STATE OF NEW JERSEY v. CARLTON HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6112-09T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CARLTON HARRIS,

Defendant-Respondent.

_______________________________

T

March 10, 2011

elephonically Argued January 14, 2011 - Decided

 

Before Judges Axelrad, R. B. Coleman and Lihotz.

 

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-01-0012.

 

Frank Muroski, Deputy Attorney General, argued the cause for appellant (Paula T. Dow, Attorney General, attorney; Mr. Muroski, of counsel and on the briefs).

 

John S. Furlong argued the cause for respondent (Furlong and Krasny, attorneys; Mr. Furlong, on the brief).

 

PER CURIAM

The question presented is whether weapons seized utilizing a search warrant issued pursuant to the provisions of the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, may be used in a criminal prosecution for offenses specifically related to the possession of the seized weapons. By our leave granted, plaintiff the State of New Jersey (the State) appeals from a June 15, 2010 Criminal Part order suppressing evidence of criminal conduct obtained in the execution of a PDVA search warrant for weapons, N.J.S.A. 2C:25-28(j). In precluding the use of the evidence, the trial court held the warrant provisions of the PDVA were designed to protect domestic violence victims, not to discover evidence of criminality or to further criminal prosecution.

On appeal, the State argues:

POINT I

ILLEGAL WEAPONS FOUND DURING THE EXECUTION OF THE JUDICIALLY AUTHORIZED SEARCH WARRANT PORTION OF A TEMPORARY RESTRAINING ORDER ISSUED ACCORDING TO THE PREVENTION OF DOMESTIC VIOLENCE ACT ARE ADMISSIBLE IN A CRIMINAL PROSECUTION.

 

A. The Weapons Are Admissible Because They Were Seized According to a Valid Special-Needs-Based Search Warrant.

 

B. State v. Perkins[, 358 N.J. Super. 151 (App. Div. 2003)] Does Not Apply to Warrant-Based Searches.

 

C. State v. Perkins Should Be Overruled in Light of New Jersey Supreme Court Precedent.

 

D. Suppressing the Illegal Weapons Found in Defendant's Home Defeats the Main Purpose of the Prevention of Domestic Violence Act, Which is to Give Maximum Protection to Victims and Society.

 

E. The Exclusionary Rule is Inappropriate for Weapons Lawfully Seized Under the Prevention of Domestic Violence Act.

 

POINT II

AS AN ALTERNATIVE ARGUMENT, THE EVIDENCE WAS SEIZED IN PLAIN VIEW DURING THE EXECUTION OF THE SEARCH WARRANT PORTION OF A LAWFULLY ISSUED TEMPORARY RESTRAINING ORDER.

 

Following our review we affirm in part and reverse in part. We remand the matter to the trial court for additional proceedings.

I.

No testimony was provided at the suppression hearing. For the purpose of this appeal, the facts are not in dispute. The charges against defendant Carlton Harris arose when W.J. filed a complaint alleging domestic violence and requesting entry of a restraining order. In her sworn statement supporting her request, W.J. averred she had a dating relationship with defendant, who had committed numerous acts of domestic violence, including beating her in the face, stalking her daily, repeatedly telephoning her at all hours, kicking in her front door, and threatening to kill her and her children while wielding a gun. On August 12, 2009, following consideration of W.J.'s sworn testimony, Judge Anklowitz of the Family Part issued a temporary restraining order (TRO) under the PDVA. N.J.S.A. 2C:25-28(f); see also R. 5:7A(c).

In addition to barring defendant's communication and contact with W.J. and her family, the TRO prohibited defendant's possession of firearms or weapons and included a "warrant to search for and to seize weapons for safekeeping." The provision ordered the search of defendant's home and the seizure of guns and weapons as particularly stated. The form order was completed by the court. The Family Part order, reproducing the court's insertions in italics, provided:

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): Several firearms, incl. but not limited to: 2 9mm., 1 .45cal or 1 .38 Cal. 1 automatic rifle with ammo belt.

 

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: []Euclid Ave, Trenton, including basement and garage[.]

 

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 the said structure from which the property was taken.

 

3. You are authorized to execute this order immediately or as soon thereafter as is practicable: (x) Anytime; (x) other: See attached order

 

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.

