State v. Gene Hinton (070386)

By conflating and therefore are separate trebled. the two and concepts, majority important opportuni- distinct has missed an ty bring Instead, clarity statutory remedy. majori- to this ty’s approach inject speculation invites trial courts to into what damages should be routine calculations of encouraged and has ways impose them to search out damages treble that far exceed punitive purpose. the CFA’s

I respectfully therefore dissent. (t/a) Judge joins opinion. CUFF in this For part/affirmance part/reinstatement reversal in —Chief LaVECCHIA, ALBIN, Justice RABNER and Justices (t/a) PATTERSON, Judge RODRÍGUEZ —5 (t/a) Opposed HOENS, Judge CUFF —2 —Justice 78 A.3d 553 JERSEY,

STATE OF NEW PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, HINTON, v. GENE DEFENDANT- RESPONDENT AND CROSS-APPELLANT. Argued May 2013 Decided October 2013. General, Anderson, Attorney argued the Deputy

Emily R. Chiesa, Attorney General of New appellant (Jeffrey S. cause for Jersey, attorney). Defender, Astore, for argued the cause Deputy Public

Matthew Krakora, Defender, attorney; Mr. E. Public respondent (Joseph Cariddi, Counsel, Designated on the Anthony Astore and J. briefs). argued cause for amicus curiae Amer- R.

Alexander Shalom (Edward Jersey L. of New Foundation ican Liberties Union Civil Barocas, Director, attorney). Legal opinion of Court. delivered the PATTERSON Justice whether, after a court determines appeal, In the Court this issued an that had been of removal a warrant officer executed constitutionally a Hinton had Gene proceeding, defendant eviction in the he protected mother. with his previously shared had mother, legal tenant of the defendant’s In March record, not revealed On a date apartment, died. death, insti- owner, evidently of the tenant’s unaware apartment’s nonpayment of dispossess her for summarily an action to tuted a the court issued proceeded and action rent. The eviction 2A:18-57. The warrant pursuant to N.J.S.A. removal warrant of and restore full dispossess the tenant officer to directed a court expiration of landlord after the apartment to the possession of the tenant further ordered the grace period. The warrant three-day dispos- imminent pending an immediately premises vacate apartment, a left at the the warrant was A week after session. safety inspection conduct a apartment to officer entered the court inspection, the court officer saw During the change the locks. currency bag and a containing envelopes of heroin box a shoe Upon police. He summoned in defendant’s bedroom. on the bed apartment without a arrival, police officers entered their arrested defendant the shoe box. Officers warrant and seized apartment. at the upon his arrival drug possession offenses. for several was indicted

Defendant found at the trial, suppress the evidence he moved to Prior to and, suppress denied the motion apartment. The trial court trial, third-degree of- of two convicted defendant after a bench conviction. reversed defendant’s Appellate Division fenses. a reasonable It held that defendant had police had conducted apartment and that his mother’s right constitutional that violated defendant’s warrantless search parties’ granted the and seizure. We against unreasonable search cross-petitions for certification. Appellate

We reverse the judgment. Division’s We hold that at stage the advanced to which the proceeded, eviction had defendant did not have a reasonable under federal or state constitutional norms. Defendant was served with official notice that a court premises officer would soon enter the repossess If, it on the landlord’s behalf. notwithstanding that notice, subjective expectation defendant maintained a apartment dispute, and the items his was objectively Accordingly, unreasonable. the officers did not con- prohibited by duct a search the Fourth Amendment to the United I, States Paragraph Constitution or Article Jersey 7 of the New Constitution.

We Appellate remand the matter to the Division for consider- ation constitutionality of the disputed the officers’ seizure of the evidence and for by review of the other issues raised defendant panel did not light determine in judgment. its earlier

I. by The factual record considered the trial court and reviewed on appeal developed May was suppression hearing by judge. conducted presented the trial The State three wit- Special nesses: Part Civil Officer Ricardo Superior Pratt of the Court of Jersey, New Newark Police Officer Carmen Rivera and Sergeant Newark Police Thomas testify Roe. Defendant did not or present hearing. witnesses at the setting of this case was an owned the Newark

