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 of New Jersey v. Gene Hinton (A-3/4-12) (070386)
Argued May 14, 2013 -- Decided October 24, 2013
PATTERSON, J., writing for a majority of the Court.
In this appeal, the Court determines whether, following execution of a warrant of removal in an eviction
proceeding, a defendant has a constitutionally protected reasonable expectation of privacy in an apartment he
previously shared with his mother.
Until her death in March 2009, defendant Gene Hinton’s mother was the tenant in an apartment owned by
the Newark Housing Authority. Although Hinton had his mother’s consent to reside in the apartment, he did not
have a lease or any other documents identifying him as a tenant. On an unknown date, the landlord commenced a
summary dispossession action, and a warrant of removal was issued on March 31, 2009. On April 6, when no one
answered his knock, Special Civil Part Officer Ricardo Pratt served the warrant by placing it under the apartment
door. The warrant warned that any persons were required to vacate the premises by April 10, at which time a court
officer would remove any remaining persons and the landlord could remove all property from the apartment and
repossess it. It further explained that the tenant could attempt to stop execution by applying to the court for relief.
On April 13, one week after serving the warrant, Pratt performed a non-payment of rent eviction, searching
the apartment to ensure that it was safe and there were no fire hazards or hidden occupants. When checking the
bedroom, Pratt saw a “wide open” shoe box in the middle of the bed containing what he believed to be illegal drugs,
as well as two bags containing a large amount of money and more envelopes of drugs. Pratt alerted the Newark
Police Department, had the locks changed, and waited outside for officers to arrive. Although the warrant of
removal did not authorize the officers to search the apartment, they entered and identified the drugs as heroin.
Hinton arrived and explained that he lived in the apartment alone since his mother’s death. After confirming that he
owned the shoe box, Hinton was arrested.
Hinton moved to suppress his statements to the police, as well as the evidence seized from the apartment.
The trial court denied the motion, holding that Pratt’s actions were not governmental in nature and the officers had
probable cause to conduct a search based on Pratt’s reliable citizen informant tip. Although it did not address
whether Hinton had a reasonable expectation of privacy, it found that the State’s actions fell within the plain view
exception to the warrant requirement. Hinton was convicted of third degree possession of a controlled dangerous
substance and possession with intent to distribute and was sentenced to two years of probation.
Hinton appealed his conviction and sentence, arguing that: (1) his motion to suppress the seized evidence
should have been granted; (2) his statements to police were improperly admitted; (3) the court’s verdict was against
the weight of the evidence; and (4) his sentence should be modified. The Appellate Division agreed that Pratt’s
entry into the apartment did not raise constitutional issues, but determined that Hinton had a reasonable expectation
of privacy in the premises. The panel explained that execution of the warrant of removal did not terminate Hinton’s
ownership interest, and he retained access to potential legal remedies such as a stay. Therefore, the officers
conducted an improper warrantless search. Without reaching Hinton’s other arguments, the panel reversed the
denial of his suppression motion and his conviction. The Court granted the State’s petition for certification and
Hinton’s cross-petition, which preserved those issues not reached by the Appellate Division. 212 N.J. 106 (2012).
HELD: Where, as here, an eviction proceeding has advanced to the point that a warrant of removal has been
executed, a tenant does not have a reasonable expectation of privacy in the premises. Therefore, the police action in
Hinton’s apartment was not a “search” under either the Fourth Amendment of the United States Constitution or
Article I, Paragraph 7 of the New Jersey Constitution.
1. New Jersey’s Anti-Eviction Act authorizes removal of tenants from property for reasons including nonpayment
of rent, and, along with the Tenant Hardship Act, establishes the steps for removal. The first step requires issuance
of a warrant of removal no earlier than three days following entry of a judgment for possession. In accordance with
the Fair Eviction Notice Act, the warrant must provide notice of the tenant’s right to apply for a stay, the method for
execution of the warrant, and the procedures under which the landlord may remove the tenant’s property. Once the
warrant is issued, it may not be executed for another three days. After expiration of this second three-day period, a
court officer may remove the tenant and any other persons from the premises. Where, as here, a warrant of removal
is issued for nonpayment of rent, the tenant is on notice during the second three-day period that dispossession,
including a lockout, may be imminent. Although the Special Civil Part retains jurisdiction for ten days to hear any
application by the tenant for lawful relief, the tenant’s status has fundamentally changed once this pivotal stage in
the process is reached. (pp. 16-21)
2. When the Court reviews a ruling applying legal principles to factual findings, it defers to the factual findings but
reviews de novo application of the legal principles. Turning first to the question of whether Hinton’s rights were
violated under the Fourth Amendment to the United States Constitution, the Court notes that consideration of an
objection to the admission of evidence obtained by a search or seizure requires a threshold determination of whether
the challenged search or seizure violated the defendant’s reasonable expectation of privacy. To that end, the United
States Supreme Court dispensed with a separate standing inquiry and implemented a two-pronged inquiry regarding
the extent of a defendant’s rights under the Fourth Amendment, asking whether: (1) the defendant manifested a
subjective expectation of privacy in the object of the search; and (2) the expectation of privacy was reasonable. A
tenant’s reasonable expectation of privacy can hinge on his or her legal status following an eviction. Here, assuming
defendant satisfies the first prong, he fails to make a showing on the second prong. When Hinton left the apartment
on April 13, 2009, he was on notice that a court officer could enter, restore control of the premises to the landlord,
and prohibit Hinton’s access. Thus, any reasonable expectation of privacy Hinton may have had in the apartment
was terminated at this stage of the eviction proceeding. (pp. 21-28)
3. Article I, Paragraph 7 of the New Jersey Constitution similarly protects individuals from warrantless searches of
homes. Unlike federal law, New Jersey law confers automatic standing on a defendant to object to the admission of
seized evidence where, as here, the defendant is charged with an offense in which possession is an essential element
of guilt. However, Hinton’s automatic standing to file a suppression motion does not necessarily equate to a finding
that he had a substantive right of privacy which would mandate grant of his motion. Rather, since the merits of the
motion rest on whether Hinton possessed a reasonable expectation of privacy in the premises, that issue must be
addressed as part of the substantive constitutional analysis. (pp. 28-33)
4. Unlike the federal two-pronged test, New Jersey law only requires that the expectation of privacy be reasonable.
New Jersey courts have found that the reasonableness of a defendant’s expectation of privacy in a particular
premises turns in large part on his or her legal right to occupy it. Here, as of the date of the search, Hinton had been
on notice for a week that an eviction proceeding was pending and had reached a pivotal stage. During that time, he
never sought court intervention. At that point, any expectation of privacy on Hinton’s part was unreasonable. Thus,
under the particular circumstances of this case, the police action was not a search for purposes of the federal or State
constitution. However, because this conclusion does not entirely resolve the question of whether the trial court
properly denied Hinton’s motion to suppress, the matter must be remanded to the Appellate Division for
consideration of Hinton’s challenge with respect to the seizure of the disputed evidence, as well as the other issues
that were not previously addressed by the Appellate Division. (pp. 33-40)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division for further proceedings in accordance with the Court’s opinion.
JUSTICE ALBIN, DISSENTING, joined by JUDGE RODRÍGUEZ, expresses the view that a
defendant who possesses automatic standing to object to a search under New Jersey law should not be required to
clear another layer of standing by establishing a reasonable expectation of privacy, and that such a requirement
contravenes New Jersey case law and could lead to confusion if expanded beyond the novel scenario in this case.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE
PATTERSON’s opinion. JUSTICE ALBIN filed a separate dissenting opinion, in which JUDGE
RODRÍGUEZ (temporarily assigned) joins. JUDGE CUFF (temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-3/4 September Term 2012
070386
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
GENE HINTON,
Defendant-Respondent
and Cross-Appellant.
Argued May 14, 2013 – Decided October 24, 2013
On certification to the Superior Court,
Appellate Division.
Emily R. Anderson, Deputy Attorney General,
argued the cause for appellant (Jeffrey S.
Chiesa, Attorney General of New Jersey,
attorney).
Matthew Astore, Deputy Public Defender,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Mr.
Astore and Anthony J. Cariddi, Designated
Counsel, on the briefs).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey Foundation (Edward L. Barocas,
Legal Director, attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, the Court determines whether, after a court
officer executed a warrant of removal that had been issued in an
eviction proceeding, defendant Gene Hinton had a
1
constitutionally protected reasonable expectation of privacy in
the apartment he had previously shared with his mother.
