(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0622-15T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
April 16, 2018
JAMES HEMENWAY a/k/a JAMES A.
HEMENWAY and JASON PAYNE,
Argued May 17, 2017 – Decided April 16, 2018
Before Judges Fuentes, Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
Edward C. Bertucio argued the cause for
appellant (Hobbie, Corrigan & Bertucio, PC,
attorneys; Edward C. Bertucio, of counsel and
on the briefs; Elyse S. Schindel, on the
David M. Liston, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; David
M. Liston, on the brief).
The opinion of the court was delivered by
A Middlesex County grand jury returned an indictment against
defendant James Hemenway charging him with third degree possession
N.J.S.A. 2C:35-10(a)(1); first degree possession of
cocaine with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(1); fourth degree possession of marijuana,
N.J.S.A. 2C:35-10(a)(3); and third degree possession of marijuana
with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
2C:35-5(b)(11). The court denied defendant's motion to suppress
physical evidence seized by the police from his apartment as well
as statements defendant made to the police officers who arrested
him outside of his apartment building.
Defendant thereafter entered into a negotiated agreement with
the State through which he pled guilty to second degree possession
of cocaine with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(1). The State agreed to dismiss the remaining
charges and recommend that the court sentence defendant to a term
of eight years, with four years of parole ineligibility. Defendant
preserved his right to appeal the denial of his motion to suppress.
See R. 3:5-7(d). The court sentenced defendant to a custodial
term in accordance with the plea agreement, ordered the forfeiture
of defendant's property seized at the time of his arrest, and
imposed the mandatory fines and penalties.
In this appeal, defendant argues the court erred in denying
his motion to suppress because the arresting officers seized the
evidence found in his apartment without a warrant. After reviewing
the record developed before the motion judge, we affirm. The
police officers entered defendant's residence pursuant to a search
warrant issued by the Family Part under the Prevention of Domestic
Violence Act. When defendant refused to permit the officers entry
into his residence to execute the search warrant, the officers
lawfully arrested defendant for knowingly obstructing the
effectuation of a judicial order pursuant to
9(b)(1). Once lawfully inside the residence, the officers found
in plain view illicit narcotics and paraphernalia. This provided
sufficient probable cause to sustain the search warrant
subsequently issued by the Criminal Part.
We derive the following facts from the testimonial and
documentary evidence presented at the suppression hearing.
On June 28, 2012, D.S.1 filed a complaint against defendant
under the Prevention of Domestic Violence Act (PDVA),
2C:25-17 to -35, seeking a temporary restraining order (TRO). The
complaint listed the following predicate offenses: assault,
1 Pursuant to Rule 1:38-3(c)(12), we use initials to protect the
confidentiality of a victim of domestic violence.
2 N.J.S.A. 2C:12-1, terroristic threats,
N.J.S.A. 2C:12-3, criminal
N.J.S.A. 2C:17-3, and criminal trespass,
3, and identified "dating relationship" as the jurisdictional
basis. Attached to the complaint was the following narrative
statement of the incident that prompted D.S. to seek judicial
6/27/12, [defendant] call via tel. argument
ensued. [Defendant] appeared at [plaintiff's]
apt unannounced, [defendant] broke into
[plaintiff's] apt via the living room window
causing the air  conditioner to fall &
damage [the] apt, [defendant] subjected
[plaintiff] to name calling, yelling foul,
language, [defendant] pushed [plaintiff] & she
fell & hit herself with the living room chair,
[plaintiff's] mother entered the living room,
[plaintiff's] mother tried to get [defendant]
off of [plaintiff], [defendant] became
enraged, [defendant] pushed [plaintiff's]
mother, [defendant] then punched
[plaintiff's] mother with a closed fist,
[defendant] then scratched [plaintiff's]
mother on her face, [plaintiff] attempted to
push [defendant] off of her mother,
[defendant] then began to strangle [plaintiff]
by her throat, [plaintiff] pulled
[defendant's] hair, [defendant] pushed
[plaintiff] causing [plaintiff] to fall on the
ground, [plaintiff's] mother attempted to call
EPD but [defendant] hit her on the hand
causing [plaintiff's] mother['s] cellphone to
fall on the ground & [break], [defendant]
said, "I'm going to kill you ! ! ! kill your
mom, kill your dad & brother ! ! ! I'm going
to get someone to throw [acid] on your face !
!" Shortly thereafter [defendant] left
D.S. appeared before a Family Part judge in Union County that
same day without counsel to testify at an ex parte hearing in
support of her application for the TRO against defendant. The
transcript of the TRO hearing reflects that D.S. testified with
the assistance of an interpreter. The Family Part judge elicited
the following testimonial evidence from D.S.:
THE COURT: Did you have a dating relationship
at one time with [defendant]?
D.S.: Yes. For two years.
THE COURT: You say that on [June] 28th[,] which
is today[,] at 10:30 a.m., you sa[w]
[defendant] in front of a bank parking lot.
Is that correct?
THE COURT: And there was some exchange of
money. Is that right?
THE COURT: And then did he say to you, you
will never see your mother again[;] I will
THE COURT: Did he say, I will destroy you and
THE COURT: Did he say, I will destroy your
THE COURT: And did he say he would cause you
THE COURT: On . . . June 27th, which [was]
yesterday, did you speak to him on the phone?
THE COURT: And then did he come to your
apartment and come through the window?
D.S.: He knocked down the air conditioner and
came through the window.
THE COURT: Did he have permission to do that?
THE COURT: And then he pushed you, and you
fell. Is that right?
THE COURT: Okay. And your complaint has more
details. You have a child with [defendant]?
