SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Derrick Brown (A-113-11) (070200)
Argued April 16, 2013 -- Decided January 29, 2014
ALBIN, J., writing for a majority of the Court.
The issue in this appeal is whether the State established by a preponderance of the evidence that 820 Line
Street in the City of Camden, a shabby and neglected row house, was abandoned or that defendants were trespassers,
justifying a warrantless search of the house.
On May 12, 2010, based on information from two confidential informants and a concerned citizen that 820
Line Street, a dilapidated row house in the City of Camden, was being used as a “stash location” for illegal drug
transactions, State Trooper Kurt Kennedy set up a surveillance of the property. Trooper Kennedy observed what he
believed to be four drug transactions, each following the same pattern: the transfer of money, unlocking and entering
of 820 Line Street, exiting and locking the door, and the handing of a small item to the buyer. Some of the
transactions also involved a property located across the street, 815 Line Street. Trooper Kennedy concluded that the
individuals were selling drugs out of 820 and 815 Line Street. He did not attempt to determine who owned or lived
in either residence or to secure a search warrant.
On May 17, Trooper Kennedy and a fellow trooper conducted a second surveillance of 820 Line Street.
They observed two black men standing near the residence, one whom he knew to be defendant Kareem Strong and
the other whom he later learned was Tyree Thomas. Two more black men came onto the scene: defendants Derrick
Brown and Leroy Carstarphen. Trooper Kennedy witnessed fifteen drug transactions that involved unlocking a
padlock at 820 Line Street, entering, and exiting shortly afterwards with a small item that was handed to the buyer.
Sometimes the transactions involved 815 Line Street. After observing these drug transactions for “a little more than
[two] hours,” Trooper Kennedy called in arrest teams to place the suspects into custody. None had drugs in their
possession. One of the arresting officers, Trooper Gregory Austin, took from defendant Strong keys that opened the
padlock securing the front door to 820 Line Street. The front door was the only means of gaining access to the
residence.
Trooper Austin testified to the events that occurred after the arrests. Three or four troopers were posted in
front of 820 Line Street and two in the rear, securing the entire residence. One of the two front windows of 820 Line
was broken. The front door was padlocked, and the rear door was “off the hinges” and “propped closed” so that no
one could exit from inside. Through the front broken window, Trooper Austin could see “trash bags” filled with
“old clothes” and “soda cans” littering the living room. He did not observe any light fixtures, and the electric meter
was missing. Unlike 820 Line, the neighboring houses immediately to the left and right were boarded up. Trooper
Austin determined that 820 Line was an “abandoned” house and could be searched without a warrant. The troopers
opened the padlock, entered the residence, and searched the house. Trooper Austin reported that there was “trash
everywhere.” He did not test the utilities. The troopers discovered evidence of criminality inside 820 Line: a
sawed-off rifle inside a floor air vent and drugs and drug paraphernalia on a shelf above the stairs to the basement.
The troopers concluded that 815 Line Street was “occupied” and therefore Trooper Kennedy secured a search
warrant to gain entry. The search of 815 Line uncovered crack cocaine and drug paraphernalia.
The trial court granted defendants’ motion to suppress the evidence seized at 820 Line Street, finding the
warrantless search invalid. The court found that the State had not satisfied its burden of proving that 820 Line was
an abandoned building that justified bypassing the warrant requirement; that defendants had automatic standing to
challenge the search because they exercised “possessory control over the premises” by the manner in which the front
door was padlocked and the rear door secured; and that exigent circumstances did not justify a warrantless search of
820 Line.
1
The Appellate Division, in an unpublished opinion, affirmed the trial court’s suppression order. The panel
concluded that the State had not proved that the building was abandoned. From the panel’s perspective, a check of
the recorded deeds would have revealed “the identity of the owner of the property.” From there, “the troopers could
have conclusively determined whether the owner had abandoned the property” and whether defendants were
trespassers or squatters. The Supreme Court granted the State’s motion for leave to appeal. 210 N.J. 216 (2012).
HELD: The State did not establish by a preponderance of the evidence that 820 Line Street in the City of Camden,
although in decrepit condition, was abandoned or that defendants were trespassers, thus failing to justify the
warrantless search of the property.
1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution both guarantee “[t]he right of the people to be secure in their… houses… against unreasonable searches
and seizures.” There is a clear preference for police officers to secure a warrant before entering and searching a
home; warrantless searches are presumptively invalid. However, under both Article I, Paragraph 7 and the Fourth
Amendment, a defendant has no standing to challenge the warrantless search of abandoned property, and to that
extent, abandoned property falls within an exception to the warrant requirement. (pp. 16-20)
2. Defendants do not have standing to object to the warrantless search of the property if the building was abandoned
or, alternatively, if they were trespassers; they would not have the requisite possessory or proprietary interest in the
property to object to the search. However, the State bears the burden of proving by a preponderance of the evidence
that the building is abandoned or defendants are trespassers. The proper test for abandonment remains, for Fourth
Amendment purposes, whether a defendant “retains a reasonable expectation of privacy in the property alleged to be
abandoned,” United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.), and, for Article I, Paragraph 7 purposes,
whether a defendant “retain[s] a proprietary, possessory, or participatory interest” in the property, State v. Johnson,
193 N.J. 528 (2008). The test must be one of objective reasonableness; the subjective belief of the officer is not a
relevant consideration. In short, “[t]here simply is no ‘trashy house exception’ to the warrant requirement,” and
therefore “[i]t is unreasonable to assume that a poorly maintained home is an abandoned home.” United States v.
Harrison, 689 F.3d 301, 311 (3d Cir. 2012). This case was decided under the New Jersey Constitution. (pp. 20-25)
3. Under Article I, Paragraph 7 of the New Jersey Constitution, there are a number of factors to be considered in
determining whether, in light of the totality of the circumstances, a police officer has an objectively reasonable basis
to believe a building is abandoned, thus justifying a warrantless entry and search. No one factor is necessarily
dispositive, and the weight to be given to any factor will depend on the particular circumstances confronting the
officer. If obtaining a warrant is impracticable, and exigent circumstances demand swift action because of the
threatened destruction of drugs inside a residence, then a warrantless entry may be justifiable. (pp. 25-29)
4. Just as a defendant will have no standing to challenge a search of abandoned property, he will have no standing
to challenge a search if an officer had an objectively reasonable basis to believe he was a trespasser. A trespasser
does not have a possessory or proprietary interest in property where he does not belong. The State bears the burden
of showing that the police officer had an objectively reasonable basis to believe a person was a trespasser, justifying
a warrantless search of a home. Ultimately, the focus must be whether, in light of the totality of the circumstances, a
police officer had an objectively reasonable basis to conclude that a building was abandoned or a defendant was a
trespasser before the officer entered or searched the home. (pp. 29-33)
5. It can hardly be disputed that Trooper Kennedy had probable cause to believe that drug dealing was occurring at
820 Line Street. The issue, however, is whether the troopers had a reason to bypass the warrant requirement. The
troopers did not know whether the defendants resided there in the evenings, whether they had an ownership interest
in the property, or whether they had permission of the owner to use the property. There is no suggestion in the
record that evidence inside the building was in danger of destruction or that obtaining a warrant was impracticable
due to some other exigency. The question to be answered is not whether the police have a subjective, good-faith
belief that a building is abandoned, but whether they have an objectively reasonable basis to believe so. The Court
has no reason to substitute its judgment for the judgment properly and fairly exercised by the trial court. The State
did not establish that the property, although in decrepit condition, was abandoned or that defendants were
trespassers. (pp. 31-40)
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court
2
for proceedings consistent with the Court’s opinion.
JUSTICE PATTERSON filed a separate, DISSENTING opinion, in which CHIEF JUSTICE RABNER
joins, stating that the trial court’s factual findings do not support, but rather undermine, the majority’s conclusion
that the State failed to meet its evidentiary burden in this case, and that, contrary to the majority’s suggestion, the
police officers did not ride roughshod over the constitutional rights of the residents of a poor neighborhood.
JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion. JUSTICE PATTERSON filed a separate, dissenting opinion in which CHIEF
JUSTICE RABNER joins.