Housing Authority. mother, Hinton, Defendant’s Essie was the “occupant or at least the lease holder” of the from an undetermined date until her death March 2009. On a date that record, is not revealed in the summary the landlord commenced a dispossession action. On March Superior judge Court issued a respect warrant of removal with apartment, to the Hinton addressed to Ms. Hinton as “tenant.” The warrant of removal Special instructed a Civil Part “dispossess Officer to the tenant place possession the landlord in full premises.” It property from the persons all the officer to “remove directed receiving days this warrant.” premises ... within three after the to vacate: consequences the failure also advised of warrant will days, a court officer you fail move within three to “[i]f any premises at time persons all from the thereafter remove 2009, 10, April A.M. P.M.” on the hours of 8:30 and 4:30 between and, “[thereafter, may by the land- your possessions be removed (N.J.S.A. lord, seq.).” The subject law 2A.-18-72et applicable tenant: further instructed the warrant removal if warrant and remain premises temporarily You be able to this may stop delivering You for relief a written by to the court for relief. you apply may apply or landlord’s to the Civil Part and to landlord Clerk of request Special the Clerk Your must be delivered and received by personally attorney. request be locked out. Before three after this warrant was served or days you may within stopping as the court certain such conditions, this include warrant, may of rent. payment it, provided only that a court officer could execute The warrant padlock entry to a “to or otherwise block and barred landlord legal is premises a tenant lives there still rental while who possession.” Civil Part Pratt served April Special Officer

On defendant, of the “gave He the tenant or the the owner warrant. April from apartment, hours['] Ms. Hinton ... 72 notice [Essie] 10th, April apartment by 6th of 2009 and she was vacate the Special warrant 2009.” Civil Part Officer Pratt served the door, customary practice it his when a resident placing under the Special respond knock on the Civil Part Officer fails to a door. Hinton, was other Ms. whose name Pratt knew no tenant than name was not listed on the warrant. He testified that defendant’s apartment. with the associated testified when he

Special Civil Part Officer Pratt further that in which does not vacate the confronts situation a tenant removal, days premises within three after of a warrant of service persons practice any is within the go his “to there remove may change place so locks and ... [he] that possession apartment.” padlock- In addition to landlord door, “go Part Pratt’s routine is to ing Special Civil Officer through apartment.” the entire responsibility His is “to check beds, closets, under the ... check inside the and ... make sure any persons there[ are] no fire hiding hazards or apart- Although ment.” permits the warrant the landlord to remove property apartment, Special inside the Civil Part Officer Pratt’s nothing “authorization has property to do with the inside the making other than sure verifying that it’s safe” and there “no are fire hazards.”

Special Civil Part Officer Pratt followed practice on the April afternoon of one week after he served the notice apartment. the Hinton performed He what he characterized as a “non-payment-of-rent Housing eviction for Newark Authority.” Special signed Civil Part Officer Pratt and dated the warrant. He apartment went to repairman, the with a given who keys was to building by building the the manager and assigned change was to Special the locks. Civil Part Officer apartment Pratt entered the initially living determined that the room and bathroom were proceeded bedroom, clear. He to the where he “saw a shoe box in the middle of the containing bed” what thought he illegal were drugs. Special Civil Part Officer Pratt testified the “wide open” shoe box “there was one of packages these that was opened[ some of envelopes a]nd the little recognize[d] that [he] as heroin spilling [were] out into Furthermore, the shoe box.” Special Civil Part Officer Pratt testified that there were more envelopes bag in a bag blue and another large with “a amount of currency” on bed. the

Special Civil Part Officer Pratt called the Newark Police De- partment and told them what he had found. He then instructed repairman the to change continue to job locks. When that was completed, Special door, Civil Part Officer Pratt locked the left the apartment and waited outside for the officers to arrive. Rivera, Colon,

Officer with Officer Ana responded Special Civil Part Officer Pratt’s call within They five to ten minutes. phone knew from the Special call that Civil Part Officer Pratt had thought drugs found what he be inside the and their Rivera verify that it was true.” When Officers “purpose was to arrived, Pratt informed them Special Civil Part Officer and Colon that ... padlock the door due to the fact that “he had a warrant Part prior.” Special Civil passed, had died two weeks the resident had explained to the officers that he entered Officer Pratt persons ... were no animals or apartment “to ensure that there door,” padlocked the and that the course his inside before he containing [heroin] shoe inspection “he came across the box removal, money.” He showed the officers the warrant apartment. By Officer them to search the did not authorize admission, officers had sufficient time to obtain Rivera’s the lock on the had been search warrant because not, however, they They did obtain changed by the time arrived. entry apartment. before their into the a warrant apartment door and Special opened Pratt Civil Part Officer bag box and on the Rivera and Colon the shoe showed Officers Rivera, According the officers observed heroin to Officer bed. magazine paper. The officers summoned wrapped in bundles of Rodriguez Sergeant Rodriguez. Sergeant supervisor, When their scene, he examined the box and identified arrived informed the as heroin. Defendant’s niece arrived and contents living apartment. that defendant had been Officer officers Roe, Sergeant advising they him that found Colon contacted currency apartment.” Ser- “narcotics and ... inside the When arrived, geant police waiting in the Roe the other officers were hallway Special with Civil Part Officer Pratt. moment, “pointed apart- at

