State v. Derrick Brown, Leroy Carstarphen, and Kareem Strong (070200)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Derrick Brown (A-113-11) (070200)

Argued April 16, 2013 -- Decided January 29, 2014

ALBIN, J., writing for a majority of the Court.

The issue in this appeal is whether the State established by a preponderance of the evidence that 820 Line
Street in the City of Camden, a shabby and neglected row house, was abandoned or that defendants were trespassers,
justifying a warrantless search of the house.

On May 12, 2010, based on information from two confidential informants and a concerned citizen that 820
Line Street, a dilapidated row house in the City of Camden, was being used as a “stash location” for illegal drug
transactions, State Trooper Kurt Kennedy set up a surveillance of the property. Trooper Kennedy observed what he
believed to be four drug transactions, each following the same pattern: the transfer of money, unlocking and entering
of 820 Line Street, exiting and locking the door, and the handing of a small item to the buyer. Some of the
transactions also involved a property located across the street, 815 Line Street. Trooper Kennedy concluded that the
individuals were selling drugs out of 820 and 815 Line Street. He did not attempt to determine who owned or lived
in either residence or to secure a search warrant.

On May 17, Trooper Kennedy and a fellow trooper conducted a second surveillance of 820 Line Street.
They observed two black men standing near the residence, one whom he knew to be defendant Kareem Strong and
the other whom he later learned was Tyree Thomas. Two more black men came onto the scene: defendants Derrick
Brown and Leroy Carstarphen. Trooper Kennedy witnessed fifteen drug transactions that involved unlocking a
padlock at 820 Line Street, entering, and exiting shortly afterwards with a small item that was handed to the buyer.
Sometimes the transactions involved 815 Line Street. After observing these drug transactions for “a little more than
[two] hours,” Trooper Kennedy called in arrest teams to place the suspects into custody. None had drugs in their
possession. One of the arresting officers, Trooper Gregory Austin, took from defendant Strong keys that opened the
padlock securing the front door to 820 Line Street. The front door was the only means of gaining access to the
residence.

Trooper Austin testified to the events that occurred after the arrests. Three or four troopers were posted in
front of 820 Line Street and two in the rear, securing the entire residence. One of the two front windows of 820 Line
was broken. The front door was padlocked, and the rear door was “off the hinges” and “propped closed” so that no
one could exit from inside. Through the front broken window, Trooper Austin could see “trash bags” filled with
“old clothes” and “soda cans” littering the living room. He did not observe any light fixtures, and the electric meter
was missing. Unlike 820 Line, the neighboring houses immediately to the left and right were boarded up. Trooper
Austin determined that 820 Line was an “abandoned” house and could be searched without a warrant. The troopers
opened the padlock, entered the residence, and searched the house. Trooper Austin reported that there was “trash
everywhere.” He did not test the utilities. The troopers discovered evidence of criminality inside 820 Line: a
sawed-off rifle inside a floor air vent and drugs and drug paraphernalia on a shelf above the stairs to the basement.
The troopers concluded that 815 Line Street was “occupied” and therefore Trooper Kennedy secured a search
warrant to gain entry. The search of 815 Line uncovered crack cocaine and drug paraphernalia.

The trial court granted defendants’ motion to suppress the evidence seized at 820 Line Street, finding the
warrantless search invalid. The court found that the State had not satisfied its burden of proving that 820 Line was
an abandoned building that justified bypassing the warrant requirement; that defendants had automatic standing to
challenge the search because they exercised “possessory control over the premises” by the manner in which the front
door was padlocked and the rear door secured; and that exigent circumstances did not justify a warrantless search of
820 Line.

1
 The Appellate Division, in an unpublished opinion, affirmed the trial court’s suppression order. The panel
concluded that the State had not proved that the building was abandoned. From the panel’s perspective, a check of
the recorded deeds would have revealed “the identity of the owner of the property.” From there, “the troopers could
have conclusively determined whether the owner had abandoned the property” and whether defendants were
trespassers or squatters. The Supreme Court granted the State’s motion for leave to appeal. 210 N.J. 216 (2012).

HELD: The State did not establish by a preponderance of the evidence that 820 Line Street in the City of Camden,
although in decrepit condition, was abandoned or that defendants were trespassers, thus failing to justify the
warrantless search of the property.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution both guarantee “[t]he right of the people to be secure in their… houses… against unreasonable searches
and seizures.” There is a clear preference for police officers to secure a warrant before entering and searching a
home; warrantless searches are presumptively invalid. However, under both Article I, Paragraph 7 and the Fourth
Amendment, a defendant has no standing to challenge the warrantless search of abandoned property, and to that
extent, abandoned property falls within an exception to the warrant requirement. (pp. 16-20)

2. Defendants do not have standing to object to the warrantless search of the property if the building was abandoned
or, alternatively, if they were trespassers; they would not have the requisite possessory or proprietary interest in the
property to object to the search. However, the State bears the burden of proving by a preponderance of the evidence
that the building is abandoned or defendants are trespassers. The proper test for abandonment remains, for Fourth
Amendment purposes, whether a defendant “retains a reasonable expectation of privacy in the property alleged to be
abandoned,” United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.), and, for Article I, Paragraph 7 purposes,
whether a defendant “retain[s] a proprietary, possessory, or participatory interest” in the property, State v. Johnson,
193 N.J. 528 (2008). The test must be one of objective reasonableness; the subjective belief of the officer is not a
relevant consideration. In short, “[t]here simply is no ‘trashy house exception’ to the warrant requirement,” and
therefore “[i]t is unreasonable to assume that a poorly maintained home is an abandoned home.” United States v.
Harrison, 689 F.3d 301, 311 (3d Cir. 2012). This case was decided under the New Jersey Constitution. (pp. 20-25)

3. Under Article I, Paragraph 7 of the New Jersey Constitution, there are a number of factors to be considered in
determining whether, in light of the totality of the circumstances, a police officer has an objectively reasonable basis
to believe a building is abandoned, thus justifying a warrantless entry and search. No one factor is necessarily
dispositive, and the weight to be given to any factor will depend on the particular circumstances confronting the
officer. If obtaining a warrant is impracticable, and exigent circumstances demand swift action because of the
threatened destruction of drugs inside a residence, then a warrantless entry may be justifiable. (pp. 25-29)

4. Just as a defendant will have no standing to challenge a search of abandoned property, he will have no standing
to challenge a search if an officer had an objectively reasonable basis to believe he was a trespasser. A trespasser
does not have a possessory or proprietary interest in property where he does not belong. The State bears the burden
of showing that the police officer had an objectively reasonable basis to believe a person was a trespasser, justifying
a warrantless search of a home. Ultimately, the focus must be whether, in light of the totality of the circumstances, a
police officer had an objectively reasonable basis to conclude that a building was abandoned or a defendant was a
trespasser before the officer entered or searched the home. (pp. 29-33)

5. It can hardly be disputed that Trooper Kennedy had probable cause to believe that drug dealing was occurring at
820 Line Street. The issue, however, is whether the troopers had a reason to bypass the warrant requirement. The
troopers did not know whether the defendants resided there in the evenings, whether they had an ownership interest
in the property, or whether they had permission of the owner to use the property. There is no suggestion in the
record that evidence inside the building was in danger of destruction or that obtaining a warrant was impracticable
due to some other exigency. The question to be answered is not whether the police have a subjective, good-faith
belief that a building is abandoned, but whether they have an objectively reasonable basis to believe so. The Court
has no reason to substitute its judgment for the judgment properly and fairly exercised by the trial court. The State
did not establish that the property, although in decrepit condition, was abandoned or that defendants were
trespassers. (pp. 31-40)

The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court

2
for proceedings consistent with the Court’s opinion.

JUSTICE PATTERSON filed a separate, DISSENTING opinion, in which CHIEF JUSTICE RABNER
joins, stating that the trial court’s factual findings do not support, but rather undermine, the majority’s conclusion
that the State failed to meet its evidentiary burden in this case, and that, contrary to the majority’s suggestion, the
police officers did not ride roughshod over the constitutional rights of the residents of a poor neighborhood.

JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion. JUSTICE PATTERSON filed a separate, dissenting opinion in which CHIEF
JUSTICE RABNER joins.

3
 SUPREME COURT OF NEW JERSEY
A-113 September Term 2011
070200

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DERRICK BROWN, LEROY
CARSTARPHEN, and KAREEM
STRONG,

Defendants-Respondents.

Argued April 16, 2013 – Decided January 29, 2014

On appeal from the Superior Court, Appellate
Division.

Linda A. Shashoua, Assistant Prosecutor,
argued the cause for appellant (Warren W.
Faulk, Camden County Prosecutor, attorney).

Kenneth D. Aita argued the cause for
respondent Derrick Brown.

Theodore J. Baker, Designated Counsel,
argued the cause for respondent Kareem
Strong (Joseph E. Krakora, Public Defender,
attorney).

Brad Wertheimer, Designated Counsel, argued
the cause for respondent Leroy Carstarphen
(Joseph E. Krakora, Public Defender,
attorney).

Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Jeffrey S.
Chiesa, Attorney General, attorney).

JUSTICE ALBIN delivered the opinion of the Court.

1
 Our Federal and State Constitutions protect the sanctity of

the home from unreasonable searches by government officials.

The constitutional protections afforded to the home make no

distinction between a manor estate in an affluent town and a

ramshackle hovel in an impoverished city. The occupants of both

structures are clothed with the same constitutional rights. In

both cases, the search of a home without a warrant is

presumptively unreasonable, and the State therefore bears the

burden of showing either that the defendant has no standing to

challenge the search or that any such search falls within a

well-delineated exception to the warrant requirement.

In this case, during a surveillance over two days, the New

Jersey State Police observed drug activity operating from 820

Line Street, a dilapidated row house in the City of Camden with

one or more windows broken, the interior in disarray, the front

door padlocked, and the back door off its hinges but propped

closed. The State Police arrested defendants Derrick Brown,

Leroy Carstarphen, and Kareem Strong for dealing drugs. After

securing a key from one of the defendants to open the padlock,

the police conducted a warrantless search of the row house,

seizing a gun and drugs. Defendants moved to suppress that

evidence as the product of an unconstitutional search.

At a suppression hearing, the State claimed that the

warrantless search of 820 Line Street by the State Police was

2
justified because the property was abandoned. After taking

testimony, the trial court found that the State did not

establish by a preponderance of the evidence that the shabby and

neglected row house was abandoned property. The court noted

that defendants were exercising possessory or proprietary rights

over the property and that the State Police did not make efforts

to identify an owner. The Appellate Division found that the

trial court’s fact-findings and legal conclusions were supported

by the record.

We affirm. Under our deferential standard of review, we do

not second-guess the trial court when sufficient credible

evidence in the record supports its findings. Here, the record

supports the trial court’s finding that the State did not meet

its burden of justifying the warrantless search. In particular,

the State did not establish that the property, although in

decrepit condition, was abandoned or that defendants were

trespassers. We have no reason to disturb those findings and

therefore uphold the suppression of the evidence.

I.

A.

Defendants Derrick Brown, Leroy Carstarphen, and Kareem

Strong were charged in a Camden County Indictment with third-

degree possession of a controlled dangerous substance (CDS),

3
namely cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession

of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -

5(b)(3); third-degree unlawful possession of weapons, N.J.S.A.

2C:39-5(c); second-degree weapons possession during CDS

offenses, N.J.S.A. 2C:39-4.1(a); and third-degree conspiracy to

possess CDS with intent to distribute, N.J.S.A. 2C:5-2, :35-

5(a)(1), :35-5(b)(3). Brown and Strong were also charged with

second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b).

Defendants claim that the State Police unconstitutionally

seized evidence during a warrantless search of 820 Line Street

in Camden. The trial court conducted a two-day suppression

hearing at which Troopers Kurt Kennedy and Gregory Austin

testified.

B.

According to Trooper Kennedy, the State Police received

information from two confidential informants and a concerned

citizen that defendant Strong was selling drugs and in

possession of a sawed-off shotgun.1 The information also

indicated that Strong was using 820 Line Street as a “stash

location” and kept a lock on the residence.

1
The record does not reveal whether Trooper Kennedy had any
contact with the confidential informants or the citizen; it only
reveals that he considered the informants credible because other
troopers had used them in the past.
4
 On May 12, 2010, Trooper Kennedy set up a surveillance of

820 Line Street during daylight hours, but exactly when or for

how long is unclear. Trooper Kennedy observed what he believed

to be four drug transactions, each following the same pattern.

Two unknown black males, apparently drug sellers, stood outside

820 Line Street as buyers approached one of the two and gave him

money. After taking the money, the unknown seller unlocked the

door to 820 Line Street, entered for approximately thirty

seconds, secured the door as he exited, and then handed a small

item to the buyer. The trooper also observed, coming from 815

Line Street, a third unknown black male who gave the seller a

sandwich bag, presumably with drugs. Trooper Kennedy came to

the unremarkable conclusion that the three individuals were

selling drugs out of 820 and 815 Line Street. He did not

attempt to determine who owned or lived in either residence or

to secure a search warrant.

On May 17, Trooper Kennedy and a fellow trooper conducted a

second surveillance of 820 Line Street, during daylight,

beginning about 6:00 a.m. or 7:00 a.m. Trooper Kennedy observed

two black men standing near the residence, one whom he knew to

be defendant Strong and the other whom he later learned was

Tyree Thomas. Two more black men came onto the scene: defendant

Derrick Brown, who rode up to the group on a bicycle, and

defendant Leroy Carstarphen, who approached on foot and “shook

5
everyone’s hand.” At this point, all four men were standing in

front of 815 Line Street, across the street from 820 Line

Street. Carstarphen then walked to the corner of 8th and Line

Street and stood there. None of these four individuals were

identified by Trooper Kennedy as any of the black males he had

seen five days earlier entering 820 Line Street.

Trooper Kennedy witnessed fifteen drug transactions that

fit the following pattern. A buyer approached and gave money to

either Brown or Strong. The one receiving the currency then

unlocked the padlock and entered 820 Line Street, exiting

shortly afterwards with a small item that was handed to the

buyer. Sometimes a buyer gave money to Thomas, who then entered

815 Line Street and exited with a small item that he handed to

the buyer. After observing these drug transactions for “a

little more than [two] hours,” Trooper Kennedy called in arrest

teams to place the suspects into custody. Strong was arrested

in front of 820 Line Street, and Brown, Carstarphen, and Thomas

were arrested in front of 815 Line Street. None had drugs in

their possession, but the troopers confiscated $173 from Brown.

One of the arresting officers, Trooper Gregory Austin, took

from defendant Strong keys that opened the padlock securing the

front door to 820 Line Street. The front door was the only

means of gaining access to the residence.

6
 Trooper Austin testified to the events that occurred after

the arrests. Three or four troopers were posted in front of 820

Line and two in the rear, securing the entire residence. One of

the two front windows was broken, “cracked” with “a piece

missing.” Austin was uncertain whether the other window was

damaged. The front door was padlocked, and the rear door was

“off the hinges” and “propped closed” so that no one could exit

from inside. At no point did Trooper Austin suggest that the

front door could not be locked from the inside -- that is, that

the padlock was not a secondary level of protection. Through

the front broken window, Trooper Austin could see “trash bags”

filled with “old clothes” and “soda cans” littering the living

room. “[T]here could have been upside-down furniture” as well.

The living room was “in disarray,” and no lights were on at the

time. Austin did not observe any light fixtures, and the

electric meter was missing.

Unlike 820 Line, the neighboring houses immediately to the

left and right were boarded up. Trooper Austin determined that

820 Line was an “abandoned” house and could be searched without

a warrant. He came to that conclusion based on the broken

window (or windows), the absence of an electric meter, the

propped-closed door in the rear, and the trashy condition of the

interior.

