delivered the opinion of the Court.
Defendant Demetrius C. Cope was convicted by a jury of second-degree possession
In this appeal, we must determine whether the trial court properly denied defendant’s motion to suppress a rifle discovered during a protective sweep of his apartment immediately following his arrest in his living room. The court rejected defendant’s claim that the limited search exceeded constitutional limits. We must also determine whether the trial court denied defendant his right to present a defense of third-party guilt by barring the testimony of a witness who took responsibility for placing the rifle in defendant’s apartment. The court precluded the third-party-guilt testimony because it believed that the witness’s account was factually impossible.
The Appellate Division reversed defendant’s conviction. The appellate panel concluded that the rifle should have been suppressed because the police did not have a reasonable and articulable suspicion of danger that justified the protective sweep. The panel also found that the trial court improperly denied defendant the right to advance a third-party-guilt defense.
We agree with the Appellate Division that defendant’s conviction must be reversed because defendant was denied the right to present a full third-party-guilt defense. The witness’s account of having placed the rifle in defendant’s apartment was not factually impossible, however implausible it may have seemed to the trial court. The final arbiter of the witness’s credibility should have been the jury, not the court. A witness whose testimony is central to a defense of third-party guilt cannot be kept off the stand unless the expected version of events is so patently false that the events could not possibly have occurred. That exceedingly high standard was not met here, and therefore it was for the jury to determine the ultimate reliability of the witness’s testimony.
We disagree, however, with the Appellate Division’s conclusion that the trial court erred in not suppressing the rifle. After arresting defendant in his living room, the police conducted a protective sweep of an adjoining porch to ensure that no individuals posing a safety risk were on the premises. The protective sweep did not violate constitutional standards.
We remand to the trial court for proceedings consistent with this opinion.
I.
A.
In October 2006, defendant was indicted on the charge of second-degree possession of a weapon by a person previously convicted of a crime, N.J.S.A 2C:39-7(b). 1 The charge arose from the discovery of an assault-type rifle in defendant’s apartment when police took defendant into custody on an unrelated arrest warrant.
Defendant moved to suppress the rifle, claiming that the seizure of the rifle by the police violated his federal and state constitutional rights to be free from unreasonable searches and seizures. In April 2011, the trial court conducted a suppression hearing. The State called the only witness to testify at the hearing, Burlington Township Police Sergeant David Brintzinghoffer. The factual record of the suppression hearing is based primarily on the officer’s testimony.
On July 5, 2006, at approximately 6:20 p.m., Sergeant Brintzinghoffer, along with five other police officers, went to defendant’s unit at the Chateau Apartment complex in Burlington Township to execute a warrant for his arrest. Sergeant Brintzinghoffer knew that defendant had a number of prior criminal convictions and had information that he “[m]ight be armed” with a weapon. 2
Defendant resided in a second-floor apartment that has a back porch adjacent to the unit’s living room. The apartment is accessed by a door on the first floor. Three officers positioned themselves behind the building, allowing them to observe defen dant’s back porch, while Sergeant Brintzinghoffer and two other officers knocked on the front door. After knocking, Sergeant Brintzinghoffer heard what sounded like a “commotion” — the movement of something and “multiple people inside the apartment.” The sergeant announced that he had a warrant, and seconds later an officer guarding the rear called out that defendant had run into the apartment from the back porch. Sergeant Brintzinghoffer then banged on the door. A female voice responded, “[H]old on.” The sergeant stated that he had an arrest warrant for defendant and that the door would be kicked in unless defendant answered.
April Grant, defendant’s adult daughter, opened the door, and Sergeant Brintzinghoffer and one other officer climbed the stairs, which opened into the apartment’s living room. There, the officers found defendant lying on a couch. Defendant was handcuffed and placed under arrest.
Sergeant Brintzinghoffer then conducted a protective sweep of the bedroom, bathroom, and back porch to ensure that no one could launch a surprise attack against the officers. A sliding glass door separating the living room from the porch was open. When Sergeant Brintzinghoffer stepped onto the porch, he observed a camouflage rifle bag on the floor next to a storage bin in which he feared someone might be hiding. He picked up the bag and knew by its weight and feel that a rifle was inside. He opened the bag and found an assault-type rifle, a “banana clip,” and “numerous rounds of ammunition, other magazines, [and] speed loaders.” The rifle and contents of the bag were seized as evidence.
The trial court determined that Sergeant Brintzinghoffer was a credible witness and denied defendant’s motion to suppress on the basis that the sergeant conducted a permissible protective sweep during which he discovered, in plain view, the rifle and its accoutrements.
