State v. Hemeway Appellate Division April 16, 2018 Restraining Order Search Warrant issue

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

The key to this case is the good faith review of the facts presented to the family court judge at the time the temporary restraining order (TRO)  is signed and put into effect. Although the alleged victim lied about the facts and circumstances surrounding any domestic violence and or “relationship” between the parties, the judge relied upon those facts in good faith when the temporary restraining order was issued. As a result, based on the liberal interpretation of the Prevention of domestic violence (PDVA) restraining order statute the police were lawfully authorized, again based on the temporary restraining order which also included a search of the defendant home and vehicle for weapons, to go to the defendant’s home and later car to execute the search warrant in good faith. I have previously written that what the police to see in the plain view during their lawful search can be the basis of a criminal charge.

Here is the defendant tried to argue that the basis of the TRO and the warrant were tainted by the lies provided to the judge. Unfortunately, because the court and the police were acting in good faith, the police were lawfully in the position to search the home for weapons and observed the illegal drugs in plain view. When the police observe this, the police stopped at obtained an additional search warrant to search the rest of the house for other illegal drug activity.  The take away from this case is the fact that your boyfriend, girlfriend, significant other, can provide lies upon which the court will rely upon if they believe domestic violence is taking place. Once the temporary restraining order is signed the liberal broad scope of the search for weapons will authorize the police to be in the residence and lawfully allowed to view any other criminal activity with impunity.

The Prevention from Domestic Violence Act in New Jersey has been lawfully construed authorizing the police to enter a home to search for weapons in order to protect victims of domestic violence. The burden of proof is merely “by a preponderance of the evidence“. As a result, the legislature has created police authorize conduct to enter a home to search for weapons to protect victims which can be manipulated by what is told to the judge at the initial  restraining order hearing. The problem is the one sided testimony provided in order to obtain a temporary restraining order, not subject to cross-examination, enables a alleged victim to possibly mislead the court. That’s what happened here. The subsequent conduct of the police becomes insulated by the good faith and lawful conduct of the police authorized by the search warrant for weapons.

The Court opinion regarding these issues are as follows: “The Supreme Court has “liberally construed” the PDVA to achieve these purposes. In re F.M., 225 N.J. 487, 509 (2016) (citing Cesare v. Cesare, 154 N.J. 394, 400 (1998)). As codified by the Court in Rule 5:7A, a plaintiff seeking domestic violence emergency relief must testify in person before the Family Part judge or submit a sworn complaint setting forth her allegations. In order to justify the Family Part’s issuance of a search warrant, a plaintiff must establish: (1) probable cause to believe the defendant has committed an act of domestic violence; (2) reasonable cause to believe the place identified in the warrant contains a qualifying weapon under N.J.S.A. 2C:39-1(r); and (3) reason to believe a defendant’s access to the weapon poses a “heightened risk of injury.” See N.J.S.A. 2C:25-28(j); State v. Dispoto, 189 N.J. 108, 120–21 (2007); State v. Cassidy, 179 N.J. 150, 164 (2004).

When a Family Part judge orders emergent relief, he or she is required to “state with specificity the reasons for and scope of any search and seizure authorized by the order.” N.J.S.A. 2C:25-28(j). The PDVA directs that any ex parte order “shall immediately be forwarded to the appropriate law enforcement agency” and shall “immediately be served upon the defendant[.]” N.J.S.A. 2C:25-28(l). Furthermore, any restraining order issued pursuant to the PDVA “shall be in effect throughout the State, and shall be enforced by all law enforcement officers.” N.J.S.A. 2C:25-28(p).

We have described “reasonable cause” as “a more relaxed standard than probable cause[,]” and as “akin to ‘reasonable suspicion[.]'” State v. Perkins, 358 N.J. Super. 151, 159 (App. Div. 2003) (citing State v. Arthur, 149 N.J. 1, 8 (1997)). To establish reasonable cause, a police officer “must be able to ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'” Id. at 160 (alteration in original) (quoting State v. Citarella, 154 N.J. 272, 278 (1998)).

In Dispoto, the Court held that “[t]o sustain the validity of the domestic violence search warrant that issued against [the] defendant, probable cause must have existed to believe that [the] defendant committed the offense of terroristic threats. Specifically, there must have been probable cause to believe that defendant made a threat against his wife.” Dispoto, 189 N.J. at 122. Here, the domestic violence complaint D.S. filed against defendant and her sworn testimony before the Family Part judge in support of her application for a TRO is consistent with the violent encounter she described in a typewritten statement attached to her domestic violence complaint.

The Court’s discussion in Cassidy is particularly relevant here. We will briefly recite the salient facts of Cassidy to provide context to our analysis. At the urging of her friends, the victim of domestic violence reported the alleged incident of domestic violence to the police one month after the incident allegedly occurred. Cassidy, 179 N.J. at 154. The police officer who responded “telephoned the municipal court judge to seek a TRO on an ex parte basis.” Id. at 155. The judge “spoke” to both the victim and the police officer, but did not swear-in either one, as required under N.J.R.E. 603. Ibid. The judge did not record his “conversation” with these two putative witnesses. Ibid. Despite these deficiencies, the judge found “probable cause” to issue an ex parte TRO under the PDVA and instructed the police officer “to fill out the pre-prepared form order for a TRO and authorized the police to search for and seize weapons.” Ibid.

The Court in Cassidy noted “that the warrant portion of the TRO” was completed by the police officer “at the judge’s instruction[.]” Ibid. The warrant contained “a check-off at the line” that directed the defendant “to turn over all weapons and permits to carry firearms.” Ibid. The police officer added language specifying the weapons as shotguns, pistols, and rifles. The record is unclear whether the judge specifically instructed [the police officer] to add that language. Finally, the judge authorized execution of the TRO that night . . . Simultaneously, the judge issued a domestic violence complaint against defendant. Although the Cassidy Court acknowledged that the PDVA authorizes a judge to issue a TRO without the applicant being physically present at the court, it emphasized that such relief must be supported by “sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules.” Id. at 158 (quoting N.J.S.A. 2C:25-28(h)). In light of this material deviation from the requirements of the PDVA, the Court held that “although the warrant to search [the] defendant’s home arose in the context of a domestic violence restraining order, for all intents and purposes it is a telephonic warrant and for purposes of a criminal prosecution must be judged by those standards.” Id. at 159.

The material facts here stand in sharp contrast to the ad hoc approach the Court found wanting in Cassidy. D.S. completed and filed the domestic violence complaint against defendant on June 28, 2012, the day after the violent incident. The complaint contains her sworn statement describing defendant’s violent invasion of her home as well as the altercation that ensued after defendant forced himself through the window, causing the air conditioner to fall to the ground. Once inside, defendant physically assaulted her and her mother, and threatened to mutilate D.S.’s face with acid. D.S. testified under oath before the Family Part judge who issued the TRO. This testimonial evidence provided specific evidence to substantiate the predicate offenses identified in the domestic violence complaint. D.S. also described under oath the various weapons defendant had in his possession, including a handgun, a knife, and a switchblade. D.S. also provided defendant’s home address and identified three motor vehicles defendant owned or had access to, that had hidden compartments to store weapons.

Officer Ward testified that defendant’s counsel was aware of the TRO and instructed defendant to report to the police station to accept service. Ward responded to defendant’s residence as directed by the Family Part to serve defendant and execute the search warrant. Despite the officers’ attempt to execute a facially valid warrant, defendant refused to permit the officers to enter his apartment. The Criminal Part judge found Officer Ward’s testimony concerning these events credible.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment