State v. Hemenway
| Decision Date | 24 July 2019 |
| Docket Number | 081206,A-19 September Term 2018 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. James HEMENWAY a/k/a James A. Hemenway and Jason Payne, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Edward C. Bertuccio argued the cause for appellant (Kalavruzos, Mumola, Hartman & Lento, attorneys; Edward C. Bertuccio and W. Les Hartman, of counsel and on the brief, and Jessica A. Wilson, Hamilton, on the brief).
David M. Liston, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the briefs).
Frank Muroski, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Frank Muroski, of counsel and on the brief).
Ronald K. Chen argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Rutgers Constitutional Rights Clinic Center for Law and Justice and American Civil Liberties Union of New Jersey Foundation, attorneys; Jeanne LoCicero and Alexander Shalom, of counsel and on the brief, and Ronald K. Chen, Trenton, on the brief).
No principle is more firmly rooted in our Federal and State Constitutions than the right of the people to be free from unreasonable searches of their homes. That constitutional commandment compels the police to secure a warrant based on probable cause before entering and searching a home, unless exigent circumstances justify suspending the warrant requirement. All statutes must conform to that fundamental constitutional principle.
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. The issue here is that the Domestic Violence Act permits a judge to enter the order for the seizure of weapons from a home on less than probable cause. N.J.S.A. 2C:25-28(j).
In this case, based on the victim's written domestic violence complaint and testimony, the court issued a TRO against defendant James Hemenway and entered an order for the seizure of certain weapons, such as handguns, from his home and cars. The court, however, did not make the requisite probable cause finding mandated by our constitutional jurisprudence to justify the search. In executing the domestic violence search warrant, the police uncovered not guns but drugs, which led to Hemenway's arrest and prosecution for drug offenses.
Following the dictates of the Act, the trial court denied Hemenway's motion to suppress evidence related to the drug offenses found in his home and cars, and the Appellate Division affirmed.
Combatting domestic violence is an important societal and legislative goal. However, the Domestic Violence Act's standard for the issuance of an order for the search for weapons, particularly in a defendant's home, cannot be squared with the probable cause requirement of our State and Federal Constitutions. Accordingly, we now hold that the beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms.
The Act can be conformed to those constitutional norms and still fulfill its protective purpose. We therefore shall require that, 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," see N.J.S.A. 2C:25-28(f) ; 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.
In this case, we must reverse the denial of Hemenway's motion to suppress because the domestic violence warrant issued to search his home and cars was not based on the Constitution's probable cause requirement or even the lesser reasonable cause requirement. We therefore remand to the trial court for proceedings consistent with this opinion.
Hemenway was charged in a four-count indictment with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) ; first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(1) ; fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) ; and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11). The police discovered drugs while searching Hemenway's home for weapons pursuant to an order -- the equivalent of a warrant -- entered as part of a domestic violence TRO. Based on that discovery, the police secured a criminal search warrant for Hemenway's home and cars and seized drugs and drug-related evidence from both places.
Hemenway moved to suppress the evidence seized from his home and cars, challenging both the validity of the domestic violence warrant to seize weapons and the later-issued criminal search warrant. The trial court conducted a three-day suppression hearing. Our review of the record is limited to the events surrounding the issuance of the domestic violence TRO and the related order to seize weapons from Hemenway's home and cars.
On June 28, 2012, D.S. filed a domestic violence complaint in the Union County Courthouse alleging that Hemenway committed the offenses of assault, terroristic threats, criminal mischief, criminal trespass, and harassment. She claimed that they had a previous dating relationship.1 In the complaint, D.S. contended that on June 27, Hemenway entered her apartment unannounced through the living room window, damaging the air conditioner. After directing a volley of "foul language" at her, Hemenway pushed D.S., causing her to fall. When D.S.'s mother intervened, Hemenway punched and scratched the mother. D.S. further alleged that Hemenway attempted to strangle her, threatened to kill her and her family, threatened to have someone throw acid on her face, and shocked her with a Taser gun. At the end of this violent confrontation, Hemenway sat on a couch next to D.S., apologized, and said he loved her.
According to D.S.'s complaint, the next morning, on June 28, she and Hemenway met in a bank parking lot. There, she gave Hemenway money, and he threatened,
In the domestic violence complaint, D.S. requested a TRO barring Hemenway from having contact with her and members of her family and possessing "firearms, knives, & [a Taser]." D.S. appeared before a Family Part judge and recounted some of the events described in her complaint. Through a translator, D.S. had the following exchange with the court concerning weapons possessed by Hemenway:
D.S. stated that Hemenway kept those weapons inside special compartments in his three cars and in his apartment. The court did not follow up when D.S. was unresponsive to questions about whether Hemenway possessed handguns and did not ask how she knew that Hemenway possessed the weapons she described.
The court did not articulate a 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. Purportedly for safety reasons, 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 authorizing the officers to search his residence. See N.J.S.A. 2C:29-9(b). One of the officers searched Hemenway incident to his arrest and secured keys to the apartment.
An Old Bridge police sergeant arrived at the scene and accompanied one of the officers already present into the apartment.
They immediately detected a "distinctly strong odor of raw marijuana." During a protective sweep of the apartment, the officers observed what appeared to be marijuana in a jar in the living room and cocaine in a large freezer-style bag in the bathroom. A detective dispatched to the scene photographed the suspected drugs, as well as cash found in the bedroom. The police then impounded two of Hemenway's vehicles.
Based on the drugs discovered in the apartment, the detective applied for and received a telephonic criminal search warrant for the residence and the vehicles. The police searched and recovered forty-six items in all, including the marijuana and cocaine observed in the apartment, five hollow-point thirty-eight-caliber...
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