STATE OF NEW JERSEY VS. RONALD B. JOHNSON (16-11-2568, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4064-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD B. JOHNSON,

Defendant-Appellant.
_________________________

Argued March 6, 2019 – Decided April 2, 2019

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. 16-11-2568.

Cody T. Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Cody T. Mason, of counsel
and on the brief).

Melinda A. Harrigan, Assistant Prosecutor, argued the
cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; Melinda A. Harrigan, of
counsel and on the brief).

PER CURIAM
 Defendant Ronald B. Johnson appeals from his conviction for third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), for

which he was sentenced to two years probation conditioned on serving a six-

month county jail term. Defendant's appeal focuses on the denial of his

suppression motion. The trial judge's factual findings are supported by

substantial credible evidence, State v. Rockford, 213 N.J. 424, 440 (2013), and

based on those facts, the judge's legal conclusions are correct. Accordingly, we

affirm.

We begin by summarizing the evidence presented at the suppression

hearing. The police were patrolling Texas Avenue in Atlantic City after

receiving complaints from neighbors and construction workers about vagrants

and drug users entering vacant houses on the street. Construction workers, who

were renovating a house on Texas Avenue, told the police they observed

evidence that someone had been breaking into the house after the construction

crew left for the day. The construction workers indicated that only the owner

and the construction crew had permission to be on the premises and that their

work hours were from the morning to the middle of the afternoon.

At about 7 p.m., the police checked the house, saw interior lights on and

the front door ajar, and they entered the house to check on it. They closed the

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front door and walked through the premises to be sure it was clear of intruders.

They saw no evidence that anyone was living in the house. After the police

finished checking the house, they turned off the lights.

As the police were heading for the front door intending to leave, a man

later identified as defendant knocked twice and then entered the house. On

seeing the police, defendant looked "startled" and tried to leave. According to

the testifying officer, defendant "did not have any construction equipment with

him [or] any construction clothing that would indicate that he was there to work

. . . in the residence." Nor did he question why the police were in the house, as

the police would expect if defendant were the owner. The police arrested

defendant, searched him incident to the arrest, and found cocaine on his person.

At the suppression hearing, defendant's uncle gave testimony designed to

establish that defendant had the right to enter the premises. However, the trial

judge found the uncle's testimony incredible, noting that the uncle smelled

strongly of alcohol during his testimony and the testimony itself was

contradictory. The judge found the police witness credible and concluded that

the police had probable cause to arrest defendant, and discovered the cocaine

during a lawful search incident to the arrest.

On this appeal, defendant presents the following point of argument:

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 THE MOTION TO SUPPRESS EVIDENCE SHOULD
HAVE BEEN GRANTED BECAUSE THE OFFICERS
LACKED PROBABLE CAUSE TO BELIEVE
DEFENDANT WAS TRESPASSING.

We find no merit in that contention. Based on police testimony the trial

court found credible, even before defendant entered the house, the police had

enough information to support a reasonable belief that anyone who was not the

owner or a construction worker, and who entered the house after hours, was

probably a trespasser. When defendant entered the house, after hours, with no

sign of being a construction worker, and tried to leave as soon as he saw the

police, they had probable cause to believe that he was trespassing.

The cases defendant relies on are not on point. None of them involved a

situation in which a defendant entered a building, much less entered a building

under circumstances similar to this case. For example, in State v. Gibson, 218

N.J. 277 (2014), a police officer observed the defendant briefly leaning against

the outside of a building, which was insufficient to support a well-grounded

suspicion that he was trespassing. In State v. Dangerfield, 171 N.J. 446 (2002),

the defendant was "sitting on a bicycle between two buildings," activity that

could have been part of a legitimate visit to someone in the apartment complex.

In In re J.M., 339 N.J. Super. 244 (App. Div. 2001), the defendant was sitting

on a porch with two of the tenant's relatives. Contrary to defendant's argument

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here, the cases do not hold that the police must always question a suspect before

arresting him for trespassing.

In this case, the police essentially caught defendant in the act of

trespassing. Defendant entered an unoccupied house that was undergoing

renovation, at a time when the police had information that no one other than the

owner or a construction worker had permission to enter. Since defendant

knocked on the door twice, he was not likely to be the owner or a construction

worker. He was not carrying any construction tools. He entered although no

one had answered his knock. He looked startled and tried to leave as soon as he

spotted the police. At that point, based on the totality of the circumstances, the

police had an objectively reasonable, well-grounded suspicion that defendant

had entered the structure while knowing that he had no right to enter , N.J.S.A.

2C:18-3(a), and hence they had probable cause to arrest him. Gibson, 218 N.J.

at 292-93.

Affirmed.

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