 

As designated in Paragraph 3, a supplemental order was incorporated into the TRO, which included the following provision:

Special Conditions: This is a no knock warrant. There are two pit bulls and possibly booby traps. Officers are also permitted to search ' 95 Dodge 4x4 pick-up, black with cap, as long as it is parked in driveway or in front of house. Officers should search couch on porch, behind the bar in the basement, contents of any safe, including one in basement by back door.

 

At 6:45 p.m., officers from the Mercer County Sheriff's Department went to defendant's residence to serve the TRO and execute the search warrant. The officers placed defendant under arrest and conducted the search. In the third-floor attic-bedroom, the officers located and seized a Cetme .308 caliber assault rifle, which was loaded with one round in the chamber. They also found five twenty-round large capacity magazines and, in a safe in the basement laundry room, a Colt Anaconda .45 caliber revolver. The sheriff's officers radioed for a gun sniffing canine, who also detected a Ruger P89 handgun on the top of the dining room china cabinet. The next day, the serial number from each gun was run through the State Police Data Base. The Sheriff's Department learned the Colt Anaconda revolver was a reported stolen weapon.

Defendant was indicted, charged with second-degree unlawful possession of an assault rifle, N.J.S.A. 2C:39-5(f) (count one); third-degree possession of a loaded rifle, N.J.S.A. 2C:39-5(c)(2) (count two); five counts fourth-degree possession of a large capacity ammunition magazine (counts three, four, five, six and seven), N.J.S.A. 2C:39-3(j); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count eight); third-degree receiving stolen property, N.J.S.A. 20-7(a) (count nine); three counts of third-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(3) (counts ten, eleven and twelve).

Defendant filed a motion to suppress all evidence seized in the execution of the warrant. Principally relying on our holding in State v. Perkins, 358 N.J. Super. 151, 161 (App. Div. 2003), defendant asserts that as a matter of law weapons seized pursuant to a PDVA TRO warrant cannot be subsequently used in a criminal prosecution. The State rejected Perkins as determinative on the facts at hand, arguing Perkins involved neither a valid warrant nor a victim's sworn PDVA complaint. See Id. at 154-56. The State maintained that because the officers' search was completed pursuant to a valid warrant, the evidence was admissible in the subsequent prosecution.

Following argument, the court issued a written opinion agreeing with defendant and concluding the general rule is that weapons seized pursuant to a warrant issued under the PDVA may not be evidential in any criminal prosecution. The court stated:

The warrant was, in fact, a civil warrant as the complainant never alleged defendant had committed any crime with a weapon. The illegality of the weapons found is of no consequence. The well-grounded policy of the [PDVA], as interpreted by the Supreme Court, states clearly the provisions allowing the search and seizure are only constitutional because they serve a legitimate state interest and therefore, evidence gathered during the search cannot have criminal repercussions for the defendant.

 

Additionally, the court rejected the State's argument that the plain view exception to the warrant requirement was applicable because the discovery of the guns was not inadvertent as the officers were specifically looking for guns, and those weapons seized were not in plain view. The motion judge ordered all evidence suppressed. The State requested and we granted leave to review this issue.

II.

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (internal quotations and citations omitted). However, "a reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." State v. Mann, 203 N.J. 328, 337 (2010) (internal citations omitted).

All in all, "any search authorized by warrant, including one issued pursuant to the [PDVA] must pass constitutional scrutiny." State v. Johnson, 352 N.J. Super. 15, 36 (App. Div. 2002), overruled in part by State v. Dispoto, 189 N.J. 108, 121 n.3 (2007). Accordingly, our review requires examination of the constitutional limits on searches and the provisions of the PDVA.

A.

As a threshold matter, the Fourth Amendment to the United States Constitution protects "against unreasonable searches and seizures[.]" U.S. Const. amend. IV. The federal Constitution succinctly states the prerequisites for a search warrant: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Our State Constitution contains virtually identical language, which also protects people against government intrusion. N.J. Const. art. I, par. 7; see also State v. Citarella, 154 N.J. 272, 278 (1998).

"Those cognate constitutional provisions also express a preference that, before conducting a search, government officials should first obtain a warrant founded on probable cause issued by a neutral and detached judge 'particularly describing the place to be searched, and the persons or things to be seized.'" State v. Bogan, 200 N.J. 61, 72-73 (2009) (quoting State v. Frankel, 179 N.J. 586, 597-98 n.6, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004)). Accordingly, on 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. Cassidy, 179 N.J. 150, 158 (2004).

