State v. Hemenway Guns Drugs, Domestic Violence search for weapons and criminal charges…. New Standard Announced

Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.

In this opinion the New Jersey Supreme Court has ordered Family Court judges issuing domestic violence restraining orders and domestic violence search warrants for weapons prohibited under New Jersey’s Prevention from Domestic Violence Act, establish on the court record probable cause based “upon a well grounded suspicion “.  In other words, the trial judge must take testimony from the victim of the domestic violence concerning fear for his/her safety and whether the defendant possesses guns drugs or other illegal substances before issuing a search warrant. The judge has to take into consideration the veracity, credibility, believability, of the complaining victim and any ulterior motive that victim may have to manipulate the domestic violence act and search warrant issues.

In this case State v. James Hemenway the court found that the Family Court judge issuing a restraining order and search warrant for weapons did not establish an adequate record validating any reasonable suspicion/well grounded suspicion of other criminal conduct. When the police were serving the restraining order and enter the home they did not have the appropriate suspicion that other criminal offenses were underway. As a result, the defendant’s initial motion to suppress the drugs found when the police enter the home before obtaining their telephonic warrant were to be suppressed.

What does this mean?  Previously when police were executing domestic violence are towards to search for weapons they often did not charge defendant with any other crimes arising out of their search, and merely seized weapons identified in the temporary restraining order. Now, if the police and or victim communicate other criminal activity it has to be brought to the restraining order judges attention in order for there to be factual basis for the judge to have that “well grounded suspicion “that there is other criminal activity and the search can be expanded beyond merely looking for the weapons identified in the restraining order.

Here is  summary of the entire case and rationale provided by the court. 

The Prevention of Domestic Violence Act (Domestic Violence Act or Act), N.J.S.A. 2C:25-17 to -35, empowers a judge to issue a temporary restraining order (TRO) to protect a victim of domestic violence and to enter an order authorizing the police to search for and seize from the defendant’s home, or any other place, weapons that may pose a threat to the victim. In this appeal, the Court considers whether the reasonable cause standard for the issuance of a domestic violence search warrant for weapons set forth in N.J.S.A. 2C:25-28(j) and a 2002 case is incompatible with the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution.

In June 2012, D.S. filed a domestic violence complaint against defendant James Hemenway and requested a TRO barring him from having contact with her and members of her family, as well as from possessing “firearms, knives, & [a Taser].” D.S. appeared before a Family Part judge, who asked: “[D]o you have a[n] awareness that he has any weapons?” When D.S. said “yes,” the court asked, “What kind of weapons do you claim he has?” D.S. replied, “Handguns, knives.” The court: “A handgun?” D.S.: “Knives, blades.” The court: “Handguns?” D.S.: “Switchblades.” D.S. stated that Hemenway kept those weapons in his three cars and his apartment. The court entered a TRO and authorized the issuance of a warrant to “search for and seize . . . handguns, knives, switchblades” from Hemenway’s home and three vehicles. The court did not articulate a reasonable cause or probable cause basis for believing that Hemenway possessed firearms or switchblades or that they would be found in the places to be searched.

On June 29, 2012, two Old Bridge police officers advised Hemenway outside his apartment that they possessed a TRO and a warrant to search his residence for weapons. The officers did not allow Hemenway to call his attorney, and Hemenway then refused their order to allow them entry to his apartment. Hemenway was arrested for obstructing the execution of the domestic violence warrant. Officers entered the apartment and observed what appeared to be marijuana and cocaine. Based on that discovery, a detective applied for and received a telephonic search warrant for the residence and the vehicles. The police searched and recovered drugs, bullets, and cash. No handguns or switchblades were found. Defendant was charged with four drug offenses.


The trial court denied Hemenway’s motion to suppress, concluding that the telephonic criminal search warrant application set forth probable cause for the issuance of a warrant to search Hemenway’s residence and that the domestic violence warrant provided an adequate and independent basis for the search of the vehicles. Hemenway appealed, challenging the validity of the domestic violence and telephonic search warrants. The Appellate Division affirmed the denial of Hemenway’s motion to suppress. 454 N.J. Super. 303, 307 (App. Div. 2018). The Court granted Hemenway’s petition for certification. 236 N.J. 42 (2018).

HELD: The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion.

