State v. K.P.S., A-82 September Term 2013, No. 073307.

• Decision Date: 22 April 2015
• Docket Number: No. A-82 September Term 2013, No. 073307.,A-82 September Term 2013, No. 073307.
• Citation: 112 A.3d 579,221 N.J. 266
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. K.P.S., Defendant–Appellant. State of New Jersey, Plaintiff–Respondent, v. Carmini Laloo, Defendant.
• Court: New Jersey Supreme Court

221 N.J. 266

112 A.3d 579

STATE of New Jersey, Plaintiff–Respondent

v.K.P.S., Defendant–Appellant.

State of New Jersey, Plaintiff–Respondent

v.Carmini Laloo, Defendant.

No. A-82 September Term 2013, No. 073307.

Supreme Court of New Jersey.

Argued Jan. 21, 2015.

Decided April 22, 2015.

John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Brian J. Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General of New Jersey, attorney).

Opinion

Justice ALBIN delivered the opinion of the Court.

Defendant K.P.S. and co-defendants, Peter Lisa and Carmini Laloo, jointly moved to suppress evidence that they claimed was seized during the unconstitutional search of a residence.¹ After a joint suppression hearing, the trial court denied their motions. Different Appellate Division panels heard the appeal filed by Lisa and the appeals filed by defendant and Laloo. One panel affirmed Lisa's conviction and the trial court's suppression ruling. Afterwards, a second panel affirmed defendant's and Laloo's convictions but declined to consider their challenge to the validity of the search based on the “law of the case” doctrine. The second panel determined that the “law of the case” precluded defendant and Laloo from receiving an independent, “second review of the suppression issues.”

We now reverse.² The “law of the case” doctrine was not intended to deny a defendant the opportunity to be heard on his separate appeal, even if the co-defendant unsuccessfully raised the same issue on the same record. The “law of the case” for the co-defendant could not be binding in defendant's case because the co-defendant was not a proxy for defendant. The appeals of the co-defendant and defendant were independent of each other. Defendant had the right on his direct appeal—an appeal guaranteed by the New Jersey Constitution, N.J. Const. art. VI, § 5, ¶ 2 —to raise different arguments, to emphasize different parts of the record, and to bring to the second panel's attention case law that might not have been considered by the first panel. The second panel was not bound to follow the first panel if it had erred. Above all else, defendant had a due process right to be heard.

We remand to the Appellate Division to review anew defendant's appeal on the suppression issue and independently assess his arguments. Although the panel hearing this matter may consider the legal reasoning of the first panel, it is not bound to reach the same result unless it finds that the first panel's reasoning is persuasive.

I.

A.

Defendant was charged in a Bergen County indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14–2(a)(1) ; three counts of second-degree sexual assault, N.J.S.A. 2C:14–2(b) ;³ fourth-degree child abuse, N.J.S.A. 9:6–3 ; five counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a), N.J.S.A. 2C:24–4(b)(3), and N.J.S.A. 2C:24–4(b)(4) ; and first-degree conspiracy to commit aggravated sexual assault, sexual assault, and/or endangering the welfare of a child, N.J.S.A. 2C:5–2. Lisa and Laloo were named as co-defendants in the indictment and charged with many of the same offenses as well as a number of additional ones.

The charges against the three co-defendants arose from evidence discovered by the police during a series of searches of Lisa's residence—a home owned by Lisa's mother. The three co-defendants jointly filed a motion to suppress, claiming that the evidence seized during those searches was in violation of their rights under the United States and New Jersey Constitutions.⁴ The trial judge held a motion-to-suppress hearing. The State presented no testimony at the hearing and instead relied on the search warrants and supporting affidavits to justify the lawfulness of the searches. Defendants presented the testimony of Lisa's mother, who disputed the State's version of whether and when she gave consent to search her home.⁵

The following evidence was developed at the suppression hearing. On December 17, 2007, officers of the Paramus Police Department conducted a search for weapons at Lisa's home—a search authorized by a domestic violence temporary restraining order that provided for the seizure of weapons. During the search, the police seized guns, some of which they later learned were stolen. The police also observed in the garage a motorcycle trailer that fit the description of a trailer reported as stolen. Other evidence uncovered supported a theory that Lisa was involved in burglaries. Additionally, while conducting the search, the police saw Lisa in his bedroom quickly and suspiciously turning off his computer.