THE COURT: Okay . . . [D]o you have [an]
awareness that he has any weapons?
THE COURT: What kind of weapons do you claim
D.S.: Handguns, knives.
THE COURT: A handgun?
D.S.: Knives, blades.
THE COURT: Handguns?
THE COURT: Knives?
THE COURT: Where does he have these?
D.S.: Special compartments in his car and at
THE COURT: What kind of car does he have?
D.S.: Honda Pilot.
THE COURT: A Honda - - Honda Hybrid?
D.S.: Pilot. Pilot.
THE COURT: Pilot?
THE INTERPRETER: P-I-L-O-T.
Based on D.S.'s testimony, the Family Part found sufficient
evidence to issue a TRO against defendant pursuant to
2C:25-28(g). As authorized by
N.J.S.A. 2C:25-28(j), the TRO
included a provision "prohibit[ing] . . . [defendant] from
possessing any and all firearms or other weapons" and authorized
the police officers to search for and seize any "handguns, knives
[and] switchblades." D.S. provided the Family Part with
defendant's home address and the make, model, and color of each
of his three vehicles. The TRO expressly authorized the police
officers to search defendant's residence and vehicles and seize
any weapons found therein.
On June 29, 2012, Old Bridge Police Officers Brandon Ward and
Edward Riporti were instructed to serve defendant with the TRO and
search warrant at his residence between the hours of 5:30 p.m. and
7:30 p.m. The officers knocked on the door of defendant's
residence, but no one answered. Ward recognized the Honda Pilot
and Honda Accord described in the search warrant parked near the
apartment complex where defendant resided. He also detected an
odor of marijuana emanating from the vicinity of defendant's
apartment, but was unable to pinpoint its source. The officers
decided to leave and return later before the end of their shift.
Several hours later, defendant's attorney contacted the Old
Bridge Police Department and advised the dispatcher that defendant
was aware of the TRO and intended to voluntarily go to the police
station to accept service. Ward told the police dispatcher that
he planned to return to defendant's residence as soon as possible
because the judge who issued the TRO and search warrant directed
the officers to serve defendant at his place of residence, not at
a neutral location. Ward then contacted Riporti, who was closer
to defendant's residence, and instructed him not to permit anyone
to enter or leave defendant's apartment.
When Ward arrived at defendant's residence shortly
thereafter, he found defendant speaking with Riporti on the
sidewalk in front of the building. According to Ward, as he
approached, he heard defendant saying to Riporti: "I guess she
lied again[.] . . . [G]ive me whatever . . . I have to sign[.]
. . . [S]he gets jealous, makes stuff up; I kind of expected this."
Ripoli had not served defendant with the TRO and search warrant
because Ward was the only one in possession of these documents.
Ward told defendant that he and Riporti were there to serve
him with a domestic violence TRO and a warrant to search his
apartment and seize any firearms or other weapons found therein.
According to Ward, defendant stated: "I'm not going in my
apartment. My attorney said not to let anybody in the apartment."
Ward testified that he explained to defendant that "at this point
it was not a choice; it was an order issued by a judge and I was
required by law to make entry into the apartment to search for the
weapons and go over and serve him with the order."
Defendant removed a cellphone from his pocket and informed
the officers he was calling his attorney. Ward then took the
I removed [the] cellphone from [defendant's]
hand for our safety; I did not know who he was
calling. I told him this . . . had nothing
to do at this point with his attorney. There
was an order issued by a judge and for our
safety we were not allowing him to make any
phone calls so as to alert anybody, possibly
bring anybody else to the scene. At this point
it was a moot issue; we had to make entry into
Undaunted, defendant removed another cellphone from his
pocket and again advised the officers he was calling his attorney.
Ward described defendant's demeanor at this point as "more
agitated." Ward removed the second cellphone from defendant's
hand and "explained again it was a judicial order, any failure to
comply with the order or allow us to search would result in him
being placed under arrest[.]" Ward testified that defendant
responded: "You're not going into the apartment[;] arrest me[.]"
The officers arrested defendant.2 Before entering the
apartment, Ward asked defendant if there was anyone else inside
his apartment. Defendant "shrugged his shoulders" and stated: "I
don't know." The officers used the key they seized from defendant
to enter a "common vestibule area" of the building. Ward testified
that upon entering this area of the building, "[we] were hit with
a distinctly strong odor of raw marijuana." However, they were
not able to pinpoint its location at the time.
Defendant was not physically served with the TRO until 6:30 a.m.
on June 30, 2012. In a complaint and summons, Ward charged
defendant with fourth degree contempt under
9(b)(1). He certified that defendant "purposely or knowingly"
violated an order entered under the PDVA "by impeding the
effectuation of the order [and] refusing to allow officers access
into his apartment to search for multiple weapons as stipulated
in the order."
Old Bridge Police Sergeant Brian Smalley arrived at the scene
to assist Ward in searching defendant's apartment; Riporti
remained with defendant.3 Once they opened the "main door" of
defendant's apartment, Ward testified "the smell became much more
distinct and there were multiple opened air fresheners all over
the stairway ascending up into the apartment." Ward also saw air
fresheners at the bottom of the steps. Ward testified the air
fresheners were "scattered . . . as we made our entryway up into
the stairway. As we ascended the stairs, there were more placed
throughout the stairs and in the living room . . . and dining
The officers conducted a room-by-room search of the apartment
to confirm there were no other occupants. As they walked through
the apartment, Ward noticed more air fresheners in the living room
and "a Mason jar almost [filled] with what appeared to be marijuana
sitting on a small computer table near the window[.]" In the
bathroom, Ward discovered a transparent "freezer-style bag" of
suspected cocaine on the floor in front of the toilet. Using
defendant's keys, the officers opened a locked closet in the living
room; inside the closet was a large gun safe. After "clearing"
At one point, defendant complained of chest pain and difficulty
breathing. A first aid squad responded and transported him to a
nearby hospital. Defendant remained in custody while he was
medically evaluated and treated at the hospital.
the apartment, the officers suspended their search for weapons and
waited for a detective to respond to the scene to apply for a
telephonic search warrant for narcotics. The officers also called
a tow truck to impound defendant's vehicles.
