State v. Johnson

• Citation: 940 A.2d 1185,193 N.J. 528
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Andre JOHNSON, a/k/a Andre Carter, Mazi Yazio and D. Madeo, Defendant-Respondent.
• Decision Date: 26 February 2008
• Court: United States State Supreme Court (New Jersey)

940 A.2d 1185

193 N.J. 528

STATE of New Jersey, Plaintiff-Appellant, v. Andre JOHNSON, a/k/a Andre Carter, Mazi Yazio and D. Madeo, Defendant-Respondent.

Supreme Court of New Jersey.

Argued September 25, 2007.

Decided February 26, 2008.

Mary E. MeAnally, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney).

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

Justice ALBIN delivered the opinion of the Court.

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution accord the highest degree of protection to privacy interests within the home. In this appeal, we must determine the validity of a warrantless search by police of a duffel bag within a home. The primary issue is whether, under the New Jersey Constitution, defendant had standing to object to the search of the bag after he disclaimed owning it in response to police questioning. A gun recovered from the bag was the key evidence presented against defendant in a prosecution for unlawful possession of a weapon.

The State argues that the search was constitutional because defendant abandoned the bag and thus surrendered any reasonable expectation of privacy he possessed in the property. Alternatively, the State contends that the police had probable cause to believe that the gun was in the home and exigent circumstances did not permit time to obtain a warrant. On the other hand, defendant submits that he has automatic standing to object to the search under State v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981). In particular, he states that the duffel bag was not abandoned property in a home where it had potential owners and that he did not lose standing merely because he did not incriminate himself by admitting to owning the bag. He also maintains that an ample number of police officers had secured the premises and that no exigency excused the failure to secure a telephone warrant before conducting the search.

The trial court held that the search was constitutional. The Appellate Division reversed and suppressed the evidence. We conclude that, despite his response to the police questioning, defendant did not lose his standing to challenge the search of a duffel bag that had other apparent owners. In addition, because of the absence of exigent circumstances, the police should have obtained a telephonic warrant from a judicial officer before searching the bag. We therefore affirm the Appellate Division's suppression of the evidence.

I.

A.

A Middlesex County grand jury charged defendant Andre Johnson in one indictment with third-degree unlawful possession of a

weapon, 2C:39-5(b), N.J.S.A. 2C:39-5(b), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3), and in a second indictment with second-degree possession of a weapon by a person previously convicted of a crime, N.J.S.A. 2C:39-7(b). In bifurcated trials, the second indictment being tried after the first, a jury found defendant guilty of all three crimes.¹ The trial court sentenced defendant to a seven-year term in state prison with a five-year period of parole ineligibility for possession of a weapon by a previously convicted person, to a concurrent term of four years with a two-year parole disqualifier for unlawful possession of a weapon, and to a concurrent term of eighteen months for hindering apprehension.

On appeal, the Appellate Division concluded that defense counsel's failure to file a suppression motion to contest the search constituted ineffective assistance of counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2Q52, 2064, 80 L.Ed.2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). State v. Johnson, 365 N.J.Super. 27, 37, 837 A.2d 1131 (App.Div. 2003), certif. denied, 179 N.J. 372, 845 A.2d 1254 (2004). The panel ordered the trial court to conduct a suppression hearing to determine whether the handgun admitted into evidence at defendant's trial was obtained as a result of a lawful search. Ibid. On remand, the trial court conducted a four-day hearing to decide the constitutionality of the contested search.

B.

At the hearing, the State presented the testimony of North Brunswick Public Safety Director Kenneth McCormick, who at the time of the search was a North Brunswick police sergeant, and North Brunswick Patrolman Scott Henry.

In response to a report of domestic violence, Officer Henry was dispatched to the apartment of Amanda Glover in North Brunswick, arriving at approximately 9:24 a.m. on December 8, 2001. Earlier that morning, Ms. Glover filed a domestic violence complaint against Johnny Holloway Jr. (Holloway), her boyfriend, who had threatened her with a gun and knife after she returned home from a holiday party. As a result of that incident, warrants were issued for the arrest of Holloway for assault and terroristic threats. At the time, Holloway also had an outstanding arrest warrant for a traffic offense.

