STATE OF NEW JERSEY VS. RASHAWN M. ALEXANDER(15-06-0840, BURLINGTON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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
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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;
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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
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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.
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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
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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
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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.
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