Lead Opinion
(temporarily assigned) delivered the opinion of the Court.
In this appeal, we are called upon to consider the relationship between a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28(j), which permits issuance of a warrant upon reasonable cause, and Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution, both of which state that no warrant may issue “except upon probable cause.” Specifically, we must decide whether weapons recovered from a defendant’s premises during a search conducted pursuant to a warrant issued under N.J.S.A. 2C:25-28(j) may be admitted in a subsequent criminal prosecution of defendant for possession of those weapons. The trial court decided that such weapons may not be so admitted and granted defendant’s motion to suppress. The Appellate Division affirmed that result in part and remanded in part for further proceedings. Although we concur with the Appellate Division that further proceedings are required in one respect, we are satisfied that it was error to grant defendant the relief of suppression.
I.
The question arises in the following context. After the discovery of a number of weapons during a search of defendant’s residence pursuant to a search warrant issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, defendant was indicted for possession of an assault firearm, N.J.S.A. 20:39-5(f), a crime of the second degree; possession of a loaded rifle, N.J.S.A 2C:39-5(c)(2), a crime of the third degree; five counts of possession of a large capacity ammunition magazine, N.J.SA 2C:39-3(j), a crime of the fourth degree; unlawful possession of a firearm, a stolen revolver, N.J.S.A 2C:39-5(b), a crime of the second degree; receiving stolen property, N.J.S.A. 2C:20-7(a), a crime of the third degree; and three counts of certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(3), a crime of the third degree. In his subsequent criminal prosecution, defendant challenged the admissibility of the weapons recovered in this search because the warrant was issued under N.J.S.A. 2C:25-28(j), which authorizes the issuance of a warrant for the search and seizure of weapons “at any location where the judge has reasonable cause to believe the
II.
Our understanding of the factual complex rests largely on the pleadings and briefs that were filed, together with the several written opinions. Defendant’s motion to suppress was decided on the basis of the parties’ briefs and oral argument, as the parties agreed to dispense with the presentation of any testimony. As a result, the record is sparse, and we do not have any credibility assessments by the trial court that decided defendant’s suppression motion. Decisions with respect to motions to suppress are uniquely fact-sensitive, and it is not always evident from the outset which facts will ultimately prove to be critical to the analysis. While we recognize that there are indeed instances in which a trial court can analyze and decide a motion to suppress without the benefit of live testimony, those instances are the exception. A trial court need not accept the assurances of the parties that testimony is unnecessary; rather, it remains free to pose its own questions that may arise with respect to the scenario the parties have agreed to present to the court.
With that caveat, we set forth the following factual background that led to defendant’s motion to suppress. On August 12, 2009, W.J. sought a temporary restraining order against defendant. In her certified complaint, W.J. stated she and defendant had had a dating relationship. The complaint contains the following factual recitation, evidently typed by court staff on the basis of W. J.’s oral statements to them.
DEF BEAT PLA UP. PLA WAS ABLE TO GET AWAY. PLA CAME BACK TO HER HOME & DEF BEGAN TO BEAT PLA UP DEF PUNCHED IN PLA FACE REPEATEDLY, SPIT IN PLA FACE & CALLED PLA NAMES. DEF LEFT BUT RETURNED AGAIN WITH A GUN & THREATENED TO KILL PLA & HER ... FAMILY. DEF IS ON DRUGS AND IS DRINKING. PLA WENT TO THE POLICE STATION. WHILE PLA WAS OUT, DEF KICKED PLA DOOR IN. PLA CHILDREN CALLED THE POLICE. DEF LEFT BEFORE THE POLICE ARRIVED. DEF RETURNED A FINAL TIME AND KICKED IN THE DOOR AGAIN DOING SIGNIFICANT DAMAGE TO THE FRAME AND LOCK; ALSO DAMAGED OTHER DOORS IN HOME.
W.J. also alleged in the complaint that defendant had been stalking her on a daily basis, following her, calling her, and driving past her home. She noted that defendant had been arrested three months earlier for assaulting her and that those charges remained pending.
Following W.J.’s appearance, the trial court completed that portion of the standard domestic violence order that authorized the officers serving the restraining order to conduct a search for weapons.
This is a NO KNOCK WARRANT! There are two pit bulls and possible 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.