According to Lisa's mother, she did not give her consent to the police to conduct a further search of the garage to view the trailer later that evening—despite the presence of her signature on a consent-to-search form dated December 17, 2007, at 9:50 p.m. Rather, she testified that she signed the consent-to-search form the next morning at 9:50 a.m.

On December 18, 2007 and January 8, 2008, the police executed two search warrants on Lisa's home, seizing the motorcycle trailer and other purportedly stolen items as well as Lisa's computer, a camcorder, videotapes, and digital photo flash cards. The evidence revealed that Lisa, Laloo, and defendant engaged in illicit sexual activities with defendant's minor son.

In a written decision, the trial court denied the motion to suppress, finding that probable cause supported the issuance of the warrants and that the items seized from Lisa's home were described with sufficient particularity in the warrant.

B.

In accordance with a plea agreement with the State, defendant pled guilty to one count of first-degree aggravated sexual assault. The court sentenced defendant to a fifteen-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43–7.2(a), to be followed by a five-year period of parole supervision, N.J.S.A. 2C:43–7.2(c). The court also imposed community supervision for life and ordered that defendant comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7–2. Last, defendant was assessed the requisite fees and penalties.

Lisa and Laloo also entered guilty pleas to first-degree aggravated sexual assault, pursuant to plea agreements with the State, and were sentenced to state prison terms.

II.

A.

Defendant, Lisa, and Laloo appealed their sentences and the denial of their suppression motions. See R. 3:5–7(d) (stating that denial of motion to suppress evidence from allegedly unlawful search “may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty”). Lisa's appeal and defendant and Laloo's appeals were heard by two different panels of the Appellate Division.

On April 15, 2011, the panel that heard Lisa's appeal issued an unpublished opinion affirming both the denial of the suppression motion and Lisa's sentence. It rejected Lisa's argument that the purported failure to obtain his mother's consent to search on the evening of December 17, 2007, vitiated the police searches of the home with lawfully issued warrants afterwards. The panel acknowledged that the trial court did not make any finding whether Lisa's mother had given her consent for the police to enter the garage a second time after the initial weapons search. Nevertheless, it concluded that the minor information learned from the second garage entry comprised “but a small part of the probable cause [the police] presented to the issuing judge” for the December 18, 2007 warrant.

The panel noted that because warrants are presumed to be valid, Lisa had the burden of demonstrating the unlawfulness of the search, citing State v. Sullivan, 169 N.J. 204, 211, 777 A. 2d 60 (2001). It concluded that Lisa did not establish that the December 18 warrant was issued based on false statements of material facts made by the police or that the items seized, particularly the videotapes and flashcards, were outside the scope of the warrant. It also found no support for Lisa's assertion that his counsel represented him ineffectively at the suppression hearing. Last, the panel affirmed Lisa's sentence.

We denied Lisa's petition for certification. State v. Lisa, 208 N.J. 371, 29 A. 3d 743 (2011).

B.

In an unpublished opinion, a different Appellate Division panel decided the appeals of defendant and Laloo, affirming the denial of the suppression motion and their sentences.⁶ Defendant and Laloo raised essentially the same search-and-seizure issues advanced by Lisa in his appeal. This panel resolved the issues concerning the validity of the search based on “law of the case.” It reasoned that there was no need to discuss the matters already decided in Lisa's appeal because it was reviewing “the same trial court decision issued after the same evidentiary hearing, and the controlling law has not changed.” The panel held that “[t]he law of the case doctrine precludes a second review of the suppression issues raised by [defendant and Laloo].” It added that its “reliance on [its] prior decision in Lisa's appeal as the law of the case is particularly compelling as these defendants' objections to the search stem from Lisa's right to privacy in Lisa's home.”

Last, the panel rejected defendant's and Laloo's challenge to their sentences.

C.

Defendant petitioned for certification on the issues he raised before the Appellate Division and, additionally, argued that the panel erred in invoking the law-of-the-case doctrine to resolve his appeal. We granted certification on one issue: whether the law-of-the-case doctrine precluded defendant's appellate panel from considering anew the issues that had been decided earlier by his co-defendant's panel. State v. K.P.S., 217 N.J. 301, 88 A. 3d 932 (2014).

III.

A.

Defendant contends that the Appellate Division panel erred in declining to review his arguments based on the opinion rendered by the Lisa panel....