Defendant has automatic standing to challenge
the search of a residential apartment State v. Amir Randolph (A-70-15)
(076506)
In this appeal, the Court considers whether a
person charged with a possessory drug offense has automatic standing to
challenge a search or seizure.
Defendant Amir Randolph was charged with various
drug offenses and moved to suppress evidence. Officers testified at the
suppression hearing that, in September 2011, they conducted surveillance of a
three-story apartment building. During the surveillance, Markees King stood in
the second-floor apartment, and later exited the building, where he was
approached by Edward Wright. Wright threw bills on the building’s porch, and
King handed him a white object and retrieved the money. A second individual
came up to King and handed him money and, in return, received a small white
object. Detective Goodman believed that he had observed two drug transactions.
Officers stopped and arrested Wright and, shortly thereafter, King was arrested
as he exited the building.
Sergeant Trowbridge then attempted to enter
building. The tenant of the first-floor apartment opened the door, admitting
Sergeant Trowbridge into the vestibule. Once inside, Sergeant Trowbridge heard
what sounded like someone running from the second floor up to the third floor.
He also found a handgun in the vestibule. Sergeant Trowbridge then proceeded
alone to the second floor. The door to the second-floor apartment, where King
had been sighted, was ajar. From the hallway, Sergeant Trowbridge could see a couch
and debris. He described the apartment as appearing to be vacant or abandoned
and entered to search for “any additional actors there.” As he walked through
the apartment, Sergeant Trowbridge observed several items including a
television, video gaming system, two couches, boots, sneakers, clothes, a
backpack, and a soda bottle, among other things. He also discovered baggies of
marijuana, some currency, a box, a cigarette box, and a letter from an
insurance company addressed to Amir Randolph (defendant) at a different
address. Inside the boxes he found suspected heroin and marijuana. In all, the
police recovered thirty-five baggies of marijuana and forty glassine envelopes
of heroin.
At the suppression hearing, the prosecutor
argued that the warrantless search of the second-floor apartment was valid
based on the exigent-circumstances and protective-sweep exceptions to the
warrant requirement. Instead of addressing that argument, the trial court
upheld the search because defendant did not provide any evidence that he had a
reasonable expectation of privacy in the vacant second-floor apartment or in
the evidence found there.
At trial, the State’s presentation largely
mirrored the testimony at the suppression hearing. Defense counsel requested an
instruction on “mere presence” and “flight.” The trial judge agreed to charge
on flight but explained that a charge on “mere presence” was not necessary. The
jury asked questions, generally concerning the relationship between defendant,
King, and the tenant, and defendant’s location when arrested. The trial judge
simply reminded the jurors to use their “own good common sense, consider the
evidence . . . and give it a reasonable and fair construction in light of your
knowledge of how people behave.” The jury returned guilty verdicts on all
counts.
The Appellate Division reversed, concluding that
the trial court erred in upholding the search based on the flawed finding that
the second-floor apartment was vacant or abandoned. 441 N.J. Super. 533,
552-53 (App. Div. 2015). The panel remanded to determine whether the search was
justified based on the protective-sweep or exigent-circumstances doctrine. The
panel also reversed defendant’s conviction based on the failure to give a “mere
presence” charge. According to the panel, the jury should have been instructed
that, without more, defendant’s “mere presence” at the place where contraband
was seized is insufficient to establish a finding of constructive possession.
Finally, the panel raised concerns about the propriety of the flight charge
without resolving the issue.
The Court granted the State’s petition for
certification. 224 N.J. 529 (2016).
HELD:
Defendant had automatic standing to challenge the search of the apartment
because he was charged with possessory drug offenses and because the State
failed to show that the apartment was abandoned or that defendant was a
trespasser. Failing to issue the “mere presence” charge was harmless error.
1. This appeal concerns defendant’s standing to
challenge the search of the apartment. The New Jersey Constitution’s
prohibition against unreasonable searches and seizures affords greater
protection than the federal Constitution. In New Jersey, the State bears the
burden of showing that defendant has no proprietary, possessory, or
participatory interest in either the place searched or the property seized.
Although the Court does not engage in a reasonable expectation of privacy
analysis when a defendant has automatic standing to challenge a search, it does
so in determining whether a defendant has a protectible right of privacy in a
novel class of objects or category of places. Here, the Court is applying
traditional principles of automatic standing to a place that historically has
enjoyed a heightened expectation of privacy—the home. No unique circumstances
call for the Court to engage in an additional reasonable expectation of privacy
analysis as a supplement to its standing rule.
2. The automatic standing rule, however, is
subject to reasonable exceptions, and, in this appeal, the Court recognizes
three exceptions in cases concerning real property: An accused will not have
standing to challenge a search of abandoned property, property on which he was
trespassing, or property from which he was lawfully evicted. The State has the
burden of establishing that one of those exceptions applies to strip a
defendant of automatic standing to challenge a search.
3. In the present case, defendant had automatic
standing to challenge the search of the second-floor apartment because he was
charged with possessory drug offenses, and because the State failed to
establish that Sergeant Trowbridge had an objectively reasonable basis to
believe that the apartment was abandoned or that defendant was a trespasser.
Regardless of the disarray in the apartment and the fact that it was not fully
furnished, there were clear signs that someone occupied it
4. Importantly, at the suppression hearing, the
prosecutor contended that the police conducted a lawful search pursuant to the
exigent-circumstances and protective-sweep exceptions to the warrant
requirement. The trial court never addressed those substantive grounds. The
trial court, moreover, did not apply the well-established principles governing
standing. Rather, the court turned to the reasonable expectation of privacy
test, typically used in federal courts, and concluded—without any evidence—that
the apartment was vacant. The Court, therefore, concludes that the trial court
erred in its analysis and that a new suppression hearing must be conducted.
5. The Court next considers whether the trial
court erred in not instructing the jury on “mere presence” and, if so, whether
the failure to give the charge denied defendant a fair trial. Defendant
requested that the trial court read to the jury the Model Charge that instructs
that a defendant’s “mere presence” at the scene, standing alone, is
insufficient to prove guilt. The court denied that request. The trial court was
clearly mistaken in its belief that the “mere presence” charge is given only in
conspiracy cases. No constraint barred the trial court from giving the “mere
presence” charge, and the better course would have been to give the charge to
disabuse the jury of any possible notion that a conviction could be based
solely on defendant’s presence in the building. However, unlike the appellate
panel, the Court concludes that the failure to give the “mere presence” charge
did not deprive defendant of a fair trial. The charge, as a whole, sufficiently
informed the jury—without using the words “mere presence”—that defendant’s
presence in the building, standing alone, would be insufficient to establish
guilt. The Court, therefore, reverse the judgment of the Appellate Division
granting defendant a new trial.
6. Finally, the Court agrees with the Appellate
Division that, if there is a retrial, the trial court “must carefully consider
whether it is appropriate to charge flight, and, if so, must tailor the charge
to the facts of the case.” 441 N.J. Super. at 563-64. In doing
so, the court must determine whether the probative value of evidence of flight
is “substantially outweighed by the risk of . . . undue prejudice, confusion of
issues, or misleading the jury,” N.J.R.E. 403(a), and whether
a carefully crafted limiting instruction could ameliorate any potential
prejudice.
The judgment of the Appellate Division is AFFIRMED
IN PART and REVERSED IN PART, and the matter is REMANDED to
the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.