The temporary restraining order and search warrant were served on defendant at approximately 6:45 p.m. that evening. The trial court that considered and ultimately granted defendant’s subsequent motion to suppress described the evening’s events in the following manner in its written opinion:
The Defendant was immediately identified upon officers’ arrival at the residence. He was placed under arrest and detained in the police vehicle while the officers conducted the search. Officers recovered, in the third floor attic, a Cetme .308 caliber assault rifle and five twenty-round large capacity magazines. Additionally, a Colt Anaconda .45 revolver was found inside a safe, using a combination provided by the Defendant. Lastly, with the assistance of an evidence-sniffing dog, a Ruger P89 handgun, two spent casings and one live round were found. The Ruger P89 was recovered on top of a china cabinet. The two spent casings and the live round were found under the floorboards of the third floor attic.
The three recovered weapons were run through the N.J. State Police database on August 13, 2009. The database search revealed that the Colt Anaconda was reported stolen.
The discovery of these items, and the subsequent discovery that one of the weapons had been reported stolen, led to the criminal charges against defendant that we recited at the outset. The second-degree charge of illegal possession of a firearm related to the stolen Colt Anaconda revolver. Defendant was not charged with any crime regarding the Ruger P89, which had also been seized during the search.
III.
Defendant moved to suppress the items recovered in this search. Because the items had been found as a result of a search conducted pursuant to a warrant issued under the domestic violence statute, he contended that they could not be introduced into evidence in a subsequent criminal proceeding. In support of his position, defendant relied principally on State v. Perkins, 358 N.J.Super. 151,
The Appellate Division granted the State’s motion for leave to appeal from the trial court order granting defendant’s motion to suppress. On appeal, the State argued that the weapons were admissible because they were recovered during a judicially-authorized search pursuant to a valid warrant. It also argued that the weapons were admissible because the officers had found them in plain view during the search. Defendant countered these arguments by maintaining that a warrant under the domestic violence statute is civil in nature because it may issue under reasonable cause, rather than probable cause. This lower civil threshold, he concluded, made items recovered during a search inadmissible in subsequent criminal proceedings, which require satisfaction of the probable cause standard. He also argued that the question of whether the items were seized because they were in plain view could not be answered on the record as it then existed but would require a remand for a hearing.
The Appellate Division rejected the State’s argument with respect to the nature of the warrant issued in conjunction with the temporary restraining order. It noted that the warrant did not issue upon probable cause, but upon the lesser standard of reasonable cause. It also noted that the purpose of the search had been to provide protection to W.J., rather than to uncover evidence of criminal conduct on defendant’s part. Accordingly, the panel agreed with defendant that the two handguns should be suppressed. It noted they were not within the plain view of the searching officers and the fact that the Colt Anaconda was a stolen weapon was not immediately apparent but required further investigation through the database maintained by the State Police. The panel recognized, however, that the searching officers, as soon as they came upon the assault rifle and the large capacity magazines, may immediately have known that it was illegal for defendant to possess those items. It thus affirmed that portion of the trial court’s order that suppressed the two handguns, but it reversed that portion of the trial court order that suppressed the assault rifle and its accompanying magazines and remanded the matter to the trial court for further proceedings. The matter is before this Court because we granted the State’s motion for leave to appeal.
IV.
The State presents several arguments in support of its position that the trial court and the Appellate Division erred in granting, in any respect, defendant’s motion to suppress. The State stresses that all of the weapons in question were recovered while the police were conducting a search that had been judicially authorized by a search warrant issued under N.J.S.A. 2C:25-28(j). It argues that, as a consequence, the recovered weapons are admissible in a subsequent criminal prosecution against defendant because the warrant and the search conducted pursuant to that warrant complied with the special needs doctrine recognized under the Fourth Amendment to the United States Constitution and the New Jersey Constitution.
The State also asserts that despite the reference in N.J.S.A, 2C:25-28(j) to issuing a warrant upon “reasonable cause,” the trial court must have found probable cause to issue the warrant because a predicate to the issuance of a temporary restraining
Additionally, the State distinguishes Perkins, supra, because in that matter the police conducted the search without having obtained a warrant of any form. It urges this Court not to extend Perkins to cases in which a valid warrant under the domestic violence statute was obtained prior to the search. It contends that suppression of these weapons would not further any of the purposes that are served by the exclusionary rule.
Defendant, on the other hand, stresses that a search warrant may issue on less than probable cause under the domestic violence statute; this, says defendant, requires that any items seized while executing such a search warrant be held inadmissible in a subsequent criminal proceeding. He notes that there is no requirement under the domestic violence statute of any nexus between a weapon seized pursuant to a domestic violence search warrant and the conduct alleged to constitute an act of domestic violence.
