NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3765-23
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
AFI N. ROY, a/k/a AFI ROY and AFI K. ROY,
Defendant-Appellant.
_________________________
Argued February 3, 2026 – Decided August 26, 2026 Before Judges Gooden Brown and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 23-03-0867.
Alexandra Marek, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Alexandra Marek, of counsel and on the briefs).
John J. Santoliquido, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Acting Attorney General, attorney; John J. Santoliquido, of counsel and on the brief).
PER CURIAM After losing her motion to suppress evidence seized from her home, first without a warrant and then with a warrant, defendant Afi N. Roy entered a negotiated guilty plea to third-degree aggravated assault, and was sentenced to five years' probation. The seized items consisted of firearms and related evidence. The initial warrantless search was conducted after law enforcement officers responded to a call that defendant had left animals unattended at her house. Defendant had been arrested the day before for shooting at an individual in a car and had been confined in the county jail. An animal control officer was dispatched to defendant's home to assist the officers in caring for the unattended animals. The second search was conducted pursuant to a warrant that was obtained in part from information gained from the initial search. The motion to suppress the evidence seized pursuant to the initial warrantless search was granted in part and denied in part. The judge determined the search was justified in part under the emergency-aid doctrine. As for the second warranted search, the judge determined the independent-source doctrine applied.
On appeal, defendant raises the following points for our consideration:
POINT I
THE WARRANTLESS ENTRY INTO THE HOME WAS UNLAWFUL BECAUSE ANIMAL WELFARE
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DOES NOT QUALIFY AS AN EMERGENCY UNDER THE EMERGENCY-AID EXCEPTION. EVEN IF IT DID, POLICE LACKED AN OBJECTIVELY REASONABLE BASIS TO BELIEVE THAT AN EMERGENCY EXISTED THAT REQUIRED POLICE TO PROVIDE IMMEDIATE ASSISTANCE TO THE ANIMALS.
A. An Animal-Related Emergency Does Not Serve As A Valid Basis For The Invocation Of The Emergency-Aid Exception To Justify A Warrantless Search Of A Home.
B. Any Reliance On N.J.S.A. 4:22-17.7 To Conclude Animal-Related Emergencies Qualify Under The Emergency-Aid Exception To The Warrant Requirement Is Misplaced.
C. Even If Animal-Related Emergencies Qualify Under The Emergency-Aid Exception, There Is No Support In The Record That The Police Had An "Objectively Reasonable Basis" To Believe There Was A True Emergency That Justified Warrantless Entry Into The Home.
POINT II
THE FRUITS OF THE SECOND SEARCH MUST BE SUPPRESSED BECAUSE THE STATE FAILED TO PROVE THAT THE POLICE WOULD HAVE SOUGHT A SEARCH WARRANT WITHOUT THE KNOWLEDGE OF THE TAINTED EVIDENCE AND THAT POLICE DID NOT ENGAGE IN FLAGRANT POLICE MISCONDUCT.
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A. The State Failed To Prove By Clear and Convincing Evidence That The Police Would Have Sought A Warrant Independent of The Evidence Discovered During The Warrantless Search, Regardless Of Whether The Initial Entry Into The Home Is Deemed Unlawful.
B. The State Failed To Prove That The Initial, Illegal Entry Into The Home Was Not The Product Of Flagrant Police Misconduct.
POINT III
THE COURT ERRED IN ITS FINDING AND WEIGHING OF AGGRAVATING FACTORS [THREE] AND [SIX] AND FAILED TO MAKE A FINDING FOR MITIGATING FACTOR [SEVEN]
DURING SENTENCING.
We affirm the conviction but reverse the sentence and remand for resentencing.
I.
On March 21, 2023, defendant was charged in a four-count Camden County indictment with second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); second-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b)(1) (count three); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count four).
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Defendant moved to suppress the evidence seized from her home during the initial warrantless search and the subsequent search conducted pursuant to a search warrant. During the suppression hearing, the State produced Berlin Borough Police Officer Mark Peiffer as its sole witness and presented the search warrant application and warrant. Portions of Peiffer's body worn camera footage were also admitted at the hearing. We glean these facts from the record.
