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DOCKET NO. A-1041-04T4







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June 29, 2006

Argued March 1, 2006 Decided

Before Judges Parker and C. S. Fisher.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment Nos. 02-02-0153 and 02-02-0154.

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Yvonne Smith Segars, Public Defender,
attorney for appellant; Mr. Kirsch, of
counsel and on the brief).

Mary E. McAnally, Deputy Attorney General,
argued the cause for respondent (Zulima V.
Farber, Attorney General of New Jersey,
attorney for respondent; Ms. McAnally, of
counsel and on the brief).


In 2002, defendant Andre Johnson was the subject of two separate indictments. In Indictment 02-02-153, he was charged with third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and fourth degree hindering apprehension, N.J.S.A. 2C:29-3a(3). In Indictment 02-02-154, defendant was charged with second degree possession of a weapon by a person prohibited, N.J.S.A. 2C:39-7b. In a bifurcated trial, a jury found defendant guilty on all counts in both indictments. He was sentenced on Indictment 02-02-153 to an aggregate term of four years subject to two years parole ineligibility; and on Indictment 02-02-154, he was sentenced to a term of seven years subject to five years parole ineligibility to run concurrent with the sentence imposed on Indictment 02-02-153.
Defendant appealed and, in a published decision, we remanded the matter for a suppression hearing because defense counsel failed to file a suppression motion. State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).
On May 21, June 4 and 29 and July 23, 2004, the suppression motion was heard and, in an oral decision, the trial judge denied the motion, leaving defendant's conviction and sentence intact. We reverse.
The facts relevant to this appeal are as follows. On December 8, 2001, the police received a domestic violence complaint that Johnny Holloway, Jr., was in possession of a gun. The police went to the home of Johnny Holloway, Sr., with two arrest warrants based on a tip from the domestic violence complainant that Holloway, Jr., was there. Holloway, Sr., consented to the police entering the house and directed them upstairs where his son was in the shower. The police arrested Holloway, Jr., but found no weapon on his person or within his immediate control. While other officers were occupied with arresting Holloway, Jr., Sergeant Kenneth McCormick "scanned the living room and dining room, and . . . . noticed [defendant]." McCormick recognized defendant from a previous arrest and knew that defendant's "criminal history was extensive."
When McCormick saw defendant, defendant was standing behind a dining room table talking on the phone. McCormick had his weapon drawn and told defendant to hang up the phone. When defendant did not comply, McCormick pulled the phone out of his hand and disconnected it. Defendant, who was dressed in a T-shirt and boxer shorts, told McCormick he was visiting the house. Defendant testified at the hearing, however, that he was actually living at the Holloway house at the time but did not want the police to know because he believed they were out to get him since his prior conviction had been reversed. When defendant asked if McCormick had a warrant to be in the house, McCormick told defendant that they were there to arrest Holloway, Jr.
McCormick "could hear that [the other officers] had secured [Holloway, Jr.]." While McCormick was watching defendant, defendant picked up a red, white and blue duffel bag that appeared to be empty. He then picked up a small cardboard box and put it in the duffel bag and zipped it. McCormick asked if those things were his, and defendant "mumbled, 'yes.'" Defendant then said, "These aren't mine. That's not my bag." McCormick then asked defendant, "If that's not your stuff, then why would you have picked up the cardboard box, and put it in the bag, and tried to leave with it?" Defendant responded, "I don't know whose stuff this is." McCormick then asked Holloway, Sr., if he knew whose things they were. Holloway, Sr., said he did not know. McCormick then "grabbed the bag, the duffel bag, from [defendant's] hand, and opened it up, and pulled the cardboard box out. Inside the cardboard box was a loaded .45 handgun."
