NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4239-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHANNON WALLACE,
Defendant-Appellant.
________________________________________________________________
Submitted May 12, 2009 – Decided
Before Judges Wefing and Parker.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
01-08-1714.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Arthur J. Owens,
Designated Counsel, on the briefs).
Anne Milgram, Attorney General, attorney for
respondent (Hillary Horton, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Shannon Wallace appeals from an order entered
after a remand proceeding on April 6, 2005 denying his motion to
suppress evidence seized without a warrant. After denial of his
original motion on May 14, 2002, defendant was tried by a jury
and found guilty of third degree possession of a controlled
August 25, 2009
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dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third degree
possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -
5b(3); third degree possession with intent to distribute in a
school zone, N.J.S.A. 2C:35-7; two counts of third degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5b and -5d;
second degree possession of a weapon while committing a drug
crime, N.J.S.A. 2C:39-4.1a; fourth degree possession of a
prohibited weapon, N.J.S.A. 2C:39-3d; and second degree
possession of a weapon by a prohibited person, N.J.S.A. 2C:39-
7b. After the appropriate mergers, defendant was sentenced to an
aggregate term of twenty years subject to ten years parole
ineligibility.
These charges arose out of defendant's arrest on January
22, 2001 when Parole Officer Thomas High arrived at a residence
he knew defendant occupied. Along with eight other parole
officers, High intended to serve an arrest warrant for violation
of parole. The residence was within one thousand feet of a
school.
High had supervised defendant since 2000 and had made
numerous "home visits" to this address. High knew from past
visits that defendant occupied a second floor bedroom from which
High saw him "peek out" on January 22, 2001. When the officers
entered the house, they went to the second floor bedroom, where
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one of the officers saw a clip of eight vials of suspected
cocaine on a dresser. A drawer in the dresser was partially
opened and contained a black semi-automatic handgun. Other
officers found a bundle of drugs and a knife in the bedroom.
Under the mattress, along with other mail addressed to
defendant, they found a certificate from the Parole Department
addressed to defendant indicating that he had completed a
ninety-day reporting program. One thousand empty vials were
found under the bed.
Defendant was not in the second floor bedroom when the
officers entered it. One of the officers went to the attic and
found defendant hiding behind a clothes rack. When defendant was
seized and arrested, he did not have any shoes on. His
girlfriend, who was present at the time, indicated to the
officers that defendant's shoes were in the bedroom closet. His
work boots were retrieved from that closet.
After hearing the testimony at the suppression hearing, the
motion judge found that the officers were authorized to enter
the home and the bedroom pursuant to the warrant, regardless of
whether that was defendant's official address, because they had
seen defendant inside the residence on the date the warrant was
served and High had previously made "home visits" to this
address.
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His motion to suppress having been denied, defendant
proceeded to trial. The trial judge determined that all of the
evidence seized was admissible under the plain view doctrine,
including the evidence found under the bed and mattress.
Defendant appealed his conviction and on October 22, 2004,
we remanded the matter for a hearing for the trial judge to
explain the rationale for admitting into evidence the non-plain
view evidence – specifically, the one thousand vials found under
the bed and the paperwork under the mattress. State v. Wallace,
No. A-6001-02 (App. Div. Oct. 22, 2004) (slip op. at 11-12).
A remand hearing was conducted on March 17, 2005 by the
judge who had denied defendant's pre-trial suppression motion,
rather than the trial judge. The remand judge rendered a
decision on the record of that date in which he reviewed the
testimony and the evidence presented at the suppression hearing
and the applicable case law. The remand judge concluded that the
continuation of the search beyond the plain view evidence was
valid because "[i]t started with plain view, exigent
circumstance – under exigent circumstances, hot pursuit, valid
arrest warrant, and what they had found in plain view which
indicated the further dangerousness of the situation."
In this appeal, defendant argues:
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POINT ONE
THE INSTRUCTIONS OF THE APPELLATE DIVISION
WERE NOT FOLLOWED INSOFAR AS THE REMAND WAS
ASSIGNED THE JUDGE THAT DECIDED A PRETRIAL
MOTION INSTEAD OF THE JUDGE THAT PRESIDED
OVER THE TRIAL
POINT TWO
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL
Defendant contends that the trial court did not comply with
our instructions on the remand hearing. We agree. The remand
hearing was not conducted by the same judge who tried the case.
Thus, the judge who heard the matter on remand could not have
been familiar with the officers' testimony at trial and could
not have been aware that certain crucial trial testimony
differed from the testimony given at the suppression hearing.
At trial, Parole Officer Russo testified that when he moved
the bed and lifted the mattress, he found defendant's paperwork
and the additional one thousand empty vials. He also testified
that defendant had already been arrested and secured at the time
he looked under the mattress and the bed. Russo's trial
testimony was contrary to other testimony during the suppression
hearing that the evidence under the mattress and the bed was
found while the officers were searching for defendant.
During the remand hearing, the trial judge stated:
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The only issue before this [c]ourt is
whether the search by Officer Russo under
the mattress which [uncovered] a box of
empty vials and paperwork was lawful in the
event that the search is not supported by a
valid warrant . . . . The State has the
burden to demonstrate that the search falls
within one of the exceptions to the warrant
requirement. The State must prove by a
preponderance of the evidence [that] there
were no constitutional violations. State v.
Wilson, 178 N.J. 7 (2003).
The remand judge determined that since the officers were on
the premises legally pursuant to a valid warrant, the search
under the bed and the mattress occurred pursuant to the
officers' looking for defendant. Because the remand judge
reviewed only the suppression hearing testimony and did not
consider the contrary trial testimony, the finding on remand
that the vials and paperwork were located during the search for
defendant is not supported by the substantial credible evidence.
Defendant was charged with possession based upon the
paperwork found under the mattress. He was charged with intent
to distribute based upon the thousand vials seized from under
the bed. Given these circumstances and the divergence of Russo's
trial testimony from the testimony given at the suppression
hearing, we are constrained to remand once again for a further
hearing – this time by the trial judge – to determine whether
the items seized from under the mattress and the bed were
admissible at trial.
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We decline to address defendant's ineffective assistance of
counsel argument because it is more appropriately left for a
petition for post-conviction relief. State v. Preciose, 129 N.J.
451, 460-61 (1992).
Reversed and remanded for further proceedings consistent
with this opinion and our opinion rendered on October 22, 2004.
We do not retain jurisdiction.