In March 2009, defendant’s mother, the legal tenant of the
apartment, died. On a date not revealed in the record, the
apartment’s owner, evidently unaware of the tenant’s death,
instituted an action to summarily dispossess her for nonpayment
of rent. The eviction action proceeded and the court issued a
warrant of removal pursuant to N.J.S.A. 2A:18-57. The warrant
directed a court officer to dispossess the tenant and restore
full possession of the apartment to the landlord after the
expiration of a three-day grace period. The warrant further
ordered the tenant to immediately vacate the premises pending an
imminent dispossession. A week after the warrant was left at
the apartment, a court officer entered the apartment to conduct
a safety inspection and change the locks. During the
inspection, the court officer saw a shoe box containing
envelopes of heroin and a bag of currency on the bed in
defendant’s bedroom. He summoned police. Upon their arrival,
police officers entered the apartment without a warrant and
seized the shoe box. Officers arrested defendant upon his
arrival at the apartment.
Defendant was indicted for several drug possession
offenses. Prior to trial, he moved to suppress the evidence
found at the apartment. The trial court denied the motion to
2
suppress and, after a bench trial, convicted defendant of two
third-degree offenses. The Appellate Division reversed
defendant’s conviction. It held that defendant had a reasonable
expectation of privacy in his mother’s apartment and that the
police had conducted a warrantless search that violated
defendant’s constitutional right against unreasonable search and
seizure. We granted the parties’ cross-petitions for
certification.
We reverse the Appellate Division’s judgment. We hold that
at the advanced stage to which the eviction had proceeded,
defendant did not have a reasonable expectation of privacy under
federal or state constitutional norms. Defendant was served
with official notice that a court officer would soon enter the
premises and repossess it on the landlord’s behalf. If,
notwithstanding that notice, defendant maintained a subjective
expectation of privacy in the apartment and the items in
dispute, his expectation was objectively unreasonable.
Accordingly, the officers did not conduct a search prohibited by
the Fourth Amendment to the United States Constitution or
Article I, Paragraph 7 of the New Jersey Constitution.
We remand the matter to the Appellate Division for
consideration of the constitutionality of the officers’ seizure
of the disputed evidence and for review of the other issues
3
raised by defendant that the panel did not determine in light of
its earlier judgment.
I.
The factual record considered by the trial court and
reviewed on appeal was developed in the May 25, 2010 suppression
hearing conducted by the trial judge. The State presented three
witnesses: Special Civil Part Officer Ricardo Pratt of the
Superior Court of New Jersey, Newark Police Officer Carmen
Rivera and Newark Police Sergeant Thomas Roe. Defendant did not
testify or present witnesses at the hearing.
The setting of this case was an apartment owned by the
Newark Housing Authority. Defendant’s mother, Essie Hinton, was
the “occupant or at least the lease holder” of the apartment
from an undetermined date until her death in March 2009. On a
date that is not revealed in the record, the landlord commenced
a summary dispossession action. On March 31, 2009, a Superior
Court judge issued a warrant of removal with respect to the
Hinton apartment, addressed to Ms. Hinton as “tenant.” The
warrant of removal instructed a Special Civil Part Officer to
“dispossess the tenant and place the landlord in full possession
of the premises.” It directed the officer to “remove all
persons and property from the . . . premises within three days
after receiving this warrant.” The warrant also advised of the
consequences of the failure to vacate: “[i]f you fail to move
4
within three days, a court officer will thereafter remove all
persons from the premises at any time between the hours of 8:30
A.M. and 4:30 P.M.” on April 10, 2009, and, “[t]hereafter, your
possessions may be removed by the landlord, subject to
applicable law (N.J.S.A. 2A:18-72 et seq.).” The warrant of
removal further instructed the tenant:
You may be able to stop this warrant and
remain in the premises temporarily if you
apply to the court for relief. You may
apply for relief by delivering a written
request to the Clerk of the Special Civil
Part and to the landlord or landlord’s
attorney. Your request must be personally
delivered and received by the Clerk within
three days after this warrant was served or
you may be locked out. Before stopping this
warrant, the court may include certain
conditions, such as the payment of rent.
The warrant provided that only a court officer could execute it,
and barred a landlord “to padlock or otherwise block entry to a
rental premises while a tenant who lives there is still in legal
possession.”
On April 6, 2009, Special Civil Part Officer Pratt served
the warrant. He “gave the tenant or the defendant, the owner of
the apartment, Ms. [Essie] Hinton . . . 72 hours[’] notice from
April 6th of 2009 and she was to vacate the apartment by April
10th, 2009.” Special Civil Part Officer Pratt served the
warrant by placing it under the door, his customary practice
when a resident fails to respond to a knock on the door.
5
Special Civil Part Officer Pratt knew of no tenant other than
Ms. Hinton, whose name was listed on the warrant. He testified
that defendant’s name was not associated with the apartment.
Special Civil Part Officer Pratt further testified that
when he confronts a situation in which a tenant does not vacate
the premises within three days after service of a warrant of
removal, his practice is “to go there and remove any persons
within the apartment so that [he] may change locks and . . .
place the landlord in possession of the apartment.” In addition
to padlocking the door, Special Civil Part Officer Pratt’s
routine is to “go through the entire apartment.” His
responsibility is “to check under the beds, . . . check inside
the closets, and . . . make sure there[ are] no fire hazards or
any persons hiding in the apartment.” Although the warrant
permits the landlord to remove property inside the apartment,
Special Civil Part Officer Pratt’s “authorization has nothing to
do with the property inside the apartment other than making sure
that it’s safe” and verifying there are “no fire hazards.”
Special Civil Part Officer Pratt followed that practice on
the afternoon of April 13, 2009, one week after he served the
notice at the Hinton apartment. He performed what he
characterized as a “non-payment-of-rent eviction for Newark
Housing Authority.” Special Civil Part Officer Pratt signed and
dated the warrant. He went to the apartment with a repairman,
6
who was given keys to the building by the building manager and
was assigned to change the locks. Special Civil Part Officer
Pratt entered the apartment and initially determined that the
living room and bathroom were clear. He proceeded to the
bedroom, where he “saw a shoe box in the middle of the bed”
containing what he thought were illegal drugs. Special Civil
Part Officer Pratt testified that in the “wide open” shoe box
“there was one of these packages that was opened[ a]nd some of
the little envelopes that [he] recognize[d] as heroin [were]
spilling out into the shoe box.” Furthermore, Special Civil
Part Officer Pratt testified that there were more envelopes in a
blue bag and another bag with “a large amount of currency” on
the bed.
Special Civil Part Officer Pratt called the Newark Police
Department and told them what he had found. He then instructed
the repairman to continue to change the locks. When that job
was completed, Special Civil Part Officer Pratt locked the door,
left the apartment and waited outside for the officers to
arrive.
Officer Rivera, with Officer Ana Colon, responded to
Special Civil Part Officer Pratt’s call within five to ten
minutes. They knew from the phone call that Special Civil Part
Officer Pratt had found what he thought to be drugs inside the
apartment and their “purpose was to verify that it was true.”
7
When Officers Rivera and Colon arrived, Special Civil Part
Officer Pratt informed them that “he had a warrant to padlock
the door due to the fact that . . . the resident had passed,
died two weeks prior.” Special Civil Part Officer Pratt
explained to the officers that he had entered the apartment “to
ensure that there . . . were no animals or persons inside before
he padlocked the door,” and that in the course of his inspection
“he came across the shoe box containing [heroin] and money.” He
showed the officers the warrant of removal, which did not
authorize them to search the apartment. By Officer Rivera’s
admission, the officers had sufficient time to obtain a search
warrant because the lock on the apartment had been changed by
the time they arrived. They did not, however, obtain a warrant
before their entry into the apartment.
Special Civil Part Officer Pratt opened the apartment door
and showed Officers Rivera and Colon the shoe box and bag on the
bed. According to Officer Rivera, the officers observed heroin
wrapped in bundles of magazine paper. The officers summoned
their supervisor, Sergeant Rodriguez. When Sergeant Rodriguez
arrived at the scene, he examined the box and identified the
contents as heroin. Defendant’s niece arrived and informed the
officers that defendant had been living in the apartment.
Officer Colon contacted Sergeant Roe, advising him that they
found “narcotics and currency . . . inside the apartment.” When
8
Sergeant Roe arrived, the other police officers were waiting in
the hallway with Special Civil Part Officer Pratt.
At that moment, defendant arrived. He “pointed at the
apartment as being his,” and asked, “what’s going on? What’s
going on? This is my place.” After identifying himself,
Special Civil Part Officer Pratt advised defendant that he was
serving a warrant of removal and was there to padlock the door.
Sergeant Rodriguez asked whether anyone lived or stayed in the
apartment with defendant, and defendant responded that his
mother had recently passed away and that he currently lived
alone. Defendant admitted that he had neither a lease nor other
paperwork identifying him as a tenant of the apartment.