7
 The troopers opened the padlock and entered the residence,

sweeping through the house to make certain no one else was

inside. They then searched the house. Trooper Austin reported

that there were holes in the wall, human feces on the floor, and

“trash everywhere,” although he did not elaborate on what he

meant by trash. He did see a “small electrical appliance,” a

“Hamilton Beach Custom Grinder,” used to grind coffee. He did

not, however, test the utilities. The first floor contained

stairs leading to an upper floor and to a basement. Austin did

not describe the number of rooms in the residence or whether

there were furnishings in the rooms.

Ultimately, the troopers discovered evidence of criminality

inside 820 Line: a sawed-off rifle inside a floor air vent, and

drugs and drug paraphernalia on a shelf above the stairs to the

basement. On the shelf were “yellow caps of crack cocaine”;

little Ziploc bags containing wax paper folds typically used to

package heroin; and a grinder, strainer, and toothbrush.

The troopers concluded that the residence across the

street, 815 Line Street, was “occupied” and therefore Trooper

Kennedy secured a search warrant to gain entry. In his

affidavit in support of that warrant, Trooper Kennedy averred

that his “multiple database queries” revealed an address of 791

Line Street for defendant Strong and an address of 815 Line

Street for defendant Thomas. The search of 815 Line uncovered

8
twenty-five glass containers with “yellow caps of crack

cocaine,” blue baggies of crack cocaine in various different

packages, additional packaging material, and sifters and

toothbrushes.

The evidence seized from 815 Line Street, pursuant to a

warrant, is not at issue.

C.

The trial court granted defendants’ motion to suppress the

evidence seized during the warrantless search of 820 Line

Street. The court accepted the troopers’ testimony as credible.

Nevertheless, the court found that the State had not satisfied

its burden of proving that 820 Line was an abandoned building

that justified bypassing the warrant requirement. In reaching

that conclusion, the court made the following findings of fact:

the troopers did not attempt to ascertain who owned 820 Line

Street; the front door was secured by a lock; the back door was

propped shut from the inside; and defendants Brown and Strong

used a key to enter and exit the building, “thus evidencing a

possessory interest in the house and the property inside.” The

court noted that “the house was in deplorable condition” and

that the electric meter was missing, which suggested that the

dwelling may have had no electricity. The court, however,

recognized that “there may well be many people who live in the

city who, due to poverty, live without electricity or have

9
recently had their electricity shut off.” The court considered

lack of electricity to be one factor, but not dispositive, “in

making an abandonment determination.” Moreover, in the court’s

view, the State did not establish “that the interior of the

dwelling reflected abandonment as opposed to horrid living

conditions occasioned by any of a set of circumstances apart

from abandonment.” Accordingly, “[t]aking into consideration

all of the evidence . . . , the court [was] not satisfied the

State ha[d] proven by a preponderance of the evidence that the

house was abandoned.”

Consistent with its finding that the house was not

abandoned, the court determined that, under New Jersey law,

defendants had automatic standing to challenge the search. The

court reasoned that defendants had standing because they were

charged with possessory offenses resulting from the seizure of

evidence from 820 Line and because they exercised “possessory

control over the premises,” demonstrating “a desire to keep

intruders out” by the manner in which the front door was

padlocked and the rear door secured.

The court also found that exigent circumstances did not

justify a warrantless search of 820 Line. The trial court

allowed that a protective sweep of the premises was a

constitutionally permissible step for the protection of the

police. No incriminating evidence was discovered in plain view

10
during the sweep. The court found that the search for evidence

afterwards, which was not predicated on exigent circumstances,

violated the warrant requirement. The court concluded that

“those living in impoverished squalor are entitled to the same

privacy protections under the Constitution as are individuals

who reside in gated mansions,” and declared the warrantless

search invalid.

D.

The Appellate Division granted the State’s motion for leave

to appeal and, in an unpublished opinion, affirmed the trial

court’s suppression order. The panel determined that the trial

court’s “findings of fact” were “amply supported by the record”

and “that the State failed to satisfy its heavy burden of

establishing an exception to the constitutional requirement that

police obtain a warrant before conducting a search.” The panel

recognized that defendants have “no constitutionally protected

interest in property that has been abandoned” and therefore

would have no basis to challenge a search of an abandoned

building. The question, as posed by the panel, was “whether the

property at 820 Line Street was in fact abandoned.”

The panel concluded that the State had not proved that the

building was abandoned. The panel noted that on the two days

that 820 Line Street was under surveillance, “defendant Strong

was observed repeatedly going in and out of the house, thereby

11
negating the conclusion that the house was vacant.” The panel

reasoned that evidence that defendant Strong lived elsewhere did

not mean that he did not have the permission of the owner to use

the premises or have a possessory interest in the property.

The panel disagreed with the State that “a check of the

property records would have been either an onerous task or

inconclusive in its results.” From the panel’s perspective, a

check of the recorded deeds would have revealed “the identity of

the owner of the property.” From there, “the troopers could

have conclusively determined whether the owner had abandoned the

property” and whether defendants were trespassers or squatters.

The panel also agreed with the trial court that the

deplorable condition of the house and a missing electric meter

did not “demonstrate that the property had been abandoned by its

owner.” The panel pointed out that the troopers never checked

to see whether electricity was working on the premises and that

proof of the absence of electricity would have been some

evidence of abandonment.

Additionally, the panel declined to give weight to the

information provided by the “concerned citizen and two credible

confidential informants” because the information provided was

“conclusory” -- none of the sources gave “a factual basis to

support the information imparted.” Last, the panel was

unwilling to conclude that the surrounding buildings suggested

12
that 820 Line Street was abandoned. The panel emphasized that,

unlike the buildings on either side of it, 820 Line Street was

not boarded up and that nearby 815 Line Street was obviously not

abandoned because the troopers secured a warrant to search it.

For these reasons, the panel deferred to the trial court’s

fact-findings and conclusions of law.

We granted the State’s motion for leave to appeal. State

v. Brown, 210 N.J. 216 (2012). We also granted the motion of

the Attorney General of New Jersey to appear as amicus curiae.

II.

A.

The State urges this Court to reverse the Appellate

Division’s affirmance of the suppression of the evidence seized

from 820 Line Street. The State argues that the warrantless

search of 820 Line Street was constitutionally permissible

because “the experienced officers’ conclusion that the property

was abandoned was objectively reasonable based on the totality

of the circumstances.” It criticizes the trial court’s “failure

to appreciate the objective nature of the inquiry based on the

structure’s outward appearance and knowledge of its history.”

As evidence that 820 Line Street was abandoned, the State points

to, among other things, the “broken first-floor windows,” the

lack of an electric meter, the disarray and trash in the

13
interior, and the multiple persons who had keys to the padlock

and who entered for short periods to facilitate drug

transactions. In determining whether a structure is abandoned,

the State maintains that the test for objective reasonableness

should not be limited to an inquiry into property ownership.

Thus, it says, “the proper focus of the abandonment query is on

the condition of the property itself, rather than the identity

and subjective desire of the true owner.” According to the

State, defendants -- who were “transient users” of the premises

-- could not confer on themselves “a legitimate expectation of

privacy” by merely “installing a padlock on the exterior of the

front door.” The State submits that, given the totality of the

circumstances, it proved by a preponderance of the evidence that

the troopers had an objectively reasonable basis to believe 820

Line Street was abandoned.

B.

The Attorney General, appearing as amicus curiae, asserts

that both the trial court and Appellate Division analyzed the

issue “under the wrong legal theory.” According to the Attorney

General, “[t]he focus of this case should not be on the

‘abandonment’ exception to standing, but rather, on the

defendants’ failure to establish any lawful interest in 820 Line

Street giving rise to a reasonable expectation of privacy.” The

Attorney General posits that under both the Federal and State

14
Constitutions, defendants had the burden of proving “a

reasonable expectation of privacy in the place searched.” Under

this approach, defendants “did not present any evidence to

demonstrate their own reasonable expectation of privacy” and did

not “rebut the objectively reasonable conclusion that they were

trespassers who hijacked someone else’s vacant property.”