C.
During a four-day jury trial in May 2011, the State called several police officers as witnesses, including Sergeant Brintzin ghoffer, whose testimony tracked the account he gave at the suppression hearing. Burlington Township Police Officer Christopher Ent, who was part of the perimeter team guarding the rear of defendant’s apartment during the execution of the arrest warrant, recalled seeing the back porch’s sliding glass door open, its screen door come crashing down, and defendant step onto the porch.
The State offered expert testimony that the assault-type rifle seized from defendant’s apartment was operable and that no identifiable fingerprints were lifted from the weapon. Defendant and the State stipulated that “defendant has been convicted of a predicate prior offense.”
Defendant asserted as his defense that, without his knowledge, someone put the rifle on his porch. In support of that defense, defendant called as a witness his adult daughter, April, then a college student, who was visiting her father when the police arrived. April testified that she did not see defendant go onto the balcony that day. She stated that the screen to the porch’s sliding glass door fell when she opened it. She described the balcony as a cluttered area where defendant stored his tools and where junk had accumulated. She remembered that, on other occasions, her father’s construction-business employees were present in the apartment. She also averred that she had never seen or heard her father talk about a rifle.
Testifying in his own defense, defendant stated that he owned a home-improvement construction company that employed ex-felons. He explained that, given his own past, he wanted to give others with a prior criminal record an opportunity for gainful employment. Defendant also stated that his employees had access to his apartment and stored work gear and tools inside. He recalled workers loading tools from his balcony on July 5, 2006, the day of his arrest.
Defendant maintained that in 2006 he was living in two separate residences, the unit at the Chateau Apartment complex and at the home of his then fiancée and now wife (April’s mother). According to defendant, when the police arrived at his door, the television was playing, and he was leaning over the porch screen onto his balcony when the screen fell off its hinges. He became scared when he saw a “shotgun” pointing at him. Defendant denied ever owning or seeing the rifle or ammunition found on his balcony.
D.
Defendant intended to call as a witness Dante Santiago, a former employee of defendant’s construction business, who claimed that he owned the rifle and placed it on the porch unbeknownst to defendant. In a notarized statement dated April 22, 2011, Santiago wrote:
On my third day at work I not only brought an “SK” with me (gun), but without permission I also decided to stash it on the boss man’s balcony until work was finished because I was going to sell it to an associate of mine that resides in North Camden. Well what was suppose[d] to take place obviously didn’t, because after work this day me and [my friend] headed back to boss man Cope’s apartment so that we could receive payment for the day’s work and so that I could also pick up my shit, but as we approached the apartment there was police running down on the place. Why? Beats the hell out of me, but what I did know was that I was going to have to chalk my “SK” (gun) up as a loss.
Santiago concluded his notarized statement by saying: “I cannot allow for an
After jury selection, at the prosecutor’s request, the court conducted a Rule 104 hearing to determine whether Santiago would invoke the Fifth Amendment in the presence of the jury, given the self-incriminating nature of his expected testimony. 4 Under oath, Santiago stated that he “[did] not need a lawyer” and would not invoke his constitutional right to remain silent. He also averred that he would “tell ... the truth” and “answer each and every question,” including those concerning criminal charges pending against him. Based on those responses, the court concluded that Santiago would be permitted to testify.
At the prosecutor’s urging, a second Rule 104 hearing was held at the close of the State’s case, this time to determine the admissibility of Santiago’s notarized statement and his expected testimony. The court reviewed Santiago’s judgment of conviction and jail records showing that he was incarcerated in a county jail from June 22, 2006 until August 30, 2006. The court also reviewed his prior statements, including one given to detectives on May 3, 2011, the day before defendant’s trial began.
On that day, detectives in the Burlington County Prosecutor’s Office questioned Santiago about his earlier notarized statement. During the recorded questioning, the detectives showed Santiago a document indicating that he was incarcerated in the Camden County Jail from May 16, 2006 until November 16, 2006. The primary interrogator asked, “[I]f you dropped the gun off it had to be before May, right?” Santiago responded that he was not “sure of the date exactly,” reminding the detective that the events occurred five years earlier. Santiago pointed out to the detective that he must have left the rifle in defendant’s apartment before his incarceration, stating, “I had to have left it there before that, right” and “It’s impossible for me to be in two places at one time right?”