Importantly, the United States Supreme Court has upheld limited intrusions upon less than probable cause when the police action serves a legitimate state purpose. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968) (allowing "pat-down" when there is a justifiable suspicion the individual is armed to assure police security); State v. Dangerfield, 171 N.J. 446, 464 (2002) (requiring police to reasonably believe a suspect is "dangerous and the suspect may gain immediate control of weapons" prior to pat down). See also State v. Davis, 104 N.J. 490, 497 (1986) (holding the Fourth Amendment is not violated by police field inquiry).

"Searches undertaken to promote legitimate state interests unrelated to the acquisition of evidence of criminality or in furtherance of a criminal prosecution are, under appropriate circumstances, permissible under the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution." Johnson, supra, 352 N.J. Super. at 18-19. See also N.J. Div. of Youth & Family Servs. v. Wunnenburg, 167 N.J. Super. 578, 584-85 (App. Div. 1979) (holding criminal "probable cause" standard was inapplicable when the Division seeks permission to enter premises where it reasonably believes a child is being subjected to abuse or neglect).

In certain instances, the community caretaking function of police, that is the reasonable need to protect the property or safety of citizens, may justify a warrantless search of premises. See State v. Navarro, 310 N.J. Super. 104, 109 (App. Div. 1998) (upholding as "a reasonable exercise of their community caretaking responsibilities" police action of accompanying elderly landlord to tenant's bedroom within her apartment to inspect an object she thought was a gun based on justifiable concern of her possible injury were she to remove the object), certif. denied, 156 N.J. 382 (1998). See also State v. Garbin, 325 N.J. Super. 521, 525-26 (App. Div. 1999) (upholding warrantless search of garage based upon community caretaking doctrine where police observed smoke and smelled burning rubber), certif. denied, 164 N.J. 560 (2000).

Additionally, within the community caretaking function permissible searches may be undertaken pursuant to what has become known as "special needs" warrants. "The key to all special needs cases is that the primary purpose of the intrusion is not to find criminal evidence; it is to promote a legitimate government interest distinct from law enforcement[.]" Byrnes, New Jersey Arrest, Search & Seizure: The Law of Police-Citizen Encounters, 20:1 (2010). Generally, such a warrant is not issued to secure evidence in a criminal investigation, but to further a legitimate governmental interest; in other words, the warrant is directed to promote the State's "special needs." Special needs warrants are typically issued upon a showing of reasonable suspicion that a person has violated a rule or regulation which the State has an interest in protecting. See New Jersey v. T.L.O., 469 U.S. 325, 332 n.2, 105 S. Ct. 733, 738 n.2, 83 L. Ed. 720, 728 n.2 (1985) (holding "the special needs of the school environment require assessment of the legality of [] searches against a standard less exacting than that of probable cause").

B.

Also relevant to our review are provisions of the PDVA. A Chapter directed to the prevention of domestic violence was added to the Criminal Code in 1981, L. 1981, c. 426. See N.J.S.A. 2C:25-1 to -16. The initial statutory provisions were repealed and replaced on November 12, 1991 by the PDVA. L. 1991, c. 261 20. The findings that undergird the PDVA are set forth in the statute's first substantive provision:

The Legislature finds and declares 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 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 provide.

 

[N.J.S.A. 2C:25-18.]

 

See also Crespo v. Crespo, 408 N.J. Super. 25, 38 (App. Div. 2009), aff'd 201 N.J. 207 (2010).

The legislative scheme of the PDVA is to provide the victim with "protection from abuse at both the law enforcement and court levels when there is cause to believe that an act of domestic violence has occurred." Johnson, supra, 352 N.J. Super. at 31. The PDVA allows a victim to request police initiation of a criminal complaint, N.J.S.A. 2C:25-21, or request a TRO from the Family Part, N.J.S.A. 2C:25-28(f), or both. The duality of access to emergent relief is in keeping with the legislative intention "to assure the victims of domestic violence the maximum protection from abuse the law can provide[,]" N.J.S.A. 2C:25-18, and "to ensure[] that spouses who were subjected to criminal conduct by their mates [have] full access to the protections of the legal system." Johnson, supra, 352 N.J. Super. at 30 (quoting Cesare v. Cesare, 154 N.J. 394, 399 (1998)).

