State v McNeil

1-14-09 State v. Anthony McNeil a/k/a Minister Mahdian Ali
A-2255-06T1

A defendant competent to stand trial under N.J.S.A. 2C:4-4
may not be competent to waive his or her right to counsel and to
represent himself pro se.

State v Thomson

2-02-09 State of New Jersey v. Robbie Thomson
A-2980-06T4

Even if the State elicits improper expert testimony by use
of a hypothetical question that tracks the language of the
statute a defendant has been charged with violating or seeks an
expert opinion that an offense was committed, a reversal of the
defendant's conviction is required only if that testimony was
sufficiently prejudicial to have the capacity to bring about an unjust result.

State v Coven

2-11-09 State v. Lawrence S. Coven
A-5846-07T4

Misapplication of entrusted property, N.J.S.A. 2C:21-15, is
not a continuing course of conduct offense. The offense is
complete the moment the recipient clearly and objectively
misapplies the entrusted property, thus putting it at
substantial risk of loss or detriment of the owner or person for
whose benefit it was entrusted. The indictment, which was
returned more than five years after that date, was properly
dismissed for failure to comply with the statute of limitations.

State v. Popovich No sequestration of defense expert in DWI case

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY POPOVICH,

Defendant-Appellant.
____________________________________
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2862-07T4
APPROVED FOR PUBLICATION

February 17, 2009
Submitted December 2, 2008 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Municipal
Appeal No. 08-01-12.

Stephen M. Pascarella, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Patricia B. Quelch,
Assistant Prosecutor, of counsel; Courtney Darsch,
Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

WEFING, P.J.A.D.

Following a trial de novo in the Law Division, defendant
was found guilty of driving while intoxicated, N.J.S.A. 39:4-50.
He appeals from that conviction. After reviewing the record in
light of the contentions advanced on appeal, we reverse.


APPELLATE DIVISION
February 17, 2009
A-2862-07T4
2
Defendant was stopped while driving on August 12, 2007, in
Lake Como. The facts surrounding that stop are not material to
this appeal. He agreed to take a breathalyzer test, and the
results showed a blood alcohol level of .13 and .14. Defendant
was arrested and charged with driving while intoxicated.
Defendant, together with his attorney, appeared on November
20 in the Lake Como Municipal Court to defend against the
charge. Defendant's attorney had retained the services of an
expert to assist him in the defense. Following argument, the
municipal court judge granted the request of the municipal
prosecutor for a sequestration order and directed that
defendant's expert was subject to that order. The municipal
court dismissed the objections of defendant's attorney that such
an order would hamper his ability to cross-examine the
prosecution's witnesses. The municipal court judge indicated
that defense counsel, if he felt the need to consult with his
expert before proceeding to cross-examination, could either take
accurate notes of the testimony or order a transcript of the
relevant testimony and then consult with his expert. The
municipal court judge relied upon State v. Lanzel, 253 N.J.
Super. 168 (Law Div. 1991), which held that expert witnesses are
as subject to sequestration as lay witnesses.
A-2862-07T4
3
Faced with that ruling, defendant entered a conditional
plea of guilty, waiving any jurisdictional defects and any
question of jeopardy. Defendant agreed upon the record that if
the sequestration order were reversed in the Law Division, the
matter would be remanded to the municipal court for trial, and
the prosecution would be free to seek to establish either a per
se violation through the Breathalyzer readings or a violation
based upon the arresting officer's observations of defendant.
All parties agreed that the purpose of proceeding in this
fashion was to permit defendant to appeal the sequestration
order to the Law Division.
The Law Division judge, after argument, found that the
municipal court judge had not abused his discretion in excluding
defendant's expert, although he noted that he would have
exercised that discretion differently. He entered an order
finding defendant guilty of violating N.J.S.A. 39:4-50.
Defendant now appeals to this court, arguing that it was error
to order the sequestration of his expert. We are compelled to
agree.
N.J.R.E. 615 provides simply that "[a]t the request of a
party or on the court's own motion, the court may, in accordance
with law, enter an order sequestering witnesses." Whether to
order sequestration generally rests within the sound discretion
A-2862-07T4
4
of the trial court. State v. Miller, 299 N.J. Super. 387, 399
(App. Div.), certif. denied, 151 N.J. 464 (1997).
That discretion, however, must be exercised in light of the
underlying policy of sequestering witnesses during a proceeding.
"The reason for sequestration is to prevent prospective
witnesses from hearing what the other witnesses detail in their
evidence, for the less a witness hears of another's testimony
the more likely is he to declare his own knowledge simply and
unbiased." Ibid. (quoting State v. DiModica, 40 N.J. 404, 413
(1963)).
Defendant's expert, however, was not being called to
testify with respect to his knowledge of the underlying facts of
this incident for, quite simply, he had no knowledge of those
underlying facts. Rather, he was being called to offer an
expert opinion on the validity and reliability of the blood
alcohol readings that were obtained through the Breathalyzer
testing. We note that no question was raised with respect to
the qualifications of defendant's expert; both the municipal
court judge and the Law Division judge were familiar with the
individual and recognized him as an expert.
To sustain a finding of driving while intoxicated, there
must be proof of the "proper administration" of the test before
the results can be admitted into evidence and relied upon.
A-2862-07T4
5
State v. Maure, 240 N.J. Super. 269, 279 (App. Div. 1990),
aff'd, 123 N.J. 457 (1991) (citation omitted). "This includes
full proof that the equipment was in proper order, the operator
qualified and the test given correctly." Ibid. (citation
omitted).
In our judgment, State v. Lanzel, supra, the case upon
which the municipal court judge and the Law Division judge both
relied, is distinguishable from the present matter. The issue
in that case arose in the context of a pre-trial hearing at
which both the State and the defendant presented expert
psychiatric testimony. A sequestration order had been entered,
and the assistant prosecutor sought leave to have her expert
remain in the courtroom while defendant's expert testified; she
noted that the State had not received the updated reports from
defendant's expert. 253 N.J. Super. at 169. Further, she
argued that the testimony of her expert would not be influenced
by his having heard the testimony of defendant's expert "because
the proposed testimony of each expert is contradictory to the
other." Ibid. The trial court rejected these arguments,
concluding that to exempt the expert from sequestration "would
contravene the purpose of sequestration, which is to secure the
opinion uninfluenced by the evidence of another expert." Id. at
172.
A-2862-07T4
6
Here, we are not confronted with a case in which each side
has an expert witness, each holding opinions differing from the
other. Rather, defendant seeks to present an expert who will
offer an opinion on the sufficiency and reliability of the
testing methods employed by the police. The most reliable way
to secure that opinion would be to permit the proposed expert to
hear the testimony by which the State seeks to secure the
admission of those test results.
Further, we are of the view that to interpret N.J.R.E. 615
to authorize the routine sequestration of expert witnesses in a
matter such as this is contrary to the terms of N.J.R.E. 703,
which provides that an expert may base his opinion upon "facts
or data . . . perceived by or made known to the expert at or
before the hearing." By its use of the preposition "at," the
rule clearly envisions an expert observing trial proceedings and
then commenting upon what he has heard.
The order under review is reversed, and the matter is
remanded to the trial court for further proceedings.

State v Wang Prostitution conviction requires intent and evidence

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3072-07T43072-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

QINGPEI WANG,

Defendant-Appellant.

________________________________________________________


Argued December 17, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-111.

Gordon S. Graber argued the cause for appellant (Sullivan and Graber, attorneys; Mr. Graber and Chryzanta K. Hentisz, on the brief).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Qingpei Wang appeals from the Law Division's judgment of conviction following the de novo appeal from her conviction for prostitution, N.J.S.A. 2C:34-1(b)(1), in the Mountain Lakes municipal court. On appeal, defendant argues the following:

POINT I

THE ADMISSION OF TESTIMONY REGARDING SPECIFIC ACTS OF CONDUCT AND THE COURT'S RELIANCE ON THAT TESTIMONY TAINTED THE DEFENDANT'S TRIAL AND PRODUCED AN UNJUST RESULT.

A. THE PROSECUTOR IMPROPERLY QUESTIONED WITNESSES REGARDING PREJUDICIAL SPECIFIC INSTANCES OF CONDUCT IN ORDER TO ATTACK THEIR CREDIBILITY.

POINT II


EVIDENCE PRODUCED AT TRIAL DID NOT SUPPORT THE IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR OF THE OFFENSE.

POINT III

THIS COURT SHOULD REVIEW THE FACTUAL DETERMINATIONS BELOW AND REVERSE THE DECISION OR REMAND TO ANOTHER MUNICIPAL COURT.

POINT IV


DEFENDANT CANNOT BE CONVICTED OF AN OFFENSE WHERE THE STATE DID NOT PROVE THE ELEMENTS OF THE OFFENSE CHARGED.

We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.

I.

We recap the testimony adduced at defendant's municipal court trial. The State's sole witness was Detective Shawn Bennett of the Mountain Lakes Police Department. On July 11, 2006, at about four o'clock in the afternoon, responding to complaints of prostitution, Bennett arrived at the premises of the Asian Therapy Center, a massage parlor on Route 46 West. He was in plainclothes and rang the doorbell to Suite B-10. An Asian woman, who Bennett subsequently identified in court as defendant, answered the door. Bennett asked for a massage and defendant escorted him down the hallway into a room, telling him to undress. When defendant saw Bennett still had his underwear on, she told him to take them off.

Bennett lay down on the massage table on his stomach and defendant proceeded to massage his back, shoulders and legs; he turned over, and defendant then massaged his head, chest and legs. Bennett claimed defendant "continuously . . . reached under" a white bath towel placed across the genital area, "coming in contact with [his] genitals." Defendant asked Bennett if it was "okay" to touch him there and, when Bennett gave a hand gesture showing consent, defendant grabbed his penis "underneath the towel and began to manipulate it." When defendant applied baby oil to her hands and continued to manipulate Bennett's penis, he stopped her by saying "no, thank you, it's okay." Defendant then covered up Bennett with the towel and told him that he was done. She told him that the price was sixty dollars, and Bennett gave her that, plus a twenty dollar gratuity, which the detective testified was "normal at . . . a legitimate massage parlor." Bennett left without arresting defendant or asking her name.

On August 3, Bennett returned to the Therapy Center to serve defendant with "a warrant." He still did not know her name. When Bennett saw defendant was not there, he spoke to two other Asian women, both of whom "spoke very little English." Bennett obtained a Nevada driver's license with defendant's photo on it, made a copy of the license, and "issue[d] a warrant" in defendant's name which he served on August 31 "via mail."

On cross-examination, Bennett acknowledged going to the premises again on August 4 in an attempt to serve "zoning complaints" on Oliver Chou, the "owner of the suite." A woman answered, but Bennett claimed he did not get a good look at her because she only partially opened the door. The woman took the complaints and signed the name "Jennifer" on the copy she returned to Bennett. Subsequently, Bennett met Chou, and asked him who worked there. Chou supplied defendant's name and gave Bennett defendant's Nevada driver's license.