On January 22, 2023, at approximately 7:50 p.m., the Camden County Metro Police Department responded to a report of an individual with a firearm. The victim, identified as Kyle Richardson, reported that defendant, "his mother [-]in[-]law," had become irate "due to an ongoing family dispute" and "fired one round into [his] vehicle while he was sitting in it." Defendant then left the scene before police arrived. Upon locating defendant's residence in Berlin, Berlin Borough police officers arrested defendant at approximately 1:30 a.m. on January 23, 2023, with the use of a SWAT team that included Officer Peiffer.
At approximately 10:36 a.m. the following day, January 24, 2023, Peiffer along with other Berlin Borough officers responded to the same home on a call from defendant's mother, Josephine Roy, reporting that animals "had been in the
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house for several days with no one to care for them." Josephine1 told the officers there were two cats and one dog in the home but she did not have a key to enter the residence.
Peiffer gained access to the house through an open window. Officers then walked through the house and located one dog in a crate with empty food and water bowls by the front door, one cat in a closed bedroom, one cat in a crate with a litter box in the basement, and four turtles in a tank in the basement. Peiffer located the cat in the bedroom under a long gun case behind the bed's headboard. Inside the case was a shotgun. An animal control officer was dispatched to the house to assist the officers. When the animal control officer arrived, Peiffer showed her the animals in the house. When the animal control officer opened a drawer below the turtle tank looking for supplies, two starter pistols were discovered which Peiffer secured.
After the animals were secured, the officers left the house until a search warrant was obtained. The search warrant application detailed the alleged incident that resulted in defendant's January 23, 2023 arrest, and recounted the discovery of the shotgun and the two starter pistols during the January 24, 2023
1 We use the first name to avoid confusion caused by the common surname and intend no disrespect.
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warrantless search of the house. The application further described a Smith & Wesson Shield 9mm firearm that was registered to defendant but was not found during the warrantless search of the residence. Upon obtaining the search warrant, the officers returned to the house. During the execution of the warrant, the officers located the Smith & Wesson 9mm firearm registered to defendant, as well as additional firearms and magazine rounds.
On October 31, 2023, in an oral opinion on the record, the judge granted defendant's motion in part, finding the entry into defendant's home without a warrant was lawful, but the scope of the search was excessive. As a result, the judge suppressed the seizure of the starter pistols found in the drawer as exceeding the scope of the initial warrantless search but allowed the seizure of the shotgun under the emergency-aid exception to the warrant requirement.
At the outset, the judge found Peiffer's testimony "reliable, reasonable, and credible," and made factual findings consistent with his testimony and the search warrant application. Turning to the governing legal principles, the judge acknowledged that "police officers serving in the community caretaking role are empowered to make warrantless entry into a home under the emergency[-]aid exception to the warrant requirement." The judge explained that to justify the search,
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the State must show . . . the officer had an objectively reasonable basis to believe that an emergency required that he provide immediate assistance to protect or preserve life or to prevent serious injury, and . . . there was a reasonable nexus between the emergency and the area or place to be searched.
Although absent from New Jersey's search and seizure jurisprudence, the judge recounted cases from other jurisdictions where "courts . . . [had] found the warrantless search for or seizure of an animal on private property or inside a dwelling . . . justified under the emergency[-]aid exception." The judge also acknowledged New Jersey's statutory scheme, see N.J.S.A. 4:22-17(a)(4); 4:22- 17.7(b), "favoring a public policy requiring the humane treatment of animals . . . to protect their well-being."
Applying those principles, the judge found:
[Thirty-three] hours after . . . defendant was arrested and detained, police received a call from . . . defendant's mother advising a dog and two cats were located inside the apartment. . . . Mother further advised she did not have a key or any other way to access the apartment to take care of the animals. . . .
Relying . . . on the information from defendant's mother, I find it is reasonable for police to believe that the well-being of the animals was at risk. The officers who were called to the scene were aware . . .
defendant[] was taken into custody on January 23rd, 2023, at approximately 1:30 a.m., and they had reason to believe that she may not return . . . home for at least a few days. I find from these set of facts the officers
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possessed a[n] objectively reasonable basis to believe – not certitude – that there's a danger and need for prompt action. . . .
The reasonableness of a decision to act in response to a perceived danger in real time does not depend on whether it is later determined that the danger actually existed. Furthermore, soliciting the service of an [a]nimal [c]ontrol officer confirms the officer's interest was focused on the well-being of the animals.
Therefore, an entry into the residence to address the well-being of the animal[s] satisfies the emergency[-]
aid exception to the warrant requirement.