On arriving at Glover's apartment, Officer Henry spoke with her nine-year-old son, who was home alone. The young boy told the officer that, earlier, Holloway had banged on the front door of the apartment while holding a .45 caliber handgun. When Ms. Glover returned to the apartment soon afterwards, she was speaking on her cell phone with Holloway. Although Holloway would not tell her where he was, she could hear Holloway's father in the background. She told Officer Henry that she believed that Holloway had called her from his father's apartment in North Brunswick.

After reporting that information to his supervisor, Sergeant McCormick, Officer Henry proceeded to John Holloway Sr.'s apartment, where he met Sergeant McCormick and three other North Brunswick patrolmen. Once they were assembled, Officer Henry knocked on the ground-floor door to the apartment, which was located on the second floor. Holloway Sr. answered, and the officers explained that they had a warrant to arrest his son. Holloway Sr. told the officers that his son was in the bathroom. At the officers' request, .he gave permission for them to enter his residence to make the arrest and agreed to remain outside the apartment for Ms safety.

With their weapons drawn, the officers walked up the apartment stairs and entered an open living room with a dining are and kitchen off to the left, and a bathroom straight ahead. Sergeant McCormick remained in the living room, keeping an eye on Mrs. Holloway, a child, and defendant Johnson, who was behind the dining room table, talking on the telephone. Officer Henry and the patrol officers went directly to the bathroom, where they arrested Holloway and looked without success for the gun. Officer Henry brought Holloway to the living room, where he was frisked and handcuffed. Holloway was then led downstairs and placed in the back of a patrol car.

In the meantime, in the living room, police officers placed Mrs. Holloway and the child on a couch while Sergeant McCormick, with his gun still drawn, repeatedly asked defendant to get off the telephone. After defendant failed to comply, the sergeant pulled the phone out of defendant's hand and quickly patted `him down. Defendant was dressed only in boxer shorts and, a t-shirt.

Defendant was not a stranger to' Sergeant McCormick. In addition to knowing of defendant's criminal history, Sergeant McCormick had been involved in an arrest of defendant that led to a conviction—a conviction later overturned by this Court. State v. Johnson, 168 N.J. 608, 775 A.2d 1273 (2001). At the time of the present encounter, defendant had a pending civil rights suit against Sergeant McCormick and other North Brunswick officials.

When Sergeant McCormick asked defendant why he was in the apartment, defendant replied that he was visiting. Defendant then questioned whether McCormick had a warrant to search the residence. Sergeant McCormick explained that they had arrest warrants for Holloway in a matter involving a gun and that defendant would, have to leave the apartment for about thirty minutes while the police "conducted [their] business." Defendant somewhat grudgingly agreed to leave after he "gather[ed] his things."

The area where defendant stood was surrounded by some boxes as well as black plastic garbage bags that appeared to contain clothing. Defendant put on a pair of pants and boots that he retrieved from a nearby walk-in closet. He then picked up a small cardboard box, about the size of a cigar box, and placed it inside an empty red, white and blue duffel bag. He also picked up a larger box containing a DVD or VCR player and placed it under one of his arms. With the duffel bag in one hand and the larger box in the other, he began to walk from around the dining room table. At that point, Sergeant McCormick stopped defendant and asked, "[A]re those items yours?" Defendant "looked at [McCormick] with a blank stare," and "mumbled, `yes." Defendant then eyed "the gym bag in his hand as if he was surprised it was" there. He looked back at Sergeant McCormick and said, "[T]hese aren't mine. These aren't mine. That's not my bag."

Sergeant McCormick next inquired why defendant had put the cardboard box in the duffel bag and had tried "to leave with it" if it was not his. Defendant responded, "I don't know whose stuff this is." Sergeant McCormick then asked Holloway Sr., who had returned to the apartment, "Do you know whose stuff this is?" Holloway Sr. stated that he did not.

After that response, Sergeant McCormick grabbed the duffel bag from defendant's hand, opened it, and pulled out the cardboard box. When he looked in the box, Sergeant McCormick found a loaded .45 caliber Ruger handgun.² Defendant was then placed under arrest.

In his testimony, Sergeant McCormick maintained that he seized and then searched the duffel bag because his "suspicions were heightened" by defen...