Defendant asserted alibi as her defense to the charge. Her first witness was Chingwa Wong, a woman who was hired by defendant as a cashier and manager of the Therapy Center. Wong claimed that defendant, who went by the English name "Jennifer," did not work on the premises on July 11, and that two other women, Shasha and Wendy, were working at four in the afternoon on that day.

Li Wang, a friend of defendant, testified that on July 11, defendant came to her house at about one p.m. with items she wanted Li to deliver to her son in China. Li, who came from the same hometown in China as defendant, was scheduled to return to China on July 19. After dropping off the items, Li claimed that she and defendant went to the Phillipsburg Mall together to buy more goods for defendant's son, and stayed approximately two to three hours at the mall, ultimately having dinner together at a Kentucky Fried Chicken store. Li also confirmed that defendant used the English name "Jennifer."

Defendant testified "Shasha and Wendy w[ere] working days" at the Therapy Center around July 11. Defendant acknowledged that she was the manager and that a one-hour massage cost $60. She also testified that "sometimes the girls want to make more money," and that she did not "know what they do in the room." Defendant claimed that it was against the Therapy Center's "policy" for the employees to do anything "illegal," and that any employee violating the policy would be fired immediately. A copy of the written policy was moved into evidence. Defendant corroborated Li's account regarding their whereabouts on the day in question. Defendant claimed that it was she who answered the door and accepted the zoning violations from Bennett on August 4.

On cross-examination, and over objection, defendant was questioned about her possession of a Nevada driver's license, a "problem with [her] New Jersey driver's license[,]" and some discrepancy regarding her date of birth. The following exchange took place:

Prosecutor: Do you remember surrendering your license — your New Jersey license in Nevada?

Defense counsel: Objection, Your Honor. It's irrelevant to the case . . . .

Judge: All right. For the record, you're objecting. For the record, I'm allow[ing] it. So you don't have to make any more objections --

. . . .

-- on this area. This is relevant to credibility. It's as simple as that.

. . . .

If someone works in New Jersey and lives in East Brunswick as your client testified . . . there's probably some degree of concern about why we have a Nevada license.

. . . .

I'm not prejudging anything, but let's say [the prosecutor] proves that she lied to get a Nevada license. Well, then maybe she lied about where she was on July 11th. I mean, that — that's maybe hard to connect those two concepts, but it's a theory that maybe [the prosecutor] is trying to pursue.

Defendant was also questioned about the Therapy Center's practices with regard to tax forms and recordkeeping, including whether defendant had the social security numbers and addresses for all of her employees and whether she had her employees fill out W-2 and 1099 forms. The prosecutor asked defendant if she had "consider[ed] the fact that [she] had to pay unemployment taxes for these people?" Once again, defense counsel objected on the basis of relevancy, but was overruled by the judge who found the questioning "goes to credibility."

Oliver Chou was defendant's final witness. He identified the lease between himself and defendant for the use of the premises, as well as a copy of defendant's driver's license which he acknowledged giving to Bennett.

The municipal court judge found Bennett to be a credible witness and defendant and her witnesses to be incredible. In recounting defendant's testimony, the judge noted:

I find her . . . inability to explain things to be rather incredible. I do find that she initially did not want to answer questions that she felt might implicate her. She's a New Jersey resident/she's not a New Jersey resident. She has a Nevada license.

The judge also referenced defendant's lack of "record keeping" at the business, finding "no W-2s or 1099s" existed for the Therapy Center's employees. Parenthetically referring to N.J.S.A. 2C:34-1a(3), the definition of a "house of prostitution," the judge took note:

There's also a section by the way that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid. Then that's certainly a benefit to the owner or the manager, and the owner or the manager can be charged. And, of course, [defendant] testified that she's the owner and the manager of that business.

The judge found defendant violated N.J.S.A. 2C:34-1(b)(1), fined her $1,000, and assessed the appropriate statutory penalties.

On appeal to the Law Division, defendant argued 1) that the State failed to prove beyond a reasonable doubt that defendant was the individual who masturbated Bennett on the day in question; 2) that the State failed to prove all the elements of the offense because Bennett paid the "normal fee" for a massage, and no greater amount for the sexual activity; and 3) that the municipal court judge's credibility findings were the product of "being angry, frustrated, confused and dismayed at defense counsel's behavior[.]"

The Law Division judge rejected the arguments and found defendant guilty of the charge of prostitution. He reduced the fine, however, to $500, and this appeal ensued.

II.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964); Pressler, Current N.J. Court Rules, comment 7 on R. 3:23-8 (2009). We do not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). However, if evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether the State has carried its burden of proof or not. See State v. Sparks, 261 N.J. Super. 458, 461 (App. Div. 1993); See also accord State v. Musgrave, 171 N.J. Super. 477, 479 (App. Div. 1979).

We find merit in the first point defendant raises and conclude that reversal of her conviction is warranted on that ground. Since the matter may be tried again, we address the remaining points she raises for the purpose of future guidance.

A.

In this case, the Law Division judge gave "due although not necessarily controlling, regard" to the municipal court judge's opportunity to observe the witnesses. Johnson, supra, 42 N.J. at 157. He specifically found the testimony presented by the State to be credible, and the defense witnesses to lack credibility, citing at length the municipal court judge's findings regarding defendant's testimony, including the cross-examination as to her Nevada driver's license and the lack of payroll records and tax forms for employees of the Therapy Center.

While the Law Division judge applied the appropriate standard of review, we conclude the cross-examination of defendant regarding her Nevada driver's license and the lack of proper record keeping as to the Therapy Center was improper because the evidence lacked any relevancy to the charge at hand, and because its use to attack defendant's credibility ran afoul of N.J.R.E. 607, 608, and 404. Because this evidence was improperly admitted, was relied upon by both judges, and was integral to their respective credibility determinations, reversal of defendant's conviction is required.

It is axiomatic that the evidence was not intrinsically relevant to the actual charge before the municipal court because it lacked any "tendency in reason to prove or disprove" the only "fact of consequence to the determination" of the charge, i.e. was defendant the person who committed prostitution by masturbating Bennett? N.J.R.E. 401. It was only admissible if permitted by N.J.R.E. 607, which allows the admission of extrinsic evidence "relevant to the issue of credibility . . . for the purpose of impairing or supporting the credibility of a witness." Introduction of evidence under Rule 607 is expressly limited by N.J.R.E. 405 and N.J.R.E. 608.

Rule 608(a) permits "[t]he credibility of a witness [to] be attacked . . . by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness . . . ." Furthermore, "a trait of character cannot be proved by specific instances of conduct," except those resulting in a criminal conviction. N.J.R.E. 608(a); see N.J.R.E. 609 (permitting impeachment of credibility by prior criminal conviction); see also N.J.R.E. 405 (limiting proof of character to "reputation . . . opinion, or evidence of conviction of a crime").

The interplay of these rules was best summarized by the Supreme Court in State v. Guenther, 181 N.J. 129 (2004), where it noted,

[O]ur rules permit evidence in the form of opinion, reputation, or a prior criminal conviction to attack a witness's credibility by establishing the witness's character for untruthfulness. A party may introduce such evidence for the purpose of asking a jury to draw an inference that a witness with a reputation for untruthfulness is capable of lying on the stand. However, evidence of specific instances of conduct--other than a prior conviction--to prove the character trait of untruthfulness is prohibited.

[Id. at 140 (internal citations omitted).]

The Guenther court cited with approval, State v. De Paola, 5 N.J. 1 (1950), as illustrative of this point. Ibid.

In De Paola, a murder case, the Court concluded that it was reversible error to permit cross-examination of the defendant regarding false answers he provided in liquor license applications. Id. at 9-10. The Court reasoned, "[t]he acts . . . admittedly had nothing whatsoever to do with the charge upon which the defendant was being tried[,] [] were unrelated to it in point of time and fact[,] [and] [t]he defendant had not been convicted for perjury or false swearing by reason of his misconduct in this respect." Id. at 10.

It would appear that the municipal court judge, in overruling defendant's objection, accepted that the prosecutor's cross-examination might yield evidence of defendant's character trait for untruthfulness, noting that if she "lied to get a Nevada license . . . then maybe she lied about where she was on July 11th[.]" However, it has long been held that the defendant's "mere taking of the stand . . . does not provide justification for the State's going forth with 'bad character' evidence. "Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 404 (2008)(citing State v. Linder, 170 N.J. Super. 548, 557-558 (App. Div. 1979)(holding, "[w]here . . . a defendant testifies on his own behalf, he does not thereby put into issue his general character or propensities")).

As in De Paola, whether defendant lied to obtain a Nevada driver's license, or whether she appropriately maintained necessary tax and payroll information on her employees had nothing to do with the charge of prostitution. Nor had defendant been convicted of any offense regarding this conduct. Thus, under Rule 608, questioning her about it was impermissible.

Moreover, even if the evidence was not seen as an attack upon defendant's character per se, it was inadmissible under Rule 607. "Although extrinsic evidence may be admitted to impeach a witness . . . its probative value as impeachment evidence must be assessed independently of its potential value as substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999); see also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 607 (2008)(noting "[t]he only evidence that may be introduced is that which contradicts or calls into question the witness's version of the facts; only that evidence is relevant"); and see State v. Hutchins, 241 N.J. Super. 353, 361 (App. Div. 1990)(noting "[i]rrelevant evidence which might improperly affect a witness' credibility may not be admitted into evidence"). Here, whether defendant lied to obtain a Nevada driver's license or whether she kept appropriate business records had nothing to do with whether she was, or was not, the woman who engaged in prostitution with Bennett.

Lastly, to the extent the prosecutor's cross-examination intimated that defendant had committed a separate crime or civil wrong, it was prohibited by N.J.R.E. 404(b)(barring evidence of "other crimes, wrongs, or acts . . . to prove the disposition of a person in order to show that such person acted in conformity therewith"). While such evidence may be admissible to impeach a testifying defendant's credibility, State v. Lykes, 192 N.J. 519, 537 (2007), it must still be evaluated under the four-prong test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992). Id. at 535. It is obvious to us that in this case, the evidence could not pass even the first prong of the Cofield analysis, i.e., "[t]he evidence of the other crime must be admissible as relevant to a material issue." Cofield, supra, 127 N.J. at 338. Defendant's possession of a Nevada's driver's license and her failure to keep payroll and tax records were not relevant to whether she committed prostitution.

