                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2578-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAREEF J. THOMAS,
a/k/a SHARIF THOMAS,

     Defendant-Appellant.
________________________

                    Submitted October 30, 2019 – Decided November 8, 2019

                    Before Judges Koblitz and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment Nos. 16-02-0155
                    and 16-02-0156.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stefan Van Jura, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Reana Garcia, Special Deputy
                    Attorney General/Acting Assistant Prosecutor, of
                    counsel and on the brief).
PER CURIAM

      Defendant Shareef J. Thomas appeals from a January 2, 2018 conviction

for possession of a handgun, entered on a plea, after the trial court denied his

motion to suppress. We reverse.

      The only witnesses to testify at the suppression hearing were Elizabeth

police officer Edward Benenati, Jr. and defendant. Benenati testified he and his

partner Officer David Haverty were dispatched to the Mravlag Manor Housing

Projects the night of October 14, 2015, regarding a fight between "a couple of

males and a female near the pool area." An updated call stated the fight was in

a third-floor apartment.

      Benenati and Haverty were not the first to arrive on the scene. He testified

Lieutenant Michael W. Kiley and Detective Luis Garcia were already at the

third-floor apartment, interviewing the victim. Haverty began ascending the

stairs to the apartment before Benenati. According to Benenati, Haverty was on

the stairs between the second and third floor and Benenati was on the second -

floor landing when Haverty leaned over the railing and instructed Benenati to

stop defendant, who had already descended the stairs past Haverty and was now

also on the second-floor landing.




                                                                          A-2578-17T4
                                        2
      Benenati testified he "was instructed by [Haverty,] who was instructed by

[Kiley] on the third floor to stop [defendant]." Benenati stated "I didn't know

why at that point, but I knew he was pertinent to our investigation." 1 According

to Benenati, Haverty descended the stairs to the second-floor landing and "told

[Benenati] that [defendant] was being placed under arrest for domestic

violence."   After Benenati and Haverty "both together put handcuffs on

[defendant]," they searched him and the garbage bags he was carrying and

recovered a gun from one of the bags.       Defendant moved to suppress the

evidence of the warrantless search.

      Following the hearing, the motion judge issued a written decision denying

defendant's motion. The judge credited Benenati's testimony and stated:

                   I find that the police [o]fficer's testimony was
             credible. In what was described as a somewhat typical
             domestic violence call, police respond to the scene,
             interview an alleged victim, observe signs of injury to
             the victim which the victim claims to be a result of
             domestic violence and effectuate an arrest of the
             defendant as they are required to do [pursuant to
             N.J.S.A. 2C:25-21(a)].

                   ....

                  I conclude that the arrest pursuant to the
             Prevention of Domestic Violence Act was appropriate.

1
  Benenati testified Haverty did not interview the victim until after defendant
was arrested.
                                                                         A-2578-17T4
                                       3
            Police responded to a call of a domestic dispute. The
            defendant is seen coming from the direction of an
            apartment occupied by a person who reports that the
            defendant had just left her apartment. Police then
            observe visible signs of injury on the alleged victim and
            when questioned stated that the defendant punched her.

                  Having concluded that the arrest was required
            and therefore lawful, the [c]ourt concludes that the
            search conducted according to the officer's credible
            testimony that was limited to his person and the area
            within his immediate reach, including the bags in his
            possession was lawful.

      Following the denial of his motion, defendant pled guilty to second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); the first two

indictments. Pursuant to the plea, the second indictment, charging a second-

degree certain persons charge, N.J.S.A. 2C:39-7, was dismissed. Defendant

received a three-year prison sentence with one year of parole ineligibility.

      Defendant raises the following argument on appeal:

            BECAUSE    THE      STATE       FAILED        TO
            DEMONSTRATE THAT THE POLICE HAD
            PROBABLE CAUSE TO ARREST DEFENDANT
            BEFORE HE WAS ARRESTED, THE ORDER
            DENYING    SUPPRESSION         SHOULD         BE
            REVERSED. U.S. Const. amend IV; N.J. Const. art. I,
            ¶ 10.

      "An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,


                                                                          A-2578-17T4
                                        4
provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,

226 N.J. 20, 40 (2016)). We owe no deference, however, to conclusions of law

made by trial courts in suppression decisions, which we instead review de novo.

State v. Watts, 223 N.J. 503, 516 (2015).

      Like its federal counterpart, Article I, Paragraph 7 of the New Jersey

Constitution protects against "unreasonable searches and seizures" and generally

requires a warrant issued on "probable cause." N.J. Const. art. I, ¶ 7; see U.S.

Const. amend. IV. "[A] warrantless search is presumptively invalid" unless the

State establishes the search falls into "one of the 'few specifically established

and well-delineated exceptions to the warrant requirement.'" State v. Gonzales,

227 N.J. 77, 90 (2016) (citation omitted).

      "Under the search incident to arrest exception, the legal seizure of the

arrestee automatically justifies the warrantless search of his person and the area

within his immediate grasp." State v. Pena-Flores, 198 N.J. 6, 19 (2009) (citing

Chimel v. California, 395 U.S. 752, 762-63 (1969)). Additionally, whereas

federal case law recognizes a good faith exception to the exclusionary rule, New

Jersey departs from the federal good faith exception.       Compare Herring v.




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                                        5
United States, 555 U.S. 135, 138 (2009) with State v. Novembrino, 105 N.J. 95,

158 (1987).

         Defendant argues "the State adduced no evidence from which the motion

court could conclude that the officers—Benenati, Haverty, or anyone else, for

that matter—had probable cause to arrest defendant before arresting him." We

agree.

         The evidence presented to the motion judge failed to demonstrate probable

cause to arrest defendant because Benenati testified he did not know the reason

why he was asked to stop defendant. Moreover, Benenati testified he arrested

defendant because Haverty told him defendant "was being placed under arrest

for domestic violence."

         We do not question the State's argument that hearsay information can

establish probable cause for an arrest or that probable cause can be obtained

from a police investigation or other officers. See Draper v. United States, 358

U.S. 307, 311-13 (1959) and see also United States v. Hensley, 469 U.S. 221,

229-33 (1985). However, on this record, there was no evidence to establish

Benenati or Haverty had probable cause to arrest defendant.

         Indeed, Benenati testified he was called due to a fight between two males

and a female. Benenati did not speak with or receive the information Kiley


                                                                          A-2578-17T4
                                         6
obtained from the victim, who he was interviewing on the top floor of the

building regarding the alleged domestic violence incident.       His testimony

confirms Haverty did not reach the victim. Haverty, Kiley, and Garcia did not

testify. Therefore, the record lacked evidence of the probable cause reasons to

arrest defendant. There was no evidence to substantiate the motion judge's

finding that defendant's arrest was pursuant to an act of domestic violence with

a visibly injured victim.

      Reversed. The handgun is suppressed. We vacate defendant's guilty plea

and remand for further proceedings. We do not retain jurisdiction.




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