SUPERIOR COURT OF NEW JERSEY
Submitted February 16, 2012 - Decided
Before Judges Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-02236.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Cariddi, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Defendant Gene Hinton appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1), and third-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1). He also appeals the denial of his application for entry into a pre-trial intervention program (PTI). Because we conclude that Hinton's motion to suppress should have been granted, we reverse the conviction.
We discern the following facts and procedural history from the record on appeal, including the transcripts from the motion to suppress and the subsequent bench trial.
For approximately six years prior to April 2009, Hinton had been living with his mother, who had been diagnosed with cancer, in a rent-subsidized apartment in Newark. Hinton was not named on the lease and was not authorized to live in the apartment. However, according to Hinton, the building's superintendent was aware that he was living there. It appears that, in about April 2009, the Newark Housing Authority initiated eviction proceedings against Hinton's mother and eventually obtained a warrant of removal. Although the record is not entirely clear, it also appears that Hinton's mother had died shortly before the filing of the eviction notice.
On April 6, 2009, Ricardo D. Pratt, a Special Civil Part officer, went to the Hinton apartment to serve the warrant and give the required "72-hour notice" that the warrant of removal would be executed if the apartment was not vacated within that period. When no one answered the door, he slipped the notice under the door. Hinton found the notice and, on April 13, 2009, went to court in an effort to resolve the matter. According to Hinton, he had verified with the building superintendent that the rent was current.
While Hinton was in court, Pratt returned to the apartment to enforce the warrant of removal. He again knocked on the door and received no response. He proceeded to effectuate a lock-out. He entered the apartment to make sure that there was no one inside and that there were no fire hazards. In the course of looking around, Pratt found an open shoe box on the bed. It contained what appeared to be CDS. There was a plastic bag containing money next to the shoe box. He left the apartment after changing the locks.
Pratt promptly reported his discovery to the Newark Police Department. Several police officers came to the apartment building in response to Pratt's report. Pratt took them into the apartment and showed them what he had discovered. They reported to their supervisors, after which several more police officers arrived at the scene.
Hinton returned from the courthouse and found Pratt, a maintenance technician for the building, and the police officers at the apartment. Pratt showed him the warrant of removal. Newark Police Sergeant Robinson Rodriguez asked Hinton whether he lived in the apartment and whether anyone else was staying there. Hinton informed Rodriguez that he had lived there alone since his mother's death.
Rodriguez then took Hinton into the bedroom and asked if the shoe box on the bed was his. Hinton responded that it was. He was then placed under arrest. Hinton declined to give a statement after he was taken to the police station. The police recovered 330 "decks" of heroin and $3,780 from the apartment.
In August 2009, Hinton was indicted for third-degree possession of a CDS, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of heroin with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count three); and second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, contrary to N.J.S.A. 2C:35-7.1 (count four).
Following his indictment, Hinton applied for PTI. The criminal case manager recommended against his admission to PTI on September 23, 2009, noting that he was charged with crimes carrying a presumption of incarceration. Hinton wrote a letter setting forth compelling reasons for his application, but was rejected by the criminal case manager and the prosecutor.
On May 25, 2010, Hinton filed a motion to suppress the evidence seized from the bedroom of his mother's apartment and the statements he made prior to his arrest. After holding an evidentiary hearing, the trial judge denied both applications.
During the ensuing bench trial, the State dismissed count three, possession with intent to distribute within 1000 feet of school property. The judge granted the State's motion to downgrade count two from a second-degree to a third-degree possession with intent to distribute. The trial judge granted Hinton's motion for acquittal on count four, possession of heroin with intent to distribute within 500 feet of a public housing facility. The judge found Hinton guilty of third-degree possession of CDS (count one) and third-degree possession with intent to distribute (count two as amended).
Hinton then moved for admission to PTI over the prosecutor's objection and for a new trial. Both motions were ultimately denied. On August 9, 2010, the judge sentenced Hinton to probation for two years on count two, possession with intent to distribute, count one having been merged with count two. This appeal followed.