We reject the State's arguments that defendant failed to raise the issue below, thus barring our consideration of it on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), or that she "opened the door" to the objectionable cross-examination. First, defendant clearly raised the issue at trial before the municipal court judge, and, to the extent her de novo appeal challenged the judge's credibility determinations, she adequately challenged the admission of the evidence below. Second, it was the prosecutor, not defendant, who introduced her license in evidence. She merely attempted to explain why it was a Nevada license, and, in our opinion, that did not "open the door" to the full frontal assault on her credibility. As to the lack of business and tax records, defendant did not raise the issue at all during her direct testimony, nor, in our opinion, did any of her answers permit the innuendo raised by the prosecutor's vigorous cross-examination thereafter.

When prejudice inures to a defendant based upon an erroneous evidence ruling, see State v. Benthall, 182 N.J. 373, 385 (2005), and that error is "clearly capable of producing an unjust result," Rule 2:10-2, reversal is required. In this case, both judges below relied extensively upon defendant's answers to cross-examination questions that were improper in deciding the critical credibility issue raised by the conflicting evidence. As a result, we reverse defendant's conviction and remand the matter for a new trial. Because the municipal court judge who originally heard the matter should not be placed in the position of having to judge defendant's credibility anew if she testifies again, we further order that the new trial, if one occurs, take place before a different judge.

B.

We address the other two points defendant raises for purposes of providing guidance in the event the case is re-tried. She contends that the State failed to adequately prove identification, and failed to prove all the necessary elements of prostitution, N.J.S.A. 2C:34-1b(1). We conclude both arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only these brief comments.

While the conduct of the investigation leading to defendant's identification and the issuance of a summons was unusual at the least, Bennett identified defendant in the courtroom as the person who engaged in prostitution on the day in question. Defendant's arguments in this regard all go to the credibility of Bennett in general, as well as the certainty of his identification in particular, but they do not form a basis for reversal. If Bennett's in-court identification of defendant as the woman who engaged in prostitution with him is believed beyond a reasonable doubt, then the State has carried its burden of proof. Defendant conceded as much at oral argument before us.

Defendant argues that the State failed to prove she engaged in sexual activity in exchange for something of economic value. She claims that because Bennett testified that he paid the standard fee for a massage, sixty dollars, a fact corroborated by defendant, plus a tip of twenty dollars, and paid nothing more for the sexual activity, the State's proofs were deficient. We find no merit to this contention.

N.J.S.A. 2C:34-1b(1) provides that "[a] person commits an offense if . . . the actor engages in prostitution[.]" "Prostitution" is defined as "sexual activity with another person in exchange for something of economic value, or the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value." N.J.S.A. 2C:34-1a(1). "Sexual activity" includes "masturbation" or the "touching of the genitals." N.J.S.A. 2C:34-1a(2). If Bennett's testimony is believed beyond a reasonable doubt, defendant engaged in sexual activity and received something of value in return. Whether she would have received more money had Bennett not told her to stop is irrelevant.


Reversed. The matter is remanded for a new trial in the municipal court before a different municipal court judge. We do not retain jurisdiction.

It is apparent that Bennett attempted to serve, and thereafter successfully served defendant by mail, with a "summons" complaint, not an arrest warrant. R. 7:2-1(b) and (c).

The Guenther court carved out a narrow exception to this prohibition, permitting "in limited circumstances and under very strict controls[,] a defendant [] the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility." Guenther, supra, 181 N.J. at 154. This led to the subsequent adoption of N.J.R.E. 608(b). Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 608 (2008).

Despite the municipal court judge's reference to "a section . . . that implicates the owner or the manager of a massage therapy place if there is sexual activity going on and they're paid[,]" the State did not contend that defendant owned or managed a "house of prostitution," N.J.S.A. 2C:34-1a(3), and was therefore guilty of "promoting prostitution," N.J.S.A. 2C:34-1b(2). Evidence of defendant's maintenance of personnel and tax records of her employees, or her failure to do so, might be relevant to such a charge.

(continued)

(continued)

18

A-3072-07T4

January 20, 2009

State v Woodruff

STATE OF NEW JERSEY, Criminal Action

Plaintiff,

v. DECISION

ARTHUR WOODRUFF,

Defendant.

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION – CRIMINAL PART
MERCER COUNTY
DOCKET NO. 18177
APPEAL NO. 1-2008

Decided: June 25, 2008

Laura Kotarba, Assistant Prosecutor, for plaintiff (Joseph L. Bocchini, Jr., Mercer County
Prosecutor).

David P. Schroth, for defendant.

OSTRER, J.S.C.

This interlocutory appeal from the municipal court requires this court to construe
the motor vehicle code provision that commands drivers to maintain a lane “as nearly as
practicable” and to change lanes safely. N.J.S.A. 39:4-88(b). The municipal court
denied defendant’s motion to suppress the fruits of an investigatory traffic stop that the
officer conducted after determining that the driver had failed to maintain a lane. No New
Jersey court has construed the provision in a published decision, although it has been a
part of New Jersey’s rules of the road since 1931. L. 1931, c. 247, § 9. In sustaining the
APPROVED FOR PUBLICATION

November 17, 2008

COMMITTEE ON OPINIONS
2
stop, this court will rely upon the statute’s plain meaning, and persuasive authority from
other jurisdictions.
After a de novo review of a largely stipulated record below, this court finds the
following facts by a preponderance of the evidence. A few minutes after midnight on
May 25, 2007, East Windsor Township Police Officer Stephen Aquaviva observed
Arthur Woodruff driving his small Toyota pickup truck south on Route 130 toward
Hankins Road. Woodruff was in the right-hand lane. It is undisputed that Woodruff
twice veered out of his lane, crossing over the fog line, which separates the right lane’s
edge and the shoulder. The officer’s report did not say how far Woodruff entered the
shoulder, but this court, like the municipal court, credits the officer’s unchallenged
testimony at the suppression hearing that each time, the truck was half in lane, and half
on the shoulder.1 As stated in his report, the officer then “activated the overhead lights to
the marked police vehicle to conduct a motor vehicle stop [for a] violation of [N.J.S.A.]
39:4-88B (failure to maintain lane).” Aquaviva ultimately issued summonses for failing
to maintain lane, careless driving, reckless driving, refusal to submit to a test to determine
if the driver was driving under the influence, and driving under the influence.
Defendant challenges the stop and subsequent investigation solely upon the basis
that (1) defendant’s repeated deviation from his lane did not amount to a violation of the
failure-to-maintain-lane law; and (2) the stop was not justified by the community
caretaking exception to the warrant requirement. This court has separately addressed the
community caretaking exception. See State v. Washington, 296 N.J. Super. 569 (App.
Div. 1997) (investigatory traffic stop justified based on community caretaking exception

1
This court gives “due, although not necessarily controlling, regard to the opportunity of the magistrate to
judge the credibility of the witnesses.” State v. Johnson, 42 N.J. 146, 157 (1964).
3
when driver was weaving within his lane of travel and was driving 36 m.p.h. in 45 m.p.h.
zone). The court writes to address the failure-to-maintain-lane law.
It is well settled that a police officer may, without a warrant, conduct an
investigatory traffic stop based on a reasonable and articulable suspicion that the
defendant engaged in a traffic offense. “[A] stop founded on a suspected motor vehicle
violation essentially is governed by the same case law used to evaluate a stop based on
suspected criminal or quasi-criminal activity.” State v. Golotta, 178 N.J. 205, 213 (2003).
The “articulable reasons” or “particularized suspicion” … must
be based upon the law enforcement officer's assessment of the
totality of circumstances with which he is faced. Such
observations are those that, in view of [the] officer's experience
and knowledge, taken together with rational inferences drawn
from those facts, reasonabl[y] warrant the limited intrusion
upon the individual's freedom.

[State v. Davis, 104 N.J. 490, 504 (1986).]

Reasonable suspicion is a “lower standard than the probable cause necessary to
sustain an arrest.” State v. Golotta, supra, 178 N.J. at 213. Reasonable articulable
suspicion does not require that the officer prove that the defendant actually committed a
motor vehicle violation; he need only prove that he had a reasonable and articulable
suspicion of a violation. State v. Jones, 326 N.J. Super. 234, 239 (App. Div. 1999).
Thus, the stop in this case may be grounded in a reasonable and articulable
suspicion that the driver violated the law requiring drivers to maintain their lane and
change lanes safely. Consequently, the court must construe N.J.S.A. 39:4-88(b)
(“Section 88(b)”), which states: “[A] vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from that lane until the driver has
first ascertained that the movement can be made with safety.”
4
No binding New Jersey case law has interpreted section 88(b). Defendant argues
first that a driver does not violate the law unless his movement is proved to be unsafe to
other drivers. Second, he argues that two deviations from a lane, even if by half-a-car-
width, are insufficient to constitute a violation. Based on the plain language of the statute
and persuasive authority from other states, the court rejects both arguments, and will
address them in turn.
Based on the plain language, the safety element applies only to changing lanes,
not maintaining lanes. Section 88(b) imposes two requirements. First, a driver must, as
nearly as practicable, drive within his single lane, in other words, maintain his lane.
Second, a driver may not change lanes until he can do so safely. The first clause of
section 88(b) proscribes deviation from a lane. Thus, it covers situations where the driver
has no intention to change lanes, or where the driver does not or cannot change lanes.
For example, a driver can violate the first clause when deviating from the lane of a
single-lane, one-way road, or on a single-lane ramp to or from a highway, or when
driving in a three-lane highway, in which two lanes are traveling against the driver. In
those cases, no lane-change is possible, but the driver’s failure to maintain a lane is
proscribed.
The second clause of section 88(b) pertains to movements from a lane. It requires
drivers to change lanes safely. For example, a sudden, unexpected lane change may be
unsafe on a crowded roadway, and inconsequential on a deserted one. When the
Legislature has intended to condition a violation on the driver’s impact on other
motorists, it has said so. See, e.g., N.J.S.A. 39:4-126 (making it a violation for a driver to
change lanes without signaling if it might affect other motorists). On the other hand, like
5
the first clause of section 88(b), the Motor Vehicle Code elsewhere requires accurate
driving, as nearly as practicable, without requiring separate proof of a safety impact. See,
e.g., N.J.S.A. 39:4-82 (requiring driving “as closely as possible to the right-hand edge or
curb of the roadway, unless it is impracticable to travel on that side of the roadway”);
N.J.S.A. 39:4-123 (driver intending to turn right must approach in the far right lane and
make the right turn “as close as practicable to the right hand curb or edge of the
roadway”).
Persuasive authority from other states supports this court’s interpretation of the
statute. New Jersey’s provision, like that of most states, is based on the Uniform Vehicle
Code. See Unif. Vehicle Code § 11-309(a), reprinted in Traffic Laws Annotated,
National Committee on Uniform Traffic Laws and Ordinances, U.S. Dep’t of Transp.
(1979). Construing a comparable provision, the Illinois Supreme Court held that the
statute creates two separate requirements for lane usage: first, the motorist must drive as
nearly as practicable within one lane, and second, a motorist may not move from one lane
to another until he can do so safely. People v. Smith, 665 N.E.2d 1215, 1218-19 (Ill.
1996). Federal and state courts in Kansas have reached the same conclusion. United
States v. Jones, 501 F. Supp.2d 1284, 1298 (D. Kan. 2007); State v. Marx, 171 P.3d 276,
282-83 (Kan. Ct. App. 2007) (expressly rejecting State v. Ross, infra), reh’g. granted
(Kan. April 23, 2008).
This court finds unpersuasive contrary authority that unless wandering over a lane
affected other vehicles’ safety, no violation has occurred. See State v. Ross, 149 P.3d
876 (Kan. Ct. App.) (finding that a violation of failure to maintain a lane is a violation
only if the driver’s actions were unsafe), rev. denied, (Kan. June 21, 2007); Rowe v.
6
Maryland, 769 A.2d 879, 884-85 (Md. 2001) (same); Commonwealth v. Gleason, 785
A.2d 983 (Pa. 2001) (repeated crossing of fog line did not constitute violation because it
did not create safety hazard); Hernandez v. Texas, 983 S.W.2d 867, 870-71 (Tex. App.
1998) (stating that violation occurs “only when a vehicle fails to stay within its lane and
such movement is not safe or is not made safely”).
In sum, this court concludes that the State need not prove that Woodruff’s
extreme deviation from the right lane affected the safety of other drivers. Woodruff was
not attempting to change lanes. He was driving in a single lane, but was unable to remain
within that lane.2
The court also rejects defendant’s argument that, in any event, two departures
from a lane do not suffice to establish a violation. The defense argued that conceivably,
when a driver twice deviates from a lane, it “can be for an innocuous, harmless reason
such as reaching for a tissue. . . .” However, the number of lane departures is just one
factor in determining whether a driver has adhered to a single lane as nearly as
practicable.
The statute plainly does not make it a violation anytime a driver strays from a
lane. If it is not practicable to maintain the lane, then a departure from lane is not a
violation. The issue is, what is meant by the clause, “as nearly as practicable?”
Considering the plain language of the statute, and the persuasive authority of other courts,
this court finds that a driver must maintain a lane to the extent that a person may