The Attorney General does not believe that the failure of

the troopers to identify the property’s legal title holder is

dispositive because “[t]he inquiry is not whether the police

could have done something different, but whether their actions,

when viewed as a whole, were objectively reasonable.” The

Attorney General urges that we not apply the abandonment

doctrine set forth in State v. Johnson, 193 N.J. 528 (2008),

because “the issue is not whether these defendants relinquished

any interest in the property, but whether they had any right to

be there in the first place.”

C.

Defendants argue that they had a reasonable expectation of

privacy in the property at 820 Line Street under the Federal

Constitution and a possessory interest in that property that

gave them standing to challenge the search under the New Jersey

Constitution. Defendants contend that they exercised control

over the property by the use of a lock and key and were the

“‘apparent’ owners of the property through their continual use

15
of the property.” They assert that the property at 820 Line

Street did not satisfy the test for abandoned property

articulated in Johnson, supra, 193 N.J. 528. They further

assert that no exception to the warrant requirement, including

exigent circumstances, justified the warrantless search. In

large part, defendants rely on the reasoning of the trial court

in granting and the Appellate Division in affirming the motion

to suppress.

III.

A.

The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution both

guarantee “[t]he right of the people to be secure in their . . .

houses . . . against unreasonable searches and seizures.”2 The

fundamental privacy interests of the home are at the very core

2
The Fourth Amendment and Article I, Paragraph 7 use virtually
identical language. The Fourth Amendment provides:

The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.

[U.S. Const. amend. IV; see also N.J. Const.
art. I, ¶ 7.]

16
of the protections afforded by our Federal and State

Constitutions. See State v. Evers, 175 N.J. 355, 384 (2003).

“Indeed, ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.’” State

v. Vargas, 213 N.J. 301, 313 (2013) (quoting United States v.

U.S. Dist. Court (Keith), 407 U.S. 297, 313, 92 S. Ct. 2125,

2134, 32 L. Ed. 2d 752, 764 (1972)).

Within that constitutional framework, our jurisprudence

expresses a clear preference for police officers to secure a

warrant before entering and searching a home. State v. Frankel,

179 N.J. 586, 597–98, cert. denied, 543 U.S. 876, 125 S. Ct.

108, 160 L. Ed. 2d 128 (2004), overruled in part by State v.

Edmonds, 211 N.J. 117 (2012). For that reason, generally, the

probable-cause determination for the search of a home is made

“by a judicial officer, not by a policeman or Government

enforcement agent.” Johnson v. United States, 333 U.S. 10, 14,

68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948). Because securing

a warrant is the default position in our constitutional

jurisprudence, warrantless searches are presumptively invalid.

Frankel, supra, 179 N.J. at 598; Kentucky v. King, 563 U.S. __,

__, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 874 (2011) (“It is

a basic principle of Fourth Amendment law . . . that searches

and seizures inside a home without a warrant are presumptively

unreasonable.” (internal quotation marks omitted) (quoting

17
Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943,

1947, 164 L. Ed. 2d 650, 657 (2006))). The State bears the

burden of proving by a preponderance of evidence that the

warrantless search of a home falls within one of the few “‘well-

delineated exceptions’ to the warrant requirement.” Frankel,

supra, 179 N.J. at 598 (quoting Mincey v. Arizona, 437 U.S. 385,

390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)).

B.

Under both Article I, Paragraph 7 and the Fourth Amendment,

a defendant has no standing to challenge the warrantless search

of abandoned property. Johnson, supra, 193 N.J. at 548 (“[I]f

the State can show that property was abandoned, a defendant will

have no right to challenge the search or seizure of that

property.”); see also Texas v. Brown, 460 U.S. 730, 748, 103 S.

Ct. 1535, 1546, 75 L. Ed. 2d 502, 518 (1985) (Stevens, J.,

concurring in judgment) (“If an item has been abandoned, [no]

Fourth Amendment interest is implicated, and neither probable

cause nor a warrant is necessary to justify seizure.”). To that

extent, abandoned property falls within an exception to the

warrant requirement.

A significant point to our analysis is that the state and

federal approaches to standing are quite different. For

standing purposes, Article I, Paragraph 7 provides broader

18
protection to the privacy rights of New Jersey citizens than the

Fourth Amendment. See State v. Alston, 88 N.J. 211, 226 (1981).

In Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L.

Ed. 2d 387 (1978), and United States v. Salvucci, 448 U.S. 83,

100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), the United States

Supreme Court articulated a new test for standing under the

Fourth Amendment. Under that test, a defendant cannot assert a

Fourth Amendment challenge unless he has a reasonable

expectation of privacy in the place searched by government

officials. Salvucci, supra, 448 U.S. at 91–92, 100 S. Ct. at

2553, 65 L. Ed. 2d at 628. Moreover, under the federal standing

test, it is the defendant who bears the burden of showing that

he had a legitimate expectation of privacy in the place or area

searched. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.

Ct. 2556, 2561, 65 L. Ed. 2d 633, 641 (1980).

In Alston, supra, our Court parted ways with the United

States Supreme Court’s Fourth Amendment standing jurisprudence,

“afford[ing] the citizens of this State greater protection

against unreasonable searches and seizures” under Article I,

Paragraph 7 of our State Constitution. 88 N.J. at 225, 227. We

“retain[ed] the rule of standing traditionally applied in New

Jersey, namely, that a criminal defendant is entitled to bring a

motion to suppress evidence obtained in an unlawful search and

seizure if he has a proprietary, possessory or participatory

19
interest in either the place searched or the property seized.”

Id. at 228. We came to this conclusion because this rule of

standing is “more consonant with our own interpretation of the

plain meaning of Article [I], paragraph 7 of our State

Constitution.” Id. at 227. We rejected “the amorphous

‘legitimate expectations of privacy in the area searched’

standard as applied in Rakas, Salvucci and Rawlings.” Id. at

228. Moreover, unlike federal jurisprudence, under Article I,

Paragraph 7, the State bears the burden of establishing that the

defendant does not have standing to challenge a search. See

Johnson, supra, 193 N.J. at 548–49 n.4. “[O]ur 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.” Id. at 548.

Because Article I, Paragraph 7 provides greater standing

rights to individuals than the Fourth Amendment, our analysis

will proceed under State Constitutional law while referring to

federal law as persuasive authority.

C.

The essential issue in this case is whether defendants had

standing to object to the search of 820 Line Street. Simply

put, defendants do not have standing to object to the

warrantless search of the property if the building was abandoned

20
or, alternatively, if they were trespassers. In those

circumstances, defendants would not have standing because they

would not have the requisite possessory or proprietary interest

in the property to object to the search. However, the State

bears the burden of proving by a preponderance of the evidence

that the building is abandoned or defendants are trespassers.

See Frankel, supra, 179 N.J. at 598.

We have had occasion to define when personal property is

abandoned for standing purposes in Johnson, supra, 193 N.J. 528.

In Johnson, we held that personal property is abandoned for

standing purposes “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.” Id. at

549. This standard, however, cannot be easily adapted to

abandonment of real property.

Unlike personal property, real property always has an owner

of record. Indeed, it is recognized that “for common law

purposes real property cannot be abandoned.” United States v.

Harrison, 689 F.3d 301, 307 (3d Cir. 2012), cert. denied, __

U.S. __, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013); see also

James C. Roberton, Recent Development -- Abandonment of Mineral

Rights, 21 Stan. L. Rev. 1227, 1228 (1969) (“[A] firmly

established common law rule provides that a corporeal interest

21
in land [e.g. ownership in fee simple] cannot be abandoned.”

(citing Ferris v. Coover, 10 Cal. 589 (1858); Cox v. Colossal

Cavern Co., 276 S.W. 540 (Ky. 1925))).

Although principles of property law may inform

constitutional analysis, those principles are not dispositive in

our interpretation of the Fourth Amendment, Harrison, supra, 689

F.3d at 307, or Article I, Paragraph 7, State v. Hempele, 120

N.J. 182, 213 (1990) (“‘Abandonment’ in the property-law sense

is not dispositive of the reasonableness of a privacy

expectation.”). Thus, the proper test for abandonment remains,

for Fourth Amendment purposes, whether a defendant “retains a

reasonable expectation of privacy in the property alleged to be

abandoned,” United States v. Stevenson, 396 F.3d 538, 546 (4th

Cir.) (internal quotation marks, alteration and citation

omitted), cert. denied, 544 U.S. 1067, 125 S. Ct. 2534, 161 L.