Next, the judge addressed "whether the area of the search was confined to those places within the apartment to search for dogs and two cats." The judge found:
After gaining entry into the apartment through the unlocked window, the police observed a dog inside a cage and began to search for the two cats. At a minimum, the exigency was eliminated for the dog.
However, the cats were still on the loose and needed to be located.
Attached to the kitchen was a bedroom. That door was shut. And while looking for a cat that may be hiding behind the headboard, Officer Peiffer located a long gun firearms case. When he lifted the case from behind the headboard, he located a black cat. The cat had run under the bed, and police decided to secure the cat in the bedroom until the [a]nimal [c]ontrol officer arrived. The weapon was secured for safekeeping, and inside was a 20-gauge Stevens shotgun along with ten rounds of number [three] buckshot.
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A second cat was located in the basement inside a kennel, and there was also the fishtank with multiple turtles inside of it, located on top of some sort of a drawer or a dresser, a bureau. At that time, Officer Peiffer was instructed to exit the residence until the [a]nimal [c]ontrol officer arrived.
....
Here, the scope of the search for the cats was limited. Initially, one cat was located hiding behind the bedroom headboard. The other was located in a cage in the basement. At that point, the officer had located all three animals as identified by defendant's mother.
Police took no further search of the apartment.
Once the [a]nimal [c]ontrol officer arrived and took control of the animals, she observed a fish tank with four turtles atop a basement cabinet, and she opened a cabinet drawer searching for food, containers, and supplies to transport the turtles. Upon opening the door, she saw the two pistols.
I find this search, opening the cabinet door, exceeded the scope of the search limited to the reasons and objectives that prompted the search in the first place. For those reasons, I find the seizure of the pistols in the cabinet from the defendant's residence does violate the Fourth Amendment and Article I, Paragraph 7 of our State Constitution.
On January 25, 2024, the judge denied the motion to suppress the evidence seized pursuant to the search warrant. In an oral opinion, relying on State v. Holland, 176 N.J. 344 (2003), the judge found the independent-source doctrine applied, allowing "the admission of evidence that was discovered wholly A-3765-23
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independent from the constitutional violation." After incorporating the factual and legal findings from the October 31, 2023 ruling, the judge supplemented the findings, noting the January 24, 2023 search warrant certification indicated that on January 23, 2023, at approximately 8:38 p.m., the Berlin Borough Police Department received a call from Camden Metro Police reporting that defendant had been involved in a "shooting" earlier that evening. According to the report, defendant fired one round into the victim's vehicle while he was seated in it and then drove away before police arrived.
Recounting the certification, the judge stated during the ensuing search for animals at defendant's home, along with a cat, a long gun case containing a shotgun was found in a bedroom behind the headboard of the bed. In addition, an animal control officer found two pistols when she opened a drawer while looking for supplies to transport turtles located in a fish tank in the basement. The certification elaborated that although defendant had "a legally registered firearm, a Smith & Wesson Shield 9mm," none of the three firearms located during the warrantless search was "identified as her registered firearm," which was "still outstanding and ha[d] not been located."
The judge posited:
[T]he issues are whether or not excising the discovery of handguns from the certification in support of the
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warrant, there is sufficient probable cause to issue the warrant[, and w]hether the State would have pursued a warrant if they [sic] had not discovered the handguns, and whether the discovery of the handgun was a result of flagrant police misconduct.
The judge concluded that "the discovery of the shotgun behind the bedroom headboard while searching for a cat provide[d] an independent basis for asserting probable cause in support of the warrant application." Further, "[a]fter the animals were removed from the residence," Peiffer was advised to "leave the firearms" found in the residence "while a search warrant was applied for" and subsequently obtained.
The judge continued:
Having discovered a shotgun hidden in the residence, I find by clear and convincing evidence the State would have applied for a search warrant to try and locate the Smith & Wesson 9mm handgun registered to . . .
defendant, which may have been used in a crime. Based upon the discovery of the shotgun, the missing Smith & Wesson 9mm handgun, and excising from the application for the search warrant references to the two handguns, I find there's ample probable cause for issuance of a warrant to search for the 9mm handgun.
Lastly, characterizing the discovery of the pistols as "inadvertent," the judge found "nothing to suggest the discovery . . . was the result of flagrant police misconduct" to justify suppressing the evidence seized pursuant to the warrant.
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Thereafter, defendant entered a negotiated guilty plea to count one, as amended to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). At the plea hearing, defendant admitted assaulting the victim by attempting to spray him with mace. She was subsequently sentenced in accordance with the plea agreement and this appeal followed.