The prosecutor acknowledged to the court that Santiago was claiming that he dropped off the rifle before his incarceration. The court also took testimony from Santiago that did not shed much light on the precise day he claimed to have dropped off the rifle. Given the passage of time, Santiago testified that he did not remember the dates of his incarceration and admission into the Sheriffs Labor Assistance Program in 2006. He stated, “I don’t want to state a date and it not be true and me be lying when I just raised my right hand.”
At the end of the Rule 104 hearing, the court barred the admission of Santiago’s notarized statement, offered as a declaration against interest, and his expected testimony on the basis that his account was factually impossible. The court determined that Santiago’s prior statements indicated that he placed the rifle in defendant’s apartment on July 5, 2006, the same day defendant was arrested — a day when Santiago was incarcerated. In reaching that conclusion, the court stated, “There is no way that [Santiago] could have done what he said and been in jail at the same time and that’s just an impossibility.”
Accordingly, the court withheld from the jury Santiago’s notarized statement and his testimony.
The jury found defendant guilty of possession of a weapon by a person previously convicted of a crime. The trial court sentenced defendant to twelve years’ imprisonment, with a six-year period of parole ineligibility, and imposed the applicable fines and penalties.
Defendant appealed.
II.
In an unpublished decision, the Appellate Division held that the trial court erred in not granting the motion to suppress the rifle and the contents of the rifle bag and in barring defendant from presenting evidence of third-party guilt through the testimony of Dante Santiago. Accordingly, the panel reversed defendant’s conviction and remanded for a new trial.
On the suppression issue, the panel determined that Sergeant Brintzinghoffer did not have a legitimate basis, under either the Federal or State Constitution, to conduct a protective sweep of the back porch of defendant’s apartment. The panel relied on
State v. Davila,
203
N.J.
97, 102,
The Appellate Division also concluded that the trial court violated defendant’s right to present witnesses, which is derived from the due-process and compulsory-process guarantees of the Federal and State Constitutions. The panel submitted that a defendant is entitled to offer evidence of third-party guilt as a defense. It reasoned that Santiago’s account that he placed the rifle in defendant’s apartment, “if believed by the jury, could have exonerated defendant.” Questions concerning Santiago’s whereabouts during the relevant time period, according to the panel, went to the witness’s credibility and not to the admissibility of his testimony.
Last, in light of the need for a new trial, the panel did not address the trial court’s ruling on the evidential use of defendant’s prior convictions given that the admissibility of prior convictions would be governed by the amended version of Rule 609 at the retrial.
We granted the State’s petition for certification.
State v. Cope,
220
N.J.
40,
III.
A.
The State argues that, under
Maryland v. Buie,
494
U.S.
325, 334, 110
S.Ct.
1093, 1098, 108
L.Ed.2d
276, 286 (1990), the police had the right to conduct a warrantless protective sweep of defendant’s back porch to safeguard against someone launching a
The State contends that Santiago’s proposed testimony that he placed the rifle in defendant’s apartment was “ ‘impossible,’ and not simply improbable” based on documentary evidence that he was incarcerated during the relevant time period. The State thus argues that the trial court did not abuse its discretion by barring the testimony of a “defense witness who planned to lie” and by precluding “the admission of Santiago’s affidavit which contained the same demonstrably false claims.” The State submits that the trial court properly exercised its gatekeeping role by ensuring that the jury was not exposed to Santiago’s perjured testimony and false claims.
Last, the State maintains that the court properly admitted defendant’s prior convictions based on the evidence rule and case law then in effect.
B.
Defendant urges that we affirm the Appellate Division. He insists that, under Buie, the protective sweep of his back porch was not justified as a search incident to an arrest or as a search supported by a reasonable and articulable suspicion. According to defendant, the police had no reason to believe that individuals were hiding on the back porch based on the testimony of the officers on the perimeter detail and given Sergeant Brintzinghoffer’s view of the porch from the living room.
Defendant also argues that the trial court violated his federal and state constitutional rights to present a defense of third-party guilt by barring Santiago from testifying that he placed the rifle in defendant’s apartment. Defendant insists that Santiago consistently denied knowing the date on which he left the rifle at defendant’s apartment and therefore his claim was not impossible — that is, Santiago may have acted before his incarceration. Defendant maintains that the court should not have precluded Santiago’s testimony, but rather should have allowed his credibility to be tested by vigorous cross-examination.
Finally, defendant agrees with the Appellate Division that, on retrial, the trial court must apply the amended version of Rule 609.
IV.
We first address whether the protective sweep of defendant’s apartment following his arrest in the living room conformed to the dictates of the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution.
A.
The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution protect against “unreasonable searches and seizures” by government officials.