2
This court does not intend to imply that it was safe for Woodruff twice to drive three feet into the
shoulder, simply because other motorists were not present. First, Aquaviva was present. Cf. State v.
Moss, 277 N.J. Super. 545, 547 (App. Div. 1994) (finding violation of statute prohibiting failure to signal if
other traffic “may be affected,” where police vehicle was immediately behind defendant’s vehicle).
Second, after repeatedly entering the shoulder, it was reasonable for the officer to fear that Woodruff might
drive off the roadway, or collide with roadside obstructions like signs or posts, especially if the shoulder
narrowed or his failure to maintain lane worsened.
7
reasonably maintain the lane, given surrounding circumstances, such as road conditions,
weather, vehicle condition, and vehicle size and lane width, and taking into account the
skill that a reasonable driver, as opposed to a perfect driver, should have.
On its face, the “as nearly as practicable” language apparently would excuse a
departure from the lane caused by obstacles, road conditions, or perhaps the relative
width of the vehicle in comparison to the lane. See, e.g., United States v. Gregory, 79
F.3d 973, 978 (10th Cir. 1996) (disapproving traffic stop of truck that “briefly crossed
into the right shoulder emergency lane” when driving on winding, mountainous road in
windy conditions, finding that “any vehicle could be subject to an isolated incident of
moving into the right shoulder of the roadway”). But, if physical conditions do not
justify wandering from the lane, a repeated departure from a lane may constitute a
violation. United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir. 1999) (holding traffic
stop was reasonable where no “adverse physical conditions existed” and driver of motor
home passed over onto shoulder “twice within a quarter mile”). In State v. Marx, supra,
171 P.3d at 283, the court stated that the “‘nearly as practicable’ language allows a driver
to momentarily move outside a lane of traffic due to special circumstances such as
weather conditions or an obstacle in the road,” but the court found a reasonable and
articulable basis to stop a motor home that crossed the fog line, overcorrected, and then
crossed the center line.
This court finds persuasive the Tenth Circuit’s general rule that the lane
maintenance statute requires “a fact-specific inquiry into the particular circumstances
present during the incident in question in order to determine whether the driver could
reasonably be expected to maintain a straight course at that time in that vehicle on that
8
roadway.” United States v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2005) (holding that
single departure may constitute violation). But see Rowe v. Maryland, supra, 769 A.2d at
887 (construing statute to require “more … than a momentary crossing or touching of an
edge or lane line”).
Based on such a fact-sensitive analysis, one or two deviations from a lane may or
may not constitute a violation, depending on the circumstances. While it might not be
reasonable to expect a driver to avoid even the slightest deviation from a lane over an
extended distance, it may be reasonable to expect drivers to avoid a sudden, significant
deviation from the lane or a sudden, over-compensating return back, absent physical
obstacles, mechanical difficulty, or other uncontrollable circumstances. Moreover, even
if it may be unreasonable to expect a driver on an empty road to avoid any slight
deviation from a lane over an extended distance, it would be reasonable to expect drivers
to avoid repeatedly deviating from the lane, although slightly, over a short distance.
Also, a driver who suddenly deviates from the lane and then overcompensates because he
is adjusting his stereo, or reaching for food, or turning around to silence rowdy children,
would not be maintaining lane as nearly as practicable. In this court’s view, a driver
reasonably should not let such diversions or distractions cause him to lose control of his
vehicle.
Applying these principles, the court finds that the officer had a reasonable and
articulable suspicion of a violation of the failure-to-maintain-lane law. As noted above,
in order to justify a stop, the State need not prove beyond a reasonable doubt that the
defendant violated the statute. It need only prove a reasonable and articulable suspicion
of a violation. State v. Jones, supra, 326 N.J. Super. at 239. Given the extreme deviation
9
of lane, half Woodruff’s truck entered the shoulder, and the repeated nature of the
deviation, the officer at least had a reasonable and articulable suspicion of a violation.
He was therefore justified in stopping Woodruff to determine if he drove to the right
because of road obstacles, vehicle failure, or other reasons that made it impracticable for
him to drive in the single lane. In so doing, if the officer uncovered evidence that gave
rise to a reasonable and articulable suspicion of a separate offense, driving under the
influence, he would have been entitled to pursue an investigation of that possible offense
as well. See State v. Dickey, 152 N.J. 468, 479-80 (1998) (stating that circumstances or
findings upon initial investigatory stop may give rise to suspicions that warrant
broadened inquiry).
In sum, the officer had a reasonable and articulable suspicion of failure to
maintain lane under N.J.S.A. 39:4-88. Therefore, the motion to suppress is denied. The
case is remanded to municipal court for trial.

State v Johnson 193 NJ 528 (2008)

State of New Jersey v. Andre Johnson (A-81-06)


Argued September 25, 2007 -- Decided February 26, 2008

ALBIN, J., writing for a unanimous Court.

In this appeal, the Court considers the validity of a warrantless search of a duffel bag found within a home and whether defendant Andre Johnson had standing to object to the search of the bag after he disclaimed ownership.
On December 8, 2001, Johnny Holloway Jr. went to his girlfriend's apartment and threatened her with a .45 caliber gun. She filed a domestic violence complaint and a warrant was issued for Holloway's arrest. Five officers met at Holloway Sr.'s home, knocked on the door, and advised him that they had a warrant for his son's arrest. Holloway Sr. informed the officers that his son was inside and gave permission for the officers to enter the residence to make the arrest. In addition to Holloway Sr. and his son, the home was occupied by Mrs. Holloway, a young child, and defendant Johnson, whose criminal history was known to one of the officers. The officers arrested Holloway and placed him in the back of a patrol car. The officers did not find the gun during the search incident to the arrest. The officers asked defendant, who was clad only in boxer shorts and a T-shirt, why he was in the residence. He replied that he was visiting. At the officers' request, defendant agreed to leave the premises after he gathered his things. According to the officers, defendant got dressed and then put a cardboard box about the size of a cigar box in a duffel bag. As defendant began to walk out of the apartment with the duffel bag in one hand and a larger box containing a DVD or VCR player under his other arm, an officer asked defendant whether the items were his. The officers maintained that defendant equivocated, first saying yes and then denying that the bag was his. When the officer asked why he put the box in the duffel bag and tried to leave with it if it was not his, defendant denied knowing who owned the bag. Holloway Sr. also denied knowing who owned the bag. The officer grabbed the duffel bag from defendant's hand and opened both the bag and the box, discovering in the box a loaded .45 caliber gun.