II.
A. Emergency-Aid Exception.
Defendant argues the judge erred in denying her motion to suppress the shotgun found during the initial warrantless search because the search was not justified under the emergency-aid exception. She argues an animal welfare violation pursuant to N.J.S.A. 4:22-17.7 cannot qualify as an emergency under the emergency-aid exception to justify a warrantless search. Even if it could, she asserts there was no emergency in this matter. We agree there was no emergency justifying the initial warrantless search of defendant's residenc e. Accordingly, the shotgun should have been suppressed along with the starter pistols.
Our standard of review is well settled. "When reviewing a trial court's decision to grant or deny a suppression motion, appellate courts [ordinarily] defer to the factual findings of the trial court so long as those findings are
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supported by sufficient evidence in the record." State v. Smart, 253 N.J. 156, 164 (2023) (alteration in original) (quoting State v. Dunbar, 229 N.J. 521, 538 (2017)) (internal quotation marks omitted). As such, we "will set aside a trial court's findings of fact only when such findings 'are clearly mistaken.'" Dunbar, 229 N.J. at 538 (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). We owe no deference, however, "to a trial court's interpretation of law, which we review de novo." Ibid.
Turning to the substantive legal principles, "[b]oth the United States Constitution and the New Jersey Constitution guarantee an individual's right to be secure against unreasonable searches or seizures." State v. Williams, 461 N.J. Super. 80, 94 (App. Div. 2019) (quoting State v. Minitee, 210 N.J. 307, 318 (2012)). As such, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Cooke, 163 N.J. 657, 664 (2000), overruled on other grounds by State v. Witt, 223 N.J. 409 (2015)). "[T]he State bears the burden of demonstrating by a preponderance of the evidence that an exception to the warrant requirement applies." State v. Manning, 240 N.J. 308, 329 (2020).
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One such exception to the warrant requirement is the emergency-aid doctrine,
derived from the commonsense understanding that exigent circumstances may require public safety officials, such as the police, firefighters, or paramedics, to enter a dwelling without a warrant for the purpose of protecting or preserving life, or preventing serious injury. State v. Frankel, 179 N.J. 586, 598 (2004).
Thus, "a warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person." Id. at 600 (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)). In such cases, "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Ibid. (quoting Wayne, 318 F.2d at 212); see also State v. Garbin, 325 N.J. Super. 521, 524-
27 (App. Div. 1999) (upholding police officer's warrantless entry of garage from which smoke was coming after report of fire).
[State v. Edmonds, 211 N.J. 117, 130 (2012) (alteration in original).]
For a warrantless search to be justified under the emergency-aid doctrine, the State must prove: "(1) the officer had 'an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury' and (2) there was a 'reasonable nexus between the emergency and the area or places to be searched.'" Id. at 132 (quoting Frankel, 179 N.J. at 600).
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"The reasonableness of a decision to act in response to a perceived danger in real time does not depend on whether it is later determined that the danger actually existed" and "[t]he scope of the search under the emergency[-]aid exception is limited to the reasons and objectives that prompted the search in the first place." State v. Hathaway, 222 N.J. 453, 470 (2015) (quoting Frankel, 179 N.J. at 599). "Therefore, '[a] police officer entering a home looking for a person injured or in danger may not expand the scope of the search by peering into drawers, cupboards, or wastepaper baskets.'" Edmonds, 211 N.J. at 134 (alteration in original) (quoting Frankel, 179 N.J. at 599). Moreover, "[w]hen the exigency that justifies immediate action dissipates, the rationale for searching without a warrant is no longer present." Ibid.
Contrary to the judge's finding, defendant argues an animal-related emergency does not qualify under the emergency-aid exception to the warrant requirement. Defendant adds a potential violation under the Prevention of Cruelty to Animals Act (Act), N.J.S.A. 4:22-11.11 to -61, does not rise to an emergency for purposes of the emergency-aid doctrine.
At the time of the incident, the relevant provision of the Act provided:
Notwithstanding the provisions of subsection a. of this section, or any other law, or any other rule or regulation adopted pursuant thereto, to the contrary, any municipal humane law enforcement officer, humane law
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enforcement officer of a county society for the prevention of cruelty to animals, or other State or local law enforcement officer may immediately enter onto private property where a dog, domestic companion animal, or service animal is located and take physical custody of the animal, if the officer has a reasonable basis to believe that, due to a violation of N.J.S.A. 4:22-
17.1 et seq., immediate assistance is required to protect or preserve the animal's life or prevent injury to the animal.