At that defendant arrived. He his,” asked, being going going on? What’s ment as and “what’s himself, Special my place.” identifying on? This is After Civil serving Part Officer Pratt advised defendant that he was a war- padlock Sergeant rant of removal and was there to the door. stayed apartment Rodriguez anyone asked whether lived or defendant, responded his had with and defendant mother recently passed away currently and that he lived alone. Defen- paperwork nor other dant admitted that he had neither lease apartment. Sergeant him identifying as a tenant of the Roe did request permission premis- or to not obtain defendant’s enter “according Housing Sergeant es. Roe testified that to the Author- ity, apartment, light there was no bona fide resident” of the Hinton’s recent death. Ms.

Accompanied by Sergeants Rodriguez Special Roe and and Civil Pratt, apartment ap- Part Officer defendant entered the and proached the items on the bed. Defendant confirmed that room was his bedroom and that he was the owner of the shoe box living on the bed. He was taken to the room of the and arrested.1

II. third-degree possession Defendant was indicted for of a con (CDS), 2C:35-10(a)(1), dangerous trolled substance N.J.S.A. sec distribute, ond-degree possession of CDS with intent N.J.S.A. 2C:35-5(b)(2), possession third-degree of CDS with intent to dis 2C:35-7, property, tribute within 1000 feet of school N.J.S.A. second-degree possession of CDS with intent to distribute within public housing facility, park budding, 500 feet of a or N.J.S.A. fifty Defendant testified at the bench trial. He told the court that he was years apartment, old. He testified he had lived in the was in senior building, years citizens’ for six with his mother’s consent and with the knowl edge building manager, nephew frequented apart of the that his also ment. He admitted that he received notice of the warrant of removal about four days prior April morning April to the 2009 lockout. He stated on the attempt try stop he went to court in an unsuccessful the eviction proceeding. building manager He said that he had confirmed with the that the rent was current. Defendant testified that he was handcuffed outside of the inside, ownership he and escorted and that had confirmed his although shoe box he did not know at the time that it contained heroin. He having possessed testimony denied ever seen or heroin. Because defendant’s judge suppress, was not before the trial when he decided the motion to it is not part appeal. Carvajal, reviewed the record in this See State v. 202 N.J. n.1, (2010) (considering only stipulated 996 A.2d 1029 facts for review of Mai, 12, 17-18, (2010) suppress); motion to State v. 202 N.J. 993 A.2d 1216 (limiting suppression court] review of facts to those “adduced [the before hearing”). unsuccessfully sought pre-trial 2C:35-7.1. He admission into inter (PTI), and, subsequently, proceeded to trial. vention case police suppress Defendant moved to his statements to the apartment. drugs and related items seized from the Follow judge ing evidentiary hearing at which the trial elicited the above, forth the court denied the motion to factual record set Special Pratt’s actions suppress. It held that Civil Part Officer governmental purposes action for of the constitutional were not analysis Special private a because Civil Part Officer Pratt was conducting individual a court-authorized action. The court then that, circumstances, totality police found under the probable Special officers had cause to conduct a search because provided Part Pratt a citizen informant and Civil Officer was tip, unplanned reliable and that the officers conducted a fluid and investigation response tip. that not The court did determine whether defendant had a that by entry was violated the officers’ into or whether a required entry. plain warrant was for that It concluded that the apply view doctrine did not because the initial observation of the citizen, private police evidence was made not one of the Nevertheless, officers. the court found the State’s actions fell plain exception requirement. within the view to the warrant court also denied suppress defendant’s motion to the statements that police, holding questioning he made to the that the officers’ only inquiry implicate was a field that did not Miranda v. Ari zona, (1966). 1602, 16 U.S. S.Ct. L.Ed.2d 694 trial, strategy deny

At bench his defendant’s was to that the by Special heroin found Civil Part Officer Pratt was his. Defen- argued dant’s counsel that when defendant identified the box on his, the bed as he did not see the heroin and was unaware its presence. emphasized nephew Defense counsel that defendant’s shared suggested drugs access belonged nephew, to defendant’s not defendant. rejected judge argument.

