STATE v
JONATHAN MCEACHIN,
DOCKET NO. A-3880-09T1
_________________________________
Submitted March 30, 2011 - Decided
Before Judges Sapp-Peterson and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
08-12-1596.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Stephen A. Caruso,
Assistant Deputy Public Defender, on the
brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent
(Christopher W. Hsieh, Senior Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
After the motion judge failed to conduct an evidentiary
hearing on defendant's motion to suppress, defendant pled guilty
to second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5b. The judge sentenced defendant to three years in
April 19, 2011
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prison with a one year term of parole ineligibility. Defendant
appeals from that conviction, argues that the material facts
were disputed, and contends that the judge erred by not taking
testimony. We agree and reverse.
Because the judge denied defendant's request for an
evidentiary hearing, the judge considered the briefs filed by
the parties, a police report, and oral argument by the
attorneys. We discern the following facts from those sources.
The State contended that three undercover detectives were
dispatched to an area in response to complaints of people
"hanging out and selling narcotics." When they arrived in an
unmarked police car, one detective observed defendant hold a
"shiny, silver item" and show it to another man. The detective
could not identify the object. The detectives pulled over,
exited the car, approached both men, and identified themselves
as police officers. At that point, one detective identified the
object as a gun and observed defendant attempt to conceal it.
The detective handcuffed defendant and arrested him.
The police report verified that the three detectives were
in the area because of complaints concerning drug sales. The
report states that one detective observed defendant showing a
"shiny silver item" to the other man, and that the detective did
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not know what the object was until he exited the car, approached
defendant, and announced he was a policeman.
Defense counsel hotly contested the facts in his brief in
support of the motion and during oral argument before the motion
judge. In his counter-statement of facts defense counsel
explained that:
This case is about a pretextual stop
and search that was the product of racial
profiling and perceive[ed] gang affiliation,
not a reasonable and articulable suspicion
of plain view observation. . . . [T]he
detectives claim to have observed [the other
man] and [defendant], both dark[-]skinned
African-Americans and cousins to one
another, standing face to face, next to a
tree. The police allege to have observed
[defendant] holding a shiny item which they
have unreasonably assumed was a gun.
Significantly, none of the three
officers had their guns drawn when they
approached [the men], nor did they call for
back-up prior to approaching them.
. . . .
Without waiving any of his
constitutional rights, [defendant] admits to
possession of the firearm which was
concealed in his pants at all relevant
times. He had the firearm for self-defense
because his younger brother . . . had been
shot and killed one month prior . . . .
(emphasis added).
Defense counsel also stated in his counter-statement of
facts that defendant was wearing a short sleeve shirt which
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exposed numerous tattoos on his arms, and suggested that
"[t]attoos on young Black and Latino men are commonly associated
with gang affiliation."
At oral argument before the judge, defense counsel
emphasized that the material facts were in dispute. He repeated
his argument that the case is about "a pretextual stop and
search that was the product of racial profiling and perceived
gang affiliation," and stated that "all three of these officers
were white and that the two individuals . . . were African-
American."
In denying the request for an evidentiary suppression
hearing the judge stated:
[Defense counsel] argues that an
evidentiary hearing is required because how
do we know that this -- A, whether they saw
a shiny object at all and if the -- if the
shiny object wasn't perhaps something else
because certainly if it was just, I don't
know, a reflection off of a wristwatch or
something like that[, then] that certainly
would not be a basis for approaching this
defendant and seizing the -- the handgun.
. . . .
Credibility [of the detective] is in
dispute, but I have received no sworn
affidavit to the contrary.
On appeal, defendant raises the following point:
POINT I
THE TRIAL JUDGE ERRED BY DENYING THE
DEFENDANT'S REQUEST TO HOLD AN EVIDENTIARY
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HEARING AND PRESENT TESTIMONY AT THE
SUPPRESSION HEARING, IN VIOLATION OF
DEFENDANT'S CONSTITUTIONAL RIGHTS. U.S.
CONST. AMEND. IV, XIV; N.J. CONST. (1947)
ART. I, PAR. 7
"Consistent with the Fourth Amendment to the United States
Constitution and Article I, paragraph 7 of the New Jersey
Constitution, police officers must obtain a warrant . . . before
searching a person's property, unless the search 'falls within
one of the recognized exceptions to the warrant requirement.'"
State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v.
Cooke, 163 N.J. 657, 664 (2000)); see also State v. Robinson,
200 N.J. 1, 3 (2009) ("[t]he warrant requirement embodied in
both" the State and Federal Constitutions "limits the power of
the sovereign to enter our homes and seize our persons or our
effects"). A warrantless search is presumed invalid. State v.
Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the
State to prove that the search "'falls within one of the few
well-delineated exceptions to the warrant requirement.'" Ibid.
(quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
Rule 3:5-7(b) and (c) govern the obligation to file briefs
concerning motions to suppress, and addresses when a hearing is
required. The rule provides in pertinent part:
(b) . . . If the search was made without a
warrant, the State shall, within 15 days of
the filing of the motion, file a brief,
including a statement of the facts as it
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alleges them to be, and the movant shall
file a brief and counter statement of facts
no later than three days before the hearing.
(c) . . . If material facts are disputed,
testimony thereon shall be taken in open
court.
(emphasis added).
The rule makes clear that an evidentiary hearing is only
required when material facts are in dispute. State v. Kadonsky,
288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J.
589 (1996). The judge acknowledged that the credibility of the
officer was in dispute and mentioned that he had "no sworn
affidavit to the contrary." There is no such requirement,
however, that to demonstrate a material disputed fact, one must
produce an affidavit. All that is required is a counterstatement
of facts contained within a brief. R. 3:5-7(b); State
v. Torres, 154 N.J. Super. 169, 173 (App. Div. 1977).
Here, defense counsel's brief states that "according to
both defendant and his cousin . . . , neither of whom has a
criminal record which could be used to impeach their
credibility," the gun was not in plain view. The judge stated
that the shiny object could be something else, such as a
"reflection off of a wristwatch or something like that," and
"that certainly would not be a basis for approaching this
defendant and seizing the -- the handgun." We conclude,
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therefore, that a suppression hearing is required because the
material facts are disputed.
Reversed and remanded for further proceedings. We do not
retain jurisdiction.