Detective Robert Mazalewski arrived at defendant's apartment
approximately fifteen to thirty minutes later. He took photographs
of the condition of the contraband and the location where it was
found in defendant's apartment. Mazalewski returned to the police
station to apply for a telephonic search warrant. He testified
that his role in the investigation "was strictly in an ID capacity
to photograph what the officers had seen."
At a telephonic hearing held at 1:30 a.m. on June 30, 2012,
Detective Mazalewski testified to a judge to obtain a warrant to
search defendant's apartment for the presence of illicit narcotics
and other related contraband. Mazalewski described to the judge
the circumstances that led Old Bridge Police Officers to enter and
search defendant's apartment pursuant to a TRO and search warrant
issued by the Family Part. After considering the evidence, the
judge made the following findings:
Based on the testimony of the Detective, it
is clear that upon executing the domestic
violence search warrant that upon entering the
house, pursuant to the search warrant that
drugs were observed as well as an odor smell
that would indicate the presence of marijuana
which certainly gives the officers cause to
believe that there may be additional drug
paraphernalia or other materials relating to
drugs in the apartment.
And the fact that a strong odor of
marijuana is emanating from two safes in a
closet, certainly gives the officers probable
cause to open and use whatever force is
necessary as to the particular safes. And in
view of the extent of the drugs that are
believed to exist in the premises, it
certainly would be appropriate and probable
cause has been established to search the cars
that are registered or believed to be
registered in the name of [defendant] and
certainly were located at [defendant's]
So I think all of the facts testified
to by the Detectives certainly gives more
than sufficient probable cause to search the
cars, the residence[,] as well as do whatever
is necessary to search the two space[s].
Detective Mazalewski contacted the officers who had remained
at defendant's apartment and advised them they could begin
searching the residence for illicit narcotics and related
contraband. Through this search, the officers found cocaine and
drug paraphernalia, and five hollow-point .38 caliber bullets in
one of the gun safes.
On July 2, 2012, law enforcement agents executed the
telephonic search warrant with respect to defendant's two
automobiles, a Honda Pilot and Honda Accord.4 Old Bridge Police
The police did not locate the Toyota Sienna D.S. described in
the TRO hearing.
Detective Joseph Gaugeon testified at the suppression hearing that
the officers used "a gun dog and a narcotics dog to narrow down
[the] search of the vehicle." The police found $20,000 and a
large bag of marijuana concealed behind the passenger air bag of
the Honda Pilot and $72,000 "in a trap between the seats under the
console" of the Honda Accord. The police officers who searched
defendant's residence and motor vehicles did not find any weapons
matching the description provided by Suarez at the TRO hearing on
June 28, 2012.
On July 11, 2012, the Family Part conducted a hearing to
determine whether D.S. was entitled to a final restraining order
(FRO) under the PDVA. D.S. appeared pro se and was provided with
an interpreter. Defendant was represented by private counsel. At
the start of the hearing, the judge noted that the FRO hearing was
originally scheduled for July 5, 2012, but it was adjourned at the
request of defendant's counsel to allow defendant to obtain the
transcript of the June 28, 2012 TRO hearing.
Before taking any testimony, the judge asked the parties if
they were "prepared to go forward." Both sides responded
affirmatively. The judge then asked defense counsel: "Does the
defense dispute that [defendant] and [D.S.] were in a dating
relationship?" Counsel responded: "We do." The following colloquy
captured how the judge addressed this issue.
THE COURT: I'll accept an attorney proffer for
purposes of now. What is the defense's
DEFENSE COUNSEL: Defense's position is that
this woman is married to another man. My
client resides most of the time in Florida.
He has rental properties up here in New Jersey
that he tends to. And what Your Honor is
going to find out is that [D.S.] was minding
a safe deposit box that had monies that
belonged to [defendant]. And what led to the
severance of that relationship, which was not
a dating relationship, is that [defendant]
wanted the money.
. . . .
[Defendant] wanted the money and that incident
supposedly occurred on June 28, 2012. He
denies that he was in a dating relationship
with her. She's married to another man.
THE COURT: Well, just because she's married
to another man of course, Counsel, doesn't
necessarily negate the possibility that they
had a romantic relationship, correct?
DEFENSE COUNSEL: That's true.
THE COURT: So . . . your client's taking the
position that there was no amorous, romantic,
or intimate relationship between himself and
DEFENSE COUNSEL: That . . . won't be provable.
