STATE OF NEW JERSEY VS. SHAREEF J. THOMAS (16-02-0155 AND 16-02-0156, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2578-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAREEF J. THOMAS,
a/k/a SHARIF THOMAS,
Defendant-Appellant.
________________________
Submitted October 30, 2019 – Decided November 8, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 16-02-0155
and 16-02-0156.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Reana Garcia, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Shareef J. Thomas appeals from a January 2, 2018 conviction
for possession of a handgun, entered on a plea, after the trial court denied his
motion to suppress. We reverse.
The only witnesses to testify at the suppression hearing were Elizabeth
police officer Edward Benenati, Jr. and defendant. Benenati testified he and his
partner Officer David Haverty were dispatched to the Mravlag Manor Housing
Projects the night of October 14, 2015, regarding a fight between "a couple of
males and a female near the pool area." An updated call stated the fight was in
a third-floor apartment.
Benenati and Haverty were not the first to arrive on the scene. He testified
Lieutenant Michael W. Kiley and Detective Luis Garcia were already at the
third-floor apartment, interviewing the victim. Haverty began ascending the
stairs to the apartment before Benenati. According to Benenati, Haverty was on
the stairs between the second and third floor and Benenati was on the second -
floor landing when Haverty leaned over the railing and instructed Benenati to
stop defendant, who had already descended the stairs past Haverty and was now
also on the second-floor landing.
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Benenati testified he "was instructed by [Haverty,] who was instructed by
[Kiley] on the third floor to stop [defendant]." Benenati stated "I didn't know
why at that point, but I knew he was pertinent to our investigation." 1 According
to Benenati, Haverty descended the stairs to the second-floor landing and "told
[Benenati] that [defendant] was being placed under arrest for domestic
violence." After Benenati and Haverty "both together put handcuffs on
[defendant]," they searched him and the garbage bags he was carrying and
recovered a gun from one of the bags. Defendant moved to suppress the
evidence of the warrantless search.
Following the hearing, the motion judge issued a written decision denying
defendant's motion. The judge credited Benenati's testimony and stated:
I find that the police [o]fficer's testimony was
credible. In what was described as a somewhat typical
domestic violence call, police respond to the scene,
interview an alleged victim, observe signs of injury to
the victim which the victim claims to be a result of
domestic violence and effectuate an arrest of the
defendant as they are required to do [pursuant to
N.J.S.A. 2C:25-21(a)].
....
I conclude that the arrest pursuant to the
Prevention of Domestic Violence Act was appropriate.
1
Benenati testified Haverty did not interview the victim until after defendant
was arrested.
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Police responded to a call of a domestic dispute. The
defendant is seen coming from the direction of an
apartment occupied by a person who reports that the
defendant had just left her apartment. Police then
observe visible signs of injury on the alleged victim and
when questioned stated that the defendant punched her.
Having concluded that the arrest was required
and therefore lawful, the [c]ourt concludes that the
search conducted according to the officer's credible
testimony that was limited to his person and the area
within his immediate reach, including the bags in his
possession was lawful.
Following the denial of his motion, defendant pled guilty to second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); the first two
indictments. Pursuant to the plea, the second indictment, charging a second-
degree certain persons charge, N.J.S.A. 2C:39-7, was dismissed. Defendant
received a three-year prison sentence with one year of parole ineligibility.
Defendant raises the following argument on appeal:
BECAUSE THE STATE FAILED TO
DEMONSTRATE THAT THE POLICE HAD
PROBABLE CAUSE TO ARREST DEFENDANT
BEFORE HE WAS ARRESTED, THE ORDER
DENYING SUPPRESSION SHOULD BE
REVERSED. U.S. Const. amend IV; N.J. Const. art. I,
¶ 10.
"An appellate court reviewing a motion to suppress evidence in a criminal
case must uphold the factual findings underlying the trial court's decision,
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provided that those findings are 'supported by sufficient credible evidence in the
record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,
226 N.J. 20, 40 (2016)). We owe no deference, however, to conclusions of law
made by trial courts in suppression decisions, which we instead review de novo.
State v. Watts, 223 N.J. 503, 516 (2015).
Like its federal counterpart, Article I, Paragraph 7 of the New Jersey
Constitution protects against "unreasonable searches and seizures" and generally
requires a warrant issued on "probable cause." N.J. Const. art. I, ¶ 7; see U.S.
Const. amend. IV. "[A] warrantless search is presumptively invalid" unless the
State establishes the search falls into "one of the 'few specifically established
and well-delineated exceptions to the warrant requirement.'" State v. Gonzales,
227 N.J. 77, 90 (2016) (citation omitted).
"Under the search incident to arrest exception, the legal seizure of the
arrestee automatically justifies the warrantless search of his person and the area
within his immediate grasp." State v. Pena-Flores, 198 N.J. 6, 19 (2009) (citing
Chimel v. California, 395 U.S. 752, 762-63 (1969)). Additionally, whereas
federal case law recognizes a good faith exception to the exclusionary rule, New
Jersey departs from the federal good faith exception. Compare Herring v.
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United States, 555 U.S. 135, 138 (2009) with State v. Novembrino, 105 N.J. 95,
158 (1987).
Defendant argues "the State adduced no evidence from which the motion
court could conclude that the officers—Benenati, Haverty, or anyone else, for
that matter—had probable cause to arrest defendant before arresting him." We
agree.
The evidence presented to the motion judge failed to demonstrate probable
cause to arrest defendant because Benenati testified he did not know the reason
why he was asked to stop defendant. Moreover, Benenati testified he arrested
defendant because Haverty told him defendant "was being placed under arrest
for domestic violence."
We do not question the State's argument that hearsay information can
establish probable cause for an arrest or that probable cause can be obtained
from a police investigation or other officers. See Draper v. United States, 358
U.S. 307, 311-13 (1959) and see also United States v. Hensley, 469 U.S. 221,
229-33 (1985). However, on this record, there was no evidence to establish
Benenati or Haverty had probable cause to arrest defendant.
Indeed, Benenati testified he was called due to a fight between two males
and a female. Benenati did not speak with or receive the information Kiley
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obtained from the victim, who he was interviewing on the top floor of the
building regarding the alleged domestic violence incident. His testimony
confirms Haverty did not reach the victim. Haverty, Kiley, and Garcia did not
testify. Therefore, the record lacked evidence of the probable cause reasons to
arrest defendant. There was no evidence to substantiate the motion judge's
finding that defendant's arrest was pursuant to an act of domestic violence with
a visibly injured victim.
Reversed. The handgun is suppressed. We vacate defendant's guilty plea
and remand for further proceedings. We do not retain jurisdiction.
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