In State v. Raimondo at the trial level, the defendant was convicted of third-degree terroristic threats, N.J.S.A. 2C:12-3a (count one); fourth-degree possession of an illegal butterfly knife and/or a switchblade, N.J.S.A.2C:39-3e (count two); a fourth-degree certain persons weapons offense, N.J.S.A.2C:39-7a (count three) and petty disorderly persons offense of harassment. The case arises out of a domestic violence call. On or about April 22, 2010, the defendant and his wife had a verbal argument that resulted in defendant’s wife seeking a temporary restraining order (TRO) when the defendant threatened he was going to ‘shoot his wife.’ The arrest and weapons seized resulted from a search for the alleged gun the defendant was to shoot his wife with. The TRO search revealed two rifle rounds, a butterfly knife and a switchblade. The knives were found in a box against the wall with a pile of other boxes with either a ‘knife’ label or picture thereon. Prior to trial the defendant’s motion to suppress the knives found from the TRO search was denied. He was subsequently convicted of these weapons offenses.
On appeal the Appellate Court reversed the weapons convictions based on several errors of the trial court. The Appellate Division found the search violated N.J.S.A. 2C:25-28j and Article I, paragraph 7 of the New Jersey Constitution and the Fourth Amendment of the United States Constitution that require “probable cause.” The court further relied upon State v. Masculin, 355 N.J. Super. 250 (Ch. Div. 2002), which established the immediate apparent illegality doctrine. The court’s inquiry addressed whether, when the officer seized the box with the weapons in them, was it ‘immediately apparent’ to that officer that the weapons were illegal. Id. at 586-87. The court ruled that, based on the record, the State failed the “immediately apparent” test and the trial court should have suppressed the weapons. The second plain error requiring reversal was the jury charge on terroristic threats. The Appellate Court determined when the trial court included “kicking” and “punching” in the same charge as “shooting” and “killing” the jury was allowed to convict the defendant of terroristic threats to commit a simple assault.
This decision by the Appellate Division reaffirms that search and seizure of weapons under a domestic violence warrant limits evidence in a subsequent criminal trial to the “immediately apparent or whether a further search was required to determine illegality” as established in Harris. State v. Harris, 211 N.J. 566, 587 (2012). The record in State v. Rainmondoindicates the police were looking for guns, not knives and unsure if the knives were illegal. The knives found in Defendant Raimondo’s residence were not immediately apparent to the police and therefore not admissible in the subsequent criminal which was unrelated to the search for a gun which was the sole basis of the TRO and TRO search.
Pubished by domestic violence criminal lawyer, Jeffrey Hark.