[N.J.S.A. 4:22-17.7(b) (2019) (amended 2023) (citation reformatted).]
Here, the alleged violation relates to N.J.S.A. 4:22-17.5(a)(1), which requires that proper shelter for certain animals must "provide[] at all times . . . access to water in a sanitary and liquid state."
Notwithstanding the Act's provisions, no case in New Jersey has extended the emergency-aid doctrine to include animal well-being and aid to animals. In his ruling, the judge examined the public policy embedded in N.J.S.A. 4:22- 17.7(b) and relied on other jurisdictions that have upheld police responses to animal-related emergencies as meeting the prerequisites for the exigent circumstances exception to the warrant requirement. For example, in State v. Stone, 92 P.3d 1178, 1179-80 (Mont. 2004), exigent circumstances led authorities to believe a crime of animal cruelty was in progress on the
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defendant's property. There, evidence of "dead and dying rabbits" was found in cages on the property which "was surrounded by a fence." Id. at 1179, 1183.
In People v. Chung, 110 Cal. Rptr. 3d 253, 255-56 (Cal. Ct. App. 2010), the police had initially gone to the home after a concerned neighbor called 9 -1- 1 reporting she had heard a "high-pitched crying of a dog in pain." The neighbor described hearing yelping and howling for approximately fifteen minutes and feared the dog was in danger. Id. at 256.2 When the police arrived, Chung lied to them saying he did not have a dog, but the police could hear a faint whimpering inside Chung's condominium. Ibid. The information relayed by the neighbor along with the dog's faint whimper was enough to justify a warrantless entry. Id. at 261.
A unifying theme in these other states' precedent to justify a warrantless search is imminent harm to animals. See, e.g., Stone, 92 P.3d 1178; Chung, 110 Cal. Rptr. 3d 253; see also State v. Goulet, 21 A.3d 302, 304-05, 313-14 (R.I. 2011) (explaining a cursory search of the exterior of the property was justified where a neighbor reported concern after hearing the defendant threaten to shoot his dog and subsequently hearing a gunshot).
2 The neighbor had called a non-emergency number two or three times previously to complain about the noise coming from the defendant's condominium. Chung, 110 Cal. Rptr. 3d at 256 n.3.
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Regardless of whether the emergency-aid exception applies to animals in this State, for the exception to apply, at the very least, there must be evidence of exigent circumstances that was not present here. Instead, the basis for the warrantless search was a generalized worry for the animals reported by defendant's mother. Peiffer testified the purpose of entering defendant's home was to look for animals under the community-caretaking function after the Berlin Borough Police Department received a call from defendant's mother, who had voiced concerns for the unattended animals. The search revealed one dog in a crate with empty water and food bowls, one cat in a closed bedroom, one cat inside a carrier, and four turtles in a tank. Peiffer had personal knowledge that defendant was arrested approximately thirty-three hours prior, as he had been part of the SWAT team dispatched to the residence to make the arrest.
Those facts, "when viewed as a whole," State v. Bogan, 200 N.J. 61, 81 (2009), do not support a finding of an objectively reasonable basis for immediate assistance. There were no distress sounds from the animals, and the dog only began to bark when officers entered the home. The judge reasoned because there were thirty-three hours between defendant's arrest and the call from her mother, it was reasonable for the police to believe the well-being of the animals was at risk. In so doing, the judge relied solely on the concern over the well-being of
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the animals in finding the emergency-aid exception applied to animals, without finding any actual exigent circumstances. We are satisfied under the circumstances of this case, there was no evidence of an emergency requiring immediate assistance to justify a warrantless entry into defendant's home. Stated simply, there was no imminent harm. See State v. Vargas, 213 N.J. 301, 326 (2013) ("[B]efore the police officers could enter or search Vargas's home without a warrant they had to have 'an objectively reasonable basis to believe that an emergency require[d]' immediate action to protect life or prevent serious injury." (quoting Edmonds, 211 N.J. at 132)). Accordingly, the judge erred in failing to suppress the shotgun found during the initial warrantless search of defendant's home.
However, our analysis does not end there. Like the judge, we must determine whether the evidence seized pursuant to the search warrant is subject to the exclusionary rule.
