Gun owners must always remember that the issuance of a domestic violence temporary restraining order, or TRO, can result in at least a temporary seizure of their weapons and firearms purchaser identification card. On the surface, the typical chain of events is fairly straight forward. A member of the same household complains of an alleged act of domestic violence. The police arrive and, if previously provided with information concerning weapons in the home, seize the weapons and any related items including ammunition and the gun owner’s FID Card pursuant to a warrant. The court will then conduct a hearing to determine, among other things, whether the weapons and other items can be returned to the gun owner. The issue in Hemenway was the standard that should guide a court’s decision to issue to a domestic violence search warrant for weapons. Specifically, the relevant statute and related cases referred to a “reasonable cause” standard for the issuance of such a warrant, and the Supreme Court was called upon to determine whether this standard passed Constitutional muster under the Fourth Amendment of the United States Constitution and the analogous provision of New Jersey’s Constitution.
The applicant in the underlying domestic violence case requested a TRO barring Defendant from, among other things, from possessing firearms, knives and a taser. In court, the Family Part judge asked her whether she had an awareness that he had any weapons. She responded affirmatively and the judge asked what kind of weapons did she claim he had. She responded “handguns, knives”, to which the court replied “A handgun?” She then stated “knives, blades”, to which the court replied “handguns?” She then stated “switchblades”. She also alleged that Defendant kept the weapons in three cars and his apartment. Based upon this colloquy, the court entered a TRO and a search warrant to “search for and seize … handguns, knives, and switchblades” from Defendant’s home and three vehicles. The court did not state a “reasonable cause” or “probable cause” basis for believing that Defendant possessed the weapons, or that they would be located in his home or vehicles.
Two officers met Defendant outside his home and told him that they had a warrant to search his residence for weapons. Defendant was not permitted to call his lawyer , and was arrested when he refused to allow the officers into his home. Upon entry, the officers saw what appeared to be cocaine and marijuana. A detective then obtained a telephonic search warrant for Defendant’s cars and residence. The search yielded drugs, ammunition and cash, but no weapons. Defendant was charged with narcotics offenses. His suppression motion was denied because the trial judge determined that the telephonic warrant was issued based upon probable cause to search the residence, and the domestic violence search stemmed from an independent and adequate basis to the cars. The Appellate Division affirmed and the Supreme Court granted certification.
Not surprisingly, the Supreme Court reversed. In doing so, the Court formulated the standard for issuing a domestic violence search warrant for weapons as follows: First, the issuing court must find that there is probable cause to believe that the defendant committed an act of domestic violence; Second, the issuing court must find that there is probable cause to believe that a search for, and seizure of, weapons is required to protect the victim’s life, health or well being; and Third, the issuing court must find that there is probable cause to believe that the weapons are located in the place to be searched. In the context of a domestic violence search warrant for weapons, “probable cause” requires the issuing court to have only a “well-grounded suspicion”. In sum, the Court recognized that the colloquy that served as the basis for the issuance of the original warrant to search for weapons was woefully inadequate, and that the entry into Defendant’s home based on that warrant could not be sanitized with the issuance of the subsequent warrant. Accordingly, the contraband discovered there had to be suppressed.
The decision is significant because it tightens up the standard for issuing a domestic violence search warrant for weapons, even though probable cause in this context may be based only upon a well grounded suspicion. It also requires the issuing court to state its reasons for granting the warrant in a more thorough and organized manner on the record.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in all state court and federal courts in New Jersey and New York City.