The record shows the FRO judge did not ask D.S. whether she
understood the jurisdictional implications under the PDVA of
defense counsel's proffer. The judge simply swore in D.S. and
asked her, "what criminal offenses are you identifying with regard
to [defendant's] conduct?" Given the complex nature of the judge's
question, D.S.'s response was understandably nonresponsive. After
the judge rephrased the question, D.S. testified that defendant
forced himself into her home through the window, having broken the
air conditioner. D.S. ultimately testified that defendant had
criminally trespassed into her apartment, committed criminal
mischief by breaking and damaging her furniture, and threatened
"to put acid on [her] face," and kill her and members of her
After he identified the predicate offenses at issue, the
judge addressed defense counsel directly to confirm that he had
prior notice of these offenses and was prepared "to mount a defense
to those very charges." Defense counsel confirmed he was aware
of the offenses recited in the domestic violence complaint and the
supplemental typewritten statement attached thereto. The judge
then addressed D.S. directly as follows:
THE COURT: [D.S.], let me tell you how this
proceeding will take place. The burden of
proof for the issuance of . . . a final
restraining order rests on the plaintiff. On
you, the movant, the person who seeks the
protection. Do you understand that?
D.S.: Does that mean that it doesn't include
THE COURT: Ma'am, I am talking about what your
legal obligations are in terms of who has the
burden of proof. Do you understand that?
THE COURT: The Prevention of Domestic Violence
Act requires a plaintiff to prove by a
preponderance of the evidence that a
restraining order must [be] issue[d]. Do you
D.S.: I understand.
THE COURT: I will be asking you to put forward
your case-in-chief, your proofs. You may
testify on your own behalf, for example, under
oath. You may call additional witnesses to
testify on your behalf who have personal
knowledge. You may seek to admit exhibits;
documents, perhaps text messages and the like
in support of your claim. Do you understand
D.S.: I understand.
THE COURT: In addition, you will be subject
perhaps to cross-examination by [defendant's]
lawyer. Do you understand that?
D.S.: (In English) I understand them.
THE COURT: The defense may also present
evidence in its own case-in-chief. But that,
of course, does not modify the overriding
burden of proof which is only and always on
the plaintiff. Do you understand that?
D.S.: I understand.
THE COURT: The [c]ourt will have to determine
pursuant to [Silver v. Silver,
387 N.J. Super. 112 (App. Div. 2006)] whether a -- one or more
predicate acts were committed by the defendant
and whether a final restraining order is
necessary to protect the plaintiff from
immediate danger or further acts of domestic
We are doubtful that a lay litigant seeking the protection
of the court in a domestic violence hearing can meaningfully
comprehend this explanation. The judge's use of technical terms
such as "cross-examination", "case-in-chief," "preponderance of
the evidence," and his citation to Silver to determine whether
"one or more predicate acts were committed" made this "explanation"
needlessly dense, ultimately reducing the experience to a mere
perfunctory exercise. Of particular concern in light of defense
counsel's proffer expressly challenging the court's subject matter
jurisdiction, is the judge's failure to apprise D.S. that she was
required to present evidence showing she and defendant had a
"dating relationship" before June 28, 2012.
The record also shows that D.S.'s presentation of the evidence
was hampered not only by her unfamiliarity with the rules of
evidence and trial procedures, but by the court-assigned
interpreter's inability to simultaneously interpret both D.S.'s
questions and her mother's answers while testifying as a fact
witness. The interpreter announced this difficulty at the start
of her mother's testimony:
INTERPRETER: Your Honor, your Honor, we're
going to have a problem if I'm not going to
be able to interpret for your Honor and the
record what is being asked and answered.
THE COURT: True.
INTERPRETER: Now you tell me, your Honor, what
you want me to do.
THE COURT: Well, we're going to be at this for
a long time, I predict, and so I'm going to
ask everybody -- everybody to relax. We're
going to get through this.
[D.S.], the interpreter is correct. She has
a difficult job, and that is she has to
translate for you, for the Spanish-speaking
witness, and then translate for me back into
The record shows D.S. asked her mother a number of times
whether she knew that she and defendant were "boyfriend and
girlfriend." Defense counsel objected each time arguing the
questions were phrased as leading questions. The judge sustained
the objections each time. At one point, however, the judge
addressed D.S. directly in an effort to explain to her the proper
way to phrase the question:
THE COURT: The correct way to ask the question
is [D.S.] do you know [defendant]? And if the
answer to that is, as we presume, yes; how do
you know [defendant]? That is a non-leading
method to get at the same answer, presumably.
And forgive me for interceding, Counsel,
but I have a, as you know, an extremely
DEFENSE COUNSEL: I understand. I don't mean
to slow this down any[ ]more than necessary.
THE COURT: . . . I'm not interpreting that you
DEFENSE COUNSEL: All right. Thank you.
THE COURT: [D.S.], you may not ask leading
questions of witnesses on direct-examination.
D.S.: I'm sorry.
THE COURT: Even though you are a lay  person
representing yourself, which you're entitled
to, there are rules of evidence and trial
procedure which are applicable to everyone,
lawyer and non-lawyer alike, and you must
abide by them. Do you seek an adjournment to
retain your own lawyer?
D.S.: No. I don't want to.
D.S. resumed her direct examination of her mother, but did
not return to the issue of her relationship with defendant. The
judge continued to sustain defense counsel's objections based on
the leading nature of D.S.'s questions. In fact, in sustaining
counsel's objections, the judge at one point sua sponte ruled that
D.S.'s question "[a]lso assumes facts not in evidence." Because
the mother did not speak English and defendant did not speak
Spanish, the judge ultimately struck most of the mother's testimony
describing defendant's threats and other statements to her and her
When D.S. took the stand to testify on her own behalf, the
judge gave the following instructions:
You are not going to be asked questions by the
[c]ourt. You are going to have to testify on
your own behalf as to the incidents or
incident which you are alleging and any prior
history of domestic violence. You will then
be subject to cross-examination.