Defendant disputes the State’s assertion that the requirement that there must be probable cause to believe an act of domestic violence occurred before a trial court may enter a temporary restraining order necessitates the conclusion that the trial court made a similar conclusion of probable cause with respect to the presence of weapons. He contends that the State’s argument conflates separate portions of the domestic violence statute.
Defendant urges us to apply the analysis used in Perkins, supra, and affirm the trial court’s suppression order. He stresses that the warrant procedure contained in the domestic violence statute envisions a special needs warrant, that is, a warrant issued with the purpose of protecting an applicant from the risk of violence at the hand of an abuser. In defendant’s view, to use the results of a search conducted pursuant to such a warrant in a criminal proceeding would exceed the special need for which the warrant was issued in the first place.
Amicus American Civil Liberties Union of New Jersey echoes defendant’s arguments. It also asserts that, contrary to the position of the State, a warrant issued under the domestic violence statute cannot be considered to be a warrant issued on the basis of probable cause. It stresses that the statute permits a warrant to issue to search a home for weapons on the basis of reasonable cause because of the need to protect a victim of domestic violence from the heightened risk of harm posed by the presence of a weapon. It contends that to permit a weapon seized pursuant to such a warrant to be used in a criminal prosecution would exceed the purpose of the search and is, accordingly, impermissible.
Amicus Association of Criminal Defense Lawyers of New Jersey argues that neither the legislative history nor the language of the domestic violence statute supports a subsequent criminal prosecution for offenses unrelated to domestic violence on the basis of items seized during a domestic violence search. It also posits that permitting a subsequent criminal prosecution of an alleged abuser on the basis of items seized during a domestic violence search may shift the focus of officers involved in a domestic violence situation
V.
We note at the outset the standard that governs our review of these various contentions.
An appellate court should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. An appellate court should not disturb the trial court’s findings merely because it might have reached a different conclusion were it the trial tribunal or because the trial court decided all evidence or inference conflicts in favor of one side in a close case. A trial court’s findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.
[State v. Elders, 192 N.J. 224, 244,927 A.2d 1250 (2007) (internal quotations omitted).]
When, on the other hand, an appellate court is considering the legal conclusions and analysis of the trial court, its review is plenary. State v. Handy, 206 N.J. 39, 45,
VI.
New Jersey enacted the Prevention of Domestic Violence Act, N.J.S.A 2C:25-17 to -35, in 1991 to protect individuals who suffered abuse from their spouses, family members, or cohabitants. In 1994, the statute was amended to extend its protections to individuals such as W. J. who had had a dating relationship with the alleged abuser or had had a child in common with the alleged abuser. N.J.S.A 2C:25-19(d).
The Legislature included in the statute an explicit declaration of its findings and its purpose in enacting the statute. It declared domestic violence to be “a serious crime against society” and stated its intent “to assure the victims of domestic violence the maximum protection from abuse the law can provide.” N.J.S.A 2C:25-18. To confront the problem of domestic violence, the Legislature provided a panoply of remedies, N.J.S.A. 2C:25-28, -29, and encouraged their “broad application.” N.J.S.A 20:25-18. We noted in Cesare v. Cesare, 154 N.J. 394, 399,
Because the presence of weapons can heighten the risk of harm in an incident of domestic violence, the statute contains detailed provisions with respect to weapons. An officer responding to a scene of domestic violence has “authority to seize any weapon that is contraband, evidence or an instrumentality of crime,” N.J.S.A. 2C:25-21(d)(l), and that officer must inquire whether there are weapons on the premises, N.J.S.A 2C:25-21(d)(l)(a). If an officer learns that weapons are present, the statute directs that any weapon the officer “reasonably believes would expose the victim to a risk of serious bodily injury” shall be seized, together with any firearm purchaser identification card or permit. N.J.S.A. 2C:25-21(d)(1)(b). The weapons are to be turned over to the county prosecutor, who, within forty-five days, may
Another portion of the statute deals with the issue of weapons when a plaintiff files a complaint, seeking the protection of a temporary restraining order and alerting the court that the alleged abuser may have weapons. In that situation, the trial court may order “the search for and seizure of any such weapon at any location [it] has reasonable cause to believe the weapon is located.” N.J.S.A 2C:25-28(j). In this matter, the search for and seizure of defendant’s weapons was conducted under this portion of the statute, N.J.S.A 2C:25-28(j), and not N.J.S.A 2C:25-21(d).