Sergeant Roe did not request or obtain defendant’s permission to
enter the premises. Sergeant Roe testified that “according to
the Housing Authority, there was no bona fide resident” of the
apartment, in light of Ms. Hinton’s recent death.
Accompanied by Sergeants Rodriguez and Roe and Special
Civil Part Officer Pratt, defendant entered the apartment and
approached the items on the bed. Defendant confirmed that the
room was his bedroom and that he was the owner of the shoe box
on the bed. He was taken to the living room of the apartment
and arrested.1
1
Defendant testified at the bench trial. He told the court that
he was fifty years old. He testified he had lived in the
9
II.
Defendant was indicted for third-degree possession of a
controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1),
second-degree possession of CDS with intent to distribute,
N.J.S.A. 2C:35-5(b)(2), third-degree possession of CDS with
intent to distribute within 1000 feet of school property,
N.J.S.A. 2C:35-7, and second-degree possession of CDS with
intent to distribute within 500 feet of a public housing
facility, park or building, N.J.S.A. 2C:35-7.1. He
unsuccessfully sought admission into pre-trial intervention
(PTI), and, subsequently, the case proceeded to trial.
Defendant moved to suppress his statements to the police
and the drugs and related items seized from the apartment.
Following the evidentiary hearing at which the trial judge
apartment, which was in a senior citizens’ building, for six
years with his mother’s consent and with the knowledge of the
building manager, and that his nephew also frequented the
apartment. He admitted that he received notice of the warrant
of removal about four days prior to the April 13, 2009 lockout.
He stated on the morning of April 13, 2009, he went to court in
an unsuccessful attempt to try to stop the eviction proceeding.
He said that he had confirmed with the building manager that the
rent was current. Defendant testified that he was handcuffed
outside of the apartment and escorted inside, and that he had
confirmed his ownership of the shoe box although he did not know
at the time that it contained heroin. He denied ever having
seen or possessed heroin. Because defendant’s testimony was not
before the trial judge when he decided the motion to suppress,
it is not part of the record reviewed in this appeal. See State
v. Carvajal, 202 N.J. 214, 219 n.1 (2010) (considering only
stipulated facts for review of motion to suppress); State v.
Mai, 202 N.J. 12, 17-18 (2010) (limiting review of facts to
those “adduced before [the court] at the suppression hearing”).
10
elicited the factual record set forth above, the court denied
the motion to suppress. It held that Special Civil Part Officer
Pratt’s actions were not governmental action for purposes of the
constitutional analysis because Special Civil Part Officer Pratt
was a private individual conducting a court-authorized action.
The court then found that, under the totality of the
circumstances, the police officers had probable cause to conduct
a search because Special Civil Part Officer Pratt was a citizen
informant and provided a reliable tip, and that the officers
conducted a fluid and unplanned investigation in response to
that tip. The court did not determine whether defendant had a
reasonable expectation of privacy that was violated by the
officers’ entry into the apartment or whether a warrant was
required for that entry. It concluded that the plain view
doctrine did not apply because the initial observation of the
evidence was made by a private citizen, not one of the police
officers. Nevertheless, the court found the State’s actions
fell within the plain view exception to the warrant requirement.
The court also denied defendant’s motion to suppress the
statements that he made to the police, holding that the
officers’ questioning was only a field inquiry that did not
implicate Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966).
11
At his bench trial, defendant’s strategy was to deny that
the heroin found by Special Civil Part Officer Pratt was his.
Defendant’s counsel argued that when defendant identified the
box on the bed as his, he did not see the heroin and was unaware
of its presence. Defense counsel emphasized that defendant’s
nephew shared access to the apartment and suggested that the
drugs belonged to defendant’s nephew, not defendant.
The trial judge rejected this argument. He found
defendant’s testimony to be inconsistent and found the State’s
witnesses to be more credible. The judge found that the heroin
and money were in defendant’s possession for purposes of
distribution, given the quantity of both. He convicted
defendant of third-degree possession of CDS and third-degree
possession of CDS with intent to distribute. The trial judge
denied defendant’s motion for a new trial and affirmed the
prosecutor’s denial of defendant’s renewed application for PTI.
Prior to sentencing defendant, the trial judge merged the
possession offense into the distribution offense. Finding no
aggravating factors but considering several mitigating factors,
including defendant’s age, lack of a prior criminal record, lack
of a history of substance abuse, and stable employment, the
trial judge sentenced defendant to two years of probation.
Defendant appealed his conviction and sentence. He argued
that his motion to suppress the heroin and money should have
12
been granted. He also challenged the admission of his
statements to police, argued that the trial judge’s verdict was
against the weight of the evidence, and sought modification of
his sentence.
The Appellate Division reversed the trial court’s denial of
defendant’s motion to suppress the drugs and money and,
accordingly, reversed his conviction. The panel agreed with the
trial court that Special Civil Part Officer Pratt’s entry into
the apartment raised no constitutional issues. It found,
however, that defendant had a reasonable expectation of privacy
in the apartment and that the officers therefore conducted a
warrantless search. The panel relied in part on defendant’s
testimony that he had his mother’s consent to remain in the
apartment and that the superintendent was aware of his presence
in his mother’s home. It concluded that Special Civil Part
Officer Pratt’s execution of the warrant of removal and
installation of a new lock on the apartment did not terminate
defendant’s ownership interest in the premises. The panel
explained that when the police entered the apartment defendant
still had access to potential legal remedies, such as a stay or
order vacating the writ of removal. The panel reached an issue
not raised by the State -- whether exigent circumstances
justified the warrantless entry into the apartment -- and
concluded that no such circumstances existed. The panel
13
reversed the conviction on the evidentiary issue alone and did
not reach the other issues raised by defendant in his appellate
brief.
We granted the State’s petition for certification. 212
N.J. 105 (2012). We also granted defendant’s cross-petition for
certification, which preserves the trial and sentencing issues
that defendant raised but the Appellate Division did not decide.
212 N.J. 106 (2012).
III.
The State argues that no search occurred in this case
because defendant had no constitutionally protected reasonable
expectation of privacy in an apartment in which he had no legal
right to live and from which he had been lawfully evicted. It
asserts that in light of the notice to defendant that he was
required to vacate the premises and remove his property within
seventy-two hours -– a deadline that passed days before the
police entry -– defendant had no possessory interest or
reasonable expectation that the premises would remain private.
The State contends that, in light of the eviction, the lockout
of the apartment and the Newark Housing Authority’s assumption
of full control over the premises, the police officers’ entry
into the apartment did not offend federal or state
constitutional norms. It justifies the seizure of the heroin
under the plain view exception to the warrant requirement,
14
arguing that the officers did not conduct a search of the
apartment but examined and confiscated evidence of a crime that
was plainly visible to them upon their lawful entry.
Defendant counters that his reasonable expectation of
privacy in the apartment was unaffected by the pending eviction
proceedings or the lockout. He argues that the State
exaggerates the impact of the landlord’s power to exclude, which
he characterizes as only one of several relevant factors.
Defendant argues that while remedies to the eviction were still
available to him, he retained his reasonable expectation of
privacy in the apartment notwithstanding the legal steps taken
by the landlord. He contends that no recognized exception to
the warrant requirement governs this case.
Amicus curiae American Civil Liberties Union of New Jersey
(ACLU) argues that defendant’s reasonable expectation of privacy
in the apartment survived as long as the courts retained
jurisdiction to grant defendant a remedy in the eviction
proceedings and the landlord was constrained by statute from
removing and disposing of the resident’s belongings. ACLU
asserts that the legality of defendant’s residence in the
apartment is irrelevant because he lived there with the
permission of the legal tenant, his mother.
IV.
15
The constitutional question under review arises in the
context of a public housing agency’s2 summary dispossess
proceedings, governed by the Anti-Eviction Act, N.J.S.A. 2A:18-
53 to -71, the Tenant Hardship Act, N.J.S.A. 2A:42-10.6 to -
10.9, the Fair Eviction Notice Act, N.J.S.A. 2A:42-10.15 to -
10.16, and the court rules.
With exceptions that are inapplicable here, the Anti-
Eviction Act authorizes the removal of any “lessee or tenant or
the assigns . . . from any house, building, mobile home or land
in a mobile home park or tenement leased for residential
purposes.” N.J.S.A. 2A:18-61.1.3 The statute defines grounds
for dispossession including, among others, failure “to pay rent
due and owing under the lease,” N.J.S.A. 2A:18-61.1(a),
disorderly conduct that, after notice to cease, “destroy[s] the
2
The Newark Housing Authority “is a public housing agency
subject to the United States Housing Act of 1937 . . . and
regulations enacted pursuant thereto.” Hous. Auth. of Newark v.
Raindrop, 287 N.J. Super. 222, 225 (App. Div. 1996).