Defendant was charged in one indictment with third-degree unlawful possession of a weapon and fourth-degree hindering apprehension, and in a second indictment with second-degree possession of a weapon by a person previously convicted of a crime. In bifurcated trials, a jury found defendant guilty of all three crimes.
The Appellate Division concluded that defense counsel's failure to file a suppression motion constituted ineffective assistance of counsel and ordered the trial court to conduct a suppression hearing to determine whether the handgun was obtained as a result of an unlawful search. After a four-day hearing, the trial court denied the motion to suppress the gun and upheld defendant's convictions. The court found that the actions of the officers were reasonable under the circumstances and that the search was constitutional based on defendant having abandoned the duffel bag and the existence of probable cause and exigent circumstances for conducting a warrantless search.
The Appellate Division reversed. The panel determined that the warrantless search of the bag was not incident to Holloway's arrest, and rejected the notion that defendant's disclaiming ownership of the bag justified the warrantless search in Holloway Sr.'s apartment or that defendant lacked standing to challenge the search of property that he was criminally charged with possessing. Finally, the panel declined to find exigent circumstances for the search.
HELD : Defendant has standing under state law to challenge the warrantless search of the duffel bag in the home in which he was present, and the fruits of the search are suppressed for failure to comply with the warrant requirements of Article I, Paragraph 7 of the New Jersey Constitution.
1. Both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee the right of the people to be secure against unreasonable searches and seizures. The New Jersey Constitution has been construed to afford citizens greater protection against unreasonable searches and seizures than the Federal Constitution. In State v. Alston, 88 N.J. 211 (1981), the Court rejected the United States Supreme Court's rule that required a person alleging a Fourth Amendment violation to establish that law enforcement officials violated an expectation of privacy that the defendant possessed in the place searched or the item seized. The Court held instead that, under the New Jersey Constitution, a defendant has standing to move to suppress evidence from a claimed unreasonable search or seizure if he has a proprietary, possessory, or participatory interest in the place searched or the property seized, or if he is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt. The rationale for New Jersey's standing rule is that 1) a person should not be compelled to incriminate himself by having to admit ownership of an item that he is criminally charged with possessing in order to challenge the lawfulness of a search or seizure; 2) the State should not be placed in the position of taking seemingly conflicting positions by prosecuting a defendant for possessing an item in violation of the law while also arguing that the defendant did not, for standing purposes, possess a privacy interest in the property seized; and 3) allowing broader standing increases the privacy rights of all New Jersey citizens and encourages officers to honor fundamental constitutional principles. (Pp. 13 - 21).
2. Although defendants are provided automatic standing when the seized property satisfies an element of the charged offense, if the State can show that the property was abandoned, a defendant will have no right to challenge the search or seizure of the property. This represents a narrow exception to the automatic standing rule. For the purposes of standing, property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property. Here, the Court does not conclude that the duffel bag was abandoned or that defendant freely disclaimed a possessory or proprietary interest in it. The home was occupied by at least five people. That defendant and Holloway Sr. denied knowing who owned the bag did not forfeit the rights of the other occupants. New Jersey's rule of standing protects the privacy rights of not just the accused, but also others in a home who might not have a ready forum in which to makes their voices heard. The Court also does not conclude that defendant should be stripped of standing because he disclaimed ownership of the bag in response to police questioning. A defendant should not have to sacrifice his right against self-incrimination to assert his constitutional right to be free from an unlawful search. Under the circumstances of this case, the duffel bag was not abandoned property and defendant had standing to challenge the search and seizure. (Pp. 21 -29).
3. Under both the federal and New Jersey constitutions, judicially-authorized search warrants are strongly preferred, particularly of a home. Because defendant had standing and the search was conducted without a warrant, the State has the burden of proving by a preponderance of the evidence that the search of the duffel bag and seizure of the gun were premised on probable cause and fell within an exception to the warrant requirement. Here, officers received Holloway Sr.'s consent to enter the home and arrest his son. Assuming for the sake of discussion that officers did not have time to obtain a search warrant before they appeared at Holloway Sr.'s apartment and had probable cause to believe that the gun was on the premises, the Court must address whether the State correctly relied on the exception of exigent circumstances. At the very least, exigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene. (Pp. 29 - 34).
4. Five officers participated in Holloway's arrest. When defendant placed a cardboard box in the duffel bag and began to walk out with the bag, defendant's equivocal responses to the officer's questions heightened the officer's suspicions. The officer then took the duffel bag from defendant. With the bag in his hands and other police officers in the same room, there was no suggestion that the officers or the apartment's occupants were in any immediate danger or that evidence might be destroyed if he failed to search the bag in the house at that moment. Therefore the trial court's finding that there were exigent circumstances is not supported by the record. If the officer had believed that there was a need to act with dispatch, he could have maintained the status quo in the apartment and applied for a telephonic search warrant. When circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but there is sufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search. Here, the search of the duffel bag was an unreasonable search, pursuant to Article I, Paragraph 7 of the New Jersey Constitution, and the evidence of the gun must be suppressed. (Pp. 34 - 37).
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN'S opinion.


SUPREME COURT OF NEW JERSEY
A- 81 September Term 2006


STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.

ANDRE JOHNSON, a/k/a ANDRE CARTER, MAZI YAZIO and D. MADEO,
Defendant-Respondent.
Argued September 25, 2007 – Decided February 26, 2008
On certification to the Superior Court, Appellate Division.
Mary E. McAnally, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney).
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution accord the highest degree of protection to privacy interests within the home. In this appeal, we must determine the validity of a warrantless search by police of a duffel bag within a home. The primary issue is whether, under the New Jersey Constitution, defendant had standing to object to the search of the bag after he disclaimed owning it in response to police questioning. A gun recovered from the bag was the key evidence presented against defendant in a prosecution for unlawful possession of a weapon.
The State argues that the search was constitutional because def endant abandoned the bag and thus surrendered any reasonable expectation of privacy he possessed in the property. Alternatively, the State contends that the police had probable cause to believe that the gun was in the home and exigent circumstances did not permit time to obtain a warrant. On the other hand, defendant submits that he has automatic standing to object to the search under State v. Alston, 88 N.J. 211 (1981). In particular, he states that the duffel bag was not abandoned property in a home where it had potential owners and that he did not lose standing merely because he did not incriminate himself by admitting to owning the bag. He also maintains that an ample number of police officers had secured the premises and that no exigency excused the failure to secure a telephone warrant before conducting the search.
The trial court held that the search was constitutional. The Appellate Division reversed and suppressed the evidence. We conclude that, despite his response to the police questioning, defendant did not lose his standing to challenge the search of a duffel bag that had other apparent owners. In addition, because of the absence of exigent circumstances, the police should have obtained a telephonic warrant from a judicial officer before searching the bag. We therefore affirm the Appellate Division’s suppression of the evidence.

I.
A.

A Middlesex County grand jury charged defendant Andre Johnson in one indictment with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3), and in a second indictment with second-degree possession of a weapon by a person previously convicted of a crime, N.J.S.A. 2C:39-7(b). In bifurcated trials, the second indictment being tried after the first, a jury found defendant guilty of all three crimes. See footnote 1 The trial court sentenced defendant to a seven-year term in state prison with a five-year period of parole ineligibility for possession of a weapon by a previously convicted person, to a concurrent term of four years with a two-year parole disqualifier for unlawful possession of a weapon, and to a concurrent term of eighteen months for hindering apprehension.
On appeal, the Appellate Division concluded that defense counsel’s failure to file a suppression motion to contest the search constituted ineffective assistance of counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987). State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004). T he panel ordered the trial court to conduct a suppression hearing to determine whether the handgun admitted into evidence at defendant’s trial was obtained as a result of a lawful search. Ibid. On remand, the trial court conducted a four-day hearing to decide the constitutionality of the contested search.

B.

At the hearing, the State presented the testimony of North Brunswick Public Safety Director Kenneth McCormick, who at the time of the search was a North Brunswick police sergeant, and North Brunswick Patrolman Scott Henry.
In response to a report of domestic violence, Officer Henry was dispatched to the apartment of Amanda Glover in North Brunswick, arriving at approximately 9:24 a.m. on December 8, 2001. Earlier that morning, Ms. Glover filed a domestic violence complaint against Johnny Holloway Jr. (Holloway), her boyfriend, who had threatened her with a gun and knife after she returned home from a holiday party. As a result of that incident, warrants were issued for the arrest of Holloway for assault and terroristic threats. At the time, Holloway also had an outstanding arrest warrant for a traffic offense.
On arriving at Glover’s apartment, Officer Henry spoke with her nine-year-old son, who was home alone. The young boy told the officer that, earlier, Holloway had banged on the front door of the apartment while holding a .45 caliber handgun. When Ms. Glover returned to the apartment soon afterwards, she was speaking on her cell phone with Holloway. Although Holloway would not tell her where he was, she could hear Holloway’s father in the background. She told Officer Henry that she believed that Holloway had called her from his father’s apartment in North Brunswick.
After reporting that information to his supervisor, Sergeant McCormick, Officer Henry proceeded to John Holloway Sr.’s apartment, where he met Sergeant McCormick and three other North Brunswick patrolmen. Once they were assembled, Officer Henry knocked on the ground-floor door to the apartment, which was located on the second floor. Holloway Sr. answered, and the officers explained that they had a warrant to arrest his son. Holloway Sr. told the officers that his son was in the bathroom. At the officers’ request, he gave permission for them to enter his residence to make the arrest and agreed to remain outside the apartment for his safety.
With their weapons drawn, the officers walked up the apartment stairs and entered an open living room with a dining area and kitchen off to the left, and a bathroom straight ahead. Sergeant McCormick remained in the living room, keeping an eye on Mrs. Holloway, a child, and defendant Johnson, who was behind the dining room table, talking on the telephone. Officer Henry and the patrol officers went directly to the bathroom, where they arrested Holloway and looked without success for the gun. Officer Henry brought Holloway to the living room, where he was frisked and handcuffed. Holloway was then led downstairs and placed in the back of a patrol car.
In the meantime, in the living room, police officers placed Mrs. Holloway and the child on a couch while Sergeant McCormick, with his gun still drawn, repeatedly asked defendant to get off the telephone. After defendant failed to comply, the sergeant pulled the phone out of defendant’s hand and quickly patted him down. Defendant was dressed only in boxer shorts and a t-shirt.
Defendant was not a stranger to Sergeant McCormick. In addition to knowing of defendant’s criminal history, Sergeant McCormick had been involved in an arrest of defendant that led to a conviction -- a conviction later overturned by this Court. State v. Johnson, 168 N.J. 608 (2001). At the time of the present encounter, defendant had a pending civil rights suit against Sergeant McCormick and other North Brunswick officials.
When Sergeant McCormick asked defendant why he was in the apartment, defendant replied that he was visiting. Defendant then questioned whether McCormick had a warrant to search the residence. Sergeant McCormick explained that they had arrest warrants for Holloway in a matter involving a gun and that defendant would have to leave the apartment for about thirty minutes while the police “conducted [their] business.” Defendant somewhat grudgingly agreed to leave after he “gather[ed] his things.”
The area where defendant stood was surrounded by some boxes as well as black plastic garbage bags that appeared to contain clothing. Defendant put on a pair of pants and boots that he retrieved from a nearby walk-in closet. He then picked up a small cardboard box, about the size of a cigar box, and placed it inside an empty red, white and blue duffel bag. He also picked up a larger box containing a DVD or VCR player and placed it under one of his arms. With the duffel bag in one hand and the larger box in the other, he began to walk from around the dining room table. At that point, Sergeant McCormick stopped defendant and asked, “[A]re those items yours?” Defendant “looked at [McCormick] with a blank stare,” and “mumbled, ‘yes.’” Defendant then eyed “the gym bag in his hand as if he was surprised it was” there. He looked back at Sergeant McCormick and said, “[T]hese aren’t mine. These aren’t mine. That’s not my bag.”
Sergeant McCormick next inquired why defendant had put the cardboard box in the duffel bag and had tried “to leave with it” if it was not his. Defendant responded, “I don’t know whose stuff this is.” Sergeant McCormick then asked Holloway Sr., who had returned to the apartment, “Do you know whose stuff this is?” Holloway Sr. stated that he did not.
After that response, Sergeant McCormick grabbed the duffel bag from defendant’s hand, opened it, and pulled out the cardboard box. When he looked in the box, Sergeant McCormick found a loaded .45 caliber Ruger handgun. See footnote 2 Defendant was then placed under arrest.
In his testimony, Sergeant McCormick maintained that he seized and then searched the duffel bag because his “suspicions were heightened” by defendant’s equivocal responses and his criminal past, and because he wanted to be certain that defendant was not leaving with the weapon. He stated that the officers did not have time to secure a search warrant in advance because they responded to Holloway Sr.’s residence immediately after learning that Holloway, who earlier had brandished a handgun, was likely on the premises. According to the sergeant, had he not discovered the gun after seizing the duffel bag, he would have asked Holloway Sr. for permission to search the premises for the gun. Alternatively, if Holloway Sr. did not give consent, Sergeant McCormick indicated that he would have applied for a search warrant and secured the scene in the interim.
Defendant also testified at the hearing. He stated that, in fact, he was living in the apartment with his mother and Holloway Sr., his stepfather. He told Sergeant McCormick that he was only a visitor out of fear that he would be harassed because of his history with the North Brunswick police. He explained that as he was preparing to leave the apartment, the duffel bag was immediately in front of the DVD player. He intended to take the DVD player with him and only picked up the duffel bag to move it out of the way. When Sergeant McCormick questioned him about the bag, he placed it on the table, and at that point the sergeant took control of it.