B. Independent-Source Rule.
"The purpose of the exclusionary rule is to act as a 'deterrent safeguard to ensure that the Fourth Amendment is not reduced to a form of words.'" State v. Evers, 175 N.J. 355, 376 (2003) (quoting Mapp v. Ohio, 367 U.S. 643, 648 (1961)) (internal quotation marks omitted). Generally, any evidence obtained
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from an unlawful search must be suppressed. Holland, 176 N.J. at 353. Any evidence subsequently obtained through a search warrant that relied on evidence from the unlawful search must also be suppressed pursuant to the "fruit of the poisonous tree" doctrine, which requires that "later-derived evidence" obtained in violation of the warrant requirement be suppressed. Ibid. In general, "[t]he well-accepted purpose of excluding such primary or derivative evidence is 'to compel respect for the constitutional guarantee in the only effective way —by removing the incentive to disregard it.'" Ibid. (quoting United States v. Calandra, 414 U.S. 338, 347 (1947)).
In considering a claim that evidence obtained should be excluded as fruit of the poisonous tree,
[w]e need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."
[Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (quoting Maguire, Evidence of Guilt 221 (1959)).]
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"The exclusionary rule, however, is not absolute" and evidence obtained as fruit of the poisonous tree "is not automatically inadmissible." Holland, 176 N.J. at 354-55 (quoting State v. Hunt, 91 N.J. 338, 349 (1982)). "One exception is the independent-source rule" which "allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Id. at 354 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). Under the independent-source rule, the burden is on the State to meet, by clear and convincing evidence, certain requirements:
First, the State must demonstrate that probable cause existed to conduct the challenged search without the unlawfully obtained information. It must make that showing by relying on factors wholly independent from the knowledge, evidence, or other information acquired as a result of the prior illegal search. Second, the State must demonstrate in accordance with an elevated standard of proof, namely, by clear and convincing evidence, that the police would have sought a warrant without the tainted knowledge or evidence that they previously had acquired or viewed. Third, regardless of the strength of their proofs under the first and second prongs, prosecutors must demonstrate by the same enhanced standard that the initial impermissible search was not the product of flagrant police misconduct.
[Id. at 360-61.]
Flagrant misconduct is characterized by "active disregard of proper procedure, or overt attempts to undermine constitutional protections." State v.
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Camey, 239 N.J. 282, 310 (2019). "When the initial impermissible search is the product of flagrant misconduct, the independent-source doctrine cannot be invoked to justify a subsequent search relating to the initial search." Id. at 318 (citing Holland, 176 N.J. at 361). Essentially, flagrant police misconduct taints anything that stems from that initial search. Ibid. In Holland, the Court "stress[ed] that courts must apply scrupulously each part of the test, and that the government's failure to satisfy any one prong of the standard will result in suppression of the challenged evidence." 176 N.J. at 363.
Applying these principles, we conclude suppression of the fruits of the search of defendant's home pursuant to the search warrant was properly denied. Defendant's charges stem from an incident that occurred on January 22, 2023, for which she was subsequently arrested a few hours later on January 23, 2023. The warrantless entry of defendant's residence occurred on January 24, 2023, at approximately 10:36 a.m. Based, in part, on information obtained from the warrantless entry, police submitted an application for a search warrant. The application listed firearms personally observed during the warrantless entry and a firearm legally registered to defendant that was not located during th e initial entry. The latter firearm was subsequently located in the home after the search warrant was issued.
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The judge applied the independent-source doctrine, finding all three prongs under Holland were met. Specifically, the judge found that the shotgun provided an independent basis for the warrant, that the police would have sought a warrant without the tainted evidence, and that there was no flagrant police misconduct because the discovery of the weapons during the warrantless search was inadvertent. The judge reasoned further that even if the search warrant excised the paragraphs relating to the two starter pistols, based on the paragraph regarding the shotgun and the paragraph detailing the legally owned firearm , there was still an independent basis for the search warrant.
We are convinced the paragraph detailing the fact that defendant's legally registered handgun had not been recovered during the warrantless entry provided a sufficient, independent basis to obtain the search warrant by itself. The allegation against defendant involved her discharging a firearm at an occupied vehicle. Defendant was subsequently charged with possession of a weapon for an unlawful purpose. The search warrant application submitted on January 24, 2023, included a basis to perform a thorough search to locate the registered firearm.