Once again, we note the judge's failure to admonish D.S. that this
was her opportunity to testify or present any evidence about her
relationship with defendant, which was the threshold, dispositive
issue defense counsel identified before the start of the FRO
Consistent with the judge's instructions, D.S. testified
about the June 28, 2012 incident that caused her to seek the
judicial protection available under the PDVA. Although D.S. did
not directly characterize the nature of her relationship with
defendant, her description of her encounter with defendant
included the following facts:
That morning we met in front of the bank
and his behavior was apparently normal at the
beginning. I gave him clothing that he had
in my apartment; shoes, underwear, personal
stuff. I gave him the money that I had, but
I made him sign a piece of paper so that there
would be proof that I had given him what he
had given me to save for him.
At the conclusion of D.S.'s relatively brief direct
testimony, the judge recessed the proceedings for a few minutes.
When the hearing reconvened, defense counsel declined to cross-
examine D.S. and instead moved to dismiss the complaint for lack
of subject matter jurisdiction. Defense counsel argued that D.S.'s
testimony only described "the arrangement that I proffered to the
[c]ourt about giving back money that she was minding for him."
The judge granted the motion. In support of this ruling, the
There is no evidence in the record indicating
that you are a spouse or a former spouse of
the defendant. There is no evidence that you
had a child with the defendant or that you are
pregnant with a child from the defendant.
There is no testimony that you are a person
who is presently or formerly in the same
household as the defendant. And, lastly,
aside from the assertion in the complaint,
there is no testimony, and surely no credible
testimony that you are or were in a dating
relationship with the defendant.
The judge held that as a plaintiff seeking relief under the
PDVA, D.S. was on "constructive notice" of the need to establish
subject matter jurisdiction. The judge also found that D.S. had
actual notice of the need to establish a dating relationship
between herself and defendant. The judge noted it would have been
"improper for the [c]ourt to spoon[-]feed either a plaintiff or a
Against this procedural backdrop, we now return to
defendant's motion to suppress before the Criminal Part. The
motion judge found the Family Part properly issued a TRO and search
warrant pursuant to the PDVA on June 28, 2012. Although the Family
Part subsequently found there was insufficient credible evidence
to conclude D.S. and defendant ever had a dating relationship,
such a finding did not retroactively impugn the validity of the
search warrant. Given the evidence presented at this threshold
ex parte hearing, the Family Part reasonably concluded a TRO was
"necessary" to protect D.S.'s "life, health or well-being" in
The Criminal Part also found that defendant's refusal to
permit the police officers' entry into his apartment, in direct
contravention of the domestic violence search warrant, provided
the officers with sufficient probable cause to believe defendant
was obstructing justice. The judge concluded that defendant's
arrest and the incidental search of his person that permitted the
officers to seize the keys to his apartment was entirely proper.
Indeed, the motion judge found that pursuant to our State's well-
established knock-and-announce jurisprudence, the search warrant
authorized the officers to enter defendant's residence by force
if necessary. Once the officers lawfully entered defendant's
residence in accordance with the warrant, the judge found the
contraband they discovered was admissible under the plain view
Notwithstanding the lack of exigent circumstances, the motion
judge found the telephonic search warrant was "procedurally
sound." Although the State established probable cause to search
defendant's residence and gun safes, the judge disagreed with the
telephonic judge's finding of probable cause to search defendant's
vehicles. However, the motion judge found the absence of probable
cause to search defendant's vehicles for narcotics was "not
necessarily fatal to the State's case[.]" The police officers
were authorized, indeed duty bound, to execute the domestic
violence search warrant by searching defendant's cars for weapons.
The Criminal Part denied defendant's motion to cross-examine
the affiants who testified in support of the civil and criminal
search warrant applications. Because D.S. is "not a law
enforcement officer[,]" her alleged misrepresentations to the
Family Part as a "private citizen complainant rendered the concerns
in "Franks5 and its progeny" inapplicable. The same principles
also insulated Detective Mazalewski's testimony before the
Franks v. Delaware,
438 U.S. 154 (1978).
Finally, the Criminal Part denied the motion to suppress the
incriminating statements defendant made to Officers Ward and
Riporti outside of his apartment building. Citing State v.
383 N.J. Super. 205 (App. Div. 2006), the motion judge
found defendant was not in custody when the officers attempted to
serve him with the TRO and search warrant. Accordingly, the
officers were not required to apprise defendant of his rights
Against this backdrop, defendant raises the following
The judgment of conviction should be reversed
because the trial court erroneously denied Mr.
Hemenway's motion to suppress evidence seized
without a warrant.
A. The temporary restraining order
and domestic violence search
warrant were invalid, as they [were]
issued based upon admitted
falsehoods, and as a result, all
evidence derived seized without a
warrant therefrom must be
B. Mr. Hemenway's arrest for
obstruction of justice was unlawful
and all evidence seized from Mr.
Hemenway's person and all evidence
Miranda v. Arizona,
384 U.S. 436 (1966).
seized after his illegal arrest must
C. The first warrantless search of
Mr. Hemenway's residence was a
pretext for a narcotics search and
exceeded the scope of the domestic
violence search warrant and all
evidence unlawfully seized
therefrom must be suppressed.
D. The second warrantless search of
Mr. Hemenway's residence was
unlawful as this search was not
justified by any exception to the
warrant requirement. The State
admitted during final oral argument
to the trial court that this search
was illegal, and therefore, all
evidence obtained during this
warrantless search and all evidence
obtained thereafter must be
The judgment of conviction should be reversed
because the trial court erroneously denied Mr.
Hemenway's motion to suppress evidence seized
with a warrant.
A. The search warrants were fruits
of the poisonous tree and therefore
were invalid and illegally issued
and any evidence derived therefrom
must be suppressed.