McCormick explained that he seized the bag because they still had not found the weapon identified in the domestic violence complaint and, based on his knowledge of defendant's prior criminal history, he was not "going to let him leave the apartment, without knowing what he was leaving with."
Defendant testified that McCormick asked him to get dressed and get out of the house. "I told him I was going to get dressed and leave. At that point I went to the closet and got my boots and jeans and shorts to put on and my DVD player. By me picking up the DVD player that bag was in front, the bag that is sitting on top right there, the American bag, was in front of that. So when I bent down to pick it up he said what's in the bag? Hand me that bag. I put the stuff on the table and kept moving down the stairs."
After hearing the testimony, the trial judge found the police officer's testimony credible, and defendant's testimony "credible as to some areas and not credible as to others because of his self-interest in the case, his motive." The judge then undertook an analysis based upon "exigent circumstances with people in the house, a gun still in the house, and [defendant] in the house," and concluded "that the actions of the police, Sergeant McCormick and others, was reasonable; that there was no need for a search warrant at that point; that those exigent circumstances and the abandonment of the property by [defendant] made it lawful for the police to seize [the bag] and search it." The judge denied the suppression motion, indicated that defendant had a fair jury trial prior to the remand, and the conviction, therefore, stood.
Defendant appeals and argues:
Relying on Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), defendant states his argument in straight-forward terms:
As soon as Holloway, Jr. was arrested, police had two choices (1) maintain the status quo and phone in for a search warrant or (2) leave, but it is obvious from Officer McCormick's testimony that he was taking a much more leisurely approach to respecting the rights of those whose home he had invaded for one distinct purpose, to arrest Holloway, Jr. a purpose which had been fulfilled at that point. Simply put, once Holloway, Jr. was arrested, it was time for the police to leave, or, if not, to maintain the status quo while telephoning in for a warrant, but not to hang around inside the house with no definite agenda but only vague plans for the next 30 minutes to "conduct business," or as McCormick testified: "talk to the officers that made the arrest," and then "talk to the Holloways," and "probably . . . ask [Holloway, Jr.] about the gun," and then ask Holloway, Sr. "for permission to search" or maybe call in for a warrant.
In Chimel, the police had a warrant for the defendant's arrest for burglary of a coin shop. They went to the defendant's home, were admitted by his wife and waited ten to fifteen minutes for the defendant to return. When defendant arrived, the police arrested him and "asked for permission to 'look around.'" Id. at 753. The defendant objected "but was advised that 'on the basis of the lawful arrest,' the officers would nonetheless conduct a search." Id. at 753-54. The defendant's wife then accompanied the officers on a search of the entire house, directing the "wife to open drawers and 'to physically move contents of the drawers from side to side'" to look for items from the burglary. Id. at 754. A number of items, including coins, were seized during the search which took between forty-five minutes and an hour. Ibid.
The United States Supreme Court reversed the defendant's conviction on the ground that the items seized during the warrantless search were not admissible because the search incident to the defendant's arrest was substantially overbroad.
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.