Ed. 2d 1122 (2005), and, for Article I, Paragraph 7 purposes,

whether a defendant “retain[s] a proprietary, possessory, or

participatory interest” in the property, Johnson, supra, 193

N.J. at 549.

Establishing an abandonment of real property is “a

difficult standard to meet” under the Fourth Amendment,

Harrison, supra, 689 F.3d at 309, and should be difficult under

Article I, Paragraph 7. According to the United States Court of

Appeals for the Third Circuit, “[b]efore the government may

22
cross the threshold of a home without a warrant, there must be

clear, unequivocal and unmistakable evidence that the property

has been abandoned. Only then will such a search be permitted.”

Ibid.; see also Friedman v. United States, 347 F.2d 697, 704

(8th Cir.) (“Proof of abandonment must be made by the one

asserting it by clear, unequivocal and decisive evidence.”

(internal quotation marks omitted)), cert. denied, 382 U.S. 946,

86 S. Ct. 407, 15 L. Ed. 2d 354 (1965).

As with other exceptions to the warrant requirement, here

too the test must be one of objective reasonableness. See,

e.g., Edmonds, supra, 211 N.J. at 132 (holding that officer must

have “objectively reasonable basis to believe” immediate action

necessary “to protect or preserve life, or to prevent serious

injury” under emergency-aid exception to warrant requirement).

The test is whether, given the totality of the circumstances, an

objectively reasonable police officer would believe the property

is abandoned. See Harrison, supra, 689 F.3d at 307 (holding

that whether real property is abandoned “must be made from an

objective viewpoint” by examining the “totality of the facts and

circumstances”). The subjective belief of the officer is not a

relevant consideration, and thus courts should not delve into

the murky area of whether an officer acted in good or bad faith.

See, e.g., Whren v. United States, 517 U.S. 806, 812, 116 S. Ct.

1769, 1774, 135 L. Ed. 2d 89, 97 (1996) (“[We have] never held .

23
. . that an officer’s motive invalidates objectively justifiable

behavior under the Fourth Amendment . . . .”). Suffice it to

say, a police officer’s sincere, good-faith but unreasonable

belief that real property is abandoned will not justify a

warrantless search when a defendant has an apparent possessory

interest in that property.

Although federal principles of standing differ from our

own, the decision of the United States Court of Appeals for the

Third Circuit in Harrison, supra, is instructive in determining

whether property is abandoned for purposes of upholding a

warrantless search. The Third Circuit commented that, for

Fourth Amendment purposes, to justify a warrantless search of a

home, evidence of abandonment must be clear and unequivocal and

judged objectively in light of the “the totality of the facts

and circumstances.” Harrison, supra, 689 F.3d at 307, 309.

Accordingly, if it is “ambiguous to a reasonable officer whether

a dilapidated house is abandoned . . . the officer [will] need

to make further inquiries into the property’s status.” Id. at

311 n.5 (citing United States v. Cos, 498 F.3d 1115, 1128-29

(10th Cir. 2007)). In short, “[t]here simply is no ‘trashy

house exception’ to the warrant requirement,” and therefore

“[i]t is unreasonable to assume that a poorly maintained home is

an abandoned home.” Id. at 311.

24
 In Harrison, supra, the Third Circuit concluded the

officers had a reasonable basis to believe that the house was

abandoned. Id. at 312. It came to that conclusion for a number

of reasons: the front door was never locked and always open,

id. at 306; the police routinely observed squatters who used it

as a drug residence, id. at 305, 311; the property was “in a

state of severe disrepair,” and the house so dilapidated that

“the officers believed it was not fit for human habitation,” id.

at 310–11; and the house smelled of urine, the toilets were

never flushed, and drugs and drug paraphernalia littered the

premises, id. at 305. Based on the property’s history,

particularly “its unchanging, uninhabitable condition over

several months,” the officers had an objectively reasonable

basis to conclude the property was abandoned and therefore the

warrantless search was permissible under the Fourth Amendment.

Id. at 312 (emphasis added).

D.

For the benefit of our courts and law enforcement, we can

identify some factors to be considered in determining whether,

in light of the totality of the circumstances, a police officer

has an objectively reasonable basis to believe a building is

abandoned, thus justifying a warrantless entry and search. No

one factor is necessarily dispositive, and the weight to be

25
given to any factor will depend on the particular circumstances

confronting the officer.

We must begin with the simple reality that a house or

building, even if seemingly unoccupied, typically will have an

owner. See Roberton, supra, 21 Stan. L. Rev. at 1228. In

deciding whether a building is abandoned, or a person is a

trespasser, one reasonable step an officer might take is to

examine readily available records on ownership of the property.

Deeds are kept in the county recording office and provide the

address of the property owner. See 13A New Jersey Practice,

Real Estate Law and Practice § 33.2, at 502, § 33.10(4), at 508

(John A. Celentano, Jr.) (2d ed. 2002). The records of the

municipal tax assessor will provide the name and address of the

owner of property and can be inspected in municipal offices.

Id. at § 33.15, at 510–11. Many of these county and municipal

records are also online. See, e.g., Property Tax Search, Camden

County, http://www.camdencounty.com/government/property-tax-

search (last visited Dec. 4, 2013). It bears mentioning that

one of New Jersey’s newspapers provides a free, online database

with the names of property owners and the assessed values of

their properties. See New Jersey Property Owners, Assessments

and Taxes, 2012, Asbury Park Press,

http://php.app.com/mod4_10/search.php (last visited Dec. 4,

2013).

26
 Moreover, utility records, which can be secured by a grand

jury subpoena,3 will reveal not only the name of the property

owner, but also whether electricity has been used in the

premises. Such record checks are not the exclusive means of

determining whether property is abandoned, but just one factor

in assessing whether a police officer acted in an objectively

reasonable manner.4

Other factors to consider in assessing whether a building

is abandoned is the property’s condition and whether the

putative owner or lessee has taken measures to secure the

building from intruders. There are impoverished citizens who

live in squalor and dilapidated housing, with interiors in

disarray and in deplorable condition, and yet these residences

are their homes. As succinctly stated, there is not a “‘trashy

house exception’ to the warrant requirement.” Harrison, supra,

689 F.3d at 311. Yet, a police officer may be familiar with an

unoccupied building with missing doors and broken windows, and

an interior in utter shambles and lacking electricity, and

reasonably conclude that the structure is abandoned. The

decrepit condition of the exterior and interior of a building is

3
Utility records must be obtained by process, such as a grand
jury subpoena or a search warrant. See State v. Domicz, 188
N.J. 285, 299 (2006).
4
We do not suggest that, to show abandonment, the police are
required to attempt to contact an owner if doing so would
compromise an investigation.
27
a factor, but other circumstances will necessarily come into

play. For example, the boarding of windows and bolting of doors

of a shabby-looking building will suggest an intent to keep

people out by a person exercising control over the property and

therefore may be evidence that conflicts with abandonment.

After Superstorm Sandy wreaked destruction in New Jersey

communities, many houses had to be boarded up because of

structural damage, and yet those homes were not abandoned.

Another factor is an officer’s personal knowledge of a

particular building and the surrounding area. It is one thing

for an officer to conclude a building is abandoned after

observing for months the “unchanging, uninhabitable condition”

of property that is unfit for human habitation, and which has

been overrun by drug squatters, see Harrison, supra, 689 F.3d at

312, and it is another thing for an officer to come to the same

conclusion after conducting a limited surveillance over two non-

consecutive days that reveals drug dealing but little about

whether a squalid habitation is one’s home.

A home is not deemed “abandoned” merely because a person is

dealing drugs from it. Of course, police officers are not

powerless to enforce the law when crimes are committed in non-

abandoned buildings. Police officers can arrest those who

commit drug offenses in their presence. Search warrants can be

secured when probable cause exists that evidence of a drug crime

28
will be found inside a home. If obtaining a warrant is

impracticable, and exigent circumstances demand swift action

because of the threatened destruction of drugs inside a

residence, then a warrantless entry may be justifiable. See

State v. Lewis, 116 N.J. 477, 484 (1989); see also State v.

