NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3984-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN D. OSBORNE,
Defendant-Appellant.
_________________________________
Submitted May 8, 2017 – Decided May 24, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-05-0740.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah E. Ross, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
After losing a suppression motion, defendant Juan D. Osborne
pleaded guilty to third-degree possession of a controlled
dangerous substance (CDS), heroin, and a judge sentenced him to
probation for one year. On appeal, defendant raises a single
argument:
ONCE THE POLICE, WHO WERE EXECUTING A WARRANT
TO SEARCH A PARTICULAR APARTMENT, REALIZED OR
SHOULD HAVE REALIZED THAT THEY WERE IN A
BASEMENT THAT WAS SHARED WITH OTHER TENANTS,
THEY ACTED UNREASONABLY IN SEARCHING THERE
BECAUSE THEY LACKED PROBABLE CAUSE TO BELIEVE
THAT ANY ITEM THEY DISCOVERED WAS THE
DEFENDANT'S.
For the reasons that follow, we affirm.
In May 2013, a Monmouth County grand jury charged defendant
in an indictment with five CDS offenses, including third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1). Following the
indictment, defendant moved to suppress thirty bags of heroin
police seized from the basement of the apartment house where he
lived. The trial court denied the motion. Thereafter, defendant
agreed to plead guilty to third-degree possession of heroin in
exchange for the State recommending a non-custodial sentence and
dismissing the indictment's remaining counts. The court sentenced
defendant accordingly and imposed appropriate fines and penalties.
Defendant appealed from the denial of his suppression motion.
Police conducted the search of defendant's apartment and the
basement of the apartment building after obtaining a search
warrant. Defendant does not dispute the warrant was lawfully
2 A-3984-14T1
issued, nor does he challenge the search of his apartment. Rather,
he challenges the search and seizure of CDS from the apartment
building's basement.
Defendant lived in "Apartment #1" of an Asbury Park multi-
family dwelling. The warrant described the building and
defendant's residence as:
A three story, multiple family dwelling with
yellow siding, white trim around the windows
and doors, and a charcoal gray shingled roof.
To the right of the center of the front of the
house is a gray staircase with a gray railing
leading to a porch. To the right of the stairs
is a white column supporting the porch roof.
On the white column are the numbers "512"
written in black. There are two doors
accessed from the porch, one directly in front
of the stairs and the other on the left end
of the porch. To the left of the main door
are two mailboxes black in color. To the left
of the building is a concrete driveway that
warps around to a parking area. In the middle
of the back of the building is a white door
which accesses apartment #1[.]
The warrant authorized the search of "the residence hereinabove-
named including the curtilage and the shed."
During the hearing on defendant's suppression motion,
Monmouth County Prosecutor's Detective Keith Finkelstein testified
that on January 23, 2013, he and other law enforcement officers
arrived at defendant's residence to execute the warrant. Detective
Finkelstein described the residence as a "three-story house with
3 A-3984-14T1
yellow siding" and noted the door to Apartment #1 was in the rear
of the home.
Detective Finkelstein went to the rear of the house and
knocked on defendant's apartment door, but received no answer.
The detective checked the knob, noticed the door was unlocked, and
entered the home. Upon entering the residence, Detective
Finkelstein noticed a series of hallways providing access to a
small bedroom, bathroom, living room and kitchen. Inside the
kitchen was an unlocked door providing access to the basement.
Detective Finkelstein opened the basement door and observed a
"tiny landing in the stairs leading to the basement." The
detective believed the basement was part of Apartment #1 because
it was accessible from that apartment. The detective searched the
basement and seized thirty bags of suspected heroin inside a red
utility lamp.
According to Detective Finkelstein, the basement had two
doors: the one providing access to the basement from defendant's
apartment, and another leading to the exterior driveway. The door
leading to the exterior driveway was secured by an exterior
padlock.