B. There was no probable cause for
the search warrant of the residence
or of the two (2) motor vehicles.
The trial court found no probable
cause for the search warrants for
the motor vehicles.
C. The trial court erred in denying
Mr. Hemenway's application for a
Franks v. Delaware [hearing], as the
temporary restraining order and
domestic violence search warrant
applications contained reckless
misrepresentations and material
D. The trial court erred in denying
Mr. Hemenway's application for a
Franks v. Delaware hearing, as the
telephonic search warrant
application contained reckless
misrepresentations and material
E. The trial court erroneously
applied the independent source
doctrine sua sponte and relied on
this doctrine which was not
applicable in this case, and
therefore, any and all evidence
unlawfully seized as a result of the
defective search warrant and
unlawful warrantless searches
should be suppressed.
The judgment of conviction should be reversed
because the trial court erroneously denied Mr.
Hemenway's motion to suppress statements made
at the scene in violation of the Fourth [sic]
Amendment and Article I, Paragraph 7 of the
New Jersey Constitution [sic].
We reject these arguments and affirm. The record we have
described at length here demonstrates that the evidence against
defendant was gathered by the State consistent with the privacy
and due process protections guaranteed by our federal and State
Constitutions. However, before addressing the substantive merit
of defendant's arguments, we will first reaffirm the relevant
standard of review.
We are bound to uphold the factual findings made by the
Criminal Part judge in support of his ruling denying defendant's
motion to suppress, provided they are "supported by sufficient
credible evidence in the record." State v. Gamble,
218 N.J. 412,
424 (2014). Thus, we can disturb or reject the judge's findings
of fact "only if they are so clearly mistaken that the interests
of justice demand intervention and correction." State v. Elders,
192 N.J. 224, 244 (2007) (quoting State v. Johnson,
42 N.J. 146,
162 (1964)). This deferential standard of review is predicated
on the notion that factual findings are substantially influenced
by the motion judge's opportunity to "'hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot
enjoy.'" State v. Robinson,
200 N.J. 1, 15 (2009) (quoting Elders,
192 N.J. at 244).
A search executed pursuant to a warrant issued by a court
carries a presumption of validity, State v. Valencia,
93 N.J. 126,
133 (1983); we must also accord substantial deference to the trial
judge's decision to issue such a warrant. State v. Sullivan,
169 N.J. 204, 211 (2001). In determining whether there is probable
cause to issue a search warrant, a judge "must consider the
totality of the circumstances, without focusing exclusively on any
one factor[.]" Id. at 216. Ordinarily, a warrant application is
legally sufficient provided the factual assertions contained
therein would lead a prudent person to believe a crime has been
committed and evidence of criminality will be found at the
specified location. Id. at 217. We review de novo the motion
judge's legal conclusions. State v. Gandhi,
201 N.J. 161, 176
Here, it is undisputed that the evidence that established
probable cause for the search warrant issued by the Criminal Part
judge was inextricably connected to the TRO issued by the Family
Part to protect D.S. under the PDVA. The PDVA defines a "[v]ictim
of domestic violence" as:
any person who is 18 years of age or older or
who is an emancipated minor and who has been
subjected to domestic violence by a spouse,
former spouse, or any other person who is a
present household member or was at any time a
household member. "Victim of domestic
violence" also includes any person, regardless
of age, who has been subjected to domestic
violence by a person with whom the victim has
a child in common, or with whom the victim
anticipates having a child in common, if one
of the parties is pregnant. "Victim of
domestic violence" also includes any person
who has been subjected to domestic violence
by a person with whom the victim has had a
N.J.S.A. 2C:25-19(d) (emphasis added).]
Based on the allegations D.S. made in the domestic violence
complaint filed on June 28, 2012, the Family Part judge properly
conducted an ex parte hearing pursuant to
The testimonial evidence D.S. provided at this hearing established
"good cause" for the issuance of emergency ex parte relief in the
form of a TRO.
N.J.S.A. 2C:25-28(i); R. 5:7A. The TRO may also
include a provision
forbidding the defendant from possessing any
firearm or other weapon enumerated in
subsection r. of [
N.J.S.A.] 2C:39-1, ordering
the search for and seizure of any firearm or
other weapon at any location where the judge
has reasonable cause to believe the weapon is
located and the seizure of any firearms
purchaser identification card or permit to
purchase a handgun issued to the defendant and
any other appropriate relief.
The judge shall state with specificity the
reasons for and scope of any search and
seizure authorized by the order.
. . . .
Here, D.S. testified at the TRO hearing that defendant
possessed a variety of weapons including knives, switchblades, and
guns. The judge thus included a provision in the TRO under
N.J.S.A. 2C:25-28(j) that directed the police officers to search
defendant's residence and seize any firearms found therein. The
judge did not "state with specificity the reasons for and scope
of any search and seizure authorized by the order."
In this appeal, defendant collaterally attacks the propriety
of the TRO search warrant. Defendant argues D.S. misrepresented
her relationship with defendant as involving a "dating
relationship" to improperly obtain relief under the PDVA.
Defendant emphasizes that the TRO judge failed to challenge D.S.'s
credibility at the ex parte hearing and merely accepted her
"conclusory allegations" by asking her a series of "leading
questions based on the written complaint that was apparently
prepared by [c]ourt staff."
Finally, defendant argues that
N.J.S.A. 2C:25-28(j) is
facially unconstitutional because it allows the Family Part to
issue a search warrant based only on a finding of "reasonable
cause." According to defendant, this lower statutory standard
impermissibly conflicts with the Fourth Amendment to the United
States Constitution, which requires a showing of probable cause
to justify a search warrant of a person's home. Defendant bases
this argument on Justice Albin's dissent in State v. Harris,
211 N.J. 566 (2012), which was also joined by Justice LaVecchia, in
which he maintained that:
As written, the Domestic Violence Act permits
the search of a home for weapons, even in the
absence of exigent circumstances or some other
well-recognized exception to the
Constitution's warrant requirement, based on
a warrant issued without a judicial finding
of probable cause. See [
28(j). Relying on the Act, the family court
in this case issued a warrant for the search
for weapons in defendant's home -- without a
finding of probable cause or a finding that
would have excused non-compliance with the
dictates of the Fourth Amendment. The United
States Supreme Court has never suggested --
even remotely -- that the special-needs
doctrine would justify a home search in
circumstances such as presented here.
[Id. at 593 (Albin, J., dissenting).]
We begin our analysis of this issue by emphasizing that as
an intermediate appellate court, we are only bound to follow the
decisions of the Supreme Court. A dissenting opinion authored by
a minority of the Justices in a case, no matter how well-reasoned
we think it may be, does not constitute binding precedent. In
Harris, the majority of the Court declined to respond directly to
the concerns raised by the dissenting Justices because they had
"not [been] raised by any of the parties at this point in this
litigation." Id. at 592. We are thus free to address the issue
defendant has raised here and express our views on the matter.
However, it is a matter of settled policy that a court should
"avoid reaching constitutional questions unless required to do
so." State v. Ingram,
230 N.J. 190, 202 (2017) (quoting Comm. to
Recall Robert Menendez from the Office of U.S. Senator v. Wells,
204 N.J. 79, 95 (2010)). We are satisfied that this appeal can
be decided without reaching this constitutional dilemma.
In adopting the PDVA, the Legislature found and declared
that domestic violence is a serious crime
against society; that there are thousands of
persons in this State who are regularly
beaten, tortured and in some cases even killed
by their spouses or cohabitants; that a
significant number of women who are assaulted
are pregnant; that victims of domestic
violence come from all social and economic
backgrounds and ethnic groups; that there is
a positive correlation between spousal abuse
and child abuse; and that children, even when
they are not themselves physically assaulted,
suffer deep and lasting emotional effects from
exposure to domestic violence. It is
therefore, the intent of the Legislature to
assure the victims of domestic violence the
maximum protection from abuse the law can
N.J.S.A. 2C:25-18 (emphasis added).]
To enforce this public policy, the Legislature emphatically made
that the primary duty of a law enforcement
officer when responding to a domestic violence
call is to enforce the laws allegedly violated
and to protect the victim. Further, it is the
responsibility of the courts to protect
victims of violence that occurs in a family
or family-like setting by providing access to
both emergent and long-term civil and criminal
remedies and sanctions, and by ordering those
remedies and sanctions that are available to
assure the safety of the victims and the
The Supreme Court has "liberally construed" the PDVA to
achieve these purposes. In re F.M.,
225 N.J. 487, 509 (2016)
(citing Cesare v. Cesare,
154 N.J. 394, 400 (1998)). As codified
by the Court in Rule 5:7A, a plaintiff seeking domestic violence
emergency relief must testify in person before the Family Part
judge or submit a sworn complaint setting forth her allegations.
In order to justify the Family Part's issuance of a search warrant,
a plaintiff must establish: (1) probable cause to believe the
defendant has committed an act of domestic violence; (2) reasonable
cause to believe the place identified in the warrant contains a
qualifying weapon under
N.J.S.A. 2C:39-1(r); and (3) reason to
believe a defendant's access to the weapon poses a "heightened
risk of injury." See
N.J.S.A. 2C:25-28(j); State v. Dispoto,
189 N.J. 108, 120–21 (2007); State v. Cassidy,
179 N.J. 150, 164
When a Family Part judge orders emergent relief, he or she
is required to "state with specificity the reasons for and scope
of any search and seizure authorized by the order."
2C:25-28(j). The PDVA directs that any ex parte order "shall
immediately be forwarded to the appropriate law enforcement
agency" and shall "immediately be served upon the defendant[.]"
N.J.S.A. 2C:25-28(l). Furthermore, any restraining order issued
pursuant to the PDVA "shall be in effect throughout the State, and
shall be enforced by all law enforcement officers."
We have described "reasonable cause" as "a more relaxed
standard than probable cause[,]" and as "akin to 'reasonable
suspicion[.]'" State v. Perkins,
358 N.J. Super. 151, 159 (App.
Div. 2003) (citing State v. Arthur,
149 N.J. 1, 8 (1997)). To
establish reasonable cause, a police officer "must be able to
'point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant
[the] intrusion.'" Id. at 160 (alteration in original) (quoting
State v. Citarella,
154 N.J. 272, 278 (1998)).
In Dispoto, the Court held that "[t]o sustain the validity
of the domestic violence search warrant that issued against [the]
defendant, probable cause must have existed to believe that [the]
defendant committed the offense of terroristic threats.
Specifically, there must have been probable cause to believe that
defendant made a threat against his wife." Dispoto,
189 N.J. at
122. Here, the domestic violence complaint D.S. filed against
defendant and her sworn testimony before the Family Part judge in
support of her application for a TRO is consistent with the violent
encounter she described in a typewritten statement attached to her
domestic violence complaint.
