State v. Lentz

• Decision Date: 16 March 2020
• Docket Number: DOCKET NO. A-4554-18T4
• Citation: 229 A.3d 536,463 N.J.Super. 54
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Trey I. LENTZ, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

463 N.J.Super. 54

229 A.3d 536

STATE of New Jersey, Plaintiff-Appellant,

v.Trey I. LENTZ, Defendant-Respondent.

DOCKET NO. A-4554-18T4

Superior Court of New Jersey, Appellate Division.

Argued November 20, 2019

Decided March 16, 2020

Monica Lucinda do Outeiro, Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica Lucinda do Outeiro, of counsel and on the brief).

Margaret Ruth McLane, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Margaret Ruth McLane, of counsel and on the brief).

Before Judges Koblitz, Gooden Brown and Mawla.

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

By leave granted, the State appeals from the May 14, 2019 Law Division order granting defendant's motion to suppress gunshot residue (GSR) evidence swabbed from his hands without a warrant following his arrest. We reverse.

I.

Defendant was charged in a six-count indictment with first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 ; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) ; fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) ; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) ; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) ; and fourth-degree obstruction, N.J.S.A. 2C:29-1. The State's proofs included GSR swabbed from defendant's hands during a warrantless search following his arrest on an unrelated arrest warrant preliminarily indicating he recently fired a gun. Prior to trial, defendant moved to suppress the GSR evidence. At the ensuing testimonial hearing, Monmouth County Sheriff's Officer Jason Simeone and Monmouth County Crime Scene Unit Detective Steven Vogt testified for the State.

Simeone, a member of the Warrant Fugitive Unit, testified that on May 6, 2018, he had an "active case" open for defendant based on an outstanding "Superior Court" arrest warrant issued on April 2, 2018. Although Simeone previously received "information ... that [defendant] was staying" at a residence on Ridge Avenue in Asbury Park (the Ridge Avenue residence), Simeone was waiting for the "right amount of man[ ]power" before acting on the information because of concerns that "[defendant] was an active gang member," and "might have a weapon." That opportunity presented itself when Simeone received a "mutual aid call" for assistance at approximately 1:00 p.m. on May 6, stemming from an "anonymous" 911 call that there were "shots fired" and the suspected shooter was seen running into the Ridge Avenue residence. Simeone, his partner, and three other sheriff's officers promptly responded to the call.

Upon arriving at the scene at about 1:10 p.m., Simeone and the other responding officers, including officers from both Asbury Park and Neptune Police Departments, learned that three males possibly involved in the shooting had entered the Ridge Avenue residence, prompting the officers to "set up a perimeter" and "secure[ ]" the residence. After receiving consent to enter from one of the occupants of the residence, the officers entered and apprehended two individuals on the first floor, and a third who had climbed out onto the roof from an upstairs window but returned inside upon the officers' commands. Once he climbed back into the residence, Simeone identified the male as defendant from the photograph in "[the arrest] warrant packet," "handcuffed" him, and placed him under arrest at approximately 2:40 p.m.

Although defendant was arrested pursuant to the arrest warrant, "he was [also] a suspect in the shooting" because "[a]s he was being led away from the scene," an officer was informed by "another witness ... that defendant was the shooter." As a result, in addition to being handcuffed "behind his back," "plastic bags" were placed "over his hands," and "taped at the wrist" to preserve GSR evidence and "keep [defendant] from essentially rubbing his hands." Defendant did however have "the ability to grasp things" because the bags were only partially "inflated" and the taping of his wrists "was [not] particularly tight." Defendant was then transported to Asbury Park police headquarters "for processing."¹

Vogt, who had been trained in "crime scene investigation," "shooting analysis and reconstruction," as well as "collection, [and] documentation of evidence," first became involved in the shooting investigation when he "responded to the Jersey Shore University Medical Center" at approximately 2:43 p.m. "to document and recover evidence [from] the [shooting] victim" who was being treated for three gunshot wounds. At 3:58 p.m., Vogt arrived at the Ridge Avenue residence "in order to photographically document the scene as well as ... collect[ ] ... any potential evidence." Based upon his "recovery of ballistics" at the scene, including "a .25 caliber casing," Vogt determined that "a semi[-]automatic pistol was used."²

