State v. Cassidy

• Decision Date: 30 March 2004
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Thomas A. CASSIDY, Defendant-Appellant.
• Court: New Jersey Supreme Court

843 A.2d 1132

179 N.J. 150

STATE of New Jersey, Plaintiff-Respondent, v. Thomas A. CASSIDY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued November 3, 2003.

Decided March 30, 2004.

Edward J. Zohn, Somerville, argued the cause for appellant.

Kristen M. Harberg, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney).

Justice LaVECCHIA delivered the opinion of the Court.

This criminal appeal has as its backdrop the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 (the Act), which authorizes the issuance of ex parte restraining orders with an accompanying warrant to search for weapons. Defendant Thomas Cassidy appeals the failure to suppress evidence seized from his home pursuant to a defective ex parte domestic violence temporary restraining order (TRO). The State concedes the invalidity of the ex parte TRO that issued, and thus, the question is whether weapons seized as a result of the search may be used in defendant's subsequent criminal prosecution for possession of illegal firearms.

I.

Briefly, the facts are as follows. Defendant was involved in a romantic relationship with Natalie DeGennaro from approximately February 1995 to February 1996. The two met while both worked at Newton Memorial Hospital—he as a security guard and she as an x-ray technician. Their relationship was volatile. According to DeGennaro, on multiple occasions defendant was verbally and physically abusive. When, in November 1995, she tried to break off the relationship, defendant threw her into a door at the hospital. Two further attempts to end the relationship were frustrated by defendant's insistence that DeGennaro "couldn't leave him."

DeGennaro finally ended the relationship after yet another physical assault. On February 15, 1996, defendant and a friend came to the hospital to see her while she was on duty. To DeGennaro, both appeared intoxicated. Defendant refused to leave when DeGennaro asked that he do so. Instead, he responded by placing his hand over her mouth and nose, and pushing her against a wall. When she tried to loosen his grip on her, defendant grabbed her by the neck and shoved her against the wall again. As a result, DeGennaro suffered physical and emotional injuries requiring medical treatment.

One month later, at the urging of her co-workers, DeGennaro reported the February 15th incident to the police. On March 13, 1996, at about 11:00 p.m., she called the Newton Police department from her place of work. Officer Neil Casey was dispatched to the hospital to speak to her. DeGennaro described to him how defendant had choked her and how she had fought to break free of his hold. She also told Casey that since February 15th, defendant from time to time had called the hospital's security officers to inquire whether she was on duty. During that same period defendant repeatedly asked her to resume their romantic relationship and told her that "if he can't have her, nobody's going to have her." The last of such telephone calls had occurred several nights before the evening of DeGennaro's March 13th report to the police. Also, defendant's last telephone call to co-employees to determine whether she was working had occurred two days before, although on that occasion he neither went to the hospital nor attempted to speak to her.

According to Officer Casey, DeGennaro was agitated and nervous during her conversation with him. As DeGennaro described defendant's actions, she became more and more upset. He also noted that she appeared genuinely fearful for her life because of defendant's statement that "if he can't have her, nobody's going to have her." Casey informed DeGennaro that she could seek a domestic violence restraining order. Accordingly, DeGennaro agreed to return with Casey to police headquarters to make such an application. There, in taking a statement from DeGennaro, Casey learned that defendant had several shotguns and pistols in his bedroom at his parents' Stillwater home where he resided. According to DeGennaro, some weapons were stored in a safe, and others were kept under defendant's mattress. A written statement incorporating that information was completed and signed by DeGennaro to support the complaint against defendant.

