STATE OF NEW JERSEY VS. RASHAWN M. ALEXANDER(15-06-0840, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 18, 2017
• Docket: A-4242-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4242-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAWN M. ALEXANDER, a/k/a RASHAN ALEXANDER and RASHAWNN M. ALEXANDER,

Defendant-Appellant. ______________________________

Submitted September 18, 2017 – Decided October 18, 2017

Before Judges Sabatino and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 15-06-0840.

Joseph E. Krakora, Public Defender, attorney for appellant (Molly O'Donnell Meng, Assistant Deputy Public Defender, of counsel and on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM Defendant appeals from a March 11, 2016 judgment of conviction

following a guilty plea for second-degree certain persons not to

have weapons, N.J.S.A. 2C:39-7(b)(1). He argues the trial judge

should have granted his motion to suppress. We disagree and

affirm.

On November 16, 2014, police responded to a call that an

individual had forced his way into a home in Florence Township and

dragged the homeowner out of the house into the street. When

police arrived, the homeowner identified defendant by name,

informed police defendant assaulted him, and warned defendant had

a weapon. Sergeant Jonathan Greenberg observed defendant running

away, drove his vehicle into an alley near defendant, exited, made

eye contact with defendant, observed him holding a gun in his

right hand, and ordered him to stop.

Defendant did not stop, and the officers pursued him to a

house, where defendant went inside. The officers followed and

announced themselves at the door when defendant's grandmother

answered. She allowed the officers to enter, and family members

told the officers that defendant was in the basement. Defendant

came upstairs and was arrested. Sergeant Greenberg and another

officer, who had arrived for backup, conducted a search of his

person, but did not find any evidence.

2 A-4242-15T2 Sergeant Greenberg then entered the basement to search for

evidence while the other officer remained with defendant.

Defendant loudly voiced his objection to the search. As he entered

the basement, Sergeant Greenberg noticed one round of ammunition

on the floor but was unable to examine anything further because

he had to quickly return upstairs when defendant caused a commotion

in the kitchen. Sergeant Greenberg and the other officer

restrained defendant, escorted him from the residence, and placed

him in a responding police car. Sergeant Greenberg then returned

to the residence and requested consent to search it. He initially

requested consent from defendant's grandmother, but she explained

that defendant's father was the actual homeowner. After Sergeant

Greenberg read defendant's father a standardized consent form, he

acknowledged his consent and signed the form. Sergeant Greenberg

then re-entered the basement, where he found and recovered a rifle,

a handgun, ammunition, and some PCP.

Defendant was indicted for second-degree possession of a

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(d); unlawful possession of a firearm, N.J.S.A. 2C:39-5(b);

aggravated assault, N.J.S.A. 2C:12-1(b)(4); burglary, N.J.S.A.

2C:18-2(a)(1); criminal mischief, N.J.S.A. 2C:17-3(b)(2);

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(b); possession of a

3 A-4242-15T2 controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); and

certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

Defendant moved to dismiss the indictment, and on June 9, 2015,

the trial judge granted the motion without prejudice. On June 30,

2015, defendant was re-charged with the same offenses as the first

indictment, with the exception of third-degree possession of a

firearm for an unlawful purpose.

Defendant moved to suppress evidence found in the warrantless

search of the basement. The court conducted a suppression hearing

on August 24, 2015 and heard the testimony of Sergeant Greenberg

regarding the events leading to the arrest and search. The judge

denied the motion in an oral opinion, finding the owner gave valid

consent to search the home, defendant was lawfully removed from

the home after being arrested, and the situation was "infused with

exigency." The judge also found defendant's objection to the

search could not override the owner's consent.

After denial of the suppression motion, defendant pled guilty

to second-degree certain persons not to have weapons and was

sentenced to nine years with a five-year term of parole

ineligibility. The remaining charges were dismissed. This appeal

followed. On appeal, defendant raises the following arguments:

POINT I. THE SEARCHES OF THE BASEMENT WERE UNCONSTITUTIONAL AND ALL OF THE EVIDENCE RECOVERED MUST BE SUPPRESSED AS THE FRUIT OF

4 A-4242-15T2 THOSE UNLAWFUL SEARCHES. U.S. Const., amends. IV, XIV; N.J. Const. art 1., par. 7.

A. [Sgt.] Greenberg Did Not Have A Valid Basis To Enter Or Search The Basement Before Obtaining Consent.

B. [The Homeowner's] Consent, Given After The Search Began, Did Not Justify The Initial Unlawful Intrusion.

When reviewing a motion to suppress, we "uphold the factual

findings underlying the trial court's decision so long as those

findings are supported by sufficient credible evidence on the

record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting

State v. Robinson, 200 N.J. 1, 15 (2009)). "Those findings warrant

particular deference when they are 'substantially influenced by

[the trial judge's] opportunity to hear and see the witnesses and

to have a "feel" of the case, which the reviewing court cannot

enjoy.'" Ibid. (quoting Robinson, supra, 200 N.J. at 15)

(alteration in original). "To the extent that the trial court's

determination rests upon a legal conclusion, we conduct a de novo,

plenary review." Ibid. (citing State v. J.D., 211 N.J. 344, 354

(2012); State v. Gandhi, 201 N.J. 161, 176 (2010)).