5
“Our constitutional jurisprudence
To justify the warrantless home search in this case, the State relies on the protective-sweep doctrine. A protective sweep of a home incident to a lawful arrest is a reasonable search under both the Fourth Amendment and Article I, Paragraph 7 of our State Constitution.
Buie, supra,
494
U.S.
at 327-28, 110
S.Ct.
at 1094-95,
The rationale for the protective sweep is officer safety.
See id.
at 103,
The permissible scope of a protective sweep incident to a home arrest depends on the radius of danger facing the officers. The officers may “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” without probable cause or reasonable suspicion. Buie, supra, 494 U.S. at 334, 110 S.Ct. at 1098, 108 L.Ed. 2d at 286. Any wider search, however, must be based on “articulable facts” and “rational inferences” drawn from those facts that “would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Ibid.
In
Davila, supra,
we approved of protective sweeps in cases involving in-home arrests as set forth in
Buie
and, more broadly, in non-arrest cases in which police
In summary, a protective sweep incident to an in-home arrest is permissible under the following circumstances. First, the police may sweep the “spaces immediately adjoining the place of arrest from which an attack” might be launched even in the absence of probable cause or reasonable suspicion.
Buie, supra,
494
U.S.
at 334, 110
S.Ct.
at 1098,
We apply those principles to the facts of this case.
B.
The police executed the arrest warrant for defendant while he was present in his apartment. No one in the apartment responded immediately to the officers’ door knocks, and Sergeant Brintzinghoffer heard a “commotion” and the movement of something. Based on the noise coming from the apartment, Sergeant Brintzinghoffer believed “multiple people [were] inside the apartment.” The door to the apartment was opened by defendant’s daughter only after Sergeant Brintzinghoffer announced that he had a warrant and threatened to kick in the door. The officers arrested defendant in his living room. Sergeant Brintzinghoffer conducted a protective sweep of the bedroom, bathroom, and back porch to prevent a surprise attack. An open sliding glass door separated the living room from the adjoining porch, where defendant was sighted by officers on the perimeter detail immediately before his arrest. When Sergeant Brintzinghoffer stepped onto the porch, he instantly observed the rifle bag. He knew that defendant, based on his prior convictions, was barred from possessing a firearm. Upon picking up the bag, by its weight and feel, he realized that a rifle was inside.
Initially, we conclude that the porch was in such close proximity to the place of arrest — -indeed, immediately adjoining it — that a protective sweep of that area was permissible even without probable cause or reasonable suspicion.
See, e.g., Kerr v. Commonwealth,
Second, the sweep was limited to a brief visual inspection of an area from which a person might have emerged to surprise and threaten the officers.
See Buie, supra,
494
U.S.
at 327, 110
S.Ct.
at 1094,
Third, the sweep was swiftly conducted and did not exceed the time “necessary to dispel the reasonable suspicion of danger.”
See Davila, supra,
203
N.J.
at 115,
Last, the seizure of the rifle bag and its contents met the plain-view exception to the warrant requirement.
See State v. Bruzzese,
94
N.J.
210, 236,
The trial court’s finding that the protective sweep was reasonable is “supported by sufficient credible evidence in the record.”
State v. Elders,
192
N.J.
224, 243,
Next, defendant claims that he was denied the constitutional right to present a third-party guilt defense. We must determine whether the trial court erred in suppressing the exculpatory statement and prospective testimony of a witness who claimed to have placed the rifle in defendant’s apartment unbeknownst to defendant.
A.
The Compulsory Process Clause in the United States and New Jersey Constitutions gives the accused in a criminal prosecution the right to call “witnesses in his favor.”
U.S. Const.
amend. YI;
N.J. Const,
art. I, ¶ 10. The right “to call witnesses in one’s own behalf’ is essential to a “fair opportunity to defend against the State’s accusations,” and therefore is indispensable to due process and a fair trial.
Chambers v. Mississippi,
410
U.S.
284, 294, 93
S.Ct.
1038, 1045, 35
L.Ed.2d
297, 308 (1973);
State v. Guenther,
181
N.J.
129, 147,
Although defendant does not bear the burden of “provpng] his innocence through the introduction of evidence of third-party guilt,” State
v. Fortin (Fortin II),
178
N.J.
540, 591,
We now apply those principles to the facts before us.
B.