Defendant does not challenge the initial seizure of the weapons. Nor does he seek their return. Indeed, his attorney noted at the argument on his motion to suppress that defendant had conceded to forfeiture of the weapons. His argument, rather, is that items seized during the conduct of a domestic violence search cannot serve as the basis for a subsequent criminal prosecution for possession of those items. As we view the matter, resolution of defendant’s challenge turns on whether the illegal ñatee of the weapons was immediately apparent. That, in tarn, depends on whether the police, in checking the serial numbers of the weapons, conducted a further search, beyond that authorized by the domestic violence search warrant.
A.
Certain fundamental principles guide our consideration of these issues. Both the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution recognize the peoples’ right “to be secure in their persons, houses, papers, and effects” and require that any warrant authorizing a search be “supported by oath or affirmation” and describe with particularity the area that may be searched and what may be seized. Despite the similarity in language of the two documents, this Court has recognized that our own State Constitution “afford[s] [our] citizens greater protections than those afforded by its federal counterpart.” State v. Minitee, 210 N.J. 307,
A chief goal of both the federal constitution and our state constitution is to protect individuals against unreasonable intrusions into the home. State v. Cassidy, 179 N.J. 150, 159-60,
This Court has developed several exceptions to the general rule that a warrant based on probable cause must be issued prior to any search or seizure. Among these exceptions are items that are in plain view, State v. Bruzzese, 94 N.J. 210, 235-36,
Pertinent to this matter is the special needs exception, which is applicable when the search is conducted for reasons unrelated to law enforcement’s investigation and prosecution of criminal activity and furthers an important state interest. This Court has applied the special needs exception to the probable cause requirement in a variety of contexts. State v. O’Hagen, 189 N.J. 140,
B.
Both the trial court and the Appellate Division viewed this matter solely through the lens of the special needs exception. In addition, neither fully recognized that State v. Perkins, supra, the principal authority each court relied upon, arose under N.J.S.A 2C:25-21(d), rather than N.J.S.A. 2C:25-28(j).
In Perkins, the defendant’s wife called 9-1-1 and told the operator that her husband had struck her in the head with a telephone. 358 N.J.Super. at 154,
In its opinion, the Appellate Division recognized that the officers had conducted the search without obtaining any warrant. It traced the development of the special needs exception and noted that searches conducted under that exception “are permissible because they promote an important State interest and do not place the offender at additional risk because the results are not intended to facilitate a criminal prosecution.” Id. at 159,
Although the panel concluded that the officers had acted reasonably in the manner in which they had conducted their search and in seizing the weapons, it cautioned that the warrantless search “pass[ed] constitutional muster so long as the results are not used to facilitate a criminal prosecution.” Id. at 161,
[A]bsent, 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 notbased upon suspicion that a crime has been committed, but instead countenanced by a State interest, civil in nature, to protect potential victims____
Ubid.]
Perkins is thus distinguishable from the instant matter in at least three important respects. Here, the search was conducted only after W.J. gave sworn testimony that resulted in the issuance of a domestic violence warrant. Further, that testimony not only included statements with respect to defendant’s assaults upon her, but it also included the statement that defendant had, in fact, threatened to shoot her. Additionally, Perkins was decided before this Court decided Joye, supra, in which we upheld as constitutional random, suspicionless testing of high school students for drugs and alcohol, and O’Hagen, supra, in which we upheld, in the face of a constitutional challenge, the requirement that those charged or convicted of certain specified offenses supply a DNA exemplar. It cannot escape mention, moreover, that in O’Hagen we recognized specifically that the DNA sample could expose the donor to further criminal prosecutions, 189 N.J. at 159,
In State v. Dispoto, 189 N.J. 108,
Several troopers then met with the defendant’s estranged wife and told her they had learned that the defendant had tried to arrange to hire someone to kill her; they did not tell her that he had subsequently renounced such an idea. Id. at 115,
The trial court ultimately granted the defendant’s motion to suppress, finding that the defendant’s statement that the safe contained marijuana was taken in violation of the defendant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
We determined that the record did not support a conclusion of probable cause. We noted the lack of corroboration for the informant’s statements, as well as their contradictory nature. Id. at 122,
Dispoto did not hold as a matter of law that evidence seized under a domestic violence search warrant was not admissible in a subsequent criminal prosecution. Instead, its holding was limited to the following: an invalid domestic violence search warrant “may not be used as a bootstrap mechanism to obtain evidence to sustain issuance of a criminal search warrant.” Ibid. Here, by contrast, the domestic violence search warrant was entirely proper.