Officer Casey telephoned the municipal court judge to seek a TRO on an ex parte basis. During that telephone application, the judge spoke to both Casey and DeGennaro. However, the judge did not swear-in either individual nor did he administer an oath to either. The judge also did not tape or otherwise record the substance of his conversation with Casey and DeGennaro. Nonetheless, the record reveals that the judge determined that probable cause existed for issuance of an ex parte TRO. He instructed Casey to fill out the pre-prepared form order for a TRO and authorized the police to search for and seize weapons. We note that the warrant portion of the TRO, completed by Casey at the judge's instruction, contains a check-off at the line that directs defendant to turn over all weapons and permits to carry firearms. At that line, Officer Casey added language specifying the weapons as shotguns, pistols, and rifles. The record is unclear whether the judge specifically instructed Casey to add that language. Finally, the judge authorized execution of the TRO that night between 12:00 p.m. and 1:00 a.m. on March 14, 1996. Simultaneously, the judge issued a domestic violence complaint against defendant.

Officer Casey enlisted the assistance of the Stillwater Township police to serve the TRO on defendant and to seize his weapons. The officer and Patrolman Schetting arrived at defendant's residence at approximately 12:50 a.m. Defendant's father answered the door. They explained that a TRO had been issued against defendant, restraining him from any contact with DeGennaro, and further that they were required to seize defendant's weapons. After being awakened, defendant spoke with the officers and allowed them to follow him to a backroom where he kept a safe. Thirty-five firearms were retrieved from the safe.¹ The officers also observed several large magazines in the safe, but did not seize them. They explained that they believed that the requirements of the TRO would be satisfied by removal of the weapons. The officers also searched under defendant's bed and inside a footlocker, but neither location yielded any weapons. The next day, at Officer Schetting's request, defendant agreed to turn over the magazines not taken the previous night.

Defendant was charged subsequently with the criminal offense of simple assault based on the February 15, 1996, choking incident. He was convicted on February 4, 1997. Approximately one month later, the domestic violence complaint against him was amended to include that incident and, based on defendant's assault conviction, a final restraining order (FRO) was entered. When defendant's conviction was later reversed on appeal, the FRO was dissolved by order dated June 13, 2000.

While the domestic violence proceedings were unfolding, defendant was indicted on five counts of third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5f, and six counts of fourth-degree unlawful possession of a large capacity magazine, contrary to N.J.S.A. 2C:39-3j. Defendant moved to suppress the firearm evidence obtained as a result of the March 14, 1996, execution of the TRO. The motion court concluded that the TRO was invalid because it was based on unsworn telephonic testimony. Nonetheless, the court found the search to be valid because of the presence of exigent circumstances and, therefore, denied suppression. The court further commented that permitting a search and seizure on serving a domestic violence restraining order was consistent with the public policy intentions of the Act, and, moreover, that defendant had consented to the seizure of the magazines. Following a two-day trial, a jury convicted defendant of four counts of third-degree unlawful possession of a firearm, and six counts of fourth-degree possession of a large capacity magazine. He was sentenced to concurrent three-year terms of probation on all of the firearm convictions, and concurrent two-year terms of probation on each of the magazine convictions.

The Appellate Division affirmed the convictions in an unpublished decision. Although the court recognized the defective nature of the process related to the issuance of the TRO and accompanying search warrant, it reasoned that the purpose of the search was not to discover evidence of criminal wrongdoing. Rather, the search was undertaken in furtherance of the Act's intent to provide maximum protection to domestic violence victims. In that setting, the court concluded that the Act requires only a standard of reasonableness for the search. That standard is met when the ex parte domestic violence TRO and authorized search further the protective purposes underlying the Act. The court determined that that standard was met in this case and that, in any event, the search was justified under the emergency-aid exception to the warrant requirement.

We granted defendant's petition for certification, 175 N.J. 80, 812 A.2d 1111 (2002), and now reverse.

II.

In enacting the Prevention of Domestic Violence Act, the Legislature found and declared that domestic violence is more than an individual problem; it is an offense against society. N.J.S.A. 2C:25-18. The legislative findings recognize that domestic violence affects thousands of persons of all ages, sex, social and economic backgrounds, and ethnic origins. Ibid. To assure the safety of victims of domestic violence and that of the public, the Legislature declared its intention to authorize the maximum protection permissible under law. Ibid. Moreover, the Legislature stated its intent that relief be available promptly. Ibid.

Toward that end, the Act permits a domestic violence victim to apply for an emergency TRO...