New Jersey law permits a victim of domestic violence to obtain a temporary restraining order (“TRO”) by applying at their local county courthouse. If granted, the alleged aggressor will be personally served with a copy of the TRO by local law enforcement officers. Although the officers may only be serving the TRO, a recent case makes clear that the defendant can be arrested for other crimes the officers may observe or based on evidence they may legally gather regardless of what happens with the TRO.
In the case of State v. Hemenway, the plaintiff applied for a TRO against the defendant. The Court granted the TRO and expressly authorized the police officers to search defendant’s residence and vehicles and seize any weapons found therein. The defendant, apparently realizing that he was subject to criminal liability if the police entered the residence, attempted to have the police serve him the TRO outside the residence. The police declined and after initially searching the residence for weapons and finding marijuana in plain view, applied for a search warrant that led to discovery of contraband, including marijuana, cocaine, drug paraphernalia and five hollow point .38 caliber bullets. The defendant was charged with possession of the contraband, but moved to suppress the evidence found by the officers. The Superior Court-Criminal Part judge denied the motion to suppress and held there was probable cause for the search warrant. Subsequently, on the domestic violence charge, the Family Part judge found there was insufficient credible evidence to grant the plaintiff a Final Restraining Order.
The New Jersey Appellate Division agreed with the lower court finding that there was probable cause for the search. Furthermore, even though the defendant was ultimately successful in the domestic violence trial and the judge did not enter a Final Restraining Order against him, the search warrant was still valid, and the charges of possession would not be dismissed.
The takeaway from this decision is that regardless of whether a domestic violence charge is ultimately found to be valid, the police may legally enter and search the home pursuant to the temporary restraining order and the fruits of that search can be used against the defendant.
If you are accused of domestic violence or a victim of domestic violence, skilled legal representation is essential. Contact our firm for assistance.