C.

The trial court credited the testimony of Sergeant McCormick and Officer Henry and found that the actions of the police “were reasonable under the circumstances.” The court held that the search was constitutional on two separate grounds: defendant’s abandonment of the duffel bag and the presence of probable cause and exigent circumstances for conducting a warrantless search. In particular, in addressing exigent circumstances, the court focused on the missing gun in the apartment where others might have had access to it, as well as defendant’s uncooperative attitude and prior criminal history. The court therefore denied the motion to suppress the gun and upheld defendant’s convictions.

D.

In an unpublished opinion, the Appellate Division reversed and suppressed the gun. First, the appellate panel determined that the warrantless search of the duffel bag was not incident to Holloway’s arrest. Relying on Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed.2d 685 (1969), the panel noted that the search-incident-to-a-lawful-arrest exception to the warrant requirement is limited to “a search of the arrestee’s person and the area ‘within his immediate control.’” Id. at 763, 89 S. Ct. at 2040, 23 L. Ed. 2d at 694. Holloway, who had been arrested in the bathroom, had already been taken out of the house at the time of the search of the bag in the living room. Next, the panel rejected the notion that defendant’s disclaiming ownership of the duffel bag could have justified the warrantless search in Holloway Sr.’s apartment or that defendant lacked standing to challenge the search of property that he was criminally charged with possessing. Last, the panel declined to find exigent circumstances for the search after Sergeant McCormick seized the bag, explaining that “the weapon was inside a closed box inside a zipped bag” and that “[t]here was no immediate danger to the police or occupants of the house.”
Under the circumstances, the panel concluded, the police “had two choices after arresting Holloway, Jr., and removing him from the house: ‘(1) maintain the status quo and phone in for a search warrant or (2) leave.’” Because in its view the warrantless search of the duffel bag was not a constitutionally-permissible option, the panel granted the suppression motion.
We granted the State’s petition for certification. 189 N.J. 105 (2006).

II.

Although the State apparently concedes that defendant had “standing” to bring a suppression motion “because he [was] charged with possessory offenses,” the State argues that defendant nonetheless had the burden of proving that “his reasonable expectation of privacy was infringed by the search of either the duffel bag or [its] contents.” According to the State, under the New Jersey Constitution, “standing” gives a defendant a procedural basis to file a suppression motion, but does not relieve him of the obligation of showing a substantive violation of his privacy rights. The State contends that in this case defendant had no reasonable expectation of privacy in the duffel bag once he disclaimed owning it. Second, the State asserts that based on both probable cause and exigent circumstances, the police were justified in conducting the warrantless search of the duffel bag. The State maintains that (1) there was probable cause to believe that the gun brandished by Holloway just hours earlier was somewhere in his father’s apartment when the police arrested him on the premises, and (2) there were exigent circumstances due to the “rapidly unfolding and unexpected events,” which included defendant’s uncooperative behavior and attempt to leave with the bag that he later abandoned when questioned by the police.
Defendant counters that the search of the duffel bag did not fall within any exception to the Federal or State Constitution’s warrant requirement. He submits that after Holloway was arrested and secured in a patrol car, the search of the apartment or the duffel bag could not be justified as a search incident to an arrest. Defendant also claims that the police had no right to remain in Holloway Sr.’s apartment to “conduct business” after Holloway was handcuffed and taken from the premises. Defendant posits that the duffel bag could not be considered abandoned in a home, where any of a number of people could have asserted ownership. Moreover, he argues that the State’s approach -- creating a “post-standing inquiry” that probes whether a defendant “had a personal ‘legitimate expectation of privacy’” -- would eviscerate the automatic standing rule of Alston. That approach, according to defendant, would have the effect of supplanting New Jersey’s standing rule with the current federal standard, which focuses on whether the defendant possessed a “legitimate expectation of privacy.” In short, defendant calls for this Court to uphold the Appellate Division’s suppression of the evidence.
We now address whether defendant’s disclaimer of ownership of the duffel bag, under the compulsion of police questioning, stripped him of standing to challenge the constitutionality of the search of that bag in Holloway Sr.’s home. We begin with an overview of this Court’s jurisprudence on a defendant’s standing to challenge the constitutionality of a search or seizure.

III.
A.

Both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in almost identical language, guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. On a number of occasions, in weighing New Jersey’s unique interests and values, we have construed Article I, Paragraph 7 to afford our citizens greater protection against unreasonable searches and seizures than accorded under the Federal Constitution. State v. Eckel, 185 N.J. 523, 537-38 (2006); see, e.g., State v. Carty, 170 N.J. 632, 639, 648-51 (2002); State v. Johnson, 68 N.J. 349, 353-54 (1975). Our standing jurisprudence in search-and-seizure cases represents one of those occasions when we have taken a different path from that of our federal counterpart.
In Alston, supra, we reaffirmed New Jersey’s long-established rule of standing in cases involving challenges to the lawfulness of searches and seizures under the Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of the New Jersey Constitution. 88 N.J. at 228. We held in that case that, under our State Constitution, a criminal defendant has standing to move to suppress evidence from a claimed unreasonable search or seizure “if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.” Ibid. We also held that a defendant has standing if he “is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt.” Ibid.
In retaining the rule of automatic standing in the circumstances just described, we declined to follow the course taken by the United States Supreme Court in the then-recently decided cases of Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed.2d 387 (1978), United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed.2d 619 (1980), and Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980). In those cases, the Court jettisoned its own automatic standing rule under the Fourth Amendment in favor of a new rule that focused solely on whether a defendant suffered a personal violation of his own right to be free from an unreasonable search or seizure. See Rakas, 439 U.S. at 148-49, 99 S. Ct. at 433, 58 L. Ed. 2d at 404-05; Salvucci, supra, 448 U.S. at 95, 100 S. Ct. at 2554-55, 65 L. Ed. 2d at 630; Rawlings, 448 U.S. at 104, 100 S. Ct. at 2561, 65 L. Ed. 2d at 641. Under that new rule, a person alleging a Fourth Amendment violation needs to establish that law enforcement officials violated “an expectation of privacy” that he possessed in the place searched or item seized. Salvucci, supra, 448 U.S. at 93, 100 S. Ct. at 2553, 65 L. Ed. 2d at 629. That approach overruled Jones v. United States, 362 U.S. 257, 263, 80 S. Ct. 725, 732, 4 L. Ed.2d 697, 703 (1960), which held that a defendant charged with a posses sory offense had automatic standing to contest an allegedly unlawful search or seizure.
In Alston, supra, we found the “[U.S.] Supreme Court’s grounds for abandoning the Jones rule of standing unpersuasive.” 88 N.J. at 228. We noted that “[a]dherence to the vague ‘legitimate expectation of privacy’ standard, subject as it is to the potential for inconsistent and capricious application, will in many instances produce results contrary to commonly held and accepted expectations of privacy.” Id. at 226. In particular, we eschewed the “amorphous ‘legitimate expectations of privacy in the area searched’ standard as applied in Rakas, Salvucci, and Rawlings,” id. at 228, because that standard gave insufficient protection to a person’s property seized by law enforcement officials, thus running “contrary to a fundamental principle rooted in Article I, paragraph 7 of the New Jersey Constitution,” id. at 226. We therefore “respectfully part[ed] company” with the United States Supreme Court in construing Article I, Paragraph 7 differently from the Fourth Amendment. Ibid.
Our possessory, proprietary and participatory standing analysis not only incorporates the notion of a reasonable expectation of privacy, but also advances other important state interests. The underlying rationale for our automatic standing rule, derived from Jones, is three-fold. First, a person should not be compelled to incriminate himself by having to admit ownership of an item that he is criminally charged with possessing in order to challenge the lawfulness of a search or seizure. See Alston, supra, 88 N.J. at 222 n.6. In other words, a person should not have to sacrifice one constitutional right to assert another. Second, the State should not be placed in the position of taking seemingly conflicting positions, on the one hand prosecuting a defendant for possessing an item in violation of the law while on the other arguing that the defendant did not, for standing purposes, possess a privacy interest in the property seized. See id. at 223. Last, by allowing a defendant broader standing to challenge evidence derived from unreasonable searches and seizures under our State Constitution, we increase the privacy rights of all New Jersey’s citizens and encourage law enforcement officials to honor fundamental constitutional principles. See id. at 226 n.8.
The high-water mark of our standing jurisprudence is found in State v. Mollica, 114 N.J. 329 (1989), a case in which we expansively defined a defendant’s “participatory” interest in property not his own as a basis for a challenge under Article I, Paragraph 7. Id. at 339-40. In Mollica, armed with a search warrant, the police searched the defendant’s hotel room and seized evidence of illegal gambling that led to the filing of criminal charges. Id. at 334. The affidavit in support of that search warrant was based on a co-defendant’s telephone records that were unconstitutionally seized during the gambling investigation. Ibid. The records were generated by the defendants’ alleged criminal gambling activities. Id. at 340. We held that the defendant had standing to object to the seizure of his co-defendant’s telephone records because there was “a sufficient relationship between the defendant and the gambling enterprise, to establish a participatory interest on the part of [the] defendant in this evidence.” Ibid.
In State v. Bruns, 172 N.J. 40 (2002), the Court again acknowledged the “broad standing rule that entitles a criminal defendant to challenge an unreasonable search and seizure under Article I, paragraph 7 of the New Jersey Constitution if he or she can demonstrate a proprietary, possessory, or participatory interest in the place searched or items seized.” Id. at 56. However, given the unique facts of Bruns, the Court determined that the defendant did not have a sufficient participatory interest to object to an automobile search that revealed two items of evidence that tied him to an armed robbery that he was later convicted of committing. Id. at 56-57. In that case, a police officer stopped a car with two occupants, the driver, who owned the vehicle, and a front seat passenger. Id. at 43. The officer conducted a search of the car, discovering a toy gun and knife under the front passenger seat. Id. at 44.
The defendant was not a passenger in the car or in the vicinity at the time of the stop and search. Id. at 57. The record, moreover, contained no evidence demonstrating that the defendant retained any proprietary or possessory interest in the toy gun and knife. Id. at 56. For standing purposes, the Court only analyzed whether the defendant had the requisite “participatory interest” in the weapons used in the robbery committed seven days before the car stop. Id. at 57. The Court “recognize[ed] that in most cases” when evidence is seized “implicating a defendant in a crime[, the] defendant will be able to establish an interest in the property seized or placed searched.” Id. at 59. It concluded, however, that in the unusual facts of Bruns, the “proprietary connection” between the seized evidence and the crime was too tenuous to afford the defendant standing to challenge the search. See footnote 3 Ibid.
Following Alston, our courts have consistently applied the automatic standing rule to defendants charged with possessory offenses, regardless of whether they had an expectation of privacy in the area searched. See, e.g., State v. Carlino, 373 N.J .Super. 377, 384 (App. Div. 2004) (holding that defendant had automatic standing to challenge search of another person’s fanny pack containing drugs, which defendant was later charged with possessing), certif. denied, 182 N.J. 430 (2005); State v. Miller, 342 N.J. Super. 474, 478 (App. Div. 2001) (noting that defendant had automatic standing to challenge search of home in which he was present even though he did not reside there); State v. De La Paz, 337 N.J. Super. 181, 193-95 (App. Div.) (holding that defendant had automatic standing to challenge warrantless entry of house where defendant had been guest and where drugs were found), certif. denied, 168 N.J. 295 (2001); State v. Binns, 222 N.J. Super. 583, 589 n.4 (App. Div.) (noting that defendants had standing to make motion to suppress evidence found in car they were driving, even though car had been rented by third-party who was not present), certif. denied, 111 N.J. 624 (1988); State v. Kearney, 183 N.J. Super. 13, 21 (App. Div. 1981) (holding that as passenger in car, defendant had automatic standing to challenge search of trunk and seizure of bag containing drugs from trunk because he was charged with possession of those drugs), certif. denied, 89 N.J. 449 (1982).
In light of the general principles governing our rule on standing, we next consider whether, in this case, defendant had standing to challenge the search of the duffel bag and the seizure of the gun within it.