The PDVA also mandates that a court examining a claim of domestic violence must assure the safety of victims as well as the public. Stevenson v. Stevenson, 314 N.J. Super. 350, 361 (App. Div. 1999); State v. Burdin, 313 N.J. Super. 468, 474 (Law Div. 1998). When a judge finds probable cause that an act of domestic violence was committed by a named defendant, he or she shall "order emergency ex parte relief, in the nature of a temporary restraining order." N.J.S.A. 2C:25-28(g).1 The contents of that order shall state the nature of emergency relief granted, which

may include . . . 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 such 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 the search and seizure authorized by the order.

[N.J.S.A. 2C:25-28(j).]

 

Our review is confined to the provisions of the statute authorizing the Family court to enter relief.

 

 

C.

Questions similar to the one raised here have been reviewed by this court and the Supreme Court. It is instructive to review these opinions.

In Johnson, supra, we first examined the nature of a search warrant issued pursuant to the PDVA. In a criminal prosecution, the State appealed the suppression of marijuana found by police as they executed a search warrant for weapons issued as part of a domestic violence TRO. 352 N.J. Super. at 17. We affirmed the suppression order because the procedural circumstances leading to the issuance of the warrant had not properly established reasonable cause that defendant had access to the weapons and whether that access posed a danger or heightened risk of further domestic violence to the victim, as required by N.J.S.A. 2C:25-28(j). Id. at 39-40.

The subject again arose in Perkins. In that matter

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.

 

[Supra, 358 N.J. Super. at 154.]

 

Police officers responded to the 9-1-1 call and went to the defendant's house. Ibid. The wife allowed the police entry and the police encountered the defendant in bed. Id. at 154-55. The police, "[b]elieving that there was a weapon in the bedroom[,] escorted defendant downstairs to the kitchen[,]" then searched the house locating "defendant's gun collection[,] consisting of approximately eighty-five firearms." Id. at 155. All of the weapons were seized "for safekeeping" pursuant to PDVA, N.J.S.A. 2C:25-21(d)(1). "Neither the police nor the prosecutor sought a warrant for the seizure of the weapons." Ibid. One of the weapons seized was an assault rifle, for which the defendant was charged with possession. Id. at 154-56.

The court suppressed the seized weapon, which the State challenged, arguing the plain view exception justified the warrantless search. Id. at 156. In its amicus submission, the Attorney General argued the weapon's seizure was constitutionally permissible. Ibid.

We found the warrantless search valid because it fell within the "special needs" exception to the warrant requirement as: (1) "the officers had probable cause to believe that defendant committed an act of domestic violence"; (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.

We also noted that

"[w]here 'a search is conducted in furtherance of a criminal investigation, the balance is most often tipped 'in favor of the procedures described by the . . . Warrant Clause of the Fourth Amendment' finding that a search 'is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.'"

 

[Id. at 158-59 (quoting State in the Interest of J.G. 151 N.J. 565, 576-77 (1997)).]

Where a search is conducted in furtherance of a criminal investigation, which generally requires the issuance of warrants upon probable cause, special needs searches may pass constitutional muster absent any suspicion. Perkins, supra, 358 N.J. Super. at 158-159.

Our conclusions that the warrantless search of the defendant's residence and the seizure of his guns passed constitutional muster were based upon the fact that the purpose of the search was to promote a State interest and the defendant was not placed "at additional risk because the results [were] not intended to facilitate a criminal prosecution." Id. at 159. Therefore, the State policy to protect a victim from further domestic violence "that gives rise to the seizure of weapons under the [PDVA] is grounded upon legitimate State interests unrelated to the acquisition of evidence of criminality or in the furtherance of a criminal prosecution." Id. at 161.

We next considered whether the seized illegal weapon could be used in the prosecution of the defendant for the charge of possession of an assault weapon. We concluded it could not. Ibid. In affirming the suppression, we emphasized the seizure was not designed to obtain evidence in a criminal prosecution. We did note that "absent, for example, a threat to use a weapon or suspicion that a particular weapon is itself illegal or illegally possessed, the search and resulting seizure, like any special needs search, is not based upon suspicion that a crime has been committed[.]" Ibid. In that instance, the search must satisfy one of the recognized exceptions to the warrant requirement. Ibid.

