Lead Opinion
delivered the opinion of the Court.
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.
At a suppression hearing, the State claimed that the warrantless search of 820 Line Street by the State Police was 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-
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.
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
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 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
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.
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.
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 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
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 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
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 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 “concluso
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,
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 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
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 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,
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 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,
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.”
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,
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,
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 protection to the privacy rights of New Jersey citizens than the Fourth Amendment. See State v. Alston, 88 N.J. 211, 226,
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421,
In Alston, supra, our Court parted ways with the United States Supreme Court’s Fourth Amendment standing jurisprudence, “affording] 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,
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 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,
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,
Although principles of property law may inform constitutional analysis, those principles are not dispositive in our interpretation of the Fourth Amendment, Harrison, supra,
Establishing an abandonment of real property is “a difficult standard to meet” under the Fourth Amendment, Harrison, supra,
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,
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 objec
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 given to any factor will depend on the particular circumstances confronting the officer.
Moreover, utility records, which can be secured by a grand jury subpoena,
Other factors to consider in assessing whether a building is abandoned is the property’s condition and whether the
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,
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 will be found inside a home. If obtaining a warrant is impracticable, and
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,
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
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,
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 eases preceded our decision in Johnson, supra, 193 N.J. 528,
In State v. Perry, 124 N.J. 128, 139,
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, 590 A.2d
The State also relies on State v. Linton, 356 N.J.Super. 255, 258-59,
The motion judge suppressed the evidence. Id. at 256,
IV.
A.
In applying the principles enunciated here to the trial court’s findings, we are governed by a deferential standard of
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
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.
The court found that defendants Brown and Strong, by using a key to enter the building and then lock it as they exited, 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,
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,
The trial court noted that the troopers made no effort to learn who owned 820 Line Street. The record does not suggest 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 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.
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 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.
Notes
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.
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.]
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,
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.
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.
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 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,
Dissenting Opinion
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.
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. 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,
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,
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 ease. 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.
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 St,ate 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,
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,
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,
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 eonstitutionally-reasonable expectation of privacy.” Linton, supra, 356 N.J.Super. at 259,
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,
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 reaffirms that the preponderance of the evidence burden of proof, by an objectively reasonable standard, applies to abandonment cases in New Jersey. Ante at 528-30,
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 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.
For affirmance and remandment — Justices LaVECCHIA, ALBIN and JUDGES RODRÍGUEZ (temporarily assigned) and CUFF (temporarily assigned) — 4.
For reversal — Chief Justice RABNER and Justice PATTERSON — 2.
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.”