Pena-Flores, 198 N.J. 6, 23 (2009).

E.

An issue related to abandoned property is the standing

status of trespassers. Just as a defendant will have no

standing to challenge a search of abandoned property, he will

have no standing to challenge a search if an officer had an

objectively reasonable basis to believe he was a trespasser.

That follows because a trespasser, by definition, does not have

a possessory or proprietary interest in property where he does

not belong -- where he does not have permission or consent to

be. Cf. State v. Bibbo, 83 N.J. Super. 36, 39 (App. Div. 1964)

(holding that defendant has no standing to object to search of

property if he does not have any proprietary, possessory or

participatory interest in that property). The police do not

have to obtain a warrant to enter a house to arrest a burglar.

Similarly, if it is well known that the owner of a boarded-up

home is living elsewhere, the police do not have to conduct a

records check or secure a warrant when a stranger is observed

inside the structure, the front door lock is broken, and the

29
door is wide open. As with abandoned property, the police must

have an objectively reasonable basis to believe a person is a

trespasser to conduct a warrantless search of a home. The

burden remains on the State to show an objectively reasonable

basis for the warrantless search of a home.

F.

In summary, in determining whether a defendant has a

possessory or proprietary interest in a building or residence

and therefore standing to object to a warrantless search under

Article I, Paragraph 7 of our State Constitution, many of the

factors enumerated above will be relevant. Ultimately, the

focus must be whether, in light of the totality of the

circumstances, a police officer had an objectively reasonable

basis to conclude that a building was abandoned or a defendant

was a trespasser before the officer entered or searched the

home.

The legitimacy of a search will not depend on what was

learned by the police after entry into the home. Wong Sun v.

United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed.

2d 441, 453 (1963) (rejecting the proposition “that a search

unlawful at its inception may be validated by what it turns

up.”). When police officers conduct a search based on an

objectively reasonable belief that a building is abandoned,

their judgment should not be second-guessed if information

30
gathered later reveals they were mistaken. See Harrison, supra,

689 F.3d at 309–10.

G.

We must mention two cases, which touch on questions posed

in this case but which do not squarely address the standing

issues raised here under Article I, Paragraph 7. Both cases

preceded our decision in Johnson, supra, 193 N.J. 528.

In State v. Perry, 124 N.J. 128, 139 (1991), the defendant

failed to keep an appointment with police to take a polygraph

test because, according to his co-defendant, Miller, he “would

not come to the station until after he had purchased and used

drugs.” The police looked for the defendant at several drug-

dealing locations, without success, and drove by Miller’s

address. Ibid. Miller’s front door was partially open, even

though Miller was at the police station. Ibid. The police

entered through the opened door and observed, at the top of the

stairs, the defendant who asked if he could inject drugs before

the interview. Ibid. The police confiscated drugs and a

hypodermic needle from the defendant. Ibid.

The issue in Perry was whether the defendant’s trial

counsel was constitutionally ineffective for failing to object

to the seizure of the defendant and the drugs and needle. Id.

at 147. We found that there was no meritorious suppression

issue because the defendant “was in a house, not his own, that

31
appeared vacant and whose front door was not only unlocked but

open.” Id. at 149–50. Clearly, the facts and issues in Perry

are different from those presented here.

The State also relies on State v. Linton, 356 N.J. Super.

255, 258–59 (App. Div. 2002), which addressed standing only

under the Fourth Amendment. There, two police officers stopped

a vehicle whose occupants told them that a man was attempting to

sell drugs from 215 Monroe Avenue. Id. at 257. On arriving at

that property, the police observed the front and back yards

filled with refuse; a closed front door with a broken lock; a

broken front window; a living room strewn with garbage and

damaged furniture; and no lights on in the residence. Ibid. In

addition, the police had not seen anyone at the house for a

month despite frequently patrolling the area. Ibid. Under

these circumstances, the police officers entered the home and

searched the living room where they found drugs hidden in a torn

couch. Ibid.

The motion judge suppressed the evidence. Id. at 256. The

Appellate Division reversed, concluding that there was no Fourth

Amendment violation because “a defendant who hides drugs in

someone else’s vacant property has no constitutionally-

reasonable expectation of privacy.” Id. at 259. Although that

legal proposition is unassailable even under our State

Constitution -- a trespasser who hides drugs in someone else’s

32
vacant and unsecured property will not have standing to object

to a search of the premises -- whether the evidence of

abandonment in Linton meets our current Article I, Paragraph 7

jurisprudence is certainly debatable.

IV.

A.

In applying the principles enunciated here to the trial

court’s findings, we are governed by a deferential standard of

review. When the trial court grants or denies a motion to

suppress, we 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, 192 N.J. 224, 243 (2007) (internal quotation marks

omitted). In this case, the trial court found that Troopers

Kennedy and Austin were credible witnesses. The court did not

take issue with their testimony, but rather with the conclusions

that they reached -- that is, the reasonable inferences that

could be drawn from their observations and that would inform an

objectively reasonable police officer. We are not permitted to

“disturb the trial court’s findings merely because ‘[we] might

have reached a different conclusion were [we] the trial

tribunal’ or because ‘the trial court decided all evidence or

inference conflicts in favor of one side’ in a close case.” Id.

33
at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Thus, we held in Elders that the trial judge deciding a

suppression motion “was entitled to draw inferences from the

evidence and make factual findings based on his ‘feel of the

case,’ and those findings were entitled to deference unless they

were ‘clearly mistaken’ or ‘so wide of the mark’ that the

interests of justice required appellate intervention.” Id. at

245 (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 293, 279 (2007)). An appellate court cannot substitute its

own findings merely because it would have drawn different

inferences from the evidence. Ibid.

With this deferential standard in mind, we now must

determine whether the trial court’s findings are supported by

the record.

B.

It can hardly be disputed that Trooper Kennedy, who was

conducting surveillance of 820 Line Street, had probable cause

to believe that drug dealing was occurring from that residence.

Indeed, even after the first day of surveillance, during which

Trooper Kennedy witnessed four drug transactions involving 820

Line Street, had he applied for a search warrant he undoubtedly

would have procured one. The issue, however, is not whether the

troopers had probable cause to believe that 820 Line Street was

the site of criminal activities, but whether they had a reason

34
to bypass the warrant requirement. The fundamental import of

the warrant requirement is that the probable-cause determination

generally must be made by “a neutral and detached magistrate

instead of . . . by the officer engaged in the often competitive

enterprise of ferreting out crime.” Johnson, supra, 333 U.S. at

13–14, 68 S. Ct. at 369, 92 L. Ed. at 440.

The trial court rejected the State’s argument that 820 Line

Street was abandoned property, thus allowing for a warrantless

search of the property. On the second day of the surveillance,

for a period of two hours in the early morning hours, Trooper

Kennedy witnessed a number of hand-to-hand drug purchases in

front of 815 and 820 Line Street, with defendant Brown,

defendant Strong, and Tyree Thomas acting as sellers and

defendant Carstarphen presumably acting as a look-out.5 After

receiving money from a purchaser, Strong or Brown then unlocked

the padlock on the front door of 820 Line Street and retrieved a

small item, presumably drugs, and handed it to the buyer.

Thomas followed the same pattern, except he entered 815 Line

Street, a building the troopers considered to be an actual,

occupied residence.

The court found that defendants Brown and Strong, by using

a key to enter the building and then lock it as they exited,

5
The motion testimony does not support the Appellate Division’s
conclusion that defendant Strong was observed entering 820 Line
on the first day of the surveillance.
35
were exercising “a possessory interest in the house and the

property inside.” It is important to note that the

surveillances on both May 12 and 17, 2010, occurred during

daylight hours, and for only two hours on the latter date. The

troopers did not know whether Brown, Strong, or Carstarphen

resided there in the evenings, whether they had an ownership

interest in the property, or whether they had permission of the

owner to use the property.

