proper factual and legal determinations that, for purposes of the Fourth Amendment and viewed through the lens of N.J.A.C. 10A:72-6.3(a), properly admitted the contested evidence so it could be considered by the jury.

We agree with the trial judge's conclusion that the
execution of the arrest warrant occurred at Wallace's

residence,3 and upon entry therein to capture the parolee, the parole officers' observations of plain view criminality a loaded .45 caliber firearm, a knife on a VCR, and vials of cocaine engendered "a reasonable articulable suspicion . . . that evidence of a violation of a condition of parole would be found." Ibid. The only missing ingredient in the regulatory framework is the absence of a supervisor's approval for such a further search.4 Notwithstanding the lack of a supervisory imprimatur, the continued search was, as recognized by the trial judge, validated by exigent circumstances.

"The touchstone of search-and-seizure analysis is one of reasonableness, for that is what both the Fourth Amendment and the New Jersey Constitution ultimately require in protecting citizens from 'unreasonable' intrusions." State v. Wright, 431 N.J. Super. 558, 593 (App. Div. 2013) (citing State v. Rockford, 213 N.J. 424, 440-41 (2013)). "When determining the propriety of a warrantless seizure, '[t]he question is not whether the police could have done something different, but whether their actions, when viewed as a whole, were objectively reasonable.'" State v. O'Donnell, 203 N.J. 160, 162 (2010) (quoting State v. Bogan, 200 N.J. 61, 81 (2009)), cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010). Accordingly, "'exigent circumstances' in conjunction with probable cause may excuse police from compliance with the warrant requirement." State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Bolte, 115 N.J. 579, 585-86, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989)).

In general, "exigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene." Johnson, supra, 193 N.J. at 553. In this regard, "[a] deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003). Other factors we consider include "the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken." Johnson, supra, 193 N.J. at 552-53.

Here the parole officers entered Wallace's residence in immediate pursuit of a parolee for whom they held a valid arrest warrant. Once inside, they realized Wallace was hiding from them, and they encountered several of Wallace's relatives, one of whom was emotionally, if understandably, upset. In addition, they had observed a loaded firearm, a knife, and illegal drugs in plain view. The trial judge's description that "[t]he situation was chaotic and inherently dangerous," is well-founded. Under these circumstances, exigent conditions flourished, which justified the continued search and ultimate seizure of the 1000 vials and paperwork. Consequently, we conclude that the parole officers' conduct was constitutionally reasonable, and the trial judge did not err in denying Wallace's motion to suppress the evidence.

1 Wallace was tried by a jury and found guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) and -5(d); second-degree possession of a weapon while committing a drug crime, N.J.S.A. 2C:39-4.1(a); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(d); and second-degree possession of a weapon by a prohibited person, N.J.S.A. 2C:39-7(b). After merger, Wallace was sentenced to an aggregate term of twenty years subject to ten years of parole ineligibility.

2 The current version of this regulation is N.J.A.C. 10A:72-6.3(a).

3 We made corollary findings in Wallace I. Id. at slip op. 7 ("We are satisfied that under the circumstances presented, the arrest warrant was valid and the officers lawfully entered the . . . residence to execute the warrant.").

4 We reject the State's unfounded contention that "issuance of the arrest warrant itself satisfied the regulation's requirement of prior approval from '[a]n Assistant District Parole Supervisor or a higher level supervisor.'" See N.J.A.C. 10A:72-6.3.