3
The complaint in a summary dispossess action based upon
nonpayment of rent “must expressly state the owner’s identity,
the relationship of the plaintiff to the owner, [and] the amount
of rent owed as of the date of the complaint,” and must include
specific provisions for the tenant to pay the outstanding rent
prior to trial. R. 6:3-4(c). The complaint must be served with
a summons that “shall conform with the requirements of R. 4:4-
2.” R. 6:2-1. Instead of “directing the defendant to file an
answer, the summons shall require the defendant to appear and
state a defense at a certain time and place, to be therein
specified, which time shall be not less than 10 days in summary
dispossess actions . . . nor more than 30 days from the date of
service of the summons, and shall notify the defendant that upon
failure to do so, judgment by default may be rendered for the
relief demanded in the complaint.” Ibid.
16
peace and quiet of the occupants or other tenants,” N.J.S.A.
2A:18-61.1(b), and substantial violation or breach of the terms
of the lease, N.J.S.A. 2A:18-61.1(e). Jurisdiction to grant the
statutory remedy is contingent upon the existence of one or more
of these grounds for eviction. Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 281 (1994) (citing Levine v. Seidel, 128
N.J. Super. 225, 229 (App. Div.), certif. denied, 65 N.J. 570
(1974)).
The statute confers jurisdiction upon the Superior Court,
Law Division, Special Civil Part to hear such cases, but they
can be tried before a jury upon transfer to the Law Division.
N.J.S.A. 2A:18-60, -61; R. 6:1-2(a)(3), :4-1(g).4 After the
entry of judgment of possession in favor of the landlord, the
Anti-Eviction Act and Tenant Hardship Act establish a series of
steps that must be taken in accordance with a strict timetable
before the landlord can dispossess the tenant. The first step
is the issuance of a warrant of removal to enforce the judgment
for possession, issued absent “sufficient cause . . . shown to
the contrary when the action comes on for trial.” N.J.S.A.
2A:18-57. The warrant commands an officer of the court “to
remove all persons from the premises, and to put the claimant
4
When, as in this case, the grounds for the action to dispossess
the tenant is nonpayment of rent, the landlord is not required
to serve a demand upon the tenant or give notice to the tenant
before filing the action. N.J.S.A. 2A:18-61.2.
17
into full possession thereof.” Ibid. The warrant may not be
issued “until the expiration of 3 days after the entry of
judgment for possession.” Ibid. Thus, during this time, the
judgment does not yet empower a court officer to dispossess the
tenant or authorize the landlord to disturb the tenant’s
property.
The Fair Eviction Notice Act also prescribes the content of
the warrant of removal. The warrant must provide to the tenant:
(1) notice of his or her right “to apply to the court for a
stay” of the warrant’s execution, N.J.S.A. 2A:42-10.16(a); (2)
notice of the provision by which the warrant “[s]hall be
executed not earlier than the third day following the day of
personal service upon the tenant,” with weekends and court
holidays excluded, N.J.S.A. 2A:42-10.16(b); (3) notice regarding
the procedures by which a landlord may remove the tenant’s
property in accordance with the Abandoned Tenant Property
statute, N.J.S.A. 2A:18-72 to -84, N.J.S.A. 2A:42-10.16(e); and
(4) notice of the duties of law enforcement officers, N.J.S.A.
2A:42-10.16(e).
The issuance of the warrant of removal triggers a second
three-day statutory period, during which the warrant may not be
executed. N.J.S.A. 2A:42-10.16(b). At the conclusion of that
second three-day period, the court officer may execute the
warrant, removing the tenant and any other persons present from
18
the premises. See ibid. Once the warrant has been executed and
possession of the property is restored to the landlord, the
landlord may take action with respect to property left on the
premises, in compliance with the notice provisions and other
requirements of N.J.S.A. 2A:18-72 to -84. In the setting here,
in which a warrant of removal had been issued for nonpayment of
rent, the tenant was on notice during this second three-day
period that dispossession, including a lockout with no further
notice, may be imminent.
There is yet another significant statutory period. After
the warrant is executed, the Special Civil Part retains
jurisdiction to hear an application by the tenant for “lawful
relief.” N.J.S.A. 2A:42-10.16. The Tenant Hardship Act affords
discretion to the judge overseeing a summary dispossess action
to stay the warrant of removal, should he or she deem such a
stay “proper under the circumstances,” for no longer than six
months after the entry of the judgment of possession. N.J.S.A.
2A:42-10.6. That provision “enables courts to grant
discretionary relief to tenants facing eviction.” Little,
supra, 135 N.J. at 282. “The Tenant Hardship Act has allowed
trial courts, within the limits of the statute, to mitigate the
harsh nature of the summary-dispossess procedure by postponing
for a limited time the execution of a warrant of removal if the
eviction presents a hardship to the tenant.” Ibid. Such a
19
stay, however, is only available if the tenant pays all
outstanding rent and “the accrued costs of the action.”
N.J.S.A. 2A:42-10.6. The tenant who fails to take timely action
has no remedy under that provision. A court may also vacate a
judgment pursuant to Rule 4:50-1 if “a grave injustice would
occur.” Little, supra, 135 N.J. at 289 (expounding that Rule
4:50-1 should be invoked “sparingly, in exceptional
situations”).
The tenant also has appellate remedies. Pressler &
Verniero, Current N.J. Court Rules, comment 2.1 on R. 6:3-4
(2013) (“[I]t is clear that since summary dispossess judgments
are now rendered by a constitutional rather than a statutory
court, they are fully appealable pursuant to R. 2:2-3(a)(1).”);
Little, supra, 135 N.J. at 280; Twp. of Bloomfield v. Rosanna’s
Figure Salon, Inc., 253 N.J. Super. 551, 558 (App. Div. 1992)
(reviewing for reversible error).
Notwithstanding the continued jurisdiction of the Special
Civil Part to grant discretionary relief during the ten-day
period following the lockout, the tenant’s status has
fundamentally changed by the time he or she reaches that stage
of an eviction. By executing the warrant for dispossession in
accordance with N.J.S.A. 2A:42-10.16, the court officer restores
control of the premises to the landlord. Thereafter, the
landlord may exclude the tenant from the premises except for
20
limited purposes, such as to collect property pursuant to
arrangements made with the landlord. See N.J.S.A. 2A:18-57, -
74(c). Thus, under the Anti-Eviction Act and the Tenant
Hardship Act, the pivotal stage of the proceeding –- when the
landlord may assume exclusive control of the premises and
exclude the tenant from it -– occurs when the court officer is
authorized to execute the warrant following the three-day
waiting period prescribed by N.J.S.A. 2A:42-10.16(b).
V.
We review the Appellate Division’s determination that on
April 13, 2009, defendant had a reasonable expectation of
privacy in the apartment where he had lived with his mother and
in his property located in that apartment. We conduct that
review with substantial deference to the trial court’s factual
findings, which we “‘must uphold . . . so long as those findings
are supported by sufficient credible evidence in the record.’”
State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders,
192 N.J. 224, 243 (2007)). Issues of law, in contrast, are
reviewed de novo. Id. at 45; State v. Mann, 203 N.J. 328, 337
(2010); State v. Gandhi, 201 N.J. 161, 176 (2010). When, as
here, we consider a ruling that applies legal principles to the
factual findings of the trial court, we defer to those findings
but review de novo the application of those principles to the
factual findings. State v. Harris, 181 N.J. 391, 416 (2004).
21
The Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution guard
against warrantless searches of the home. We first determine
whether defendant had a reasonable expectation of privacy under
the Fourth Amendment.
Under federal law, a court considering an objection to the
admission at trial of evidence obtained by a search or seizure
must make a threshold determination: whether the challenged
search or seizure violated the defendant’s reasonable
expectation of privacy in the invaded location. The current
constitutional benchmark was articulated in Rakas v. Illinois,
439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). There,
the defendants contested the search of an automobile, in which
they were passengers, which revealed a weapon and ammunition in
which the defendants had no property interest. Id. at 129-30,
99 S. Ct. at 423, 58 L. Ed. 2d at 392. Affirming the
determination of Illinois trial and appellate courts that the
defendants lacked standing, the United States Supreme Court
rejected the defendants’ contention that under Jones v. United
States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960),5
defendants need only establish that they were “‘legitimately on
5
While Rakas merely rejected the Jones standing proposition,
United States v. Salvucci, 448 U.S. 83, 85, 100 S. Ct. 2547,
2549, 65 L. Ed. 2d 619, 623-24 (1980), explicitly overruled
Jones’ automatic standing rule.