Further, we noted in Dispoto that “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.” Ibid. The record before us contains no such implication.
Having reviewed the general principles that govern this case, we turn to the core question presented in this appeal: whether the weapons recovered during the domestic violence search of defendant’s premises are admissible in defendant’s subsequent trial on charges of possessing those weapons. The answer to this question depends, in part, on whether the illegal nature of the seized weapons was immediately apparent or whether a further search was required to determine that illegality. Analysis of this question requires separate consideration of the various items that were seized. We turn first to the Colt Anaconda revolver.
D.
If the illegal nature of that revolver were immediately apparent, as if, for instance, the serial number had been defaced, no further search would be required to determine that the weapon was illegal. N.J.S.A. 2C:39-3(d); -9(e). We perceive no reason in logic or policy that would preclude prosecution of the holder of that weapon; no further invasion of a protectable privacy interest would occur as a result of that prosecution.
After oral argument, we requested supplemental briefing from the parties on whether the determination that the Anaconda revolver was a stolen weapon could be deemed a search for constitutional purposes. We have received and considered those briefs and are now satisfied that a check of the weapon’s serial numbers is neither a seizure nor a search.
We reach this conclusion for several reasons. Federal statutes require that every manufacturer and importer of firearms identify each firearm “by a serial number which may not be readily removed, obliterated or altered.” 26 U.S.C. § 5842(a). By state statute, every sale of a handgun shall be recorded by the retail dealer, with details with respect to the gun’s manufacturer, make, model, and serial number. N.J.S.A. 2C:58-2(b). The dealer must promptly provide the details of that sale, including the weapon’s serial number to the police, including the State Police superintendent. N.J.S.A. 2C:58-2(e); N.J.A.C. 13:54-3.14. Further, within thirty-six hours of any firearm being lost or stolen, the owner must report that fact to the police.
When a firearm is recovered in connection with a domestic violence incident, its serial number is entered into the National Crime Information Center (NCIC) Gun File. Access to this file is strictly limited and is obtained through New Jersey’s Criminal Justice Information System, which is administered by the Criminal Justice Information System Control Unit of the New Jersey State Police. A search of this database can reveal whether that particular weapon has been reported lost, stolen, or used in a crime. It is that search of this database that revealed that the Colt Anaconda revolver seized from defendant had been reported stolen.
Any discussion of the constitutional implications of cheeking the serial numbers of a particular item must acknowledge Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149,
Writing for the Court, Justice Scalia noted that while “the mere recording of the serial numbers did not constitute a seizure[,]” the moving of the stereo equipment constituted a search. Ibid. He continued that if the officer had “[m]erely inspected] those parts of the turntable that came into view during the [original] search [it] would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interests.” 480 U.S. at 325, 107 S.Ct. at 1152,
Here, by contrast, the serial number of a firearm is visible simply by looking at the weapon; there is no need to disassemble any portion of it to learn its serial number. Recording that number, pursuant to Hicks, did not constitute a seizure.
We must also consider whether the entry of that serial number into the NCIC system, and a review of the results, constitutes a search. We are satisfied it does not.
We perceive no principled distinction between a review of the serial numbers entered into the NCIC database and a check of the license plate numbers of a motor vehicle. If a motorist has no reasonable expectation of privacy in the numbers displayed on his automobile, a conclusion this Court has already reached, State v. Donis, 157 N.J. 44,
It is also appropriate to consider the purpose that undergirds the exclusionary rule. Almost inevitably, whether as the result of mistake, inadvertence, ignorance, or overzealousness, police can come into possession of evidence bearing on criminal activity without having complied perfectly with the constitutional requirement of probable cause. In response
We thus conclude that both the trial court and the Appellate Division erred when they held that the handguns seized from defendant should be suppressed.
E.
We turn finally to the seizure of the Cetme .308 caliber assault rifle and the large capacity magazines. We noted earlier that defendant’s motion to suppress was decided by the trial court without the presentation of testimony. This led the Appellate Division to conclude that it was unable to determine whether the officers executing this domestic violence search warrant knew immediately that these items were illegal to possess, and it remanded the matter to the trial court for that factual determination. Out of an abundance of caution, we concur in this approach.