In Cassidy, supra, 170 N.J. at 157, the Supreme Court reversed the suppression of weapons in a prosecution for possession of illegal firearms finding the search warrant within the TRO was defective because the complainant was not placed under oath. When served with the TRO and the warrant, the defendant turned over thirty-five weapons, five of which were possessed illegally. Id. at 156. Rejecting the application of the exigent circumstances to justify the warrantless search, the Court noted "[a]lthough [the] defendant was believed to possess firearms, there was no allegation that he had attempted or threatened to use them, and certainly no allegation to support an immediate threat." Id. at 162. Because the facts did "not establish exigency such that a warrant was not needed[,]" the Court declined to address the second probable cause prong to support the exception. Ibid.

Under these facts, the Court also rejected application of the emergency aid doctrine to uphold the search. Id. at 163. The Court stated:

Thus, this matter turns on whether there was an emergency that night, and if so, whether the police entry into the [defendant's] home was related directly to the emergency. In respect of the first prong, the test is whether the evidence would have led a "prudent and reasonable officer" to perceive an immediate need to take action in order to prevent death or to protect against serious injury to persons or property. 3 Wayne LaFave, Search & Seizure[: A Treatise on the Fourth Amendment] 6.6(a) at 391 ([3d ed.] 1996). Stated differently, the question is would the officers "have been derelict in their duty had they acted otherwise." Id. at 392.

 

[Ibid.]

 

Noting the victim had not heard from the defendant in days and that the last physical altercation occurred a month before the request for relief, the Court concluded there was no immediate volatile situation warranting "expansion" of the doctrine. Id. at 164.

In Dispoto, supra, the Court reviewed a situation where a separate search warrant was requested once evidence of criminality was revealed. 189 N.J. at 112. Police sought a warrant to search the defendant's residence and office for narcotics based on his incriminating statement and evidence gathered during a PDVA search for weapons. Id. at 112. The defendant had been Mirandized2 when served with the PDVA warrant, but not again prior to his arrest. Ibid. In the criminal prosecution for drug offenses, the defendant sought to suppress the evidence seized during the execution of the criminal warrant. Ibid. The Court examined whether the police were required to again recite defendant's Miranda warnings at the time of arrest and whether the criminal search warrant was invalid. Ibid.

The Court determined the factual basis provided to obtain the warrant was flawed. Ibid. The police had received information from an informant, who stated the defendant was engaged in organized crime activities. Id. at 113, 116. Additionally, the informant told police the defendant, who was also involved in a divorce proceeding, asked the informant whether he knew anyone who would kill his wife. Id. at 113. When the informant met with the defendant a second time, the defendant repudiated the comment. Id. at 114. The informant told police the information regarding the initial threat against the wife was mistaken. Ibid. Nevertheless, police informed the wife and encouraged her to file a PDVA complaint. Ibid. The police followed-up and requested a warrant to search for and seize weapons incident to the TRO. Ibid. At no time did the police disclose they had not had prior dealings with the informant, could not attest to his reliability as there was no evidence to corroborate the informant's initial statement regarding threats to the wife, or that that statement had been repudiated. Ibid.

The police arrived at the defendant's office, issued Miranda warnings and commenced their search. Id. at 116. They did not place him under arrest. Ibid. Police found marijuana in an employee's desk drawer and secured the area while they sought a criminal search warrant. Ibid. The police drove the defendant to his residence to seize his guns, which he handed over. Ibid. The police continued the search of the premises and when they asked the defendant what was contained in a safe in the garage, he responded "two pounds of marijuana." Id. at 116-17. The defendant was arrested and the area was secured while a criminal search warrant was requested. Id. at 117. In applying for that warrant, the police did not disclose the defendant was not under arrest when the TRO was served. Ibid.

The defendant was indicted for several drug offenses. Ibid. He moved to dismiss the indictment and to suppress the evidence and his pre-arrest statements. Id. at 117-18. Ultimately, the trial court suppressed the statements and the evidence. Id. at 118. We affirmed that order, State v. Dispoto, 383 N.J. Super. 205, 209 (App. Div. 2006), and certification was granted.