Both the United States and New Jersey Constitutions protect

individuals against unreasonable searches and seizures. U.S.

Const. amend IV; N.J. Const. art. I, ¶ 7. Because the search at

issue was executed without a warrant, it is presumptively invalid;

5 A-4242-15T2 to overcome this presumption, the State must show the search falls

within one of the well-recognized exceptions to the warrant

requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219,

93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973). The State

bears the burden of demonstrating the seizure was legal. State

v. Valencia, 93 N.J. 126, 133 (1983). Here, the trial judge found

the search was legal for two reasons: the homeowners' valid consent

to search and the exigent circumstances of securing the premises

as safe for a minor child in the house.

Defendant argues Sergeant Greenberg did not have "a valid

basis to enter or search the basement before obtaining consent."

The trial judge found the homeowner gave valid consent, and

defendant does not contest the validity of the consent later

obtained. Defendant argues there was no consent when the sergeant

went into the basement the first time prior to having defendant

removed, and the subsequent consent given by the homeowner was not

sufficient to allow the search and seizure of evidence.

A search conducted without a warrant can be valid if it is

an exception to the general rule prohibiting warrantless searches.

State v. Johnson, 193 N.J. 528, 552 (2008). The existence of

exigent circumstances is one such exception. See ibid. To find

exigent circumstances, the court should consider

6 A-4242-15T2 the degree of urgency and the amount of time needed to obtain the warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination.

[State v. Walker, 213 N.J. 281, 292 (2013) (citation omitted).]

The trial judge found the exigency of the circumstances

supported the sergeant entering the basement based upon the

presence of multiple individuals and a child in the house, when

the officers knew a gun was likely in the basement somewhere. We

have placed special emphasis on the possession and potential use

of firearms to present exigent circumstances. State v. Wilson,

362 N.J. Super. 319, 332-33 (App. Div.), certif. denied, 178 N.J.

250 (2003); see State v. De La Paz, 337 N.J. Super. 181, 195-96

(App. Div.), certif. denied, 168 N.J. 295 (2001). "Our state law

has long recognized the special significance of firearms and the

threat they represent to public safety." Wilson, supra, 362 N.J.

Super. at 333 (citing State in re H.B., 75 N.J. 243, 245-47

(1977)). "A deadly weapon poses a special threat to both the

public and police, and its presence is a significant factor in

evaluating whether there are exigent circumstances which justify

a warrantless search." Ibid.

7 A-4242-15T2 Moreover, "exigent circumstances [created by the presence of

a deadly weapon] do not dissipate simply because the particular

occupants of the vehicle may have been removed from the car,

arrested, or otherwise restricted in their freedom of movement."

Id. at 334 (quoting State v. Alston, 88 N.J. 211, 234 (1981)).

We found that "[t]he police were confronted with a dangerous

situation which was not dissipated by the arrest and search of the

suspects. There remained an urgent need to locate a missing and,

in all probability, loaded handgun to eliminate the potential for

deadly harm in a vulnerable public area." Id. at 336. Here,

exigency was created by the need to locate a handgun missing in

the presence of a child and other members of defendant's family,

which police reasonably believed to be in the home of defendant's

family.

Defendant argues the officers failed to satisfy the

requirements for a protective sweep; however, the trial judge did

not rely on the doctrine of protective sweep. "A 'protective

sweep' is a quick and limited search of premises, incident to an

arrest and conducted to protect the safety of police officers or

others. It is narrowly confined to a cursory visual inspection

of those places in which a person might be hiding." State v.

Cope, 224 N.J. 530, 546 (2016) (quoting State v. Davila, 203 N.J.

97, 113 (2010)). Here, at the time of the search, the officers

8 A-4242-15T2 had arrested defendant, and there was no reason for them to believe

there was another suspect present who posed a danger. As we have

already noted, the trial judge correctly found sufficient exigent

circumstances to justify the search.

Lastly, defendant asserts the evidence obtained from the

basement must be suppressed because the officers lacked valid

consent for the search. "New Jersey courts recognize the consent

to search exception to the warrant requirement." State v. Lamb,

218 N.J. 300, 315 (2014) (citing Schneckloth v. Bustamonte, 412

U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858

(1973); State v. Domicz, 188 N.J. 285, 305 (2006)). As discussed

above, the warrantless search was valid because there were exigent

circumstances to justify it. Thus, consent was not required.

Nonetheless, valid consent was given for the second search, which

produced the evidence defendant seeks to suppress. Even if the

officers lacked consent for the initial search due to defendant's

objections, they had valid consent for the second search after

defendant was removed. See Lamb, supra, 218 N.J. at 320 (finding

lawful consent to search a residence after an objector was lawfully

removed). Here, the second search occurred only after the officers

received valid consent from the homeowner and defendant was

lawfully removed from the home. Therefore, in addition to exigent

9 A-4242-15T2 circumstances, the officers had valid consent to search the

basement.

Any additional arguments introduced by defendant are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

10 A-4242-15T2