3
SUPREME COURT OF NEW JERSEY
A-113 September Term 2011
070200
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DERRICK BROWN, LEROY
CARSTARPHEN, and KAREEM
STRONG,
Defendants-Respondents.
Argued April 16, 2013 – Decided January 29, 2014
On appeal from the Superior Court, Appellate
Division.
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for appellant (Warren W.
Faulk, Camden County Prosecutor, attorney).
Kenneth D. Aita argued the cause for
respondent Derrick Brown.
Theodore J. Baker, Designated Counsel,
argued the cause for respondent Kareem
Strong (Joseph E. Krakora, Public Defender,
attorney).
Brad Wertheimer, Designated Counsel, argued
the cause for respondent Leroy Carstarphen
(Joseph E. Krakora, Public Defender,
attorney).
Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Jeffrey S.
Chiesa, Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
1
Our Federal and State Constitutions protect the sanctity of
the home from unreasonable searches by government officials.
The constitutional protections afforded to the home make no
distinction between a manor estate in an affluent town and a
ramshackle hovel in an impoverished city. The occupants of both
structures are clothed with the same constitutional rights. In
both cases, the search of a home without a warrant is
presumptively unreasonable, and the State therefore bears the
burden of showing either that the defendant has no standing to
challenge the search or that any such search falls within a
well-delineated exception to the warrant requirement.
In this case, during a surveillance over two days, the New
Jersey State Police observed drug activity operating from 820
Line Street, a dilapidated row house in the City of Camden with
one or more windows broken, the interior in disarray, the front
door padlocked, and the back door off its hinges but propped
closed. The State Police arrested defendants Derrick Brown,
Leroy Carstarphen, and Kareem Strong for dealing drugs. After
securing a key from one of the defendants to open the padlock,
the police conducted a warrantless search of the row house,
seizing a gun and drugs. Defendants moved to suppress that
evidence as the product of an unconstitutional search.
At a suppression hearing, the State claimed that the
warrantless search of 820 Line Street by the State Police was
2
justified because the property was abandoned. After taking
testimony, the trial court found that the State did not
establish by a preponderance of the evidence that the shabby and
neglected row house was abandoned property. The court noted
that defendants were exercising possessory or proprietary rights
over the property and that the State Police did not make efforts
to identify an owner. The Appellate Division found that the
trial court’s fact-findings and legal conclusions were supported
by the record.
We affirm. Under our deferential standard of review, we do
not second-guess the trial court when sufficient credible
evidence in the record supports its findings. Here, the record
supports the trial court’s finding that the State did not meet
its burden of justifying the warrantless search. In particular,
the State did not establish that the property, although in
decrepit condition, was abandoned or that defendants were
trespassers. We have no reason to disturb those findings and
therefore uphold the suppression of the evidence.
I.
A.
Defendants Derrick Brown, Leroy Carstarphen, and Kareem
Strong were charged in a Camden County Indictment with third-
degree possession of a controlled dangerous substance (CDS),
3
namely cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession
of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -
5(b)(3); third-degree unlawful possession of weapons, N.J.S.A.
2C:39-5(c); second-degree weapons possession during CDS
offenses, N.J.S.A. 2C:39-4.1(a); and third-degree conspiracy to
possess CDS with intent to distribute, N.J.S.A. 2C:5-2, :35-
5(a)(1), :35-5(b)(3). Brown and Strong were also charged with
second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b).
Defendants claim that the State Police unconstitutionally
seized evidence during a warrantless search of 820 Line Street
in Camden. The trial court conducted a two-day suppression
hearing at which Troopers Kurt Kennedy and Gregory Austin
testified.
B.
According to Trooper Kennedy, the State Police received
information from two confidential informants and a concerned
citizen that defendant Strong was selling drugs and in
possession of a sawed-off shotgun.1 The information also
indicated that Strong was using 820 Line Street as a “stash
location” and kept a lock on the residence.
1
The record does not reveal whether Trooper Kennedy had any
contact with the confidential informants or the citizen; it only
reveals that he considered the informants credible because other
troopers had used them in the past.
4
On May 12, 2010, Trooper Kennedy set up a surveillance of
820 Line Street during daylight hours, but exactly when or for
how long is unclear. Trooper Kennedy observed what he believed
to be four drug transactions, each following the same pattern.
Two unknown black males, apparently drug sellers, stood outside
820 Line Street as buyers approached one of the two and gave him
money. After taking the money, the unknown seller unlocked the
door to 820 Line Street, entered for approximately thirty
seconds, secured the door as he exited, and then handed a small
item to the buyer. The trooper also observed, coming from 815
Line Street, a third unknown black male who gave the seller a
sandwich bag, presumably with drugs. Trooper Kennedy came to
the unremarkable conclusion that the three individuals were
selling drugs out of 820 and 815 Line Street. He did not
attempt to determine who owned or lived in either residence or
to secure a search warrant.
On May 17, Trooper Kennedy and a fellow trooper conducted a
second surveillance of 820 Line Street, during daylight,
beginning about 6:00 a.m. or 7:00 a.m. Trooper Kennedy observed
two black men standing near the residence, one whom he knew to
be defendant Strong and the other whom he later learned was
Tyree Thomas. Two more black men came onto the scene: defendant
Derrick Brown, who rode up to the group on a bicycle, and
defendant Leroy Carstarphen, who approached on foot and “shook
5
everyone’s hand.” At this point, all four men were standing in
front of 815 Line Street, across the street from 820 Line
Street. Carstarphen then walked to the corner of 8th and Line
Street and stood there. None of these four individuals were
identified by Trooper Kennedy as any of the black males he had
seen five days earlier entering 820 Line Street.
Trooper Kennedy witnessed fifteen drug transactions that
fit the following pattern. A buyer approached and gave money to
either Brown or Strong. The one receiving the currency then
unlocked the padlock and entered 820 Line Street, exiting
shortly afterwards with a small item that was handed to the
buyer. Sometimes a buyer gave money to Thomas, who then entered
815 Line Street and exited with a small item that he handed to
the buyer. After observing these drug transactions for “a
little more than [two] hours,” Trooper Kennedy called in arrest
teams to place the suspects into custody. Strong was arrested
in front of 820 Line Street, and Brown, Carstarphen, and Thomas
were arrested in front of 815 Line Street. None had drugs in
their possession, but the troopers confiscated $173 from Brown.
One of the arresting officers, Trooper Gregory Austin, took
from defendant Strong keys that opened the padlock securing the
front door to 820 Line Street. The front door was the only
means of gaining access to the residence.
6
Trooper Austin testified to the events that occurred after
the arrests. Three or four troopers were posted in front of 820
Line and two in the rear, securing the entire residence. One of
the two front windows was broken, “cracked” with “a piece
missing.” Austin was uncertain whether the other window was
damaged. The front door was padlocked, and the rear door was
“off the hinges” and “propped closed” so that no one could exit
from inside. At no point did Trooper Austin suggest that the
front door could not be locked from the inside -- that is, that
the padlock was not a secondary level of protection. Through
the front broken window, Trooper Austin could see “trash bags”
filled with “old clothes” and “soda cans” littering the living
room. “[T]here could have been upside-down furniture” as well.
The living room was “in disarray,” and no lights were on at the
time. Austin did not observe any light fixtures, and the
electric meter was missing.
Unlike 820 Line, the neighboring houses immediately to the
left and right were boarded up. Trooper Austin determined that
820 Line was an “abandoned” house and could be searched without
a warrant. He came to that conclusion based on the broken
window (or windows), the absence of an electric meter, the
propped-closed door in the rear, and the trashy condition of the
interior.
7
The troopers opened the padlock and entered the residence,
sweeping through the house to make certain no one else was
inside. They then searched the house. Trooper Austin reported
that there were holes in the wall, human feces on the floor, and
“trash everywhere,” although he did not elaborate on what he
meant by trash. He did see a “small electrical appliance,” a
“Hamilton Beach Custom Grinder,” used to grind coffee. He did
not, however, test the utilities. The first floor contained
stairs leading to an upper floor and to a basement. Austin did
not describe the number of rooms in the residence or whether
there were furnishings in the rooms.