  1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in nearly identical language, both guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” Whether a government official is armed with a criminal warrant or a civil or administrative warrant, physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Because a warrantless search is presumptively invalid, the burden falls on the State to demonstrate that the search is justified by one of the few specifically established and well-delineated exceptions to the warrant requirement. One principal exception to the warrant requirement, as applied to the search of a home, is the exigent circumstances doctrine, which allows warrantless entry if police officers possess an objectively reasonable basis to believe that prompt action is needed to meet an imminent danger. Entry into the home must be premised on a search warrant issued on probable cause or on an exception to the warrant requirement, such as consent or exigent circumstances. (pp. 14-18)
  2. The State claims that, under the special needs doctrine, a judicial order for the seizure of weapons under the Domestic Violence Act does not have to comport with the probable cause requirement. But neither the United States Supreme Court nor the Supreme Court of New Jersey has ever sanctioned the issuance of a warrant for the search of a home on less than probable cause under the special needs doctrine, except in the case of probationers. The special needs doctrine is applied in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. (pp. 18-20)


  1. The Domestic Violence Act provides access to both civil and criminal remedies and sanctions. One such remedy is to prevent a person judged to be a domestic violence abuser from having access to a weapon, including a firearm, which poses an imminent threat to a victim who has sought the protection of our courts. See N.J.S.A. 2C:25-28(j). The court is thus empowered to “order[] the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.” N.J.S.A. 2C:25-28(j) (emphasis added). (pp. 20-22)
  2. The language of the Domestic Violence Act, standing alone, lacks clear standards to guide a court in ordering a civil warrant for the seizure of weapons. Through judicial interpretation of the Act’s provisions, New Jersey courts have imposed standards to conform the Act to the Federal and State Constitutions. See State v. Johnson, 352 N.J. Super. 15, 20 (App. Div. 2002); see also State v. Dispoto, 189 N.J. 108, 120-21 (2007). In Johnson, the Appellate Division set a reasonableness standard rather than the traditional probable cause standard for its three-part test. 352 N.J. Super. at 19-20. In Dispoto, the Court disapproved of one part 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 (emphasis added). The validity of the two other parts of the Johnson standard and the constitutionality of N.J.S.A. 2C:25-28(j) are now squarely before the Court. (pp. 22-24)
  3. A search warrant for weapons under N.J.S.A. 2C:25-28(j) is a civil warrant aimed not at recovering evidence of a crime, but rather at seizing weapons that may pose an imminent risk to a domestic violence victim. But the Fourth Amendment and Article I, Paragraph 7’s prohibition against unreasonable searches and seizures and their command that warrants issue upon probable cause apply not only to criminal investigations but also to searches related to civil or administrative investigations. (pp. 24-26)
  4. The important goals of the Domestic Violence Act can be achieved within our constitutional scheme of ordered liberty. The sanctity of the home can be preserved while providing thorough safeguards to domestic violence victims. The Court notes that other jurisdictions have conformed their domestic violence statutory schemes to the Fourth Amendment and that N.J.S.A. 2C:25-28(j)’s authorization of a search warrant issued on less than probable cause apparently is unique to New Jersey. (pp. 26-29)
  5. The special needs doctrine has applied almost uniformly to those exceptional circumstances involving warrantless searches and seizures. In this case, a domestic violence victim appeared before a court seeking a TRO and a warrant to seize weapons from an alleged abuser. This is not an exceptional circumstance that renders the warrant and probable cause requirement impracticable. (pp. 29-30)


  1. In Johnson and Dispoto, the courts engrafted standards onto the spare language of N.J.S.A. 2C:25-28(j) to save it from a constitutional challenge. The standards that the Court adopts today will ensure that N.J.S.A. 2C:25-28(j) conforms to the Federal and State Constitutions, while safeguarding domestic violence victims. Before issuing a search warrant for weapons as part of a TRO under the Domestic Violence Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. One long-established definition for probable cause for a criminal search warrant is a well-grounded suspicion. As with any other search warrant, hearsay may be sufficient to establish probable cause, so long as there are facts which give the statement an appearance of trustworthiness. Courts can credit information received directly from a citizen source. Because domestic violence victims are often unrepresented, under considerable stress, in fear of their alleged abusers, and may have language barriers, courts must be patient and take the time necessary to make a complete record. The court should ask the victim questions that will elicit the victim’s basis of knowledge that the defendant possesses weapons and that the weapons will be found at a home or other location. Additionally, the court may make reasonable inferences and accredit trustworthy hearsay when establishing a victim’s basis of knowledge regarding the abuser’s ownership and location of weapons. (pp. 30-33)
  2. Applying those principles as well as the then-existing standards for issuing a domestic violence warrant, the Court finds that the search warrant issued here does not comport with the Fourth Amendment or Article I, Paragraph 7 of the State Constitution. The family court issued the search warrant for weapons based on a deficient record and without making the necessary findings to justify the warrant’s issuance. Therefore, the search of Hemenway’s home was unreasonable under the Federal and State Constitutions. All evidence derived from the search of his home, including the drugs and cash, must be suppressed based on the defective domestic violence warrant. The fruits of the unlawful search of the home were used to form the factual basis for the issuance of the criminal search warrants. Thus, the evidence secured from those searches must be suppressed as well. The Court reaches that conclusion not only based on the Fourth Amendment, but also, separately, based on Article I, Paragraph 7 of the State Constitution. Hemenway now has the option to withdraw his guilty plea in view of the order suppressing all evidence derived from the defective domestic violence warrant. (pp. 33-36)

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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