N.J.S.A 2C:39-l(w) defines assault firearms. The record before us does not contain a description of the Cetme .308 rifle that was seized. It notes only that it contained one bullet in its chamber, which supports the charge of violating N.J.S.A. 2C:39-5(c)(2).
N.J.S.A 2C:39-1 does not list specifically a Cetme .308 within its list of prohibited weapons, but it does refer to a CETME G3. The statute also includes as a prohibited weapon any firearm “substantially identical to any of the firearms listed above.” N.J.SA 2C:39-l(w)(2). The record is silent whether the Cetme .308 seized from defendant is, in fact, a CETME G3 or whether it is immediately identifiable merely from visual inspection, as an automatic assault rifle.
N.J.S.A. 2C:39-l(y) defines a large capacity ammunition magazine as one “holding more than 15 rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm.” The indictment charges defendant with possessing five large capacity twenty-round magazines. But the record is silent as to whether the officers could recognize the illegality of these magazines simply by viewing them; for instance, were they packaged, and if so, did the packaging identify their illegal nature. The matter must be remanded to the trial court to answer these questions.
VIL
In closing, we comment briefly upon the views expressed by our dissenting
VIII.
So much of the judgment of the Appellate Division as affirmed the grant of defendant’s motion to suppress is reversed; so much of that judgment as remanded the matter for further proceedings is affirmed.
Notes
Although we have received a copy of the transcript of W.J.’s appearance, that transcript was not supplied to the court in conjunction with defendant’s suppression motion, nor was it supplied to the Appellate Division. We thus omit any reference to those proceedings in our opinion and confine our analysis to those items before the court at the time it decided defendant’s motion to suppress. Because we have disregarded this transcript, defendant’s subsequent motion to remand this matter for an evidentiary hearing to test the accuracy of W.J.’s testimony is dismissed as moot.
The parties, the trial court, and the Appellate Division draw no distinction between the Colt Anaconda and the Ruger P89. We do not address whether there is any evidential basis to admit the Ruger P89.
Dissenting Opinion
dissenting.
Protecting victims of domestic violence is a critically important societal concern. The Legislature has addressed that concern by passage of the Prevention of Domestic Violence Act of 1991, N.J.S.A 2C:25-17 to -35. However, the Domestic Violence Act, like all laws, must conform to the Constitution. The policy goals of the Domestic Violence Act can and must be achieved within the framework of the Constitution.
The Fourth Amendment protects against unreasonable searches and seizures and specifically provides that “no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV. Under our Fourth Amendment jurisprudence, the warrantless search of a home is presumptively unreasonable. State v. Frankel, 179 N.J. 586, 598,
Defendant seeks suppression of the guns as evidence in his criminal trial. A review of the record and the jurisprudence underpinning the special-needs doctrine leads me to the conclusion that the search in this case violated the Fourth Amendment’s probable-eause/warrant requirement, and therefore I would suppress the weapons seized from defendant’s home in this criminal case.
I.
Our jurisprudence mandates that a court find probable cause that an act of domestic violence occurred before the issuance of a temporary restraining order (TRO). State v. Dispoto, 189 N.J. 108, 120,
In State v. Johnson, 352 N.J.Super. 15, 39,
where there is reasonable cause to believe that, (1) an act of domestic violence has been committed by defendant, (2) the defendant possesses or has access to a firearm or other weapon enumerated in N.J.S.A. 2C:39-lr, and (3) defendant’s possession or access to that weapon poses a heightened or increased risk of danger to the victim, then issuance of a search warrant as authorized by N.J.S.A 2C:25-28j does not violate Fourth Amendment principles____
[Ibid, (emphasis added).]
Johnson did not cite any legal authority for setting a standard lower than probable cause for the issuance of a warrant to search a home for weapons. Significantly, in Dispoto, we specifically disapproved of the first prong of the Johnson standard, holding that “before a domestic violence temporary restraining order and accompanying search warrant can be issued, the court must find probable cause to believe that an offense of domestic violence has occurred.” 189 N.J. at 120, 121 n. 3,
However, it is clear that the probable-cause warrant requirement for the search of a home applies whether a search is conducted pursuant to a criminal investigation or some civil or administrative regulatory scheme. See Camara v. Mun. Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1732,
II.
A.
“[P]hysieal entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134,
I can find no exception to the warrant requirement — including the doctrine of special needs — that permits the issuance of
B.