Ultimately, the troopers discovered evidence of criminality
inside 820 Line: a sawed-off rifle inside a floor air vent, and
drugs and drug paraphernalia on a shelf above the stairs to the
basement. On the shelf were “yellow caps of crack cocaine”;
little Ziploc bags containing wax paper folds typically used to
package heroin; and a grinder, strainer, and toothbrush.
The troopers concluded that the residence across the
street, 815 Line Street, was “occupied” and therefore Trooper
Kennedy secured a search warrant to gain entry. In his
affidavit in support of that warrant, Trooper Kennedy averred
that his “multiple database queries” revealed an address of 791
Line Street for defendant Strong and an address of 815 Line
Street for defendant Thomas. The search of 815 Line uncovered
8
twenty-five glass containers with “yellow caps of crack
cocaine,” blue baggies of crack cocaine in various different
packages, additional packaging material, and sifters and
toothbrushes.
The evidence seized from 815 Line Street, pursuant to a
warrant, is not at issue.
C.
The trial court granted defendants’ motion to suppress the
evidence seized during the warrantless search of 820 Line
Street. The court accepted the troopers’ testimony as credible.
Nevertheless, the court found that the State had not satisfied
its burden of proving that 820 Line was an abandoned building
that justified bypassing the warrant requirement. In reaching
that conclusion, the court made the following findings of fact:
the troopers did not attempt to ascertain who owned 820 Line
Street; the front door was secured by a lock; the back door was
propped shut from the inside; and defendants Brown and Strong
used a key to enter and exit the building, “thus evidencing a
possessory interest in the house and the property inside.” The
court noted that “the house was in deplorable condition” and
that the electric meter was missing, which suggested that the
dwelling may have had no electricity. The court, however,
recognized that “there may well be many people who live in the
city who, due to poverty, live without electricity or have
9
recently had their electricity shut off.” The court considered
lack of electricity to be one factor, but not dispositive, “in
making an abandonment determination.” Moreover, in the court’s
view, the State did not establish “that the interior of the
dwelling reflected abandonment as opposed to horrid living
conditions occasioned by any of a set of circumstances apart
from abandonment.” Accordingly, “[t]aking into consideration
all of the evidence . . . , the court [was] not satisfied the
State ha[d] proven by a preponderance of the evidence that the
house was abandoned.”
Consistent with its finding that the house was not
abandoned, the court determined that, under New Jersey law,
defendants had automatic standing to challenge the search. The
court reasoned that defendants had standing because they were
charged with possessory offenses resulting from the seizure of
evidence from 820 Line and because they exercised “possessory
control over the premises,” demonstrating “a desire to keep
intruders out” by the manner in which the front door was
padlocked and the rear door secured.
The court also found that exigent circumstances did not
justify a warrantless search of 820 Line. The trial court
allowed that a protective sweep of the premises was a
constitutionally permissible step for the protection of the
police. No incriminating evidence was discovered in plain view
10
during the sweep. The court found that the search for evidence
afterwards, which was not predicated on exigent circumstances,
violated the warrant requirement. The court concluded that
“those living in impoverished squalor are entitled to the same
privacy protections under the Constitution as are individuals
who reside in gated mansions,” and declared the warrantless
search invalid.
D.
The Appellate Division granted the State’s motion for leave
to appeal and, in an unpublished opinion, affirmed the trial
court’s suppression order. The panel determined that the trial
court’s “findings of fact” were “amply supported by the record”
and “that the State failed to satisfy its heavy burden of
establishing an exception to the constitutional requirement that
police obtain a warrant before conducting a search.” The panel
recognized that defendants have “no constitutionally protected
interest in property that has been abandoned” and therefore
would have no basis to challenge a search of an abandoned
building. The question, as posed by the panel, was “whether the
property at 820 Line Street was in fact abandoned.”
The panel concluded that the State had not proved that the
building was abandoned. The panel noted that on the two days
that 820 Line Street was under surveillance, “defendant Strong
was observed repeatedly going in and out of the house, thereby
11
negating the conclusion that the house was vacant.” The panel
reasoned that evidence that defendant Strong lived elsewhere did
not mean that he did not have the permission of the owner to use
the premises or have a possessory interest in the property.
The panel disagreed with the State that “a check of the
property records would have been either an onerous task or
inconclusive in its results.” From the panel’s perspective, a
check of the recorded deeds would have revealed “the identity of
the owner of the property.” From there, “the troopers could
have conclusively determined whether the owner had abandoned the
property” and whether defendants were trespassers or squatters.
The panel also agreed with the trial court that the
deplorable condition of the house and a missing electric meter
did not “demonstrate that the property had been abandoned by its
owner.” The panel pointed out that the troopers never checked
to see whether electricity was working on the premises and that
proof of the absence of electricity would have been some
evidence of abandonment.
Additionally, the panel declined to give weight to the
information provided by the “concerned citizen and two credible
confidential informants” because the information provided was
“conclusory” -- none of the sources gave “a factual basis to
support the information imparted.” Last, the panel was
unwilling to conclude that the surrounding buildings suggested
12
that 820 Line Street was abandoned. The panel emphasized that,
unlike the buildings on either side of it, 820 Line Street was
not boarded up and that nearby 815 Line Street was obviously not
abandoned because the troopers secured a warrant to search it.
For these reasons, the panel deferred to the trial court’s
fact-findings and conclusions of law.
We granted the State’s motion for leave to appeal. State
v. Brown, 210 N.J. 216 (2012). We also granted the motion of
the Attorney General of New Jersey to appear as amicus curiae.
II.
A.
The State urges this Court to reverse the Appellate
Division’s affirmance of the suppression of the evidence seized
from 820 Line Street. The State argues that the warrantless
search of 820 Line Street was constitutionally permissible
because “the experienced officers’ conclusion that the property
was abandoned was objectively reasonable based on the totality
of the circumstances.” It criticizes the trial court’s “failure
to appreciate the objective nature of the inquiry based on the
structure’s outward appearance and knowledge of its history.”
As evidence that 820 Line Street was abandoned, the State points
to, among other things, the “broken first-floor windows,” the
lack of an electric meter, the disarray and trash in the
13
interior, and the multiple persons who had keys to the padlock
and who entered for short periods to facilitate drug
transactions. In determining whether a structure is abandoned,
the State maintains that the test for objective reasonableness
should not be limited to an inquiry into property ownership.
Thus, it says, “the proper focus of the abandonment query is on
the condition of the property itself, rather than the identity
and subjective desire of the true owner.” According to the
State, defendants -- who were “transient users” of the premises
-- could not confer on themselves “a legitimate expectation of
privacy” by merely “installing a padlock on the exterior of the
front door.” The State submits that, given the totality of the
circumstances, it proved by a preponderance of the evidence that
the troopers had an objectively reasonable basis to believe 820
Line Street was abandoned.
B.
The Attorney General, appearing as amicus curiae, asserts
that both the trial court and Appellate Division analyzed the
issue “under the wrong legal theory.” According to the Attorney
General, “[t]he focus of this case should not be on the
‘abandonment’ exception to standing, but rather, on the
defendants’ failure to establish any lawful interest in 820 Line
Street giving rise to a reasonable expectation of privacy.” The
Attorney General posits that under both the Federal and State
14
Constitutions, defendants had the burden of proving “a
reasonable expectation of privacy in the place searched.” Under
this approach, defendants “did not present any evidence to
demonstrate their own reasonable expectation of privacy” and did
not “rebut the objectively reasonable conclusion that they were
trespassers who hijacked someone else’s vacant property.”
The Attorney General does not believe that the failure of
the troopers to identify the property’s legal title holder is
dispositive because “[t]he inquiry is not whether the police
could have done something different, but whether their actions,
when viewed as a whole, were objectively reasonable.” The
Attorney General urges that we not apply the abandonment
doctrine set forth in State v. Johnson, 193 N.J. 528 (2008),
because “the issue is not whether these defendants relinquished
any interest in the property, but whether they had any right to
be there in the first place.”
C.