The Court's discussion in Cassidy is particularly relevant
here. We will briefly recite the salient facts of Cassidy to
provide context to our analysis. At the urging of her friends,
the victim of domestic violence reported the alleged incident of
domestic violence to the police one month after the incident
allegedly occurred. Cassidy,
179 N.J. at 154. The police officer
who responded "telephoned the municipal court judge to seek a TRO
on an ex parte basis." Id. at 155. The judge "spoke" to both the
victim and the police officer, but did not swear-in either one,
as required under N.J.R.E. 603. Ibid. The judge did not record
his "conversation" with these two putative witnesses. Ibid.
Despite these deficiencies, the judge found "probable cause" to
issue an ex parte TRO under the PDVA and instructed the police
officer "to fill out the pre-prepared form order for a TRO and
authorized the police to search for and seize weapons." Ibid.
The Court in Cassidy noted "that the warrant portion of the
TRO" was completed by the police officer "at the judge's
instruction[.]" Ibid. The warrant contained "a check-off at the
line" that directed the defendant "to turn over all weapons and
permits to carry firearms." Ibid. The police officer
added language specifying the weapons as
shotguns, pistols, and rifles. The record is
unclear whether the judge specifically
instructed [the police officer] to add that
language. Finally, the judge authorized
execution of the TRO that night . . .
Simultaneously, the judge issued a domestic
violence complaint against defendant.
Although the Cassidy Court acknowledged that the PDVA
authorizes a judge to issue a TRO without the applicant being
physically present at the court, it emphasized that such relief
must be supported by "sworn testimony or complaint of an applicant
who is not physically present, pursuant to court rules." Id. at
N.J.S.A. 2C:25-28(h)). In light of this material
deviation from the requirements of the PDVA, the Court held that
"although the warrant to search [the] defendant's home arose in
the context of a domestic violence restraining order, for all
intents and purposes it is a telephonic warrant and for purposes
of a criminal prosecution must be judged by those standards." Id.
The material facts here stand in sharp contrast to the ad hoc
approach the Court found wanting in Cassidy. D.S. completed and
filed the domestic violence complaint against defendant on June
28, 2012, the day after the violent incident. The complaint
contains her sworn statement describing defendant's violent
invasion of her home as well as the altercation that ensued after
defendant forced himself through the window, causing the air
conditioner to fall to the ground. Once inside, defendant
physically assaulted her and her mother, and threatened to mutilate
D.S.'s face with acid.
D.S. testified under oath before the Family Part judge who
issued the TRO. This testimonial evidence provided specific
evidence to substantiate the predicate offenses identified in the
domestic violence complaint. D.S. also described under oath the
various weapons defendant had in his possession, including a
handgun, a knife, and a switchblade. D.S. also provided
defendant's home address and identified three motor vehicles
defendant owned or had access to, that had hidden compartments to
Officer Ward testified that defendant's counsel was aware of
the TRO and instructed defendant to report to the police station
to accept service. Ward responded to defendant's residence as
directed by the Family Part to serve defendant and execute the
search warrant. Despite the officers' attempt to execute a
facially valid warrant, defendant refused to permit the officers
to enter his apartment. The Criminal Part judge found Officer
Ward's testimony concerning these events credible.
In this light, we note the following admonition the Court
made in Cassidy:
It goes without saying that although failure
to meet the technical and substantive
requirements for a restraining order results
in an invalid order, the order nonetheless has
legal effect until vacated.
. . . .
Thus, even if an ex parte domestic violence
TRO is issued pursuant to a flawed process,
the person intended to be protected must
receive the benefits of the order. A
defendant must comply with the TRO's
restraints and any search and seizure order
contained therein, if only to challenge the
validity of its respective parts in an
appropriate forum later. In respect of the
restraints, a defendant may obtain relief from
the TRO under an expedited process set forth
in the Act.
179 N.J. at 159 n.3 (citations
omitted) (emphasis added).]
Thus, the subsequent dismissal of the domestic violence
complaint at the FRO hearing did not ex post facto vitiate the
validity of the search warrant the Family Part issued under
N.J.S.A. 2C:25-28(j). Defendant's failure to comply with the
police officers' direct instruction to allow them entry into his
residence to execute a facially valid TRO and search warrant gave
the officers probable cause to arrest defendant on the charge of
fourth degree contempt under
N.J.S.A. 2C:29-9(b)(1). Once inside
his apartment, the officers immediately detected the strong odor
of raw marijuana and saw in plain view multiple air fresheners
located throughout the apartment to mask the scent. The record
also shows that before entering the apartment, the officers asked
defendant whether anyone else was inside. Defendant responded
with a shrug of his shoulders and stated he did not know. Given
defendant's non-cooperation and mindful of the allegations
concerning the presence of weapons, once lawfully inside the
apartment, the officers conducted "a protective sweep," limited
to areas where a person could be hiding and to "ferret out weapons"
that might be used against them. State v. Davila,
203 N.J. 97,
Defendant's remaining arguments concerning the admissibility
of certain statements he made to Officer Riporti while awaiting
the arrival of Officer Ward were legally inconsequential because
defendant was not in a custodial setting at the time. Although
Ward told defendant he could not accept service of the TRO at the
police station, this did not imply he was not free to leave.
Furthermore, we would reach the same conclusion even if we were
to conclude that a reasonable person under defendant's
circumstances would believe he was not free to leave. According
to Ward, as he approached Riporti, he overheard defendant saying:
"I guess she lied again[.] . . . [G]ive me whatever . . . I have
to sign[.] . . . [S]he gets jealous, makes stuff up; I kind of
expected this." These statements are not facially incriminatory
to the criminal charges in the indictment. Their relevancy, if
any, would be to establish the existence of a romantic relationship
between D.S. and defendant. This implicates only the subject
matter jurisdiction of the Family Part.