22
[the] premises’” in order to challenge the legality of a search
in a motion to suppress the fruits of that search. Rakas,
supra, 439 U.S. at 129-30, 132-35, 99 S. Ct. at 423, 424-25, 58
L. Ed. 2d at 392, 394-95 (alteration in original).
In Rakas, the Supreme Court dispensed with a separate
standing inquiry and adopted the “legitimate expectation of
privacy” analysis set forth in Justice Harlan’s concurring
opinion in Katz v. United States, 389 U.S. 347, 360-61, 88 S.
Ct. 507, 516, 19 L. Ed. 2d 576, 587-88 (1967) (Harlan, J.,
concurring), to determine the extent of a defendant’s Fourth
Amendment rights. Rakas, supra, 439 U.S. at 138-39, 143, 99 S.
Ct. at 428, 430, 58 L. Ed. 2d at 398, 401. The Supreme Court
concluded that “the better analysis forth-rightly focuses on the
extent of a particular defendant’s right under the Fourth
Amendment, rather than on any theoretically separate, but
invariably intertwined concept of standing.” Id. at 139, 99 S.
Ct. at 428, 58 L. Ed. 2d at 398. Under that analysis, the
Supreme Court rejected the defendants’ claim, holding that they
had established no reasonable expectation of privacy in a
vehicle in which they were passengers. Id. at 148-49, 99 S. Ct.
at 433, 58 L. Ed. 2d at 404-05.
Rakas was followed by Salvucci, in which the Court
confirmed that a defendant has Fourth Amendment protection if he
or she has a legitimate expectation of privacy in the place
23
searched, whether or not he or she has a possessory interest in
the property seized in the course of the search. Salvucci,
supra, 448 U.S. at 91-92, 100 S. Ct. at 2552-53, 65 L. Ed. 2d at
628; cf. Minnesota v. Carter, 525 U.S. 83, 90-91, 119 S. Ct.
469, 473-74, 142 L. Ed. 2d 373, 380-81 (1998) (holding no
reasonable expectation of privacy in another’s home when purpose
of visit was business and defendant thereby could not object to
seizure of evidence); United States v. Padilla, 508 U.S. 77, 81-
82, 113 S. Ct. 1936, 1938, 123 L. Ed. 2d 635, 640-41 (1993)
(explaining that coconspirators and codefendants can only object
to admission of seized evidence if their rights were violated by
search itself).
As the United States Supreme Court noted in California v.
Ciraolo, a two-part inquiry governs the Fourth Amendment
analysis:
The touchstone of Fourth Amendment analysis
is whether a person has a “constitutionally
protected reasonable expectation of
privacy.” [Katz, supra, 389 U.S. at 360, 88
S. Ct. at 516, 19 L. Ed. 2d at 587 (Harlan,
J., concurring).] Katz posits a two-part
inquiry: first, has the individual
manifested a subjective expectation of
privacy in the object of the challenged
search? Second, is society willing to
recognize that expectation as reasonable?
[California v. Ciraolo, 476 U.S. 207, 211,
106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215
(1986) (citing Smith v. Maryland, 442 U.S.
735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d
220, 226-27 (1979)); accord United States v.
24
Jones, 565 U.S. __, __, 132 S. Ct. 945, 954-
55, 181 L. Ed. 2d 911, 924 (2012)
(Sotomayor, J., concurring); Kyllo v. United
States, 533 U.S. 27, 33, 121 S. Ct. 2038,
2042-43, 150 L. Ed. 2d 94, 101 (2001).]
If a defendant does not meet his or her burden to demonstrate
both prongs of this test, he or she cannot challenge the
exclusion of the disputed evidence on Fourth Amendment grounds.
Florida v. Riley, 488 U.S. 445, 455, 109 S. Ct. 693, 699, 102 L.
Ed. 2d 835, 845 (1989) (O’Connor, J., concurring); Rawlings v.
Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561, 65 L. Ed.
2d 633, 641 (1980); Rakas, supra, 439 U.S. at 130 n.1, 99 S. Ct.
at 424 n.1, 58 L. Ed. 2d at 393 n.1. We apply that two-pronged
standard here. We consider only the limited information
presented at the suppression hearing.
The first inquiry of the federal test -– whether the
individual manifested a subjective expectation of privacy in the
object of the challenged search -– is addressed only briefly in
the record of this case. One of the police officers who
testified at the suppression hearing stated that defendant
identified the premises as “his” apartment, asking “what’s going
on” and calling the apartment “my place.” The same witness,
however, testified that after Special Civil Part Officer Pratt
identified himself and advised defendant that the apartment was
subject to a warrant of removal and was about to be padlocked,
25
defendant admitted that he had no lease or other document that
would identify the apartment as his own.
Assuming defendant satisfies the first prong of the two-
pronged federal analysis, he fails to make a showing on its
second prong. Under federal law, a tenant’s reasonable
expectation of privacy can turn on his or her legal status in
the wake of an eviction. In United States v. Curlin, 638 F.3d
562, 563 (7th Cir. 2011), the United States Court of Appeals for
the Seventh Circuit reviewed a trial court’s denial of a
suppression motion filed by a defendant who was the subject of
an eviction proceeding. There, the defendant’s landlord twice
attempted to compel the defendant to appear in court to address
his failure to pay rent. Ibid. The landlord then obtained an
eviction order, which compelled defendant to vacate the premises
within three days and authorized an Indiana constable to restore
possession of the premises to the landlord. Ibid. After the
constable twice left copies of the order at Curlin’s residence,
he and assisting officers arrived at the residence to execute
the eviction order. Ibid. Upon their arrival, they notified
the defendant of their purpose and conducted a protective sweep
that revealed marijuana and guns in plain view. Id. at 563-64.
The Court of Appeals held that in the wake of the eviction
proceedings, the defendant had no societally recognized
reasonable expectation of privacy:
26
[T]here is a key distinction in this case -–
Curlin had no lawful right to be in the
residence he was occupying on December 2,
2008. Curlin had been evicted over two
weeks earlier following an action in Indiana
court, and had been given notice of his
eviction when officers twice left copies of
the eviction order at the residence. Like a
“burglar plying his trade in a summer cabin
during the off season,” Curlin’s presence
was “wrongful,” and consequently any
subjective expectation of privacy he may
have had is not “one that society is
prepared to recognize as ‘reasonable.’”
Because Curlin had no legitimate expectation
of privacy in the residence, no Fourth
Amendment search occurred.
[Id. at 565 (quoting Rakas, supra, 439 U.S.
at 143 n.12, 99 S. Ct. at 430 n.12, 58 L.
Ed. 2d at 401 n.12).]
The Seventh Circuit’s sound reasoning in Curlin is equally
applicable to this case. When defendant departed from the
apartment on April 13, 2009, he was on notice that a court
officer could enter the apartment, restore control to the
landlord and authorize a change of the locks that would deprive
defendant of unsupervised access to the apartment. If defendant
ever had a societally recognized reasonable expectation of
privacy in the apartment when his mother was the tenant of the
apartment, any such expectation terminated at this late stage of
the eviction. Given that defendant was served with notice that
the landlord’s eviction action had progressed to the point of an
imminent lockout, defendant did not have a societally recognized
27
expectation of privacy at the relevant time.6 Accordingly, under
federal law, defendant had no reasonable expectation of privacy
to contest the admission of the evidence in dispute.
VI.
Like the Fourth Amendment, Article I, Paragraph 7 of our
State Constitution generally protects individuals from
warrantless searches of the home. Under state law, a “defendant
6
We do not reach the issue of whether defendant previously held
the status of a guest in the apartment leased to his mother
before the landlord instituted eviction proceedings or whether
such a status gave rise to a reasonable expectation of privacy
in the apartment in these circumstances. Under federal law, an
individual with no ownership or leasehold interest in a home
may, in some settings, have a reasonable expectation of privacy
in the premises, by virtue of his or her status as a guest of
the lawful owner or renter. See Minnesota v. Olson, 495 U.S.
91, 99, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 95 (1990)
(holding overnight guests are “entitled to legitimate
expectation of privacy despite the fact that they have no legal
interest in the premises and do not have the legal authority to
determine who may or may not enter the household”); contra
Carter, supra, 525 U.S. at 90-91, 119 S. Ct. at 473-74, 142 L.
Ed. 2d at 380-81 (holding no reasonable expectation of privacy
in another’s home when purpose of visit was business and thereby
could not object to seizure of evidence). Similarly, a hotel
guest may have a reasonable expectation of privacy in a rental
room until his or her guest status has been terminated. See
United States v. Young, 573 F.3d 711, 716, 720-21 (9th Cir.
2009) (holding hotel guest retained reasonable expectation of
privacy in hotel room and property in room because he was not
properly evicted from room and hotel staff did not inform him he
was being evicted); United States v. Bautista, 362 F.3d 584, 590
(9th Cir. 2004) (concluding guest retains reasonable expectation
of privacy in hotel room unless occupancy has been lawfully
terminated). Whether defendant was a “guest” for Fourth
Amendment purposes when he lived with his mother in the
apartment is irrelevant because defendant no longer enjoyed that
status as of April 13, 2009, by virtue of the eviction
proceedings in this case.