Defendants argue that they had a reasonable expectation of
privacy in the property at 820 Line Street under the Federal
Constitution and a possessory interest in that property that
gave them standing to challenge the search under the New Jersey
Constitution. Defendants contend that they exercised control
over the property by the use of a lock and key and were the
“‘apparent’ owners of the property through their continual use
15
of the property.” They assert that the property at 820 Line
Street did not satisfy the test for abandoned property
articulated in Johnson, supra, 193 N.J. 528. They further
assert that no exception to the warrant requirement, including
exigent circumstances, justified the warrantless search. In
large part, defendants rely on the reasoning of the trial court
in granting and the Appellate Division in affirming the motion
to suppress.
III.
A.
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution both
guarantee “[t]he right of the people to be secure in their . . .
houses . . . against unreasonable searches and seizures.”2 The
fundamental privacy interests of the home are at the very core
2
The Fourth Amendment and Article I, Paragraph 7 use virtually
identical language. The Fourth Amendment provides:
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.
[U.S. Const. amend. IV; see also N.J. Const.
art. I, ¶ 7.]
16
of the protections afforded by our Federal and State
Constitutions. See State v. Evers, 175 N.J. 355, 384 (2003).
“Indeed, ‘physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.’” State
v. Vargas, 213 N.J. 301, 313 (2013) (quoting United States v.
U.S. Dist. Court (Keith), 407 U.S. 297, 313, 92 S. Ct. 2125,
2134, 32 L. Ed. 2d 752, 764 (1972)).
Within that constitutional framework, our jurisprudence
expresses a clear preference for police officers to secure a
warrant before entering and searching a home. State v. Frankel,
179 N.J. 586, 597–98, cert. denied, 543 U.S. 876, 125 S. Ct.
108, 160 L. Ed. 2d 128 (2004), overruled in part by State v.
Edmonds, 211 N.J. 117 (2012). For that reason, generally, the
probable-cause determination for the search of a home is made
“by a judicial officer, not by a policeman or Government
enforcement agent.” Johnson v. United States, 333 U.S. 10, 14,
68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948). Because securing
a warrant is the default position in our constitutional
jurisprudence, warrantless searches are presumptively invalid.
Frankel, supra, 179 N.J. at 598; Kentucky v. King, 563 U.S. __,
__, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865, 874 (2011) (“It is
a basic principle of Fourth Amendment law . . . that searches
and seizures inside a home without a warrant are presumptively
unreasonable.” (internal quotation marks omitted) (quoting
17
Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943,
1947, 164 L. Ed. 2d 650, 657 (2006))). The State bears the
burden of proving by a preponderance of evidence that the
warrantless search of a home falls within one of the few “‘well-
delineated exceptions’ to the warrant requirement.” Frankel,
supra, 179 N.J. at 598 (quoting Mincey v. Arizona, 437 U.S. 385,
390, 98 S. Ct. 2408, 2412, 57 L. Ed. 2d 290, 298-99 (1978)).
B.
Under both Article I, Paragraph 7 and the Fourth Amendment,
a defendant has no standing to challenge the warrantless search
of abandoned property. Johnson, supra, 193 N.J. at 548 (“[I]f
the State can show that property was abandoned, a defendant will
have no right to challenge the search or seizure of that
property.”); see also Texas v. Brown, 460 U.S. 730, 748, 103 S.
Ct. 1535, 1546, 75 L. Ed. 2d 502, 518 (1985) (Stevens, J.,
concurring in judgment) (“If an item has been abandoned, [no]
Fourth Amendment interest is implicated, and neither probable
cause nor a warrant is necessary to justify seizure.”). To that
extent, abandoned property falls within an exception to the
warrant requirement.
A significant point to our analysis is that the state and
federal approaches to standing are quite different. For
standing purposes, Article I, Paragraph 7 provides broader
18
protection to the privacy rights of New Jersey citizens than the
Fourth Amendment. See State v. Alston, 88 N.J. 211, 226 (1981).
In Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L.
Ed. 2d 387 (1978), and United States v. Salvucci, 448 U.S. 83,
100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), the United States
Supreme Court articulated a new test for standing under the
Fourth Amendment. Under that test, a defendant cannot assert a
Fourth Amendment challenge unless he has a reasonable
expectation of privacy in the place searched by government
officials. Salvucci, supra, 448 U.S. at 91–92, 100 S. Ct. at
2553, 65 L. Ed. 2d at 628. Moreover, under the federal standing
test, it is the defendant who bears the burden of showing that
he had a legitimate expectation of privacy in the place or area
searched. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.
Ct. 2556, 2561, 65 L. Ed. 2d 633, 641 (1980).
In Alston, supra, our Court parted ways with the United
States Supreme Court’s Fourth Amendment standing jurisprudence,
“afford[ing] the citizens of this State greater protection
against unreasonable searches and seizures” under Article I,
Paragraph 7 of our State Constitution. 88 N.J. at 225, 227. We
“retain[ed] the rule of standing traditionally applied in New
Jersey, namely, that a criminal defendant is entitled to bring a
motion to suppress evidence obtained in an unlawful search and
seizure if he has a proprietary, possessory or participatory
19
interest in either the place searched or the property seized.”
Id. at 228. We came to this conclusion because this rule of
standing is “more consonant with our own interpretation of the
plain meaning of Article [I], paragraph 7 of our State
Constitution.” Id. at 227. We rejected “the amorphous
‘legitimate expectations of privacy in the area searched’
standard as applied in Rakas, Salvucci and Rawlings.” Id. at
228. Moreover, unlike federal jurisprudence, under Article I,
Paragraph 7, the State bears the burden of establishing that the
defendant does not have standing to challenge a search. See
Johnson, supra, 193 N.J. at 548–49 n.4. “[O]ur standing rule is
intended to safeguard the privacy rights of our citizens and to
deter the police from conducting unreasonable searches and
seizures, particularly in a home, which is accorded heightened
constitutional protections.” Id. at 548.
Because Article I, Paragraph 7 provides greater standing
rights to individuals than the Fourth Amendment, our analysis
will proceed under State Constitutional law while referring to
federal law as persuasive authority.
C.
The essential issue in this case is whether defendants had
standing to object to the search of 820 Line Street. Simply
put, defendants do not have standing to object to the
warrantless search of the property if the building was abandoned
20
or, alternatively, if they were trespassers. In those
circumstances, defendants would not have standing because they
would not have the requisite possessory or proprietary interest
in the property to object to the search. However, the State
bears the burden of proving by a preponderance of the evidence
that the building is abandoned or defendants are trespassers.
See Frankel, supra, 179 N.J. at 598.
We have had occasion to define when personal property is
abandoned for standing purposes in Johnson, supra, 193 N.J. 528.
In Johnson, we held that personal property is abandoned for
standing purposes “when a person, who has control or dominion
over property, knowingly and voluntarily relinquishes any
possessory or ownership interest in the property and when there
are no other apparent or known owners of the property.” Id. at
549. This standard, however, cannot be easily adapted to
abandonment of real property.
Unlike personal property, real property always has an owner
of record. Indeed, it is recognized that “for common law
purposes real property cannot be abandoned.” United States v.
Harrison, 689 F.3d 301, 307 (3d Cir. 2012), cert. denied, __
U.S. __, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013); see also
James C. Roberton, Recent Development -- Abandonment of Mineral
Rights, 21 Stan. L. Rev. 1227, 1228 (1969) (“[A] firmly
established common law rule provides that a corporeal interest
21
in land [e.g. ownership in fee simple] cannot be abandoned.”
(citing Ferris v. Coover, 10 Cal. 589 (1858); Cox v. Colossal
Cavern Co., 276 S.W. 540 (Ky. 1925))).
Although principles of property law may inform
constitutional analysis, those principles are not dispositive in
our interpretation of the Fourth Amendment, Harrison, supra, 689
F.3d at 307, or Article I, Paragraph 7, State v. Hempele, 120
N.J. 182, 213 (1990) (“‘Abandonment’ in the property-law sense
is not dispositive of the reasonableness of a privacy
expectation.”). Thus, the proper test for abandonment remains,
for Fourth Amendment purposes, whether a defendant “retains a
reasonable expectation of privacy in the property alleged to be
abandoned,” United States v. Stevenson, 396 F.3d 538, 546 (4th
Cir.) (internal quotation marks, alteration and citation
omitted), cert. denied, 544 U.S. 1067, 125 S. Ct. 2534, 161 L.