Defendant argues the State cannot meet its burden under the independent-
source doctrine because it fails to provide clear and convincing evidence "police
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would have sought a warrant without the tainted knowledge or evidence that they previously had acquired or viewed," quoting Holland, 176 N.J. at 360-61. Defendant also asserts the initial entry of the home was the product of flagrant police misconduct and anything obtained utilizing information received from that search must be suppressed.
We reject defendant's contentions. The police had independent knowledge of an outstanding registered firearm and there was credible testimony they intended to seek a warrant without the tainted evidence. The thirty-three- hour time lapse between defendant's arrest and the application for the search warrant was not unreasonable under the circumstances. See State v. Blaurock, 143 N.J. Super. 476, 478-79 (App. Div. 1976) (indicating the application for the search warrant was not stale even though there were eighteen days between the information obtained from surveillance and the affidavit to support the search warrant). Additionally, there was no indication of flagrant police misconduct. Peiffer testified credibly he entered the home in response to the concern that animals were unattended and not receiving care and there was no evidence the animal welfare concerns were meant as a pretext to search for weapons. In sum, defendant's suppression motion was properly denied.
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C. Sentence.
Defendant challenges her sentence as excessive. She argues the judge should not have applied aggravating factors three and six based on two final restraining orders, and should not have ignored mitigating factor seven given the absence of a prior criminal history.
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and are mindful that we "should not 'substitute [our] judgment for those of our sentencing courts,'" State v. Cuff, 239 N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we will
affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
"A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily '[waived] . . . his [or her] right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" Id. at 70-71 (first alteration and omission in original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)).
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"Even a sentence recommended as part of a plea agreement, however, may be vacated if it does not comport with the sentencing provisions of our Code of Criminal Justice," and "[a]n appellate court may also remand for resentencing if the trial court considers an aggravating factor that is inappropriate to a particular defendant or to the offense at issue." Ibid.
Here, defendant was sentenced in accordance with the plea agreement to five years' probation, conditioned upon time served 3 and cooperation with mental health treatment, among other conditions. The judge found aggravating factors three, six and nine applied, and mitigating factor ten applied. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"); (a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which the defendant has been convicted"); (a)(9) ("[t]he need for deterring the defendant and others from violating the law"); (b)(10) ("[t]he defendant is particularly likely to respond affirmatively to probationary treatment"). Although the judge was clearly convinced the aggravating factors outweighed the mitigating factor, he believed the plea agreement was "fair, reasonable, and in the interest[] of justice."
In evaluating the aggravating factors, the judge stated:
3 Defendant served 428 days in the county jail.
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I have had the opportunity to review the adult pre[]sentence report in this matter and find that [defendant] has had prior contact with the court system.
She's had two family court convictions which resulted in the issuance of two final restraining orders.
With this indictable conviction, the [c]ourt does find aggravating factor [three], risk defendant will commit another crime; [six], the extent the defendant's prior criminal record and the seriousness of the offense of which she has been convicted.
And this is a serious offense. . . .
And I find factor [nine], and I give great weight to that, the need for deterring the defendant from violating the law, the specific and general deterrence factors here.
We agree with defendant that a remand for resentencing is required because the judge mistakenly identified the final restraining orders as convictions. Although final restraining orders may be used to evaluate a defendant's risk of committing another offense and the need for deterrence, they are not crimes and do not constitute prior convictions. See State v. Radziwil, 235 N.J. Super. 557, 576 n.3 (App. Div. 1989) (recognizing that traffic violations, including driving while under the influence of alcohol, "could not be considered an aggravating factor under N.J.S.A. 2C:44-1(a)(6)," because they are not crimes or offenses but were "pertinent to the risk that defendant would commit another offense and the need for deterrence"), aff'd, 121 N.J. 527 (1990).
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Thus, we are persuaded aggravating factor six is not supported by competent, credible evidence in the record. Roth, 95 N.J. at 363.
On the other hand, we reject defendant's contention the judge erred in not considering mitigating factor seven, that "the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44- 1(b)(7). The presentence report indicated, "The present offense represents the defendant's first offense with the court system in New Jersey. At the municipal court level, there are four matters noted, however, [all] resulted in dismissals. No [out-of-state] offenses were found noted for the defendant." Although defendant had no prior criminal convictions, the presentence report showed prior contacts with the criminal justice system, obfuscating leading a law-abiding life for a substantial period of time.
In sum, we affirm the conviction but reverse the sentence and remand for resentencing.
Affirm conviction, reverse sentence, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
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