At 5:10 p.m., Vogt arrived at Asbury Park police headquarters to test defendant's hands for potential traces of GSR. Vogt confirmed that the plastic bags placed over defendant's hands would preserve any GSR evidence either on defendant's hands or in the bags themselves. Vogt explained that GSR is "essentially ... unburnt gunpowder" consisting of "minute amounts of metal" "comprised of lead, antimony and barium." According to Vogt,

when a firearm is fired, that explosion ... within the gun will expel [GSR] in a couple different areas. One would be out [of] the barrel, which is going to exit the barrel at somewhat of a cone shape. Two would be the ejection port of the handgun, as the casing is ejected out of the handgun.... And lastly, ... out [of] the slide. So as the slide comes backwards, [GSR] is also going to basically come back as well towards the shooter.

Vogt stated that GSR emitted from the slide of the gun was "particularly relevant in this case" because that was the part "of a semi[-]automatic handgun" where the GSR "would come backwards."

However, Vogt explained that GSR "is extremely fragile," "can dissipate very easily," and can simply be "wash[ed]" or "wip[ed]" away. According to Vogt, ninety percent of GSR will "dissipate within the first hour" after a shooter fires a gun, and, when dealing with "a small caliber casing" as here, which produces "less [GSR]" to begin with, there was potentially even less evidence of GSR on the shooter's hands "several hours later."

To administer the test on defendant's hands, Vogt used "a binary [GSR] test kit," involving "two aspects," neither of which was "very invasive" because it was performed "[o]nly on the surface [of] the hands" and required no "piercing of the skin." Vogt explained that "[t]he first [component] entails stubbing the hands using a plastic vial ... with a cap on it. Upon removal of the cap, there is an adhesive surface, similar to ... Scotch tape." Once the cap is removed, the vial is "dabb[ed] ... on the webs of [the] hands, on the front and back of [the] hands." This process is repeated "a total of six [times] ..., three on one hand and three on the other," after which the vial is "preserved" for subsequent laboratory testing.

According to Vogt, "the second component ... of the test kit is a presumptive field test" whereby a "gauze pad is ... wiped very gently over the hands and placed in a small ... clear plastic container, [at] which time a liquid reagent is dropped onto it." The purpose of the liquid reagent is to reveal the presence of "nitrates[,] specifically, nitrocellulose." Vogt explained that if "blue or black specks" appear on the gauze pad "within about five minutes or so," as occurred here, it is considered "a positive test," indicating that a "gun was recently fired" by the person whose hands were swabbed. However, because this type of test was not definitive, in order to obtain confirmatory lab results, typically, "the stubs" from the first component of the test would be "sent out to the lab for further testing."³

Prior to administering the test on defendant, Vogt learned from another detective that defendant would not consent to the test. Vogt called a Monmouth County assistant prosecutor for "advice" on whether to conduct the test without a search warrant over defendant's objection. Given the dissipation rate of GSR and the time that had already elapsed since the shooting, the assistant prosecutor advised Vogt not "to wait ... to get a search warrant" because "there were sufficient exigent circumstances" to "justify[ ] proceeding without a warrant." Accordingly, Vogt conducted the test in accordance with his testing protocol at approximately 5:40 p.m.

Following the hearing, in a written decision, the judge granted the suppression motion. Preliminarily, finding Vogt's and Simeone's testimony "honest and straightforward," and the facts "in large part uncontested," the judge made factual findings consistent with their testimony. The judge "noted that no New Jersey authority [had] addresse[d] the specific issues presented in th[e] case," and posited that the issues were whether "swabbing a suspect's hands for [GSR was] considered a search," and if so, whether such a search "may ... be permissibly conducted during a search incident to a valid arrest."

Ultimately, "guided by prior analogous authority," the judge determined that "the taking of exemplars from a suspect's body for subsequent testing constitutes a search under the Fourth Amendment of the United States Constitution and Article [I], Paragraph 7 of the New Jersey Constitution." Thus, the judge concluded that "Vogt indeed conducted a search when he swabbed defendant's hands for [GSR]." The judge reasoned that "[t]he act of collecting a sample from defendant's hands for purposes of testing clearly amount[ed] to an intrusion – no matter how minimal" and "without the subject's consent, that intrusion involved some degree of force."

Next, the judge determined that because "defendant was...