Ed. 2d 1122 (2005), and, for Article I, Paragraph 7 purposes,
whether a defendant “retain[s] a proprietary, possessory, or
participatory interest” in the property, Johnson, supra, 193
N.J. at 549.
Establishing an abandonment of real property is “a
difficult standard to meet” under the Fourth Amendment,
Harrison, supra, 689 F.3d at 309, and should be difficult under
Article I, Paragraph 7. According to the United States Court of
Appeals for the Third Circuit, “[b]efore the government may
22
cross the threshold of a home without a warrant, there must be
clear, unequivocal and unmistakable evidence that the property
has been abandoned. Only then will such a search be permitted.”
Ibid.; see also Friedman v. United States, 347 F.2d 697, 704
(8th Cir.) (“Proof of abandonment must be made by the one
asserting it by clear, unequivocal and decisive evidence.”
(internal quotation marks omitted)), cert. denied, 382 U.S. 946,
86 S. Ct. 407, 15 L. Ed. 2d 354 (1965).
As with other exceptions to the warrant requirement, here
too the test must be one of objective reasonableness. See,
e.g., Edmonds, supra, 211 N.J. at 132 (holding that officer must
have “objectively reasonable basis to believe” immediate action
necessary “to protect or preserve life, or to prevent serious
injury” under emergency-aid exception to warrant requirement).
The test is whether, given the totality of the circumstances, an
objectively reasonable police officer would believe the property
is abandoned. See Harrison, supra, 689 F.3d at 307 (holding
that whether real property is abandoned “must be made from an
objective viewpoint” by examining the “totality of the facts and
circumstances”). The subjective belief of the officer is not a
relevant consideration, and thus courts should not delve into
the murky area of whether an officer acted in good or bad faith.
See, e.g., Whren v. United States, 517 U.S. 806, 812, 116 S. Ct.
1769, 1774, 135 L. Ed. 2d 89, 97 (1996) (“[We have] never held .
23
. . that an officer’s motive invalidates objectively justifiable
behavior under the Fourth Amendment . . . .”). Suffice it to
say, a police officer’s sincere, good-faith but unreasonable
belief that real property is abandoned will not justify a
warrantless search when a defendant has an apparent possessory
interest in that property.
Although federal principles of standing differ from our
own, the decision of the United States Court of Appeals for the
Third Circuit in Harrison, supra, is instructive in determining
whether property is abandoned for purposes of upholding a
warrantless search. The Third Circuit commented that, for
Fourth Amendment purposes, to justify a warrantless search of a
home, evidence of abandonment must be clear and unequivocal and
judged objectively in light of the “the totality of the facts
and circumstances.” Harrison, supra, 689 F.3d at 307, 309.
Accordingly, if it is “ambiguous to a reasonable officer whether
a dilapidated house is abandoned . . . the officer [will] need
to make further inquiries into the property’s status.” Id. at
311 n.5 (citing United States v. Cos, 498 F.3d 1115, 1128-29
(10th Cir. 2007)). In short, “[t]here simply is no ‘trashy
house exception’ to the warrant requirement,” and therefore
“[i]t is unreasonable to assume that a poorly maintained home is
an abandoned home.” Id. at 311.
24
In Harrison, supra, the Third Circuit concluded the
officers had a reasonable basis to believe that the house was
abandoned. Id. at 312. It came to that conclusion for a number
of reasons: the front door was never locked and always open,
id. at 306; the police routinely observed squatters who used it
as a drug residence, id. at 305, 311; the property was “in a
state of severe disrepair,” and the house so dilapidated that
“the officers believed it was not fit for human habitation,” id.
at 310–11; and the house smelled of urine, the toilets were
never flushed, and drugs and drug paraphernalia littered the
premises, id. at 305. Based on the property’s history,
particularly “its unchanging, uninhabitable condition over
several months,” the officers had an objectively reasonable
basis to conclude the property was abandoned and therefore the
warrantless search was permissible under the Fourth Amendment.
Id. at 312 (emphasis added).
D.
For the benefit of our courts and law enforcement, we can
identify some factors to be considered in determining whether,
in light of the totality of the circumstances, a police officer
has an objectively reasonable basis to believe a building is
abandoned, thus justifying a warrantless entry and search. No
one factor is necessarily dispositive, and the weight to be
25
given to any factor will depend on the particular circumstances
confronting the officer.
We must begin with the simple reality that a house or
building, even if seemingly unoccupied, typically will have an
owner. See Roberton, supra, 21 Stan. L. Rev. at 1228. In
deciding whether a building is abandoned, or a person is a
trespasser, one reasonable step an officer might take is to
examine readily available records on ownership of the property.
Deeds are kept in the county recording office and provide the
address of the property owner. See 13A New Jersey Practice,
Real Estate Law and Practice § 33.2, at 502, § 33.10(4), at 508
(John A. Celentano, Jr.) (2d ed. 2002). The records of the
municipal tax assessor will provide the name and address of the
owner of property and can be inspected in municipal offices.
Id. at § 33.15, at 510–11. Many of these county and municipal
records are also online. See, e.g., Property Tax Search, Camden
County, http://www.camdencounty.com/government/property-tax-
search (last visited Dec. 4, 2013). It bears mentioning that
one of New Jersey’s newspapers provides a free, online database
with the names of property owners and the assessed values of
their properties. See New Jersey Property Owners, Assessments
and Taxes, 2012, Asbury Park Press,
http://php.app.com/mod4_10/search.php (last visited Dec. 4,
2013).
26
Moreover, utility records, which can be secured by a grand
jury subpoena,3 will reveal not only the name of the property
owner, but also whether electricity has been used in the
premises. Such record checks are not the exclusive means of
determining whether property is abandoned, but just one factor
in assessing whether a police officer acted in an objectively
reasonable manner.4
Other factors to consider in assessing whether a building
is abandoned is the property’s condition and whether the
putative owner or lessee has taken measures to secure the
building from intruders. There are impoverished citizens who
live in squalor and dilapidated housing, with interiors in
disarray and in deplorable condition, and yet these residences
are their homes. As succinctly stated, there is not a “‘trashy
house exception’ to the warrant requirement.” Harrison, supra,
689 F.3d at 311. Yet, a police officer may be familiar with an
unoccupied building with missing doors and broken windows, and
an interior in utter shambles and lacking electricity, and
reasonably conclude that the structure is abandoned. The
decrepit condition of the exterior and interior of a building is
3
Utility records must be obtained by process, such as a grand
jury subpoena or a search warrant. See State v. Domicz, 188
N.J. 285, 299 (2006).
4
We do not suggest that, to show abandonment, the police are
required to attempt to contact an owner if doing so would
compromise an investigation.
27
a factor, but other circumstances will necessarily come into
play. For example, the boarding of windows and bolting of doors
of a shabby-looking building will suggest an intent to keep
people out by a person exercising control over the property and
therefore may be evidence that conflicts with abandonment.
After Superstorm Sandy wreaked destruction in New Jersey
communities, many houses had to be boarded up because of
structural damage, and yet those homes were not abandoned.
Another factor is an officer’s personal knowledge of a
particular building and the surrounding area. It is one thing
for an officer to conclude a building is abandoned after
observing for months the “unchanging, uninhabitable condition”
of property that is unfit for human habitation, and which has
been overrun by drug squatters, see Harrison, supra, 689 F.3d at
312, and it is another thing for an officer to come to the same
conclusion after conducting a limited surveillance over two non-
consecutive days that reveals drug dealing but little about
whether a squalid habitation is one’s home.
A home is not deemed “abandoned” merely because a person is
dealing drugs from it. Of course, police officers are not
powerless to enforce the law when crimes are committed in non-
abandoned buildings. Police officers can arrest those who
commit drug offenses in their presence. Search warrants can be
secured when probable cause exists that evidence of a drug crime
28
will be found inside a home. If obtaining a warrant is
impracticable, and exigent circumstances demand swift action
because of the threatened destruction of drugs inside a
residence, then a warrantless entry may be justifiable. See
State v. Lewis, 116 N.J. 477, 484 (1989); see also State v.
Pena-Flores, 198 N.J. 6, 23 (2009).
E.