Hinton raises the following issues on appeal:
POINT I: MODIFICATION OF SENTENCE IS REQUIRED WHERE RECORD DEMONSTRATES a) CONSIDERATION OF IRRELEVANT OR INAPPROPRIATE FACTORS WHERE PRESUMPTION AGAINST ENROLLMENT IN PTI PROGRAM ONLY EXISTED AT TIME OF INITIAL REJECTION BECAUSE OF UNSUBSTANTIATED ELEMENTS OF ALLEGED SECOND DEGREE CRIMES, AND; b) A CLEAR ERROR OF JUDGMENT IN WITHHOLDING CONSENT TO DEFENDANT, A FIRST TIME OFFENDER FOUND GUILTY OF THIRD DEGREE OFFENSES AFTER BENCH TRIAL.
POINT II: THE FACTS ADDUCED AT TIME OF MOTION TO SUPPRESS DO NOT SUPPORT AS A MATTER OF LAW THAT THE POLICE ENGAGED IN A FIELD INQUIRY WHERE ALL RELEVANT FACTS WERE KNOWN BY THE POLICE PRIOR TO THE ENCOUNTER WITH THE DEFENDANT. MOREOVER POLICE HAD NO AUTHORITY TO ENTER THE HOME. CONSENT WAS NOT ESTABLISHED AND NO EXIGENT CIRCUMSTANCES EXISTED TO EXCUSE FAILURE TO OBTAIN SEARCH WARRANT. STATEMENTS AND EVIDENCE MUST BE SUPPRESSED.
POINT III: THE VERDICT WAS AGAINST THE EVIDENCE (raised below).
We begin with that part of Hinton's second argument concerning the denial of his motion to suppress the evidence seized from his mother's apartment.
The Supreme Court has explained the standard of review applicable to an appellate court’s consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
However, our review of the trial judge's legal conclusions is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (citing State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011)), certif. denied, 205 N.J. 78 (2011).
Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008) (citing Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984); Elders, supra, 192 N.J. at 246). Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting Elders, supra, 192 N.J. at 246).
The trial judge correctly concluded that Pratt was not a law enforcement officer and that his search of the apartment incident to the lock-out ordered by the Special Civil Part did not raise a constitutional issue. Hinton does not appear to dispute that determination. In addition, Pratt's information concerning the presence of CDS was sufficiently specific and reliable to provide probable cause for a search, which Hinton also does not appear to dispute. The core disputed issue is whether the police officers, having been informed by Pratt that he had located the CDS in the apartment and changed the locks, were permitted to engage in a warrantless search or whether they were required to obtain a search warrant. That issue was not addressed by the trial judge.
When police conduct a search without a warrant, the State bears the burden of demonstrating that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). If the State fails to sustain that burden, the search is invalid. Alston, supra, 88 N.J. at 230.
The State asserts that Hinton had no constitutionally protected interest in property stored in his mother's apartment because he had no legal right to live there, inasmuch as he was not named on the lease and was gainfully employed. The State relies primarily on cases in which warrantless searches were upheld because the defendant had no reasonable expectation of privacy when storing contraband in an abandoned building or public area.
When the police look for narcotics in an "abandoned" house, such activity does not constitute a "search" under the Fourth Amendment. See State v. Linton, 356 N.J. Super. 255, 258 (App. Div. 2002). That is because a search occurs only "'when an expectation of privacy that society is prepared to consider reasonable is infringed.'" Ibid. (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)). Applying those principles, we held in Linton that "a defendant who hides drugs in someone else's vacant property has no constitutionally-reasonable expectation of privacy." Id. at 259. Similarly, a squatter or trespasser has no constitutionally-reasonable expectation of privacy in property that is abandoned. Id. at 256; see also State v. Sharpless, 314 N.J. Super. 440, 454 (App. Div.) (defendant had no protected privacy interest with respect to a mound of dirt on a public street where he had been standing, so that no privacy right was infringed when the police searched there and found drugs), certif. denied, 157 N.J. 542 (1998); State v. Harris, 298 N.J. Super. 478, 484-85 (App. Div.) (defendant has no privacy expectations in premises into which he criminally intrudes), certif. denied, 151 N.J. 74 (1997); State v. Boynton, 297 N.J. Super. 382, 391-94 (App. Div.) (defendant engaged in drug transaction in an unlocked, single stall, public restroom in a bar had no reasonable expectation of privacy, so that officer's entry was proper, and plain view exception applied to seizure of narcotics), certif. denied, 149 N.J. 410 (1997).