28
must show that a reasonable or legitimate expectation of privacy
was trammeled by government authorities.” State v. Evers, 175
N.J. 355, 368-69 (2003); see also State v. Reid, 194 N.J. 386,
396, 401 (2008) (finding reasonable expectation of privacy in
internet subscriber information); State v. Hempele, 120 N.J.
182, 200, 206 (1990) (finding reasonable expectation of privacy
in curbside garbage).
Under state as well as federal constitutional norms, “[a]
warrantless search of a person’s home ‘must be subjected to
particularly careful scrutiny,’ because ‘physical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is direct[ed].’” State v. Cassidy, 179 N.J. 150, 160
(2004) (second alternation in original) (quoting State v. Bolte,
115 N.J. 579, 583, cert. denied, 493 U.S. 936, 110 S. Ct. 330,
107 L. Ed. 2d 320 (1989); State v. Hutchins, 116 N.J. 457, 463
(1989)); accord Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct.
1284, 1290, 157 L. Ed. 2d 1068, 1079 (2004); Kyllo, supra, 533
U.S. at 31, 121 S. Ct. at 2041-42, 150 L. Ed. 2d at 100; State
v. Vargas, 213 N.J. 301, 312-13 (2013); State v. Edmonds, 211
N.J. 117, 129 (2012).
In addressing a defendant’s reasonable expectation of
privacy in a place searched, however, New Jersey jurisprudence
29
diverges from federal law in significant respects.7 Unlike
federal law, New Jersey law confers automatic standing on a
defendant “in cases where the defendant is charged with an
offense in which possession of the seized evidence at the time
of the contested search is an essential element of guilt.”
State v. Alston, 88 N.J. 211, 228 (1981). In settings such as
this, where the defendant seeks to exclude evidence offered by
the State in his or her trial for a possessory offense, the
defendant’s standing to assert his or her rights under Article
I, Paragraph 7 of the New Jersey Constitution is beyond dispute.
Even when a defendant has automatic standing, if, as here, the
merits rest on whether defendant possesses a reasonable
expectation of privacy, the court must address that issue as
part of the substantive constitutional analysis. That inquiry
is separate and distinct from the question of standing. See,
e.g., State v. Harris, 211 N.J. 566, 589-90 (2012) (considering
and rejecting defendant’s argument that he had reasonable
expectation of privacy in firearm serial numbers entered by
officers into National Crime Information Center database); State
v. Stott, 171 N.J. 343, 355, 357-58 (2002) (determining
7
The federal and state constitutional protections are not in
every respect coextensive; this Court has interpreted Article I,
Paragraph 7 of our State Constitution to provide protections
beyond those afforded by the Fourth Amendment. See, e.g.,
Hempele, supra, 120 N.J. at 195; State v. Mollica, 114 N.J. 329,
344 (1989).
30
involuntary patient at hospital had reasonable expectation of
privacy in his shared room); Hempele, supra, 120 N.J. at 200,
215 (finding persons have reasonable expectation of privacy in
contents of opaque trash bags left at curb for collection);
State v. Harris, 298 N.J. Super. 478, 484-85 (App. Div.)
(holding defendant who forcefully intruded into another’s
apartment had no reasonable privacy interest in premises as
recognized by general societal norms), certif. denied, 151 N.J.
74 (1997).
As this Court has noted, “[a]lthough we do not use a
reasonable expectation of privacy analysis for standing purposes
in criminal cases, we do apply that analysis to determine
whether a person has a substantive right of privacy in a place
searched or an item seized.” State v. Johnson, 193 N.J. 528,
547 (2008) (citing State v. McAllister, 184 N.J. 17, 32-33, 36
(2005); Hempele, supra, 120 N.J. at 198-200)). While defendant
has automatic standing under Alston to seek suppression, in this
case we must nonetheless determine whether he had a reasonable
expectation of privacy in the premises –- as a substantive
matter of law – as part of the inquiry as to whether an unlawful
search occurred. Johnson, supra, 193 N.J. at 547.
Advancing an argument not made by defendant or the ACLU,
our dissenting colleague asserts that our holding contravenes
Alston and Johnson, by imposing what he characterizes as “an
31
extra layer of standing – a reasonable expectation of privacy
analysis” – upon this Court’s jurisprudence. Post at ____ (slip
op. at 4-7). Our colleague’s contention is unfounded. We apply
the standing rule of Alston, in which the Court confirmed that a
defendant has automatic standing to object to the admission of
seized evidence if he or she is charged with an offense in which
possession of that evidence is an essential element. 88 N.J. at
228. As the Court noted in Johnson, a defendant has automatic
standing under Alston and its progeny –- and may accordingly
seek suppression of evidence –- by virtue of the charge that he
or she possessed the item seized, whether or not the defendant
has a reasonable expectation of privacy in the area searched.
Johnson, supra, 193 N.J. at 545 (citations omitted).
A defendant’s automatic standing to file a motion to
suppress, however, does not equate to a finding that he or she
has a substantive right of privacy in the place searched that
mandates the grant of that motion. Id. at 547, citing
McAllister, supra, 184 N.J. at 32-33, 36; Hempele, supra, 120
N.J. at 198-200. Defendant’s standing to seek suppression of
evidence in the trial of a possessory offense, and the existence
of a reasonable expectation of privacy –- relevant not to
standing but to the merits of the suppression motion –- are
32
separate issues.8 Here, we recognize defendant’s automatic
standing under Alston to seek suppression of the heroin and
currency seized by police officers. We determine, however, that
he lacked “a substantive right of privacy in [the] place
searched” within the meaning of Johnson, supra, 193 N.J. at 547.
This is not a typical case in which a defendant seeks
suppression of items found in his or her home. Instead, this
novel case arises in unusual circumstances, in which we consider
the reasonable expectation of privacy in the setting of an
eviction that has proceeded to an advanced stage. Our holding
thus comports with the jurisprudence cited by the dissent, which
overstates the reach of our prior case law.
Unlike the federal test, the New Jersey constitutional
standard does not require the defendant to prove a subjective
expectation of privacy. In Hempele, supra, 120 N.J. at 198-99,
this Court rejected the federal two-pronged analysis because it
“entails an arbitrary distinction between facts that manifest a
8
The distinction between the standing and substantive inquiries
is illustrated by a defendant who claims he did not consent to a
search that resulted in firearms charges, and who files a motion
to suppress on that ground. Under Alston, by virtue of the
possessory offense charged, such a defendant has automatic
standing to proceed and challenge the search. Alston, 88 N.J.
at 228. The defendant’s standing, however, does not resolve the
substantive issue to be decided by the court in the suppression
hearing –- whether the State has demonstrated the defendant’s
consent to the search. To prevail on the merits if the State
has satisfied its burden, a defendant with automatic standing
must still address the substantive inquiry –- whether he
knowingly and voluntarily consented to a search.
33
subjective privacy expectation and those that indicate the
reasonableness of the privacy expectation.” Instead, Article I,
Paragraph 7 of the New Jersey Constitution “requires only that
an expectation of privacy be reasonable.” Id. at 200. This
streamlined inquiry governs suppression motions premised upon
Article I, Paragraph 7 of our State Constitution.
This Court and the Appellate Division have recognized
circumstances in which no reasonable expectation of privacy can
be found, notwithstanding the residential setting of the police
activity. See, e.g., State v. Johnson, 171 N.J. 192, 209-10
(2002) (finding defendant had no reasonable expectation of
privacy when officers observed contraband on porch of multi-
family home used by other occupants and visitors); N.J. Dep’t of
Envtl. Prot. V. Huber, 213 N.J. 338, 370 (2013) (holding private
land owners cannot claim full expectation of privacy in lands
subject to recorded deed restrictions); State v. Anglada, 144
N.J. Super. 358, 360-61, 363 (App. Div. 1976) (holding defendant
had no reasonable expectation of privacy when investigators were
invited into home and observed evidence of marijuana).
In other settings, our courts have found that a defendant
does not have a reasonable expectation of privacy in a property
that he or she occupies unlawfully. In State v. Perry, 124 N.J.
128, 133, 149 (1991), the Court considered the defendant’s
challenge to the admission of drugs and paraphernalia seized in
34
an apparently abandoned building that the defendant had entered
to inject himself with drugs. In addition to citing the
officers’ “unrelated, legitimate purpose” that brought them to
view the contraband, the Court determined that defendant’s
“expectation of privacy was not impinged,” observing:
[Defendant] was in a house, not his own,
that appeared vacant and whose front door
was not only unlocked but open. The open
door, uncertain ownership, and vacant nature
of the edifice create a situation far from
unambiguous and make it difficult to give
its transient user a constitutionally-
reasonable expectation of privacy.