In reviewing the validity of the search, the Court stated "the remedial protections afforded under the []PDVA are intended for the benefit of victims of domestic violence and are not meant to serve as a pretext for obtaining information to advance a criminal investigation against an alleged abuser." Dispoto, supra, 189 N.J. at 120. The Court concluded the search warrant was defective because there was no probable cause that the defendant committed the alleged terroristic threat against his wife, making the evidence seized inadmissible. Id. at 122. The Court stated: "Permeating the series of events that transpired is the sense that the domestic violence search warrant was being used by law enforcement representatives to uncover evidence of criminal behavior unrelated to defendant's alleged acts of domestic violence." Id. at 123. The court affirmed the suppression of the evidence. Ibid.

The Supreme Court has not specifically embraced the finding of the trial judge in this matter that "evidence gathered during the search cannot have criminal repercussions." In Cassidy and Dispoto, the warrants were defective when issued. Additionally, as the State points out, there was no warrant in Perkins. In light of these authorities, we consider the State's assertion that the facts of the instant matter are sufficiently distinguishable from published authorities to require a different result.

III.

The State maintains the evidence was seized during a judicially authorized valid search, pursuant to a warrant, making it admissible. Alternatively, the State argues the illegal weapons were in plain view as the officers conducted their authorized search, allowing their admission in the criminal prosecution.

Defendant, without conceding the warrant's validity, asserts "search warrants under the [PDVA] do not require a showing of probable cause to believe that evidence of a crime will be found on the subject premises." Citing Perkins, supra, defendant asserts the warrant is civil in nature, requiring only reasonable cause for its issuance, and although constitutional, the seized weapons may not be admitted in a criminal prosecution. 358 N.J. Super. at 158. Alternatively, defendant argues a remand is necessary to conduct a fact-finding hearing.

A.

Without question, the PDVA is a quasi-criminal statute. Domestic violence is defined with reference to specific criminal offenses, N.J.S.A. 2C:25-19(a), and the stated legislative findings recognize "that domestic violence is a serious crime against society[.]" N.J.S.A. 2C:25-18. Moreover, the PDVA specifically provides for law enforcement action and the initiation of criminal process, including arrest, N.J.S.A. 2C:25-21 and the setting and reduction of bail, N.J.S.A. 2C:25-26, when there is probable cause that an act of domestic violence has occurred. However, many remedies in the PDVA are civil. IMO M.D.Z., 286 N.J. Super. 82, 87 (App. Div. 1995). Most important, "the standard for proving the allegations in the complaint shall be by a preponderance of the evidence." N.J.S.A. 2C:25-29(a).

Even though the PDVA reinforces the State's "strong public policy" to prohibit access to firearms to those who have committed domestic violence, warrants for weapons issued under the PDVA, typically, may be obtained without the same level of scrutiny necessary for criminal search warrants. The weapons' seizure is authorized because "[i]nherent in the issuance of a TRO is a conclusion by the issuing judge that the order is necessary 'to protect the life, health or well-being of a victim on whose behalf the relief is sought.'" Johnson, supra, 352 N.J. Super. at 34 (quoting N.J.S.A. 2C:25-28(f)). In order to carry out that policy to prevent further abuse, the statute allows a search of a location in which the court has "reasonable cause" to believe the weapon is located, but does not necessarily require proof that the evidence to be seized was used in the commission of a criminal offense, N.J.S.A. 2C:25-28(j), a requisite of a standard criminal search warrant.

That said, we do not rule out the possibility that a Family Part judge, who has the authority to enter a criminal search warrant, after finding probable cause domestic violence has occurred, may act upon a request to seize evidence of the underlying criminal conduct. If supported by the victim's sworn testimony, the court may order the seizure of a weapon used in the criminal offense at a designated location, to aid the apprehension or conviction of the named defendant for that particular offense.

For example, here it is represented that plaintiff's testimony detailed numerous criminal acts committed, including threatening the lives of plaintiff and her children while using a handgun. If requested by the State, Judge Anklowitz could have considered plaintiff's testimony to support the required probable cause to search defendant's residence for the weapon used. In such instance, the warrant would justify the pursuit of a criminal prosecution coincident to the Family Part domestic violence matter. However, the record provided in this matter includes no evidence to support such a possibility occurred.