In addition to Detective Finkelstein, the State presented the
testimony of the building's landlord. The landlord explained that
the building was a "modified single family home" with three
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separate apartments, all of which were occupied on the date of the
search. He further explained that the basement, which spanned the
entire building, is accessible only by two doors — one from the
kitchen of Apartment #1 and the other from an exterior door to the
backyard, padlocked from the outside. The building's tenants had
keys to the exterior padlocked door so they could check their fuse
boxes. The landlord also testified that he and the other tenants
stored some of their belongings in the basement. According to the
landlord, the basement was a shared space; no tenant could place
something in the basement that "would be protected from access
from the other tenants."
The trial court found the testimony of both witnesses
"straightforward and credible" and denied the motion. In an oral
opinion delivered from the bench, the court found the tenants had
a diminished expectation of privacy in the basement "based on the
fact that [they all] had access to" the items stored therein. The
court found the search of the basement was within the warrant's
scope.
On appeal, defendant argues police unlawfully searched the
basement "[b]ecause the police could not tell whose items were
whose" and thus "lacked probable cause to believe that any
particular items belonged to [defendant]." Defendant contends it
was not objectively reasonable for Detective Finkelstein to
5 A-3984-14T1
believe that only defendant had access to the basement,
particularly in view of the landlord's testimony that the basement
spanned the entire building. For these reasons, defendant argues
the police should have contacted a judge by telephone to obtain a
warrant for the basement or contacted the other tenants in the
building to have them identify their belongings.
We review a decision on a motion to suppress evidence by
"accord[ing] deference to the factual findings of the trial
court[.]" State v. Scriven, 226 N.J. 20, 32 (2016) (citation
omitted). Our review of a trial court's legal conclusions is
plenary. State v. Rockford, 213 N.J. 424, 440 (2013) (citations
omitted).
The Fourth Amendment to the Federal Constitution and Article
I, Paragraph 7 of the New Jersey Constitution require that a search
warrant "particularly" describe the area to be searched. U.S.
Const. amend. IV; N.J. Const. art. I, ¶ 7. Although "pin-point
precision" is not required, a warrant must describe the premises
to be searched with reasonable accuracy. State v. Wright, 61 N.J.
146, 149 (1972) (citations omitted). Stated another way, the
description of the premises requires no more than "practical
accuracy." State v. Daniels, 46 N.J. 428, 437 (1966).
"[O]fficers searching a person's home . . . under authority
of a search warrant are authorized to use only those investigatory
6 A-3984-14T1
methods, and to search only those places, appropriate in light of
the scope of the warrant." State v. Reldan, 100 N.J. 187, 195
(1985) (citing Harris v. United States, 331 U.S. 145, 152, 67 S.
Ct. 1098, 1102, 91 L. Ed. 1399, 1407 (1947)). For these reasons,
"[a]n analysis of the reasonableness of the methods used in a
search, as well as the areas searched, should focus upon whether
the search in its totality was consistent with the object of the
search." Ibid.
In this regard, "certain 'structures have been deemed
appurtenant to the premises specified in the search warrant, though
not physically . . . under the purview of the warrant.'" Wayne
R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment,
§ 4.10(a) at 940 (5th ed. 2012) (quoting United States v. Fagan,
577 F.3d 10, 13 (1st Cir. 2009), cert. denied, Fagan v. United
States, 559 U.S. 958, 130 S. Ct. 1556, 176 L. Ed. 2d 144 (2010)).
"Structures that have been found to be appurtenant to described
residential premises include storage closets, cabinets, storage
rooms and bins, lockers, mailboxes, and birdhouses." Id. at 941.
Fagan involved a motion to suppress evidence seized from a
storage closet by officers executing a search warrant for the
neighboring apartment. Supra, 577 F.3d at 12. The court noted
"[t]he Warrant Clause of the Fourth Amendment has been interpreted
to permit searches not only of the premises specified in a warrant
7 A-3984-14T1
but also of structures 'appurtenant' to those premises." Id. at
11. Explaining that "case law . . . provides very little guidance
as to how courts should determine whether or not a given structure
is appurtenant to described premises[,]" the court determined
the standard to be applied is one of objective
reasonableness. So long as the officers
executing the warrant have an objectively
reasonable basis, in light of the known
characteristics of the location and the
evidence at hand, for concluding that a
structure is appurtenant to the premises
specified in the search warrant, that
structure may validly be searched under the
purview of the warrant.