Moreover, the evidence shows that
defendant’s own subjective expectations were
not thwarted by the officers’ entrance. He
“expected” their arrival, wished to continue
cooperating with them in the murder
investigation, and did not object to them
ascending the stairs once they entered and
he saw them.
[Id. at 149-50 (citing Katz, supra, 389
U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d
at 588 (Harlan, J., concurring)).]
The Appellate Division reached the same conclusion in State
v. Linton, 356 N.J. Super. 255, 258-59 (App. Div. 2002). There,
the defendant concealed drugs on the first and second floors of
an “abandoned building in which [he] had no legal interest,” and
police entered the property without a warrant and seized them.
Id. at 256. The Appellate Division reversed the trial court’s
grant of a motion to suppress the evidence found on the first
floor. Ibid. The panel relied on Perry. Id. at 258. It
35
explained that “the building was abandoned and defendant, at
best a transient squatter, had no constitutionally-reasonable
expectation of privacy.” Id. at 256.
The setting of this case is distinguishable from that of
Perry and Linton. Here, defendant did not occupy a stranger’s
abandoned premises but lived in his mother’s apartment while an
eviction proceeding was pending. The courts deciding Perry and
Linton, however, articulated a principle that is relevant to
this case: that the objective reasonableness of the defendant’s
expectation of privacy in that property, for purposes of Article
I, Paragraph 7, turns in large part on his or her legal right to
occupy the property at issue.
The significance of the defendant’s legal status with
respect to a residence was underscored in State v. Mark, 46 N.J.
262, 264-65 (1966), in which this Court addressed a search by
police officers in a room subject to a week-to-week tenancy that
the defendant had not renewed. On the day that the defendant
was moving out, while his belongings remained in the room but
his key had been turned in, police searched his room to
investigate the murder of another tenant and, after obtaining a
warrant, seized items belonging to the defendant. Id. at 265-
66, 268. The Court did not expressly address the issue of
whether the defendant in Mark had a reasonable expectation of
36
privacy in his former home.9 In determining the propriety of the
police entry into the defendant’s room, however, the Court
considered that “when the search began on January 18, the
tenancy of the defendant had already expired and the landlord
had acquiesced in and approved the conduct of the officers.”
Id. at 274-75. Given the late stage of eviction process, the
Court in Mark held that the police conduct did not constitute an
unreasonable search. Id. at 275-76.
Here, we consider defendant’s legal interest in the
apartment in determining, under State constitutional principles,
whether he had an objectively reasonable expectation of privacy
on the relevant date. The three-day period between notice of
the warrant of removal and execution of the warrant afforded the
tenant an opportunity to vacate the premises. That three-day
period expired on April 10, 2009. Thus, as of April 13, 2009,
defendant had been on notice for a week that an eviction
proceeding was pending and that it had reached a pivotal stage.
Defendant was advised in the warrant of removal that while the
apartment’s “tenant” remained in “legal possession” during the
9
Mark was decided before Katz and Ciraolo’s adoption of the two-
part test for a reasonable expectation of privacy for Fourth
Amendment purposes and before this Court stated the New Jersey
constitutional standard in Hempele. In Mark, this Court did not
evaluate the facts before it in accordance with the analysis
that we apply to this case but focused instead upon the
reasonableness of the police conduct in light of the “particular
facts presented.” Mark, supra, 46 N.J. at 275.
37
three-day notice period -– preventing the landlord from
conducting a lockout -– this status would change at the end of
the three days. The remedial action identified in the warrant
of removal -– court intervention -– was neither sought nor
obtained during the critical three-day period. If defendant
somehow expected that his privacy in the apartment would be
preserved at this late stage of the eviction, that expectation
was unreasonable.10 Moreover, the potential for defendant to
obtain a court remedy during the ten-day period following the
execution of the warrant of removal and to seek appellate review
does not give rise to a reasonable expectation of privacy
considering the landlord’s ability to enter and remove
defendant’s possessions during that time. See N.J.S.A. 2A:18-72
to -84.
We hold, based upon the evidence adduced in the suppression
hearing, that on the afternoon of April 13, 2009, defendant
lacked an objectively reasonable expectation of privacy in the
apartment where he had been living. Accordingly, the April 13,
2009 police action in his apartment was not a “search” for
purposes of either the Fourth Amendment of the United States
10
In Maglies v. Estate of Guy, 193 N.J. 108, 126 (2007), this
Court articulated a standard for determining whether an
individual who was not the documented tenant could qualify as a
functional co-tenant for purposes of search and seizure
analysis. We need not apply that standard to defendant here.
Even if defendant was a functional co-tenant under Maglies, any
such status terminated at the end of the three-day period.
38
Constitution or Article I, Paragraph 7 of the New Jersey
Constitution. We reverse the Appellate Division’s determination
with respect to this issue.
VII.
Our holding that the police action did not constitute a
search does not entirely resolve the question of whether the
trial court properly denied defendant’s motion to suppress. In
addition to contending that the police officers conducted an
unlawful search of his apartment, defendant challenged the
officers’ seizure of the disputed evidence in his motion before
the trial court. On appeal, the constitutionality of the
seizure was not addressed in detail by the parties or amicus.
The Appellate Division did not separately address that issue.
Neither this Court nor the Appellate Division has squarely
addressed the standard by which a trial court should determine
the constitutionality of a seizure of property that is
discovered in a residence when no Fourth Amendment or Article I,
Paragraph 7 search occurs.
We therefore remand this matter to the Appellate Division
for a determination, after supplemental briefing by the parties
and amicus, of the constitutionality of the police officers’
seizure of the evidence that was the subject of defendant’s
motion to suppress. On remand, the Appellate Division should
also consider the issues that it did not reach because of its
39
reversal of the trial court’s denial of defendant’s motion to
suppress.
VIII.
The judgment of the Appellate Division is reversed and the
matter is remanded in accordance with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join
in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion, in which JUDGE RODRÍGUEZ (temporarily
assigned) joins. JUDGE CUFF (temporarily assigned) did not
participate.
40
SUPREME COURT OF NEW JERSEY
A-3/4 September Term 2012
070386
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
GENE HINTON,
Defendant-Respondent
and Cross-Appellant.
JUSTICE ALBIN, dissenting.
Today’s decision weakens more than three decades of this
Court’s standing jurisprudence under Article 1, Paragraph 7 of
the New Jersey Constitution. Before today, if a person had a
possessory, proprietary, or participatory interest in a place
called home, that person had standing to object to an unlawful
search of the premises and that person’s reasonable expectation
of privacy would not be an issue. Now, in disregard of the
precise dictates of this Court’s decisions in State v. Alston,
88 N.J. 211, 227 (1981) and State v. Johnson, 193 N.J. 528, 546
(2008), and our general standing jurisprudence, the majority
insists that even when a defendant has standing to object to a
search of his home, the court must determine whether he had a
reasonable expectation of privacy in the premises. See slip op.
at 30.
1
In Alston, supra, and Johnson, supra, we rejected the
notion that a defendant with standing to object to a search
under state law must clear “another layer of standing” based in
federal jurisprudence -- that is, have a court find that he had
a reasonable expectation of privacy. Johnson, supra, 193 N.J.
at 546. The majority does here exactly what we said we would
not do in Alston and Johnson. For the first time, this Court
finds that a defendant has standing -- a possessory or
proprietary interest in the place searched -- only to declare
that the defendant has no reasonable expectation of privacy in
the place searched. Not only does this formulation contravene
our case law, but it could confound practitioners and judges if
expanded beyond the novel scenario in this case. Because this
departure from our law is unwarranted, I respectfully dissent.
I.
Defendant Gene Hinton lived at 130 Dayton Street, Apartment
8K, in Newark for six years before the police searched his
apartment on April 13, 2009. Hinton’s mother, Essie, who died
on March 14, 2009, was the leaseholder of the apartment.
Although Essie’s name was the only one on the lease, it seems
that both the building superintendent and the building manager
knew that Hinton resided with his mother. Arguably, the New
Jersey Anti-Eviction Act, N.J.S.A. 2A:18-61.1 to -61.12,
2
provided Hinton with a basis to remain on the premises, even
after his mother’s death. See Maglies v. Estate of Guy, 193
N.J. 108, 112 (2007) (prohibiting “the causeless eviction of a
daughter, after the death of her mother, where the landlord
consented to the daughter’s residence and where the daughter’s
income factored into the family contribution and federal voucher
subsidy paid to the landlord”).