An issue related to abandoned property is the standing
status of trespassers. Just as a defendant will have no
standing to challenge a search of abandoned property, he will
have no standing to challenge a search if an officer had an
objectively reasonable basis to believe he was a trespasser.
That follows because a trespasser, by definition, does not have
a possessory or proprietary interest in property where he does
not belong -- where he does not have permission or consent to
be. Cf. State v. Bibbo, 83 N.J. Super. 36, 39 (App. Div. 1964)
(holding that defendant has no standing to object to search of
property if he does not have any proprietary, possessory or
participatory interest in that property). The police do not
have to obtain a warrant to enter a house to arrest a burglar.
Similarly, if it is well known that the owner of a boarded-up
home is living elsewhere, the police do not have to conduct a
records check or secure a warrant when a stranger is observed
inside the structure, the front door lock is broken, and the
29
door is wide open. As with abandoned property, the police must
have an objectively reasonable basis to believe a person is a
trespasser to conduct a warrantless search of a home. The
burden remains on the State to show an objectively reasonable
basis for the warrantless search of a home.
F.
In summary, in determining whether a defendant has a
possessory or proprietary interest in a building or residence
and therefore standing to object to a warrantless search under
Article I, Paragraph 7 of our State Constitution, many of the
factors enumerated above will be relevant. Ultimately, the
focus must be whether, in light of the totality of the
circumstances, a police officer had an objectively reasonable
basis to conclude that a building was abandoned or a defendant
was a trespasser before the officer entered or searched the
home.
The legitimacy of a search will not depend on what was
learned by the police after entry into the home. Wong Sun v.
United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed.
2d 441, 453 (1963) (rejecting the proposition “that a search
unlawful at its inception may be validated by what it turns
up.”). When police officers conduct a search based on an
objectively reasonable belief that a building is abandoned,
their judgment should not be second-guessed if information
30
gathered later reveals they were mistaken. See Harrison, supra,
689 F.3d at 309–10.
G.
We must mention two cases, which touch on questions posed
in this case but which do not squarely address the standing
issues raised here under Article I, Paragraph 7. Both cases
preceded our decision in Johnson, supra, 193 N.J. 528.
In State v. Perry, 124 N.J. 128, 139 (1991), the defendant
failed to keep an appointment with police to take a polygraph
test because, according to his co-defendant, Miller, he “would
not come to the station until after he had purchased and used
drugs.” The police looked for the defendant at several drug-
dealing locations, without success, and drove by Miller’s
address. Ibid. Miller’s front door was partially open, even
though Miller was at the police station. Ibid. The police
entered through the opened door and observed, at the top of the
stairs, the defendant who asked if he could inject drugs before
the interview. Ibid. The police confiscated drugs and a
hypodermic needle from the defendant. Ibid.
The issue in Perry was whether the defendant’s trial
counsel was constitutionally ineffective for failing to object
to the seizure of the defendant and the drugs and needle. Id.
at 147. We found that there was no meritorious suppression
issue because the defendant “was in a house, not his own, that
31
appeared vacant and whose front door was not only unlocked but
open.” Id. at 149–50. Clearly, the facts and issues in Perry
are different from those presented here.
The State also relies on State v. Linton, 356 N.J. Super.
255, 258–59 (App. Div. 2002), which addressed standing only
under the Fourth Amendment. There, two police officers stopped
a vehicle whose occupants told them that a man was attempting to
sell drugs from 215 Monroe Avenue. Id. at 257. On arriving at
that property, the police observed the front and back yards
filled with refuse; a closed front door with a broken lock; a
broken front window; a living room strewn with garbage and
damaged furniture; and no lights on in the residence. Ibid. In
addition, the police had not seen anyone at the house for a
month despite frequently patrolling the area. Ibid. Under
these circumstances, the police officers entered the home and
searched the living room where they found drugs hidden in a torn
couch. Ibid.
The motion judge suppressed the evidence. Id. at 256. The
Appellate Division reversed, concluding that there was no Fourth
Amendment violation because “a defendant who hides drugs in
someone else’s vacant property has no constitutionally-
reasonable expectation of privacy.” Id. at 259. Although that
legal proposition is unassailable even under our State
Constitution -- a trespasser who hides drugs in someone else’s
32
vacant and unsecured property will not have standing to object
to a search of the premises -- whether the evidence of
abandonment in Linton meets our current Article I, Paragraph 7
jurisprudence is certainly debatable.
IV.
A.
In applying the principles enunciated here to the trial
court’s findings, we are governed by a deferential standard of
review. When the trial court grants or denies a motion to
suppress, we must “uphold the factual findings underlying the
trial court’s decision so long as those findings are supported
by sufficient credible evidence in the record.” State v.
Elders, 192 N.J. 224, 243 (2007) (internal quotation marks
omitted). In this case, the trial court found that Troopers
Kennedy and Austin were credible witnesses. The court did not
take issue with their testimony, but rather with the conclusions
that they reached -- that is, the reasonable inferences that
could be drawn from their observations and that would inform an
objectively reasonable police officer. We are not permitted to
“disturb the trial court’s findings merely because ‘[we] might
have reached a different conclusion were [we] the trial
tribunal’ or because ‘the trial court decided all evidence or
inference conflicts in favor of one side’ in a close case.” Id.
33
at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Thus, we held in Elders that the trial judge deciding a
suppression motion “was entitled to draw inferences from the
evidence and make factual findings based on his ‘feel of the
case,’ and those findings were entitled to deference unless they
were ‘clearly mistaken’ or ‘so wide of the mark’ that the
interests of justice required appellate intervention.” Id. at
245 (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 293, 279 (2007)). An appellate court cannot substitute its
own findings merely because it would have drawn different
inferences from the evidence. Ibid.
With this deferential standard in mind, we now must
determine whether the trial court’s findings are supported by
the record.
B.
It can hardly be disputed that Trooper Kennedy, who was
conducting surveillance of 820 Line Street, had probable cause
to believe that drug dealing was occurring from that residence.
Indeed, even after the first day of surveillance, during which
Trooper Kennedy witnessed four drug transactions involving 820
Line Street, had he applied for a search warrant he undoubtedly
would have procured one. The issue, however, is not whether the
troopers had probable cause to believe that 820 Line Street was
the site of criminal activities, but whether they had a reason
34
to bypass the warrant requirement. The fundamental import of
the warrant requirement is that the probable-cause determination
generally must be made by “a neutral and detached magistrate
instead of . . . by the officer engaged in the often competitive
enterprise of ferreting out crime.” Johnson, supra, 333 U.S. at
13–14, 68 S. Ct. at 369, 92 L. Ed. at 440.
The trial court rejected the State’s argument that 820 Line
Street was abandoned property, thus allowing for a warrantless
search of the property. On the second day of the surveillance,
for a period of two hours in the early morning hours, Trooper
Kennedy witnessed a number of hand-to-hand drug purchases in
front of 815 and 820 Line Street, with defendant Brown,
defendant Strong, and Tyree Thomas acting as sellers and
defendant Carstarphen presumably acting as a look-out.5 After
receiving money from a purchaser, Strong or Brown then unlocked
the padlock on the front door of 820 Line Street and retrieved a
small item, presumably drugs, and handed it to the buyer.
Thomas followed the same pattern, except he entered 815 Line
Street, a building the troopers considered to be an actual,
occupied residence.
The court found that defendants Brown and Strong, by using
a key to enter the building and then lock it as they exited,
5
The motion testimony does not support the Appellate Division’s
conclusion that defendant Strong was observed entering 820 Line
on the first day of the surveillance.
35
were exercising “a possessory interest in the house and the
property inside.” It is important to note that the
surveillances on both May 12 and 17, 2010, occurred during
daylight hours, and for only two hours on the latter date. The
troopers did not know whether Brown, Strong, or Carstarphen
resided there in the evenings, whether they had an ownership
interest in the property, or whether they had permission of the
owner to use the property.
The State contends that the confidential informants and the
concerned citizen, who purportedly described 820 Line Street as
abandoned, give credence to the troopers’ own conclusions.