The State contends that the confidential informants and the

concerned citizen, who purportedly described 820 Line Street as

abandoned, give credence to the troopers’ own conclusions.

However, as the Appellate Division observed, only limited weight

can be given to the information provided by these unknown

individuals because no one testified to the basis of their

knowledge or their reliability, with the exception of Trooper

Kennedy’s conclusory comment that they had previously been

considered credible. See State v. Smith, 155 N.J. 83, 92–93

(describing adoption of totality of circumstances test to

determine reliability of informant’s tip, including highly

relevant factors of informant’s veracity and basis of

knowledge), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L.

Ed. 2d 480 (1998).

The trial court noted that the troopers made no effort to

learn who owned 820 Line Street. The record does not suggest

36
that such research would have been difficult or unduly

cumbersome. The court also considered that both the front and

back doors were secured to keep intruders out, the front door

padlocked and the back door, though off its hinges, propped shut

from the inside. Although the front door could be padlocked

from the outside, nothing in the record suggests the door could

not be locked from the inside as well.

The court did not ignore the deplorable condition of the

house, the broken window or windows, and the missing electric

meter. Nor did it overlook Trooper Austin’s view from outside

820 Line Street looking in -- a view of a living room in

disarray where the floor was littered with trash bags filled

with old clothes, soda cans, and maybe upside-down furniture.

We only refer to the information that the troopers possessed

before they entered 820 Line Street, for it is at that point

that we must judge whether the troopers had an objectively

reasonable basis to believe the building was abandoned or

defendants were trespassers, and a warrantless search

authorized.

The trial court understood that there “is no ‘trashy house

exception’ to the warrant requirement.” Harrison, supra, 689

F.3d at 311. The court remarked that many poor people in Camden

live in squalor and dilapidated housing. The trial court

observed that some of the poor in the city may live for periods

37
of time without electricity. The court accepted that lack of an

electric meter might suggest lack of electricity. However, the

court could not find “that the interior of the dwelling

reflected abandonment as opposed to horrid living conditions

occasioned by any of a set of circumstances apart from

abandonment.” Ultimately, after considering the totality of the

circumstances, the court determined that the State had not

“proven by a preponderance of the evidence that the house was

abandoned.” That finding led the court to conclude that

defendants had a possessory or proprietary interest in the

property, giving them standing to object to the warrantless

search of 820 Line Street.

The court, moreover, held that the State did not establish

exigent circumstances to conduct a warrantless entry into 820

Line Street. After the arrest of defendants and Thomas, the

building was secured by the State Police. There is no

suggestion in the record that evidence inside the building was

in danger of destruction or that obtaining a warrant was

impracticable due to some other exigency.6 Indeed, it is

6
The trial court determined that the police were
constitutionally permitted to unlock and enter the row house to
conduct a protective sweep to remove any potential threat of
harm to the police. However, the State never offered the need
for a protective sweep as a justification for entry into 820
Line Street. That is because the troopers believed that they
had a right to conduct a warrantless search of the premises for
evidence. In this case, the protective sweep would only have
38
noteworthy that the State Police secured a search warrant for

the occupied residence at 815 Line Street, located just across

the street from 820 Line.

Unlike the officers in Harrison, who were aware of the

unchanged condition of the property for a period of months, 689

F.3d at 312, the troopers here conducted a surveillance of

limited duration -- at most hours -- over two non-consecutive

days. As noted earlier, evidence of drug dealing from a

building is not proof that it is abandoned.

The trial court drew inferences and came to conclusions

that are supported by the record. Ultimately, the court

determined that the house was not abandoned for standing

purposes.

Although the trial court did not explicitly use the words

“objectively unreasonable” to describe the troopers’ assumption

that the home was abandoned, the court’s ruling evidences that

determination. The question to be answered is not whether the

police have a subjective, good-faith belief that a building is

abandoned, but whether they have an objectively reasonable basis

been permissible if the troopers had a right to be inside 820
Line. They could not enter just for the purpose of conducting a
protective sweep, absent exigent circumstances, such as an
objectively reasonable belief that evidence was being destroyed.
The police may not create the exigency that justifies an evasion
of the warrant requirement. State v. Davila, 203 N.J. 97, 103
(2010).
39
to believe so. We have no reason to substitute our judgment for

the judgment properly and fairly exercised by the trial court.

V.

The Appellate Division upheld the trial court’s suppression

of evidence seized as a result of the warrantless search of 820

Line Street. For the reasons expressed, we affirm and remand to

the trial court for proceedings consistent with this opinion.

JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE
PATTERSON filed a separate, dissenting opinion in which CHIEF
JUSTICE RABNER joins.

40
 SUPREME COURT OF NEW JERSEY
A-113 September Term 2011
070200

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DERRICK BROWN, LEROY
CARSTARPHEN, and KAREEM
STRONG,

Defendants-Respondents.

JUSTICE PATTERSON, dissenting.

The narcotics investigation that led to defendants’

indictment focused upon two houses on the same street: a house

located at 815 Line Street in Camden, and the house at the

center of this appeal, located at 820 Line Street. The house at

815 Line Street was described by police officers as a brick-

faced row home, painted red with windows trimmed in white, with

a steel front door, a wrought iron hand rail and an air

conditioner installed in a front window. Based upon their

observations, the officers reasonably concluded that the house

served as a residence. They properly obtained a warrant to

enter and search the home.

The officers’ starkly different observations at 820 Line

Street led them to the opposite conclusion. The house at 820

Line Street was not secured by any device that could be operated

1
by a person located inside the house, but by a padlock installed

on the outside of the front door, locked and unlocked by a key

that was later found in the possession of defendant Kareem

Strong. The screen door on the front of the house was missing

its screen. 820 Line Street lacked a functioning rear entrance;

the back door was off its hinges and propped up by an object

located within the house. At least one of the front windows was

broken and missing its glass pane. The electric meter had been

removed from the meter box. Through broken windows, police

officers observed “trash all over the place” inside the house.

The officers concluded that 820 Line Street was unoccupied and

abandoned, and instead of adding that house to their application

for a warrant, they conducted a warrantless search. That search

revealed holes in the walls, human feces on the floor, garbage

strewn about the rooms, a sawed-off bolt action rifle hidden

beneath a floor register, narcotics and paraphernalia.

Contrary to the suggestion of the majority, the police

officers who conducted this investigation did not ride roughshod

over the constitutional rights of the residents of a poor

neighborhood. Instead, the officers’ contrasting observations

at the two neighboring homes led them to the conclusion that

while 815 Line Street was someone’s residence, 820 Line Street

was not a home at all, but rather an empty and abandoned house.

2
The officers conducted a careful investigation and arrived at a

conclusion that was firmly grounded in their observations.

Reasonableness is the pivotal inquiry under both the Fourth

Amendment and our State constitutional provision regarding

search and seizure, N.J. Const. Art. I, Par. 7. State v.

Novembrino, 105 N.J. 95, 182, 185 (1987) (citing State v.

Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104

S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Applying that governing

standard, I would reverse the determination of the Appellate

Division, and uphold the constitutionality of the officers’

search of 820 Line Street. Accordingly, I respectfully dissent.

I.

As the majority notes, the factual findings of the trial

court are afforded deference on appellate review. Those

findings must be upheld “so long as [they] are supported by

sufficient credible evidence in the record.” State v. Elders,

192 N.J. 224, 243 (2007) (internal quotation marks and citation

omitted); see also State v. Handy, 206 N.J. 39, 44 (2011); State

v. P.S., 202 N.J. 232, 250 (2010). 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.” Elders, supra, 192 N.J. at 244 (quoting

3
State v. Florence Johnson, 42 N.J. 146, 161 (1964)) (internal

quotation marks omitted).