B.

The State contends that, regardless of whether defendant has standing under state law, he abandoned the duffel bag when he disclaimed owning the bag in response to Sergeant McCormick’s questions and therefore had no reasonable expectation of privacy in the search of the bag. Although the State insists that its argument is not about standing, it nevertheless relies on the federal concept of abandonment, which is used to determine standing. Under federal law, one who abandons property has no legitimate expectation of privacy in that property and therefore no standing to object to a search or seizure of that property. See, e.g., Texas v. Brown, 460 U.S. 730, 748, 103 S. Ct. 1535, 1546, 75 L. Ed. 2d 502, 517 (1985) (Stevens, J., concurring in the judgment) (noting that “if an item has been abandoned, [no] Fourth Amendment interest is implicated, and neither probable cause nor a warrant is necessary to justify seizure”). According to the State, without having a reasonable expectation of privacy in the thing searched or item seized, defendant cannot make out a Fourth Amendment or Article I, Paragraph 7 violation.
We find that the State’s proposed approach merely places another layer of standing -- the federal standard -- on top of our automatic standing rule. In Alston, supra, we roundly rejected hinging a defendant’s right to challenge a search based on “a reasonable expectation of privacy” analysis. 88 N.J. at 226-27. We decline to adopt that analysis in deciding whether property is abandoned.
Although we do not use a reasonable expectation of privacy analysis for standing purposes in criminal cases, we do apply that analysis to determine whether a person has a substantive right of privacy in a place searched or an item seized. See State v. McAllister, 184 N.J. 17, 32-33, 36 (2005); State v. Hempele, 120 N.J. 182, 198-200 (1990). For example, in McAllister, supra, we held that under our State Constitution individuals have a substantive privacy right in their bank records, requiring a prosecutor to obtain a grand jury subpoena or warrant before obtaining those records. 184 N.J. at 32-33, 36. In that case, we implicitly recognized that individuals have a possessory, proprietary, and participatory interest in their bank records. It therefore follows that a person has standing to challenge an unlawful search or seizure of his bank records as much as he would a warrantless search of his home or attaché case. McAllister’s and Hempele’s finding of a substantive right of privacy in certain items did not rewrite this Court’s standing jurisprudence in Alston.
In the typical case the notion of a possessory or proprietary interest will be clear, but, from time to time, a case will arise, as in McAllister, in which this Court will have to determine whether an individual possesses a substantive right of privacy in a class of objects or a general place. We are not dealing here, as in McAllister, with the question of whether a person has a substantive right of privacy in an entire class of property. Instead, we are applying traditional notions of standing to a duffel bag in a home.
This case provides our Court with its first opportunity to address whether a defendant retains standing to challenge the search or seizure of abandoned property. Courts generally recognize that the abandonment of property strips a person of standing to challenge a search. In deciding the issue of abandonment, most jurisdictions analyze whether a defendant has a reasonable expectation of privacy in the item discarded. See, e.g., United States v. Mitchell, 429 F.3d 952, 958 (10th Cir. 2005) (explaining that “[a] defendant lacks standing to complain of an illegal search or seizure of property which has been abandoned” and that “[t]he test for abandonment is whether the defendant has retained any reasonable expectation of privacy in the property” (quotations omitted)); see also 1 La Fave, Search and Seizure § 2.6(b), at 576 & n.45 (3d ed. 1996). But see State v. Tucker, 136 N.J. 158, 172 (1994) (“Property is not considered abandoned when a person throws away incriminating articles due to the unlawful actions of police officers.” (quotations omitted)). That approach focuses solely on the person who disclaims an interest in the property and disregards that others might have had an ownership interest in the property subject to an unreasonable search and seizure.
Property can be abandoned for standing purposes. Traditionally, abandonment has been defined as “[t]he relinquishing of a right or interest with the intention of never again claiming it.” Black’s Law Dictionary 2 (8th ed. 2004); see also State v. Bailey, 97 N.J. Super. 396, 400 (App. Div. 1967) (relying on same definition). However, because we adhere to a policy of automatic standing when the seized property satisfies an element of the charged offense, i.e. possessory offense cases, any exception to that rule must be carefully drawn and consistent with the principles underlying our standing jurisprudence. As we have earlier discussed, our standing rule is intended to safeguard the privacy rights of our citizens and to deter the police from conducting unreasonable searches and seizures, particularly in a home, which is accorded heightened constitutional protections.
We now hold that if the State can show that property was abandoned, a defendant will have no right to challenge the search or seizure of that property. See footnote 4 Stated differently, a defendant will not have standing to object to the search or seizure of abandoned property. This represents a narrow exception to our automatic standing rule. For the purposes of standing, property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property. See footnote 5 That approach provides the strongest guarantee that the police will not unconstitutionally search or seize property, which has multiple apparent owners, merely because one person has disclaimed a possessory or ownership interest in that property.
The issue therefore is whether, despite defendant’s seeming disclaimer, he had standing to challenge the search either because he retained a proprietary, possessory, or participatory interest in the duffel bag and its contents or because the seized evidence was necessary to prove an essential element of the crime charged. We must determine whether defendant by his conduct surrendered the right to challenge the constitutionality of the search. We therefore look to the relevant facts.
In the early morning of December 8, 2001, Holloway threatened his girlfriend with a gun. Just hours afterwards, the police entered Holloway Sr.’s home with his permission and took his son into custody on an arrest warrant issued as a result of the earlier domestic violence incident. In conducting a search incident to the arrest, the police did not find the gun.
In the apartment at the time of Holloway’s arrest were defendant, Mrs. Holloway, and a young child. Sergeant McCormick told defendant, who was clad only in boxer shorts and a t-shirt, that he would have to leave the premises for a short while. Defendant got dressed and then put a cardboard box about the size of a cigar box in a duffel bag. As defendant began to walk out of the apartment with the duffel bag, Sergeant McCormick naturally became concerned that the gun might be leaving with him. He asked defendant whether the duffel bag was his. Defendant equivocated; at first he said yes, and almost immediately afterwards he said no, looking at the bag as though he were surprised it was in his hands. Sergeant McCormick then asked Holloway Sr. whether he knew who owned the bag. He said he did not. Sergeant McCormick next grabbed the duffel bag from defendant’s hand and opened both the bag and the box, discovering a .45 caliber gun.
Under those circumstances, for purposes of defendant’s standing to challenge the search under Article I, Paragraph 7, we cannot conclude that the duffel bag was “abandoned” or that defendant had freely disclaimed a possessory or proprietary interest in the bag. First, the duffel bag was located in a home that was occupied by at least five people. Holloway, Mrs. Holloway, and the young child might have had a property interest in the bag. Indeed, Holloway was charged with criminally possessing the very same gun found in the bag. That defendant and Holloway Sr. denied knowing who owned the duffel bag did not forfeit the rights of the other occupants of the apartment or give the police a license to rummage through other peoples’ effects. The other household members too had a right not to have their “effects” subjected to an unreasonable search. See Alston, supra, 88 N.J. at 226-27 (citing Rawlings, supra, 448 U.S. at 116-19, 100 S. Ct. at 2567-68, 65 L. Ed. 2d at 649-51 (Marshall, J., dissenting)).
Accordingly, the duffel bag in the Holloway home was not truly abandoned because the police might still have easily determined its owner. New Jersey’s broad rule of standing protects the privacy rights of not just the accused, but also others in a home who might not have a ready forum in which to make their voices heard. See id. at 226 n.8.
In addition, we cannot conclude that defendant should be stripped of standing because he disclaimed ownership of the duffel bag in response to police questioning. One of the basic tenets of our standing rule is that a defendant should not have to sacrifice his right against self-incrimination to assert his constitutional right to be free from an unlawful search. See Alston, supra, 88 N.J. at 222 n.6 (noting that automatic standing rule “evolved” in part to “avoid the dilemma” of requiring defendant to gain “standing to assert a Fourth Amendment right only by relinquishing his Fifth Amendment privilege against self-incrimination”). Assuming that he knew the contents of the bag, if we follow the way suggested by the State, defendant would be presented with a Catch-22: either he could admit that the duffel bag was his and incriminate himself, in which case his oral admission and the gun, if lawfully obtained pursuant to a search warrant, would be used against him at trial, or he could deny ownership of the bag, in which case he would not have standing to challenge an unlawful search. Those are hardly the circumstances that would allow for a voluntary disclaimer of a possessory interest in the bag for standing purposes. We therefore cannot say that defendant forfeited his right to challenge the search solely because he did not incriminate himself. See State v. Isom, 641 P.2d 417, 422-23 (Mont. 1982) (“[A] mere disclaimer of ownership in an effort to avoid making an incriminating statement in response to police questioning should not alone be deemed to constitute abandonment[.]”); 1 La Fave, Search and Seizure § 2.6(b), at 588-89 (“[I]t should not be assumed . . . that a disclaimer of ownership always constitutes an abandonment for Fourth Amendment purposes. . . . ‘Mere denial of ownership is not proof of an intent to abandon.’” (quoting People v. Cameron, 342 N.Y.S.2d 773, 797 (N.Y. Sup. Ct. 1973))).
All of the relevant factors taken together lead us to conclude that the duffel bag was not abandoned property and that defendant had standing to challenge the search and seizure of the bag. See Alston, supra, 88 N.J. at 228; see also Bruns, supra, 172 N.J. at 56; Mollica, supra, 114 N.J. at 338-40. Because we hold that defendant has standing and because the search was conducted without a warrant, the State had the burden of proving by a preponderance of the evidence that the search of the duffel bag and seizure of the gun fell within an exception to the warrant requirement. See Pineiro, supra, 181 N.J. at 19-20.

