Domestic Violence Act does not allow an officer to
conduct a general and intensive search for weapon
beyond what is reasonable to locate the weapon that the
officer believes is there. Id. Thus, a police officer exceeded
the scope of the search for a handgun when he opened a
change purse, that was about three inches by two inches,
that could not have possibly contained the handgun. Id.
A police officer responding to a domestic violence
complaint and pursuant to an arrest is permitted to
observe a perpetrator of domestic violence in a minimally
intrusive fashion without running afoul of the
Constitution. State v. Scott, 231 N.J. Super. 258, 273
(App. Div. 1989) (Ashbey, J., concurring and
dissenting), rev’d on concurring and dissenting opinion
below, 118 N.J. 406 (1990). In State v. Scott, after
responding to a domestic violence complaint, the
responding police officer informed the perpetrator of
domestic violence that he was under arrest. Id. at 269.
The perpetrator agreed to accompany the police to
headquarters, but he had to dress. Id. The police officer
kept the perpetrator “within his view” and saw marijuana
that was the subject of a motion to suppress. Id. The
court recognized a “self-protective exception” to the
warrant requirement by keeping a domestic violence
perpetrator in the sight of the officer. Id. at 274. It found
that whether the police officer was investigating a
domestic violence complaint or waiting to enforce an
order, the police officer “was following reasonable
procedures directed toward protecting police officers as
well as domestic violence victims.” Id. The court found
that the police officer’s conduct was also justified under
the search incident to arrest and “emergency aid”
doctrine exceptions to the warrant requirement. Id. at
274-77.
2. Seizure of a Weapon Pursuant to a Restraining Order or as a Condition of Bail
In the criminal context, a warrant may be issued only
upon a showing of probable cause that would lead the
reasonable person to believe that a crime has been
committed and that evidence of that crime will be found
in a particular place. State v. Burdine, 313 N.J. Super.
468, 472 (Law Div. 1998)(citing In re Martin, 90 N.J.
295, 315 (1982)). The Domestic Violence Act permits
the court to order a search for and seizure of any weapon
at any location where the court has reasonable cause to
believe the weapon is located in the following situations:
(1) as a condition of bail when a domestic violence
assailant is released from custody before trial on bail or
personal recognizance, N.J.S.A. 2C:25-26a; (2) upon
issuing an emergent temporary restraining order,
N.J.S.A. 2C:25-28j; or (3) upon issuing a final
restraining order, N.J.S.A. 2C:25-29b(16).A court may issue a search warrant for a defendant’s
apartment for a gun under the Domestic Violence Act
when defendant’s girlfriend filed a domestic violence
complaint indicating where a gun was “possibly” located.
State v. Burdine, 313 N.J. Super. 468, 472 (Law Div.
1998). Although in Burdine the complaint used the
word “possibly” the court had reasonable cause to believe
that gun was in the apartment and any doubt created by
the use of the word “possibly” in the complaint was
overcome by a specific description given by girlfriend of
gun and its location. Id.
Even absent a showing of probable cause under some
circumstances involving domestic violence a warrantless
entry into a home can be lawful. In Burdine, the Law
Division held: “the court is satisfied that even without the
traditional probable cause requirement having been met,
the search under the facts and circumstances of this case
passes constitutional scrutiny. A limited police entry is
allowed to remove an item of potential danger in the
volatile setting of domestic violence, especially when the
item is a handgun.” State v. Burdine, 313 N.J. Super.
474-75.Furthermore, it is not necessary for the perpetrator of
domestic violence to be engaged in an act of violence at
the time that the weapons are removed from the premises.
In Hoffman v. Union County Prosecutor, 240 N.J. Super.
206 (Law Div. 1990), the police came into lawful
possession of husband’s rifles, shotguns and a Japanese
saber, when the police were called to the marital residence
because of a domestic violence complaint between the
wife and son and the wife requested for the officers to
remove her husband’s weapons from the premises. In this
case, the police officers’ concern for the wife’s safety was
reasonable and prudent because the domestic violence
was ongoing, although the husband was not engaged in
violence the night that the weapons were removed. Id. at
212-13.Additionally, a law enforcement officer is permitted
to seize weapons identification cards, incidental to an
appropriate search for weapons under the Domestic
Violence Act even if the officer fails to confirm the
presence of any of the weapons to which the card may
pertain. Matter of Seized Firearms Identification Card of
Hand, 304 N.J. Super. 360, 368-71 (Ch. Div. 1997).