The majority accepts, as a given, that the search of the home in this ease falls within the special-needs exception to the Fourth Amendment’s probable-cause requirement. Ante at 581-83,
The special-needs doctrine has been applied “‘in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” O’Connor v. Ortega, 480 U.S. 709, 720, 107 S.Ct. 1492, 1499,
Under the special-needs doctrine, the Supreme Court has upheld a warrantless search of a student’s property based on reasonable suspicion. T.L.O., supra, 469 U.S. at 341, 105 S.Ct. at 742,
Under the special-needs doctrine, prison searches have passed muster because of the lesser expectation of privacy that inmates have in a prison setting and because of the heightened need for security. Bell v. Wolfish, 441 U.S. 520, 557, 558-59, 99 S.Ct. 1861, 1883, 1884-85,
Also, a'warrantless search of an individual’s work area by a government employer based on reasonable grounds for suspicion of work-related misconduct was deemed permissible by the special-needs doctrine. O’Connor, supra, 480 U.S. at 725-26, 107 S.Ct. at 1502,
The United States Supreme Court has never invoked the special-needs doctrine to suspend the probable-cause/warrant requirement for the search of a home — where the privacy interests of the individual
In analyzing the constitutionality of N.J.S.A. 2C:25-28(j), on the one hand, we must consider the heightened privacy interests an individual possesses in his home, interests protected by the Fourth Amendment. On the other, we must consider the State’s purported special need to seize weapons from the home of an alleged domestic abuser. The Fourth Amendment “protects the right of the people to be safe within the walls of their homes, free from governmental intrusion.” Frankel, supra, 179 N.J. at 611, 847 A.2d 561. The Domestic Violence Act recognizes that “protecting] the life, health or well-being of a victim on whose behalf the relief is sought” is an important state and societal interest. See N.J.S.A. 2C:25-28(f). Simply because a search is conducted for some purpose other than normal criminal investigation purposes does not exempt the search from complying with constitutional requirements. See Chandler, supra, 520 U.S. at 318, 117 S.Ct. at 1303, 137 L.Ed.2d at 526 (finding alleged special need— drug-free candidates for office — not “important enough to override the individual’s acknowledged privacy interest”). The special need must “make the warrant and probable-cause requirement impracticable.” Vernonia Sch. Dist., supra, 515 U.S. at 653, 115 S.Ct. at 2391, 132 L.Ed.2d at 574 (quoting Griffin, supra, 483 U.S. at 873, 107 S.Ct. at 3167,
The protections afforded to alleged victims by the Domestic Violence Act will not likely be impaired by requiring a court to find probable cause before authorizing a search for weapons. N.J.S.A 2C:25 — 28(j) already requires that a warrant be issued before a weapons search. As previously mentioned, a court already must find “probable cause to believe that an offense of domestic violence has occurred” as a precondition to issuing a domestic violence temporary restraining order and accompanying search warrant. Dispoto, supra, 189 N.J. at 120, 121 n. 3,
It bears mentioning that N.J.S.A. 2C:25-28(j) allows for the search of any potential weapon, not just firearms. Thus, a warrant issued under the statute might include a search for and seizure of all knives and cutlery in the home. A search for weapons may be extremely expansive and intrusive, permitting officers to search every drawer or box in a home that may reasonably contain a weapon.
In our case, the search was executed by police officers pursuant to N.J.S.A. 2C:25-28(j). In most special-needs scenarios, searches are conducted by individuals other than law enforcement. See, e.g., Skinner, supra, 489 U.S. at 633, 109 S.Ct. at 1422, 103 L.Ed.2d at 670 (permitting
Accordingly, it appears to me that the heightened privacy interests at stake in the present case outweigh the State’s interest in dispensing with the constitutionally rooted probable-cause requirement. N.J.S.A. 2C:25-28(j) cannot be justified by the special-needs exception to the warrant requirement, as the State argues and majority concludes. Nor do I discern any other recognized exception that would permit dispensing with the probable-cause/warrant requirement.
The protections of the Fourth Amendment do not disappear merely because the term “special needs” is invoked. The search of a home is no less invasive to the individual if the purpose animating the search is prompted by a criminal investigation or domestic-violence-protection scheme. Today, under the banner of special needs, the majority crosses over the permissible bounds of the Fourth Amendment to uphold the search in this case.
III.