However, as the Appellate Division observed, only limited weight
can be given to the information provided by these unknown
individuals because no one testified to the basis of their
knowledge or their reliability, with the exception of Trooper
Kennedy’s conclusory comment that they had previously been
considered credible. See State v. Smith, 155 N.J. 83, 92–93
(describing adoption of totality of circumstances test to
determine reliability of informant’s tip, including highly
relevant factors of informant’s veracity and basis of
knowledge), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L.
Ed. 2d 480 (1998).
The trial court noted that the troopers made no effort to
learn who owned 820 Line Street. The record does not suggest
36
that such research would have been difficult or unduly
cumbersome. The court also considered that both the front and
back doors were secured to keep intruders out, the front door
padlocked and the back door, though off its hinges, propped shut
from the inside. Although the front door could be padlocked
from the outside, nothing in the record suggests the door could
not be locked from the inside as well.
The court did not ignore the deplorable condition of the
house, the broken window or windows, and the missing electric
meter. Nor did it overlook Trooper Austin’s view from outside
820 Line Street looking in -- a view of a living room in
disarray where the floor was littered with trash bags filled
with old clothes, soda cans, and maybe upside-down furniture.
We only refer to the information that the troopers possessed
before they entered 820 Line Street, for it is at that point
that we must judge whether the troopers had an objectively
reasonable basis to believe the building was abandoned or
defendants were trespassers, and a warrantless search
authorized.
The trial court understood that there “is no ‘trashy house
exception’ to the warrant requirement.” Harrison, supra, 689
F.3d at 311. The court remarked that many poor people in Camden
live in squalor and dilapidated housing. The trial court
observed that some of the poor in the city may live for periods
37
of time without electricity. The court accepted that lack of an
electric meter might suggest lack of electricity. However, the
court could not find “that the interior of the dwelling
reflected abandonment as opposed to horrid living conditions
occasioned by any of a set of circumstances apart from
abandonment.” Ultimately, after considering the totality of the
circumstances, the court determined that the State had not
“proven by a preponderance of the evidence that the house was
abandoned.” That finding led the court to conclude that
defendants had a possessory or proprietary interest in the
property, giving them standing to object to the warrantless
search of 820 Line Street.
The court, moreover, held that the State did not establish
exigent circumstances to conduct a warrantless entry into 820
Line Street. After the arrest of defendants and Thomas, the
building was secured by the State Police. There is no
suggestion in the record that evidence inside the building was
in danger of destruction or that obtaining a warrant was
impracticable due to some other exigency.6 Indeed, it is
6
The trial court determined that the police were
constitutionally permitted to unlock and enter the row house to
conduct a protective sweep to remove any potential threat of
harm to the police. However, the State never offered the need
for a protective sweep as a justification for entry into 820
Line Street. That is because the troopers believed that they
had a right to conduct a warrantless search of the premises for
evidence. In this case, the protective sweep would only have
38
noteworthy that the State Police secured a search warrant for
the occupied residence at 815 Line Street, located just across
the street from 820 Line.
Unlike the officers in Harrison, who were aware of the
unchanged condition of the property for a period of months, 689
F.3d at 312, the troopers here conducted a surveillance of
limited duration -- at most hours -- over two non-consecutive
days. As noted earlier, evidence of drug dealing from a
building is not proof that it is abandoned.
The trial court drew inferences and came to conclusions
that are supported by the record. Ultimately, the court
determined that the house was not abandoned for standing
purposes.
Although the trial court did not explicitly use the words
“objectively unreasonable” to describe the troopers’ assumption
that the home was abandoned, the court’s ruling evidences that
determination. The question to be answered is not whether the
police have a subjective, good-faith belief that a building is
abandoned, but whether they have an objectively reasonable basis
been permissible if the troopers had a right to be inside 820
Line. They could not enter just for the purpose of conducting a
protective sweep, absent exigent circumstances, such as an
objectively reasonable belief that evidence was being destroyed.
The police may not create the exigency that justifies an evasion
of the warrant requirement. State v. Davila, 203 N.J. 97, 103
(2010).
39
to believe so. We have no reason to substitute our judgment for
the judgment properly and fairly exercised by the trial court.
V.
The Appellate Division upheld the trial court’s suppression
of evidence seized as a result of the warrantless search of 820
Line Street. For the reasons expressed, we affirm and remand to
the trial court for proceedings consistent with this opinion.
JUSTICE LaVECCHIA and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE
PATTERSON filed a separate, dissenting opinion in which CHIEF
JUSTICE RABNER joins.
40
SUPREME COURT OF NEW JERSEY
A-113 September Term 2011
070200
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DERRICK BROWN, LEROY
CARSTARPHEN, and KAREEM
STRONG,
Defendants-Respondents.
JUSTICE PATTERSON, dissenting.
The narcotics investigation that led to defendants’
indictment focused upon two houses on the same street: a house
located at 815 Line Street in Camden, and the house at the
center of this appeal, located at 820 Line Street. The house at
815 Line Street was described by police officers as a brick-
faced row home, painted red with windows trimmed in white, with
a steel front door, a wrought iron hand rail and an air
conditioner installed in a front window. Based upon their
observations, the officers reasonably concluded that the house
served as a residence. They properly obtained a warrant to
enter and search the home.
The officers’ starkly different observations at 820 Line
Street led them to the opposite conclusion. The house at 820
Line Street was not secured by any device that could be operated
1
by a person located inside the house, but by a padlock installed
on the outside of the front door, locked and unlocked by a key
that was later found in the possession of defendant Kareem
Strong. The screen door on the front of the house was missing
its screen. 820 Line Street lacked a functioning rear entrance;
the back door was off its hinges and propped up by an object
located within the house. At least one of the front windows was
broken and missing its glass pane. The electric meter had been
removed from the meter box. Through broken windows, police
officers observed “trash all over the place” inside the house.
The officers concluded that 820 Line Street was unoccupied and
abandoned, and instead of adding that house to their application
for a warrant, they conducted a warrantless search. That search
revealed holes in the walls, human feces on the floor, garbage
strewn about the rooms, a sawed-off bolt action rifle hidden
beneath a floor register, narcotics and paraphernalia.
Contrary to the suggestion of the majority, the police
officers who conducted this investigation did not ride roughshod
over the constitutional rights of the residents of a poor
neighborhood. Instead, the officers’ contrasting observations
at the two neighboring homes led them to the conclusion that
while 815 Line Street was someone’s residence, 820 Line Street
was not a home at all, but rather an empty and abandoned house.
2
The officers conducted a careful investigation and arrived at a
conclusion that was firmly grounded in their observations.
Reasonableness is the pivotal inquiry under both the Fourth
Amendment and our State constitutional provision regarding
search and seizure, N.J. Const. Art. I, Par. 7. State v.
Novembrino, 105 N.J. 95, 182, 185 (1987) (citing State v.
Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104
S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). Applying that governing
standard, I would reverse the determination of the Appellate
Division, and uphold the constitutionality of the officers’
search of 820 Line Street. Accordingly, I respectfully dissent.
I.
As the majority notes, the factual findings of the trial
court are afforded deference on appellate review. Those
findings must be upheld “so long as [they] are supported by
sufficient credible evidence in the record.” State v. Elders,
192 N.J. 224, 243 (2007) (internal quotation marks and citation
omitted); see also State v. Handy, 206 N.J. 39, 44 (2011); State
v. P.S., 202 N.J. 232, 250 (2010). An appellate court “should
give deference to those findings of the trial judge which are
substantially influenced by his opportunity to hear and see the
witnesses and to have the feel of the case, which a reviewing
court cannot enjoy.” Elders, supra, 192 N.J. at 244 (quoting
3
State v. Florence Johnson, 42 N.J. 146, 161 (1964)) (internal
quotation marks omitted).
I respectfully submit that the trial court’s factual
findings do not support, but rather undermine, the majority’s
conclusion that the State failed to meet its evidentiary burden
in this case. The trial court found both of the police officers
who testified before it, Trooper Kurt Kennedy and Trooper
Gregory Austin of the New Jersey State Police, to be “credible
and worthy of belief.” It credited the detailed evidence
presented by the State, almost in its entirety. The court noted
the genesis of the officers’ surveillance was the tip of a
citizen informant that drug transactions were taking place in
the area and that defendant Strong was seen with a sawed-off
shotgun.1 It considered the many hand-to-hand transactions
witnessed by the officers conducting the surveillance. The
court made specific factual findings regarding the condition of
the front and back doors at 820 Line Street, the absence of the
electric meter, the broken windows, the presence of trash and
human feces on the floor, and the holes in the interior walls.
