New Jersey Supreme Court Protects trashed House

Posted by Daniel Rosenberg

March 31, 2014

Constitutional Right to Be Secure in Your Home

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, because 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.

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.  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, for Fourth Amendment purposes, is 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 is 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).

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.

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.

New Jersey Supreme Court decision in State v. Brown

On January 29, 2014, the New Jersey Supreme Court decided State v. Brown, (A-113-11) (070200), which held that a “trashed” house is still entitled to constitutional protections against warrantless searches and seizures.   In Brown, two (2) confidential informants and a concerned citizen told State Police Troopers that 820 Line Street, a dilapidated row house in the City of Camden, was being used as a “stash location” for illegal drug transactions.   Based on that information, Trooper Kurt Kennedy set up a surveillance of the property on two (2) separate dates.  Trooper Kennedy observed what he believed to be 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.  After observing approximately nineteen (19) suspected drug transactions over a two (2) day period, Trooper Kennedy called in arrest teams to place the suspects into custody.  None had drugs in their possession.   One (1) of the arresting officers, Trooper Gregory Austin, took from one (1) of the defendants 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.

After the arrests, three (3) or four (4) troopers were posted in front of 820 Line Street and two (2) in the rear, securing the entire residence.  One (1) of the two (2) 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.  The troopers concluded that 815 Line Street was “occupied” and therefore Trooper Kennedy secured a search warrant to gain entry.

Defendants filed a motion to suppress the evidence seized at 820 Line Street, which was granted by the trial court.  The Appellate Division affirmed the decision of the trial court to suppress the evidence.  The Supreme Court granted certification and hear the appeal.

The New Jersey Supreme Court framed the issue to be decided as 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 was 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 Court held the question to be answered was not whether the police had a subjective, good-faith belief that a building is abandoned, but whether they had an objectively reasonable basis to believe so.  The State did not establish that the property, although in decrepit condition, was abandoned or that defendants were trespassers.

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

If you are facing criminal charges in Burlington County that result from a search of your home, car, property or person, you should consult with a Burlington County Criminal Lawyer.  You have a constitutional right to be free from unreasonable searches and seizures.  If your home, car, property or person has been searched you must explore whether that search was constitutionally valid.  If not, the evidence found cannot be used against you at trial.

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