The constitutional deficiencies in New Jersey’s Domestic Violence Act become even more apparent when compared to similar laws around the country. Our State is certainly not alone in providing for the seizure of weapons or firearms from alleged domestic abusers — such provisions are commonplace among state domestic-violence statutes. See, e.g., Alaska Stat. § 18.66.100(c)(7) (2012); Ariz.Rev.Stat. Ann. § 13-3602(g)(4) (2012); Ind.Code § 34-26-5-9(e)(4) (2012); Md.Code Ann., Fam,. Law § 4-506(f) (West 2012); N.Y. Fam. Ct. Act § 842-a (McKinney 2012); N.C. Gen.Stat. § 50B-3.1 (2011). New Jersey, however, is different from other states because N.J.S.A 2C:25-28(j) authorizes the issuance of a warrant to search a defendant’s home without a showing of probable cause or an opportunity for the defendant to willingly surrender his weapons.
Only five states statutorily authorize the issuance of a search warrant for the seizure of firearms in conjunction with the issuance of a temporary or permanent restraining order. See Cal.Penal Code § 1524(a)(ll) (West 2012); Del.Code Ann. tit. 10, § 1045(a)(ll) (2012); Haw.Rev.Stat. § 134-7(f) (2012); Me.Rev. Stat. tit. 19-A, § 4006(2-A) (2012); N.H.Rev.Stat. Ann. §§ 173-B-4, 173-B-5 (2012). Of these states, four — California, Hawaii, Maine, and New Hampshire — first require that a defendant fail to comply with a firearm surrender mandate before a warrant may issue upon probable cause for the search of a home. Cal.Penal Code § 1524(a)(ll); Haw.Rev.Stat. § 134 — 7(f); Me.Rev.Stat. tit. 19-A, § 4006(2-A); N.H.Rev.Stat. Ann. § 173-B-4. Delaware is the only state with a comparable approach to our Domestic Violence Act’s weapons-search policy. However, even Delaware’s scheme requires more of a showing than what is required under N.J.S.A. 2C:25-28(j). Delaware’s statute expressly links the issuance of a search warrant to a showing that “Respondent has used or threatened to use a firearm against the petitioner, or the petitioner expresses a fear that the respondent may use a firearm against them.” Del.Code Ann. tit. 10, § 1045(a)(
N.J.S.A. 2C:25-28(j), by contrast, does not require that the search for and seizure of weapons be linked to a defendant’s gun use, threat of use, or potential for gun violence. But see Johnson, supra, 352 N.J.Super. at 39,
IV.
A.
As noted earlier, searches authorized under N.J.S.A 2C:25-28(j) do not fall under any well-established exception to the probable-cause/warrant requirement. To conform N.J.S.A. 2C:25-28(j) with the dictates of the Fourth Amendment, a probable-cause requirement must be imported into the statute. Domestic violence is undoubtedly a major societal concern, but it must be addressed within the bounds of the Constitution.
Probable cause for the seizure of weapons in the domestic-violence context would be somewhat different than the probable-cause standard used for a typical criminal search warrant. See Camara, supra, 387 U.S. at 539, 87 S.Ct. at 1736,
When a search is conducted pursuant to a warrant issued in accordance with the probable-cause requirement of the Fourth Amendment, the officers executing the warrant may seize not only the weapons identified in the warrant but any other contraband observed in plain view. The serial number on the face of the weapons seized in conformity with the Fourth Amendment may be checked; additional constitutional safeguards are not required because a registry cheek of the numbers does not constitute an impermissible search.
B.
In this case, the court issued a search warrant for defendant’s home without the requisite showing of probable cause. The trial court’s error is understandable; at the time, neither the statute nor our ease law required a probable-cause determination. While the underlying facts in this case may have been sufficient to support a finding of probable cause, no such finding was expressed. This Court may not make an after-the-fact probable-cause determination to substitute for the one not made by the trial court.
It bears mentioning that this Court has not turned a blind eye when parties have missed an unavoidable constitutional issue present in a ease. Just this term, in State v. Edmonds, 211 N.J. 117, 132 n. 6,
V.
On the basis of the record before the Court and the law as I understand it, defendant’s suppression motion is meritorious because the search was conducted without a finding of probable cause to support the warrant. I therefore would reverse the trial court and suppress the evidence as the product of an unconstitutional search.
I respectfully dissent.
For reversal in part/'affirmance in part/remandment — Chief Justice RABNER and Justices HOENS, PATTERSON and Judge WEFING (temporarily assigned) — 4.
For Dissenting — Justices LaVECCHIA and ALBIN — 2.