SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
v.
GENE HINTON,
____________________________________
|
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).
PER CURIAM
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.
I.
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.
II.
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.[1] 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.
Reversed.
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[1] 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").