IV.

Under the Fourth Amendment of the Federal Constitution and Article I, Paragraph 7 of our State Constitution, judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed.2d 732, 742 (1984); State v. Elders, 192 N.J. 224, 246 (2007). Because our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are “presumptively unreasonable.” Elders, supra, 192 N.J. at 246. Therefore, when the police act without a warrant, the State bears the burden of proving by a preponderance of the evidence not only that the search or seizure was premised on probable cause, but also that it “f[ell] within one of the few well-delineated exceptions to the warrant requirement.” Pineiro, supra, 181 N.J. at 19-20 (quotations omitted). For example, our case law permits a warrantless search when incident to a lawful arrest, when consent is given, when government officials act in a community-caretaking function, and when exigent circumstances compel action. State v. Moore, 181 N.J. 40, 45 (2004) (citing State v. Hill, 115 N.J. 169, 173-74 (1989)).
In this case, the State relies on the exigent-circumstances exception to the warrant requirement to justify the search of the duffel bag in the Holloway home. Although “exigent circumstances” cannot be precisely defined or reduced to a neat formula, see State v. Nishina, 175 N.J. 502, 516 (2003), some factors to be considered in determining whether law enforcement officials faced such circumstances are the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken. See State v. Deluca, 168 N.J. 626, 632-33 (2001); see also Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 1645-46, 18 L. Ed.2d 782, 787 (1967) (noting that warrant is not necessary when police had probable cause and were in hot pursuit of armed felon); State v. Frankel, 179 N.J. 586, 609-12 (upholding search of defendant’s home under emergency-aid doctrine based on police officer’s reasonable belief that person might be in grave danger), cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed.2d 128 (2004).
At the very least, exigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene. Compare Warden, supra, 387 U.S. at 298-99, 87 S. Ct. at 1645-46, 18 L. Ed. 2d at 787 (holding that police did not need warrant to follow fleeing armed robbery suspect into his house because “the Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others”), and State v. Martin, 87 N.J. 561, 563-64 (1981) (stating that exigent circumstances were present when police investigating “freshly-committed armed robbery” pulled over and searched car and its occupants matching descriptions given by eyewitnesses), with State v. Cassidy, 179 N.J. 150, 162 (2004) (finding no exigent circumstances justifying warrantless search of defendant’s home for guns because there was no “immediate threat” made by defendant to his domestic violence victim and sufficient time to secure warrant).
In applying those constitutional principles, we must keep in mind the special status of the home in our federal and state constitutional schemes and that unlawful, warrantless searches and seizures within the home are the “the chief evil against which the wording of the Fourth Amendment is directed.” Welsh, supra, 466 U.S. at 748, 104 S. Ct. at 2097, 80 L. Ed. 2d at 742 (quotation omitted); see also State v. Bolte, 115 N.J. 579, 585, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed.2d 320 (1989). We now turn to the relevant facts bearing on the warrantless search of the duffel bag in the Holloway home.
First, we reject defendant’s argument that the police officers had no right to enter Holloway Sr.’s home to arrest his son. The officers first explained to Holloway Sr. that they had a warrant for his son’s arrest and then received his consent to enter his home for the express purpose of taking his son into custody. As such, there was no violation of Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed.2d 38 (1981), which requires that before entering a third-party’s home to execute an arrest warrant, law enforcement officers must have either consent, a search warrant, or exigent circumstances. See footnote 6 Id. at 216, 101 S. Ct. at 1650, 68 L. Ed. 2d at 49-50; see also State v. Bell, 388 N.J. Super. 629, 639 (App. Div. 2006) (citing State v. Miller, 342 N.J. Super. 474, 495 (App. Div. 2001)). Accordingly, with Holloway Sr.’s valid consent, the police officers lawfully entered the apartment to arrest Holloway.
The police officers acted under the assumption that the gun Holloway brandished hours earlier was somewhere in the apartment. A search conducted incident to Holloway’s arrest did not produce the gun. For the sake of this discussion, we will presume that the officers had probable cause to believe that the gun was on the premises. We will also presume that the police did not have sufficient time to obtain a search warrant before responding to Holloway Sr.’s apartment.
After Holloway was handcuffed and led from the apartment, the police officers were in the process of securing the apartment. Five officers had participated in Holloway’s arrest. Defendant had been asked by Sergeant McCormick to leave the apartment for a short time to allow the officers to conduct their “business.” Sergeant McCormick explained that he intended to ask Holloway Sr. for his consent to search the apartment for the gun and, absent his permission, he intended to apply for a search warrant. When defendant placed a cardboard box in the duffel bag and began to walk out with the bag, Sergeant McCormick wanted to know whether the bag was his. Defendant’s equivocal responses, ending with his disclaimer of ownership, along with defendant’s prior criminal history, heightened the sergeant’s suspicions.
The sergeant then took the duffel bag from defendant. With the bag secure in his hands and other police officers in the same room, Sergeant McCormick did not suggest either that he, his fellow officers, or the apartment’s occupants were in any immediate danger or that evidence might be destroyed unless he searched the bag in the house at that moment. To the contrary, he gave as his reason for opening the bag that both defendant and Holloway Sr. disclaimed owning the bag. He testified that had he not found the gun in the bag, his next step would have been to obtain either consent to search the house or a search warrant.
The trial court’s finding that there were exigent circumstances is simply not supported by the record. See Elders, supra, 192 N.J. at 244 (“A trial court’s findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.” (quotation omitted)). Here, Sergeant McCormick did not give any reason that would have justified bypassing the warrant process. If Sergeant McCormick believed that there was a need to act with dispatch, he could have maintained the status quo in the apartment and applied for a telephonic search warrant pursuant to Rule 3:5-3. That rule, in part, provides that “[a] warrant may issue if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure to obtain a written warrant, and that sufficient grounds for granting the application have been shown.” See footnote 7 R. 3:5-3(b). When the circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but not so exigent that there is insufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search or seizure. See ibid.; see also State v. Dunlap, 185 N.J. 543, 549-51 (2006); State v. Lewis, 116 N.J. 477, 487-88 (1989).
Law enforcement officers must be particularly careful to observe the dictates of the warrant requirement before undertaking a search or seizure within a home. As the United States Supreme Court observed in Welsh, supra:
“The right of officers to thrust themselves into a home is . . . a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
[466 U.S. at 748 n.10, 104 S. Ct. at 2097 n.10, 80 L. Ed. 2d at 742 n.10 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948)).]
We therefore hold that the search of the duffel bag was an unreasonable search and that the evidence of the gun must be suppressed. Although we reach that conclusion based solely on the dictates of Article I, Paragraph 7 of our State Constitution, we are confident that the same result is mandated under the Federal Constitution.

V.

For the reasons we have discussed, we affirm the judgment of the Appellate Division granting defendant standing under state law to challenge the warrantless search of the duffel bag in the Holloway home. Because the search did not comply with the warrant requirements of either the Fourth Amendment of the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution, we also affirm the Appellate Division’s suppression of the fruits of that search, including the gun. We remand to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-81 SEPTEMBER TERM 2006
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ANDRE JOHNSON, a/k/a ANDRE
CARTER, MAZI YAZIO and D.
MADEO,
Defendant-Respondent.
DECIDED February 26, 2008
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST
AFFIRM AND REMAND

CHIEF JUSTICE RABNER
X

JUSTICE LONG
X

JUSTICE LaVECCHIA
X

JUSTICE ALBIN
X

JUSTICE WALLACE
X

JUSTICE RIVERA-SOTO
X

JUSTICE HOENS
X

TOTALS
7



Footnote: 1 Although not raised by either party, defendant has attached to his brief a verdict sheet on which boxes marked “not guilty” are checked off on both the third-degree unlawful possession of a weapon charge and the hindering apprehension charge. Inexplicably, defendant cites to this sheet as proof that he was convicted on both counts. We note that the trial transcript shows that the jury returned a verdict of guilty on all counts.
Footnote: 2 Personal items belonging to Ms. Glover were later discovered in the box as well.
Footnote: 3 We note that in declining to find a “participatory interest,” the Court concentrated on “the passage of seven days between the crime and the seizure of the evidence [and] defendant’s lack of any physical proximity to the evidence.” Bruns, supra, 172 N.J. at 59. We emphasize, however, that in those cases in which the interest in the seized evidence is possessory or proprietary, or the evidence supports an element of the offense, the time separating the crime and the search or seizure, or the defendant’s physical absence when the place is searched and item seized, will probably have no bearing on the issue of standing.
Footnote: 4 In a warrantless search, the State bears the burden of proving by a preponderance of the evidence the constitutionality of the search. See State v. Pineiro, 181 N.J. 13, 19-20 (2004). Here, the State must prove by a preponderance of the evidence that the defendant abandoned the property and therefore has no standing to object to the search.

Footnote: 5 To the extent that State v. Lee, 245 N.J. Super. 441 (App. Div. 1991), suggests that the determination of whether property is abandoned is governed by a “reasonable expectation of privacy” standard in a challenge to a search or seizure, id. at 450-51, we disapprove of that holding.
Footnote: 6 We reject defendant’s argument that a homeowner is disabled as a matter of law from giving consent to a police officer armed with a warrant to arrest a third-party in the owner’s home. See State v. Domicz, 188 N.J. 285, 306-10 (2006).
Footnote: 7 The State has argued that the exigent circumstances needed for a telephonic warrant are no different from the exigent circumstances justifying a bypass of the warrant requirement. We disagree, because if the State were correct the police would never have reason to apply for a telephonic warrant. Simply stated, for purposes of a telephonic warrant, exigent circumstances are present when law enforcement officers do not have sufficient time to obtain a written warrant. See, e.g., De La Paz, supra, 337 N.J. Super. at 196-97 ( suggesting that police should have obtained telephonic warrant before entering defendants’ home “as there was no obvious urgency requiring their immediate response at the scene”). For purposes of a warrantless search, exigent circumstances are present when la w enforcement officers do not have sufficient time to obtain any form of warrant. See, e.g., Warden, supra, 387 U.S. at 298-99, 87 S. Ct. at 1645-46, 18 L. Ed. 2d at 787 (upholding warrantless search of house when “police were informed that an armed robbery had taken place, and that the suspect had entered [house] less than five minutes before they reached it”).