I respectfully submit that the trial court’s factual

findings do not support, but rather undermine, the majority’s

conclusion that the State failed to meet its evidentiary burden

in this case. The trial court found both of the police officers

who testified before it, Trooper Kurt Kennedy and Trooper

Gregory Austin of the New Jersey State Police, to be “credible

and worthy of belief.” It credited the detailed evidence

presented by the State, almost in its entirety. The court noted

the genesis of the officers’ surveillance was the tip of a

citizen informant that drug transactions were taking place in

the area and that defendant Strong was seen with a sawed-off

shotgun.1 It considered the many hand-to-hand transactions

witnessed by the officers conducting the surveillance. The

court made specific factual findings regarding the condition of

the front and back doors at 820 Line Street, the absence of the

electric meter, the broken windows, the presence of trash and

human feces on the floor, and the holes in the interior walls.

The trial court noted that the officers did not determine the

name of the homeowner, and did not seek or obtain a warrant for

820 Line Street.

1
According to the officers’ affidavit submitted in support of
their application for a search warrant, a confidential informant
identified 820 Line Street as an “abandoned residence.”
4
 As the court specifically noted, it did not reject any of

the testimony presented by the admittedly credible police

officers. Instead, it disputed only the application of the

legal test for abandonment to those facts. The trial court

cited State v. Andre Johnson, in which this Court held that

“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.”

193 N.J. 528, 549 (2008). The trial court did not conclude,

however, that defendants were owners, renters, licensees or

guests on the property. Instead, citing no law in support of

its holding, the court construed defendants’ installation of the

padlock on the front door of 820 Line Street to be an exercise

of a constitutionally significant possessory interest in the

property, and characterized the barricading of the unhinged back

door as an assertion of a privacy claim.

In my opinion, the majority is mistaken in its deference to

that determination. Only the trial court’s factual findings –-

not its legal conclusions -- warrant deference on appeal; legal

rulings are subject to de novo review. Handy, supra, 206 N.J.

at 44-45 (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)); see also Zabilowicz v.

Kelsey, 200 N.J. 507, 512 (2009) (“We review the law de novo and

5
owe no deference to the trial court and Appellate Division.”).

When a case involves mixed questions of law and fact, the Court

provides deference to the supported factual findings of the

trial court, but reviews de novo the application of legal

principles to such factual findings. State v. Harris, 181 N.J.

391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973,

162 L. Ed. 2d 898. The trial court’s determination on the legal

question of abandonment, for purposes of the Fourth Amendment

and N.J. Const. Art. I, Par. 7, is thus entitled to no deference

on appeal.

I respectfully submit that the trial court’s application of

the test for abandonment does not withstand de novo review. The

court’s findings as to the condition of the house –- a house

that by virtue of its broken windows could be observed in its

interior as well as its exterior before the police entry –-

provided ample evidence of abandonment. See State v. Perry, 124

N.J. 128, 149-50 (1991) (defendant, who was “in a house, not his

own, that appeared vacant and whose front door was not only

unlocked but open,” had no “constitutionally-reasonable

expectation of privacy”); State v. Linton, 356 N.J. Super. 255,

256-57 (App. Div. 2002) (defendant, who was using unlit, trash-

filled house with broken lock and missing front window that had

“all the indicia of abandonment” had no reasonable expectation

of privacy). That evidence was further supported by the

6
officers’ observations during surveillance. According to the

witnesses, who were found to be credible by the trial court, 820

Line Street was used as a mere storage facility for drug

transactions, briefly visited by individuals who retrieved items

from the house and quickly departed.

In the trial court’s view, however, this compelling

evidence of abandonment was trumped by nothing more than the

placement of a padlock on the outside of the front door, and the

use of an unidentified object to prop up the back door. I

cannot agree with the trial court’s holding, to which the

Appellate Division panel and majority defer, that these measures

to secure 820 Line Street conferred upon defendants

constitutionally significant property and privacy rights in the

house. I concur with the observation of the Appellate Division

panel in Linton that “a defendant who hides drugs in someone

else’s vacant property has no constitutionally-reasonable

expectation of privacy.” Linton, supra, 356 N.J. Super. at 259.

I respectfully disagree that defendants’ attempts to keep others

out of the house are pivotal in the constitutional analysis.

Although its holding is premised upon State constitutional

law rather than the Fourth Amendment, the majority cites as

instructive authority a federal decision, United States v.

Harrison, 689 F.3d 301 (3d Cir. 2012), cert. denied, ___ U.S.

___, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013). I respectfully

7
suggest that Harrison does not support the majority’s holding.

In Harrison, the defendant testified at his suppression hearing

that he was current on his payments of $750 per month rent for

the house at issue, in which he stayed one to two nights a week,

gaining access by the use of a key to the front door. Id. at

304. Investigating the theft of a dirt bike, and aware of prior

drug activity at the house, police officers observed the house

in “severe disrepair” –- boarded windows, trash all over the

yard and a front door that was “unlocked and ajar.” Id. at 304-

05. One officer, who had repeatedly entered the house on prior

occasions to evict people from it, testified that the house had

no working plumbing as demonstrated by the presence of feces in

the bathtub and toilet, that there was candlelight visible from

outside the house, which indicated there was no electricity, and

that there were “[d]rug bags all over the place.” Id. at 305.

Concluding that the house had been abandoned, officers conducted

a warrantless search and discovered “a gun, scales, pills, and

an unknown substance” located next to the defendant, who was

arrested. Ibid.

I respectfully submit that the Third Circuit’s holding in

Harrison underscores the State’s satisfaction of its burden in

this case. The Third Circuit in Harrison evaluated this

evidence under an evidentiary standard requiring “clear and

unequivocal evidence” of abandonment. Id. at 307. The majority

8
reaffirms that the preponderance of the evidence burden of

proof, by an objectively reasonable standard, applies to

abandonment cases in New Jersey. Ante at ___ (slip op. at 20-

21). The court determined that the police officer’s entry into

the defendant’s home did not violate the defendant’s Fourth

Amendment rights because although the home was not in fact

abandoned, it had reasonably appeared to be abandoned at the

time of the search. Id. at 312.

I consider the officers’ observations in Harrison to

constitute less compelling evidence of abandonment than the

evidence accepted as credible by the trial court in this case.

The houses under scrutiny in both cases were in poor condition,

evidently devoid of working plumbing and electricity. The house

at issue here, however, bore a further indication of

abandonment: its front door was padlocked on the outside,

indicating that a person inside could not secure it, and its

back door did not appear to function at all. Moreover, in

contrast to the defendant’s tenancy interest established in

Harrison, the evidence in this case suggests no connection

between defendants and the house at 820 Line Street, other than

defendant Strong’s exercise of day-to-day control over the front

door, and an unknown individual’s installation of an object to

buttress the back door. I respectfully suggest that if the

government met the burden of proving that the officers’ conduct

9
was reasonable in Harrison, the State more than satisfied its

burden to prove that 820 Line Street was an abandoned house in

this case.

In short, I respectfully suggest that if defendants’

installation of a padlock and bracing of a broken door gives

rise to a constitutionally protected interest in the property

that outweighs the evidence credited by the trial court, the

legal standard for abandonment in search and seizure cases has

little meaning. I consider the facts found by the trial court

to demonstrate, not disprove, abandonment, and would not defer

to the trial court’s interpretation of the law.

II.

In my view, the police officers who conducted the

investigation in this case clearly met the governing standard of

objective reasonableness. They sought no end run around the

warrant requirement. Easily establishing probable cause, they

obtained a warrant to enter and search the residence at 815 Line

Street. The officers distinguished 815 Line Street from its

nearby neighbor, 820 Line Street, reasonably deducing from their

observations that the former was occupied and the latter

abandoned. I consider the evidence presented at the suppression

hearing to satisfy the State’s burden of demonstrating

abandonment, and I would reverse the determination of the

Appellate Division. I respectfully dissent.

10
CHIEF JUSTICE RABNER joins in this opinion.

1
 SUPREME COURT OF NEW JERSEY

NO. A-113 SEPTEMBER TERM 2011
ON APPEAL FROM Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff -Appellant,

v.

DERRICK BROWN, LEROY
CARSTARPHEN, and KAREEM
STRONG,

Defendants-Respondents.

DECIDED January 29, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Patterson

CHECKLIST AFFIRM AND
REVERSE
REMAND
CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X
4 2

1