[Id. at 762-63 (citations omitted) (emphasis added).]
In State v. Rose, 357 N.J. Super. 100 (App. Div.), certif. denied, 176 N.J. 429 (2003), we addressed the Chimel issue, i.e. the search incident to arrest of an area broader than the area within an arrestee's immediate control, and held:
Since the State bears the burden of proof on a warrantless search, it must establish under this exception that the evidence seized was within an area of the defendant's "immediate control," which has been defined as "the area from within which he might gain possession of a weapon or destructible evidence." Chimel, supra, 395 U.S. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. See also Shipley v. California, 395 U.S. 818, 819, 89 S. Ct. 2053, 2054, 23 L. Ed. 2d 732, 734 (1969). Put another way, a search incident to a valid arrest must be limited to the person arrested and the areas within his reach or "grabble area." State v. Stupi, 231 N.J. Super. 284, 288, 555 A.2d 681 (App. Div. 1989), cf. State v. Smith, 140 N.J. Super. 368, 374, 356 A.2d 401 (App. Div. 1976).

[Rose, supra, 357 N.J. Super. at 104].
Here, the State argues that the police were in the Holloway home lawfully by virtue of Holloway, Sr.'s, consent to enter to execute the arrest warrants for Holloway, Jr., and that exigent circumstances developed to justify searching the bag. We disagree. The circumstances here do not qualify as "exigent circumstances." The trial judge based his finding of exigent circumstances on the following:
people in the house, a gun still in the house, and [defendant] in the house, where a firearm was apparently in that house and actually was in that house and found in the house. So I believe that the actions of the police, Sergeant McCormick and others, [were] reasonable; that there was no need for a search warrant at that point; that those exigent circumstances and the abandonment of the property by [defendant] made it lawful for the police to seize it and to search it. And then, of course, to charge the defendant, which they did.
We note that defendant's "abandonment" of the property by disclaiming ownership is not a justification for a warrantless search of items located inside the Holloway house after Holloway, Jr.'s, arrest. Nor can the State claim that defendant lacks standing to seek suppression of property he disclaimed when he is charged with possession of that very property. See State v. Alston, 88 N.J. 211, 228 (1981).
A search for weapons may not extend beyond that which is reasonable to locate the weapon. State v. Younger, 305 N.J. Super. 250, 258 (App. Div. 1997). In State v. Cassidy, 179 N.J. 150 (2004), the Supreme Court reversed the defendant's conviction for four counts of third degree weapons charges based on evidence seized pursuant to a warrant incorporated in a domestic violence restraining order after finding the warrant invalid. The Court rejected the State's argument that the presence of thirty-five weapons in the defendant's home was an exigent circumstance justifying a warrantless search because "there was no assertion to support a reasonable belief that evidence was about to be lost or destroyed . . . . [and] there was no allegation that [the defendant] had attempted or threatened to use them, and certainly no allegation to support an immediate threat." Id. at 162.
In State v. DeLorenzo, 166 N.J. Super. 483 (App. Div. 1979), the defendant was stopped because the car he was driving had an expired inspection sticker. Since it was unregistered, the car was impounded but defendant was not arrested. Id. at 486. At police headquarters, defendant took a white duffel bag from the passenger seat into the squad room where the officers intended to question him as to whether the car was stolen. When defendant reached for the bag, one of the officers seized it, opened it and found a cellophane bag containing four ounces of marijuana. We found the search of the bag unlawful because it "was not incidental to a lawful arrest since there was no arrest. Nor was the search justified under the plain view or consent doctrines." Id. at 488. There was no evidence of a "reasonable belief that defendant was armed" and "[t]he officer's 'suspicion' that the duffel bag contained a weapon because defendant was nervous did not amount to reasonable cause to believe so." Ibid. There was no exigent circumstance: "[s]ince defendant was in police headquarters in the presence of several officers there could be no reasonable apprehension that defendant or his bag would disappear." Id. at 489. And, if the officers had a reasonable concern for their safety, they could have taken possession of the duffel bag and sought a warrant to search it. Id. at 489-90.
Here, the weapon was inside a closed box inside a zipped bag. There was no immediate danger to the police or occupants of the house. State v. Bradley, 291 N.J. Super. 501, 512 (App. Div. 1996) (holding that "warrantless searches of luggage or other property seized at the time of arrest cannot be justified as incident to that arrest . . . if the search is remote in time or place from the arrest or no exigency exists") (citations omitted). Defendant and Holloway, Sr., had been told to leave the house, Holloway, Jr., was secured in a squad car outside the house and Mrs. Holloway and the children who were present in the house had been asked to sit on the couch in the living room for their safety. The house could have been readily secured while the police sought a warrant. McCormick testified that he was "assuming [defendant] wanted to gather his things . . . . [was] going to pick these items up," when he asked defendant if the items were his. When defendant disclaimed ownership, McCormick should have told defendant to leave them there while a warrant was sought.
We see no exigency in the circumstances presented here to justify a warrantless search of any part of the house after Holloway, Jr., was secured pursuant to the arrest warrant, nor do we see any compelling reason for the search of the zipped bag after defendant disclaimed ownership of it. The gun was inside a cardboard box inside the zipped bag, making it an unlikely safety hazard to anyone in the house.
In short, we agree with defendant's succinct argument that the police had two choices after arresting Holloway, Jr., and removing him from the house: "(1) maintain the status quo and phone in for a search warrant or (2) leave."

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