We must read the search warrant presented "in a commonsensical manner to achieve its lawful purposes." State in the Interest of L.Q., 236 N.J. Super. 464, 470 (App. Div. 1989), certif. denied, 122 N.J. 121 (1990). What we know here is the search was conducted pursuant to the provisions set forth in the TRO and the incorporated order. Although Judge Anklowitz made a finding of probable cause that an act of domestic violence occurred and issued a detailed warrant containing much information to guide police in their search for the weapons, the warrant to seize all weapons was issued to protect W.J. and her children from further injury.3 It does not go unnoticed that the criminal prosecution did not include the offenses of terroristic threats or assault with a deadly weapon, which reinforces the fact that the search was not designed to obtain specific evidence for a specific prosecution.

Under the facts presented, we are not persuaded that the issuance of the special needs warrant under the PDVA was issued for the purpose of gathering evidence of defendant's criminal conduct. The Court in Dispoto, supra, noted the PDVA cannot be utilized as a pretext to gather evidence of criminal offenses unrelated to the domestic violence. 189 N.J. Super. at 123. We also conclude that if the State intends to obtain evidence to be used in a criminal prosecution during a search authorized upon probable cause of domestic violence, it must initiate a criminal investigation related to the underlying criminal acts.

B.

Our inquiry must also consider whether the seizure without a warrant was valid. To uphold a warrantless search and seizure, the State must prove the warrantless search falls within one of the few well-recognized exceptions to the warrant requirement. State v. Demeter, 124 N.J. 374, 379-80 (1991). The State relies upon the plain view exception.

Pursuant to that exception three elements must be satisfied: "First, the police officer must be lawfully in the viewing area.

 

Second, the officer has to discover the evidence 'inadvertently,' meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.

 

Third, it has to be 'immediately apparent' to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure."

 

[Mann, supra, 203 N.J. at 340-41 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).]

 

Defendant does not contest the legality of the officers' presence, but refutes the claim of inadvertence, suggesting they were there to seize weapons, so discovery of defendant's guns could not be inadvertent. We disagree.

While the police were lawfully at defendant's residence to seize weapons as identified by the victim, the expectation was that defendant possessed the weapons legally. No evidence suggested the officers knew defendant possessed an illegally loaded assault rifle with large capacity ammunition magazines. Therefore, upon finding these items the police may well have immediately recognized them as illegal firearms and munitions. In such case, the three prongs of the plain view exception would have been met. See Bruzzese, supra, 94 N.J. at 237 (holding under the third requirement, in order to seize evidence in plain view, a police officer must have probable cause to associate the item with criminal activity).

The facts surrounding the officers' actions must abide an evidential hearing. If the facts are as postulated, suppression of the Cetme .308 caliber assault rifle and its ammunition, was improper.

In seizing the Colt Anaconda revolver identified by the PDVA warrant as a ".45 cal" weapon, the officers could not have discerned the gun was stolen when it was discovered, thus making it impossible to satisfy the third prong of the plain view test. Therefore, absent another exception to the warrant requirement, the Colt Anaconda was properly suppressed. So too, the PDVA warrant identified a 9mm handgun, which describes the Ruger P89, therefore, it too was properly suppressed.

IV.

We conclude the trial court properly suppressed the two handguns. However, the court erred in suppressing the loaded assault rifle and illegal ammunition. We remand for further proceedings surrounding the circumstances of the officer's conduct with respect to these weapons, for the purpose of determining whether the plain view exception was satisfied.

R

eversed in part and affirmed in part.

1 The PDVA also includes provisions allowing a law enforcement officer who finds probable cause to believe domestic violence has occurred "to seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury" along with firearm purchaser identification cards or permits to purchase handguns issued to the alleged perpetrator. N.J.S.A. 2C:25-21(d)(1)(b).

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 We do note that the Criminal Part judge in his written opinion stated the officers went to serve the TRO and "defendant was immediately identified upon officers' arrival at the residence. He was placed under arrest and detained[.]" We are not told whether defendant's arrest was for violation of a TRO issued in May 2009, for which a final hearing was not yet held, or whether a criminal matter was initiated as a result of W.J.'s testimony.