The trial court noted that the officers did not determine the
name of the homeowner, and did not seek or obtain a warrant for
820 Line Street.
1
According to the officers’ affidavit submitted in support of
their application for a search warrant, a confidential informant
identified 820 Line Street as an “abandoned residence.”
4
As the court specifically noted, it did not reject any of
the testimony presented by the admittedly credible police
officers. Instead, it disputed only the application of the
legal test for abandonment to those facts. The trial court
cited State v. Andre Johnson, in which this Court held that
“property is abandoned when a person, who has control or
dominion over property, knowingly and voluntarily relinquishes
any possessory or ownership interest in the property and when
there are no other apparent or known owners of the property.”
193 N.J. 528, 549 (2008). The trial court did not conclude,
however, that defendants were owners, renters, licensees or
guests on the property. Instead, citing no law in support of
its holding, the court construed defendants’ installation of the
padlock on the front door of 820 Line Street to be an exercise
of a constitutionally significant possessory interest in the
property, and characterized the barricading of the unhinged back
door as an assertion of a privacy claim.
In my opinion, the majority is mistaken in its deference to
that determination. Only the trial court’s factual findings –-
not its legal conclusions -- warrant deference on appeal; legal
rulings are subject to de novo review. Handy, supra, 206 N.J.
at 44-45 (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)); see also Zabilowicz v.
Kelsey, 200 N.J. 507, 512 (2009) (“We review the law de novo and
5
owe no deference to the trial court and Appellate Division.”).
When a case involves mixed questions of law and fact, the Court
provides deference to the supported factual findings of the
trial court, but reviews de novo the application of legal
principles to such factual findings. State v. Harris, 181 N.J.
391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973,
162 L. Ed. 2d 898. The trial court’s determination on the legal
question of abandonment, for purposes of the Fourth Amendment
and N.J. Const. Art. I, Par. 7, is thus entitled to no deference
on appeal.
I respectfully submit that the trial court’s application of
the test for abandonment does not withstand de novo review. The
court’s findings as to the condition of the house –- a house
that by virtue of its broken windows could be observed in its
interior as well as its exterior before the police entry –-
provided ample evidence of abandonment. See State v. Perry, 124
N.J. 128, 149-50 (1991) (defendant, who was “in a house, not his
own, that appeared vacant and whose front door was not only
unlocked but open,” had no “constitutionally-reasonable
expectation of privacy”); State v. Linton, 356 N.J. Super. 255,
256-57 (App. Div. 2002) (defendant, who was using unlit, trash-
filled house with broken lock and missing front window that had
“all the indicia of abandonment” had no reasonable expectation
of privacy). That evidence was further supported by the
6
officers’ observations during surveillance. According to the
witnesses, who were found to be credible by the trial court, 820
Line Street was used as a mere storage facility for drug
transactions, briefly visited by individuals who retrieved items
from the house and quickly departed.
In the trial court’s view, however, this compelling
evidence of abandonment was trumped by nothing more than the
placement of a padlock on the outside of the front door, and the
use of an unidentified object to prop up the back door. I
cannot agree with the trial court’s holding, to which the
Appellate Division panel and majority defer, that these measures
to secure 820 Line Street conferred upon defendants
constitutionally significant property and privacy rights in the
house. I concur with the observation of the Appellate Division
panel in Linton that “a defendant who hides drugs in someone
else’s vacant property has no constitutionally-reasonable
expectation of privacy.” Linton, supra, 356 N.J. Super. at 259.
I respectfully disagree that defendants’ attempts to keep others
out of the house are pivotal in the constitutional analysis.
Although its holding is premised upon State constitutional
law rather than the Fourth Amendment, the majority cites as
instructive authority a federal decision, United States v.
Harrison, 689 F.3d 301 (3d Cir. 2012), cert. denied, ___ U.S.
___, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013). I respectfully
7
suggest that Harrison does not support the majority’s holding.
In Harrison, the defendant testified at his suppression hearing
that he was current on his payments of $750 per month rent for
the house at issue, in which he stayed one to two nights a week,
gaining access by the use of a key to the front door. Id. at
304. Investigating the theft of a dirt bike, and aware of prior
drug activity at the house, police officers observed the house
in “severe disrepair” –- boarded windows, trash all over the
yard and a front door that was “unlocked and ajar.” Id. at 304-
05. One officer, who had repeatedly entered the house on prior
occasions to evict people from it, testified that the house had
no working plumbing as demonstrated by the presence of feces in
the bathtub and toilet, that there was candlelight visible from
outside the house, which indicated there was no electricity, and
that there were “[d]rug bags all over the place.” Id. at 305.
Concluding that the house had been abandoned, officers conducted
a warrantless search and discovered “a gun, scales, pills, and
an unknown substance” located next to the defendant, who was
arrested. Ibid.
I respectfully submit that the Third Circuit’s holding in
Harrison underscores the State’s satisfaction of its burden in
this case. The Third Circuit in Harrison evaluated this
evidence under an evidentiary standard requiring “clear and
unequivocal evidence” of abandonment. Id. at 307. The majority
8
reaffirms that the preponderance of the evidence burden of
proof, by an objectively reasonable standard, applies to
abandonment cases in New Jersey. Ante at ___ (slip op. at 20-
21). The court determined that the police officer’s entry into
the defendant’s home did not violate the defendant’s Fourth
Amendment rights because although the home was not in fact
abandoned, it had reasonably appeared to be abandoned at the
time of the search. Id. at 312.
I consider the officers’ observations in Harrison to
constitute less compelling evidence of abandonment than the
evidence accepted as credible by the trial court in this case.
The houses under scrutiny in both cases were in poor condition,
evidently devoid of working plumbing and electricity. The house
at issue here, however, bore a further indication of
abandonment: its front door was padlocked on the outside,
indicating that a person inside could not secure it, and its
back door did not appear to function at all. Moreover, in
contrast to the defendant’s tenancy interest established in
Harrison, the evidence in this case suggests no connection
between defendants and the house at 820 Line Street, other than
defendant Strong’s exercise of day-to-day control over the front
door, and an unknown individual’s installation of an object to
buttress the back door. I respectfully suggest that if the
government met the burden of proving that the officers’ conduct
9
was reasonable in Harrison, the State more than satisfied its
burden to prove that 820 Line Street was an abandoned house in
this case.
In short, I respectfully suggest that if defendants’
installation of a padlock and bracing of a broken door gives
rise to a constitutionally protected interest in the property
that outweighs the evidence credited by the trial court, the
legal standard for abandonment in search and seizure cases has
little meaning. I consider the facts found by the trial court
to demonstrate, not disprove, abandonment, and would not defer
to the trial court’s interpretation of the law.
II.
In my view, the police officers who conducted the
investigation in this case clearly met the governing standard of
objective reasonableness. They sought no end run around the
warrant requirement. Easily establishing probable cause, they
obtained a warrant to enter and search the residence at 815 Line
Street. The officers distinguished 815 Line Street from its
nearby neighbor, 820 Line Street, reasonably deducing from their
observations that the former was occupied and the latter
abandoned. I consider the evidence presented at the suppression
hearing to satisfy the State’s burden of demonstrating
abandonment, and I would reverse the determination of the
Appellate Division. I respectfully dissent.
10
CHIEF JUSTICE RABNER joins in this opinion.
1
SUPREME COURT OF NEW JERSEY
NO. A-113 SEPTEMBER TERM 2011
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff -Appellant,
v.
DERRICK BROWN, LEROY
CARSTARPHEN, and KAREEM
STRONG,
Defendants-Respondents.
DECIDED January 29, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Patterson
CHECKLIST AFFIRM AND
REVERSE
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
4 2
1
State v. Derrick Brown, Leroy Carstarphen, and Kareem Strong (070200)
Court: Supreme Court of New Jersey
Date filed: 2014-01-29
Citations: 216 N.J. 508, 83 A.3d 45
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