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.