[Id. at 13 (citation omitted).]
The court noted case law provided "guideposts" for courts
determining "[w]hether a searching officer reasonably could
conclude that a specific structure is appurtenant to the premises
specified in a particular search warrant." Id. at 14.
These include the proximity of the structure
to the described premises, see [United States
v. Ware, 890 F.2d 1008, 1011 (8th Cir. 1989)]
(holding that a storage room next to an
apartment was "near enough to alert the
searching officers that it was an appurtenance
of the apartment"); the location's layout and
the context-specific relationship between the
structure and the premises specified in the
warrant, see [United States v. Principe, 499
F.2d 1135, 1137 (1st Cir. 1974)]; and
extrinsic evidence, including evidence
discovered during admittedly valid portions of
the search, suggesting that the structure is
appurtenant to the premises specified in the
warrant, see Ware, [supra,] 890 F.2d at 1011
8 A-3984-14T1
(observing that the defendant's key ring
included keys to a storage room deemed
appurtenant to the premises specified in the
warrant).
[Ibid.]
Here, the officers who searched defendant's apartment could
reasonably conclude the basement was appurtenant to the apartment.
Defendant had immediate and unfettered access to the basement
through an unlocked door in his apartment, which opened directly
into the basement stairway. The only other means of ingress and
egress to the basement was an exterior padlocked door. Thus, it
appeared defendant had primary, if not exclusive, access to the
basement connected to his apartment. Neither of the other two
units in the building had a door leading to the basement. Under
these circumstances, the trial court did not err by concluding the
search of the basement did not exceed the scope of the warrant.
The trial court also concluded defendant had a diminished
expectation of privacy in the basement because, as the landlord
testified, the landlord and the other tenants had access to the
basement to check fuse boxes and for storage. Defendant argues
the trial court erred by finding the search was lawful in view of
defendant's diminished expectation of privacy.
We have held in a somewhat different context — a
superintendent of a multi-story, multi-unit apartment complex
9 A-3984-14T1
giving consent to law enforcement officers to search a locked room
in the building's basement used to store recycling material, to
which the superintendent, the defendant, and one other person had
keys — "a worker sharing locked work space cannot reasonably have
an expectation of privacy where other workmen have access to the
same work space." State v. Brown, 282 N.J. Super. 538, 547 (App.
Div.), certif. denied, 143 N.J. 322 (1995). We further noted "a
tenant does not have a reasonable expectation of privacy in the
common areas of a building merely because doors to the common
areas are normally kept locked and require a key for access." Id.
at 547 (citing United States v. Concepcion, 942 F.2d 1170, 1171-
72 (7th Cir. 1991)). Cf., State v. Saez, 268 N.J. Super. 250, 261
(App. Div. 1993) (holding the defendants had a reasonable
expectation of privacy in their part of the basement partitioned
off from the adjoining resident's part of the basement by a poorly
constructed wooden wall that had holes or gaps through which law
enforcement officers could observe drug activity), rev'd on other
grounds, 139 N.J. 279, 280 (1995).
Here, whether defendant had a reasonable expectation of
privacy in the basement is irrelevant, because the search of the
basement was within the scope of the search warrant. No principle
of New Jersey Constitutional law is inconsistent with the Fourth
Amendment jurisprudential principle that appurtenances may be
10 A-3984-14T1
searched under the authority of a warrant issued for a particular
residence.
We have considered defendant's remaining arguments and found
them to be without sufficient merit to warrant further discussion.
R. 2:11-3(e)(2).
Affirmed.
11 A-3984-14T1