Assuming that Hinton's protracted residence in his mother's apartment, apparently with the knowledge of the superintendent, was unlawful as between him and the Newark Housing Authority, we conclude that, under the totality of the circumstances, Hinton nevertheless had a reasonable expectation of privacy with respect to his mother's apartment. Hinton's situation was simply not analogous to a squatter in an abandoned building. He had resided in his mother's apartment with her consent, albeit without the consent of her landlord.
Even though the landlord had a legal right to access the apartment to effectuate the eviction, Hinton retained a reasonable expectation of privacy with respect to the contents of the apartment at the time of the seizure. See State v. Cleveland, 371 N.J. Super. 286, 300 (App. Div.) (occupant of a motel room has a constitutionally protected expectation of privacy, "as any person would in the place he or she resides"), certif. denied, 182 N.J. 148 (2004); State v. Stott, 171 N.J. 343, 353-58 (2002) (an involuntarily-committed psychiatric patient had a "reasonable expectation of privacy" in his shared hospital room). See also Johnson, supra, 193 N.J. at 547-51 (suppression of evidence from the warrantless search of a duffel bag the defendant had brought into a house he was visiting based upon a finding that he had a reasonable expectation of privacy).
Contrary to the State's argument, the effectuation of the lock-out did not terminate Hinton's ownership interest in the property remaining in the apartment and transfer it to the landlord. Although there are other requirements, a landlord can treat such property as abandoned only "if the landlord reasonably believes under all the circumstances that the tenant has left the property upon the premises with no intention of asserting any further claim to the premises or the property." N.J.S.A. 2A:18-72. Consequently, we conclude that Hinton had a constitutionally protected expectation of privacy in the contents of the apartment at the time it was searched by the police.
Neither the trial judge nor the State have articulated exigent circumstances justifying a warrantless search. "Exigent circumstances" is "incapable of precise definition because . . . the term takes on form and shape depending on the facts of any given case. . . . [E]xigency in the constitutional context amounts to 'circumstances that make it impracticable to obtain a warrant when the police have probable cause . . . .'" Cooke, supra, 163 N.J. at 676 (quoting State v. Colvin, 123 N.J. 428, 437 (1991)). Because the issue is "highly fact-sensitive," State v. Lewis, 116 N.J. 477, 487 (1989), the court should qualitatively, not quantitatively, analyze the following factors:
(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in narcotics traffic; (6) the gravity of the offense involved; (7) the possibility that the suspect is armed; (8) the strength or weakness of the facts establishing probable cause, and (9) the time of the entry.
[Alvarez, 238 N.J. Super. at 568 (citations omitted).]
Additionally, the "inconvenience to the officers and the slight delay involved in processing the application for a warrant is never a convincing reason for proceeding without one." State v. Naturile, 83 N.J. Super. 563, 569 (App. Div. 1964).
At the time the police first entered the apartment and viewed the items that were subsequently seized, Pratt had effectuated the lock-out and changed the locks. Hinton could have been lawfully barred from reentering the apartment while the police obtained a warrant. There was no urgency, no reason to believe that the contraband would be moved or destroyed, and no basis to conclude that there would be any danger to the police officers in guarding the apartment while the warrant was obtained.
We hold the trial judge erred in denying the motion to suppress the physical evidence. Consequently, we reverse the conviction on appeal and need not reach the remaining issues raised in Hinton's brief.
 In addition, at the time the police entered the apartment, Hinton might have been able to have the writ stayed or vacated. See Hous. Auth. of Morristown v. Little, 135 N.J. 274, 290 (1994) (concluding "that the trial court had the authority to invoke Rule 4:50-1 to vacate a judgment for possession in a summary-dispossess action after a warrant of removal had been executed").