Before trial, Santiago provided a notarized statement that he brought a gun into defendant’s apartment and “stash[ed]” it on the balcony on his “third day at work” for defendant. He indicated that he intended to retrieve the gun and sell it to an associate, but was thwarted when he “approached the apartment [and] there was police running down on the place.” Santiago took “full responsibility [for the] gun
The trial court, apparently, determined that the third day of Santiago’s work corresponded with the day of defendant’s arrest because of Santiago’s observation of “police running down on the place” — presumably referring to defendant’s apartment. On July 5, 2006, the day of defendant’s arrest, Santiago was incarcerated in the county jail, according to documents that are not in dispute. Having assumed that Santiago was in jail on the day of defendant’s arrest, the court reached the ineluctable conclusion that Santiago could not possibly have placed the rifle on the balcony as he claimed.
The error in the court’s reasoning is the assumption that the only day the police may have been in the area of defendant’s apartment was July 5, 2006. The record does not contain irrefutable evidence to support that assumption. Indeed, one day before defendant’s trial in May 2011, in response to police questioning, Santiago indicated that he could not recall the exact date on which he dropped the rifle off five years earlier and that the drop-off date had to be before his incarceration. In court, Santiago testified that he did not “want to state a date and it not be true and me be lying when I just raised my right hand.” Importantly, the prosecutor affirmed that Santiago was claiming — based on his response to police questioning — that he put the rifle on the balcony before his incarceration.
In any event, Santiago’s claims concerning when he placed the rifle in defendant’s apartment were subject to dispute. However implausible Santiago’s account may have seemed to the trial court, the credibility of Santiago’s notarized statement and expected testimony ultimately was for the jury to resolve.
Santiago’s prior statement constituted a statement against interest — an exception to the hearsay rule — and was therefore
admissible in evidence.
7
See N.J.R.E.
803(c)(25) (defining statement against interest as “[a] statement which was at the time of its making ... so far tended to subject declarant to civil or criminal liability ... that a reasonable person in declarant’s position would not have made the statement unless the person believed it to be true”);
see also State v. White,
158
N.J.
230, 238,
The trial court’s erroneous evidential ruling kept from the jury not only Santiago’s statement accepting criminal responsibility, but also Santiago’s testimony. Santiago twice appeared before the court, stating that he was prepared to testify and that he would not invoke his privilege against self-incrimination. The issue is
Although a trial court retains broad discretion in determining the admissibility of evidence, that discretion is abused when relevant evidence offered by the defense and necessary for a
fair trial is kept from the jury.
See Chambers, supra,
410
U.S.
at 294-95, 93
S.Ct.
at 1045, 35
L.Ed.2d
at 308. A person who confesses to the crime of which the defendant is accused should not be barred from the witness stand. The only exception to this rule is when the confessor’s claim is so patently false because it was impossible for him to have committed the crime.
See Koedatich II, supra,
112
N.J.
at 300,
VI.
We agree with the Appellate Division that, on retrial, the version of
N.J.R.E.
609 now in effect governs the admissibility of defendant’s prior convictions.
See Carmell v. Texas,
529
U.S.
513,
543, 120
S.Ct.
1620, 1638,
VII.
For the reasons expressed, we reverse the judgment of the Appellate Division, which overturned the trial court’s denial of defendant’s motion to suppress. The evidence discovered during the protective sweep of defendant’s apartment is admissible at trial. We affirm the judgment of the Appellate Division reversing defendant’s conviction based on the trial court’s erroneous exclusion of evidence of third-party guilt. We remand to the trial court for proceedings consistent with this opinion.
Notes
In the same indictment, defendant was charged with third-degree unlawful possession of a weapon, NJ.S.A. 2C:39-5(f); fourth-degree prohibited weapons and devices, N.J.S.A. 2C:39-3(j); and third-degree receiving stolen property, N.J.S.A. 2C:20-7(a). These charges were not submitted to the jury and, apparently, were dismissed before trial.
Defendant's convictions included two for third-degree possession of controlled dangerous substances with the intent to distribute within 1000 feet of school property, one for third-degree eluding, one for possession of a weapon for an unlawful purpose, and one for fourth-degree resisting arrest. The information concerning defendant possibly being armed came from a law enforcement officer.
Balcony and porch were used interchangeably during the trial.
NJ.R.E. 104(a) provides that "[w]hen the qualification of a person to be a witness, or the admissibility of evidence ... is subject to a condition ... that issue is to be determined by the judge.”
The Fourth Amendment and Article I, Paragraph 7 use virtually identical language. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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; see also N.J. Const, art. I, ¶ 7.]
The United States Supreme Court has since removed the inadvertence prong of this test.
See Horton v. California,
496
U.S.
128, 141-42, 110
S.Ct.
2301, 2310-11,
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 801(c).