Apparently unaware of Essie’s death, the landlord, the
Newark Housing Authority, initiated an eviction action for
nonpayment of rent. On March 31, 2009, a Superior Court judge
issued a warrant directing a Special Civil Part Officer to
remove the tenant -- Essie -- and her property from the
premises. On April 6, the Special Civil Part Officer placed the
warrant of removal under the door of the apartment. The warrant
gave “Ms. Hinton” 72 hours to vacate the apartment or seek
judicial relief.
Under the New Jersey Anti-Eviction Act, the “Special Civil
Part shall retain jurisdiction for a period of 10 days
subsequent to the actual execution of the warrant for possession
for the purpose of hearing applications by the tenant for lawful
relief.” N.J.S.A. 2A:42-10.16(e). Here, the Special Civil Part
Officer executed the removal on April 13 when he took account of
the property in the apartment and changed the lock on the door.
3
Hinton had ten days from that point to seek judicial relief from
the lockout.
As he was conducting the lockout, the Special Civil Part
Officer observed what he believed to be illegal drugs in a
bedroom. He properly reported his observations to the Newark
Police Department. No one disputes that those observations
provided probable cause to conduct a search. The only question
is whether Hinton has the right to challenge the warrantless
entry of the apartment by Newark police officers.
The majority concedes that Hinton has standing to challenge
the search -- that is, he has a possessory, proprietary, or
participatory interest in the apartment. Nevertheless, the
majority contends that Hinton did not have a reasonable
expectation of privacy in the premises. The majority imposes an
extra layer of standing -– a reasonable expectation of privacy
analysis -- when we have instructed courts not to do so. That
is clear from the seminal case guiding our standing
jurisprudence, State v. Alston, supra, to which I now turn.
II.
A.
In State v. Alston, the Court articulated the governing
principles for standing in cases in which a defendant claims a
search or seizure violates Article 1, paragraph 7 of the New
4
Jersey State Constitution. In doing so, this Court parted with
the United States Supreme Court’s newly minted standing
jurisprudence 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), jurisprudence
which requires a person to have a reasonable expectation of
privacy in the place searched or the thing seized to make a
challenge under the Fourth Amendment. See Alston, supra, 88
N.J. at 226. In Alston, we specifically rejected “the amorphous
‘legitimate expectations of privacy in the area searched’
standard as applied in Rakas, Salvucci and Rawlings,”1 and
“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
interest in either the place searched or the property seized.”
Id. at 228. The Court came to this conclusion because this rule
of standing is “more consonant with our own interpretation of
the plain meaning of Article 1, paragraph 7 of our State
Constitution.” Id. at 227.
“Following Alston, our courts have consistently applied the
automatic standing rule to defendants charged with possessory
1
Alston, supra, uses the terms “reasonable” and “legitimate”
expectation of privacy interchangeably. See, e.g., 88 N.J. at
218.
5
offenses, regardless of whether they had an expectation of
privacy in the area searched.” Johnson, supra, 193 N.J. at 545
(emphasis added). In Johnson, we gave examples, such as State
v. Miller, 342 N.J. Super. 474, 478 (App. Div. 2001), in which
the defendant had standing to challenge the search of a home
where he was visiting but where he did not reside, and State v.
De La Paz, 337 N.J. Super. 181, 193-95 (App. Div.), certif.
denied, 168 N.J. 295 (2001), in which the defendant had standing
to challenge the warrantless entry of a home where he was a
guest. Johnson, supra, 193 N.J. at 545.
In Johnson, the State argued, as it does here, that
“without having a reasonable expectation of privacy in the thing
searched or item seized, defendant cannot make out a[n] . . .
Article I, Paragraph 7 violation.” Id. at 546. We rejected
that argument. Ibid. We refused to “place[] another layer of
standing -- [‘a reasonable expectation of privacy’ analysis] --
on top of our automatic standing rule.” Ibid. We made crystal
clear that “we do not use a reasonable expectation of privacy
analysis for standing purposes in criminal cases” -- with one
caveat. Id. at 547. We recognized in Johnson that in novel
cases we would have to “determine whether an individual
possesses a substantive right of privacy in a class of objects
or a general place.” Ibid. (emphasis added). For example, by
determining that people have a reasonable expectation of privacy
6
in their bank records, see State v. McAllister, 184 N.J. 17, 32-
33 (2005), we signaled that our standing jurisprudence will
apply to those records. However, there is nothing novel about
the constitutional protections afforded to the home.
“[T]raditional notions of standing” apply to the home, and
therefore the question here is whether Hinton had a possessory,
proprietary, or participatory interest in the apartment
searched. See Johnson, supra, 193 N.J. at 547.
B.
The majority is mistaken in suggesting that, because Hinton
is charged with a possessory offense, only principles of
automatic standing apply in this case. Hinton had the right to
assert that he had general standing to object to the search of
his apartment. See generally 32 New Jersey Practice, Criminal
Practrice and Procedure § 16:33 (Leonard N. Arnold) (2011). At
the motion to suppress hearing, no one questioned whether Hinton
had standing to challenge the search. No one questioned whether
he had a reasonable expectation of privacy in the premises. The
trial court apparently accepted that Hinton had standing and
determined that the Newark police officers had a constitutional
basis to conduct a warrantless search of the apartment. This
Court has never before found that a defendant had standing to
object to the search of a place and then turned to whether that
7
defendant had a reasonable expectation of privacy in the place
searched.
The majority refers to cases of a “transient user” and a
“transient squatter” in abandoned buildings, slip op. at 35–36,-
- cases in no way comparable to the present one in which a son
lived with his mother in an apartment for six years with the
almost certain knowledge of the building superintendent.
Perhaps more significantly, the majority ignores that this Court
recently said that “in a challenge to a search or seizure,” the
“‘reasonable expectation of privacy’ standard” is not the
standard when determining “whether property is abandoned.”
Johnson, supra, 193 N.J. at 549 n.5.
In overruling the Appellate Division and denying Hinton’s
motion to suppress, the majority discards core principles that
guide our automatic standing jurisprudence. The majority has
forgotten that “[o]ur possessory, proprietary and participatory
standing analysis not only incorporates the notion of a
reasonable expectation of privacy, but also advances other
important state interests.” Ibid. One of those interests is
that “by allowing a defendant broader standing to challenge
evidence derived from unreasonable searches and seizures under
our State Constitution, we increase the privacy rights of all
New Jersey’s citizens and encourage law enforcement officials to
8
honor fundamental constitutional principles.” Ibid. (citing
Alston, supra, 88 N.J. at 226 n.8).
These juridical principles are overlooked in the majority
opinion.
III.
The police officers in this case searched an apartment
without a warrant and without ever seeking the consent of the
owner or leaseholder of that dwelling. They did not even seek
out an agent of the Newark Housing Authority for authorization
to breach the threshold of Hinton’s home. No one suggests that
the officers had exigent circumstances to justify the
warrantless search in this case. The real question is whether
Hinton had a possessory, proprietary, or participatory interest
in the apartment -- and in the property of that apartment --
that allows him to challenge the search. He was not a transient
guest or visitor but a resident of the apartment for six years,
and he was charged with a possessory offense, which ordinarily
triggers automatic standing. See Alston, supra, 88 N.J. at 228.
Even after the Special Civil Part Officer executed the warrant
of removal and changed the locks on the apartment, for a period
of ten days, Hinton had a statutory right to seek judicial
relief. N.J.S.A. 2A:42-10.16(e). Hinton therefore retained a
possessory or proprietary interest, and even a reasonable
9
expectation of privacy, in his home. Whether under our
traditional standing principles or under the ones now created by
the majority, Hinton had a right to challenge the search in this
case.
IV.
In weakening the standing jurisprudence for searches and
seizures under Article 1, Paragraph 7 of our State Constitution
in the case of Gene Hinton, the majority takes a step toward
eroding “the privacy rights of all New Jersey’s citizens” and
forgoes sending a signal to “encourage law enforcement officials
to honor fundamental constitutional principles.” Johnson,
supra, 193 N.J. at 543. Although the majority’s misreading of
our standing jurisprudence could sow confusion in the ranks of
our trial courts, there is hope that the damage done here will
be limited to the “unusual” facts of this case, which the
majority characterizes as “novel.” Slip op. at 33.
For the reasons expressed, I respectfully dissent.
JUDGE RODRÍGUEZ (temporarily assigned) joins in this
opinion.
10
SUPREME COURT OF NEW JERSEY
NO. A-3/4 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
GENE HINTON,
Defendant-Respondent
and Cross-Appellant.
DECIDED October 24, 2013
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
REVERSE AND
CHECKLIST AFFIRM
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ------------------------ -------------------
TOTALS 4 2
1
State v. Gene Hinton (070386)
Court: Supreme Court of New Jersey
Date filed: 2013-10-24
Citations: 216 N.J. 211, 78 A.3d 553
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