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Domestic Violence Search Warrant Upheld

Posted by Richard DeMichele | Aug 22, 2012 | 0 Comments

Weapons found during the domestic violence search of Defendant's premises are admissible in his later criminal trial

Last week the New Jersey supreme court issued an important decision regarding the validity of search warrants issued as a result of a complaint of domestic violence.  The facts of  State v. Carlton Harris are simple and undisputed.  Mr. Harris's girlfriend sought a temporary restraining order against the defendant for alleged domestic violence.  The judge hearing the matter found that there was sufficient grounds for the entry of a temporary restraining order (TRO) against Mr. Harris. As a result of the TRO the police went to Mr. Harris's home to search for and seize any weapons he may have.  During their search the police discovered several illegal weapons including a Cetme .308 caliber assault rifle with five large capacity magazines and a stolen Colt Anaconda .45 revolver. As a result the defendant was indicted for possession of an assault firearm, N.J.S.A. 2C:39-5(f), a crime of the second degree; possession of a loaded rifle, N.J.S.A. 2C:39-5(c)(2), a crime of the third degree; five counts of possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j), a crime of the fourth degree; unlawful possession of a firearm, a stolen revolver, N.J.S.A. 2C:39-5(b), a crime of the second degree; receiving stolen property, N.J.S.A. 2C:20-7(a), a crime of the third degree; and three counts of certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(3), a crime of the third degree. The trial court suppressed the weapons found during the police search of the defendant's home. The lower court reasoned, in part, that the search pursuant to New Jersey's prevention of domestic violence statute was “… only constitutional because they serve a legitimate state interest and therefore evidence gathered during the search cannot have criminal repercussions for the defendant.” The Appellate Division essentially affirmed the reasoning of the trial court and and reasoned the warrant did not issue upon probable cause, but upon the lesser standard of reasonable cause.  The appeal to the New Jersey Supreme Court followed.

In a 4 to 2 decision the New Jersey high court held items seized during the conduct of a domestic violence search can serve as the basis for a subsequent criminal prosecution for possession of those items.  The court did place limits on a search incident to a TRO.  While the police were legitimately at Mr. Harris's home the question of admissibility of the seize weapons would turn on whether the illegal nature of the seized weapons was immediately apparent or whether a further search was required to determine that illegality.  The court in Harris found that it was immediately apparent that the handguns seized were illegal but the question of whether it was immediately apparent that the Cetme .308 caliber assault rifle was illegal was remanded  to the trial court. In rendering its decision the court recognized the United States Constitution(fourth amendment) and the New Jersey Constitution provide, “.. the peoples' right ‘to be secure in their persons, houses, papers, and effects' and require that any warrant authorizing a search be ‘supported by oath or affirmation' and describe with particularity the area that may be searched and what may be seized.” However, there are several exceptions to the general rule that a warrant based on probable cause must be issued prior to any search or seizure.  These exceptions include, plain view, police providing emergency aid,and police performing their community caretaking function. The Court in this case relied upon the special needs exception which is applicable when the search is conducted for reasons unrelated to law enforcement's investigation and prosecution of criminal activity and furthers an important state interest.  The search of Mr. Harris's home was not for the purpose of securing evidence of a crime to bring criminal charges against Mr. Harris, but was initiated based on a claim of domestic violence and to protect the alleged victim. Do you have questions regarding domestic violence temporary restraining orders or the limits of police power to perform a search?   Contact the lawyers at DeMichele & DeMichele for a confidential initial consultation. (856) 546-1350. Do not wait to get a skilled advocate to represent you    

About the Author

Richard DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.


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