The trial this He found defendant’s testimony to be inconsistent and found the State’s witnesses be money judge found that the heroin and were

more credible. The distribution, possession purposes given for the in defendant’s third-degree posses- quantity of both. He convicted defendant of third-degree possession of with intent to sion of CDS and CDS judge defendant’s motion for a new distribute. The trial denied renewed prosecutor’s trial and affirmed the denial of defendant’s application for PTI. defendant, judge merged the sentencing

Prior to the trial ag- Finding offense. no possession offense into the distribution factors, mitigating in- gravating considering but several factors record, age, prior criminal lack of a cluding defendant’s lack of abuse, employment, judge trial history of and stable the substance probation. years to two sentenced defendant appealed argued and sentence. He Defendant his conviction money suppress motion to the heroin and should have that his granted. challenged the admission of his statements been He also argued judge’s against trial the police, that verdict was evidence, weight sought modification of his sentence. Appellate reversed the trial court’s denial of The Division and, suppress drugs money accord- defendant’s motion to agreed ingly, panel his conviction. The with the trial reversed entry apart- into the Special court that Civil Part Officer Pratt’s found, however, issues. It that ment raised no constitutional apart- had a defendant conducted a warrantless ment and that the officers therefore testimony that he panel part The relied in on defendant’s search. apartment and that the had his mother’s consent to remain presence in his mother’s home. superintendent was aware of his Special Part Pratt’s execution of the It concluded that Civil Officer apartment of a new lock on the warrant of removal and installation premises. ownership interest in the did not terminate defendant’s panel explained police that entered the The when remedies, potential legal such as a defendant still had access panel reached an stay vacating or order the writ of removal. by exigent circumstances issue not raised the State —whether justified entry concluded warrantless into the —and panel no such circumstances existed. The reversed convic- evidentiary and did not reach the other tion on the issue alone appellate issues raised defendant his brief. granted petition

We State’s for certification. N.J. (2012). granted cross-petition 50 A .3d672 We also defendant’s for certification, preserves sentencing the trial and issues that Appellate defendant raised but the Division did not decide. (2012). N.J. 50A.3d 672

III. argues The in State that no search occurred this case because constitutionally protected expectation defendant had no reasonable privacy in apartment legal right an in which he had no to live lawfully and from which he had been evicted. It asserts that in light required of the notice to defendant that he was to vacate the premises property seventy-two and remove his within hours —a passed days police entry deadline that before the had —defendant possessory no or expectation premises interest reasonable that the that, private. light would remain contends in State the eviction, apartment Housing the lockout of the and the Newark Authority’s assumption premises, police of full control over the the entry apartment officers’ into the did not offend federal or state justifies constitutional norms. It the seizure the heroin under plain exception requirement, arguing the view to the warrant that apartment the officers did not conduct a search but exam- plainly ined and confiscated evidence of a that was crime visible to upon entry. them their lawful

Defendant privacy counters his reasonable apartment by pending proceedings was unaffected eviction argues exaggerates or the lockout. impact He that the State exclude, power only of the landlord’s which he characterizes as argues one of several relevant factors. Defendant that while him, remedies to the eviction were still available to he retained his apartment in the notwithstand- by that no ing legal steps taken the landlord. He contends requirement governs this recognized exception to the warrant case. Jersey Liberties Union of New

Amicus curiae American Civil (ACLU) expectation of argues that defendant’s reasonable jurisdic- long as as the courts retained survived remedy proceedings and grant in the eviction tion to defendant removing dispos- statute from the landlord was constrained legality belongings. ACLU asserts that the ing of the resident’s he is irrelevant because of defendant’s residence tenant, permission legal his mother. lived there with the IV. in the context of question The constitutional under review arises gov summary dispossess proceedings, public housing agency’s2 -71, Act, N.J.S.A. 2A:18-53 by the Anti-Eviction erned -10.9, N.J.S.A. 2A:42-10.6 to Act, the Fair Hardship Tenant Act, -10.16, the court N.J.S.A. 2A:42-10.15 to Eviction Notice rules. here, exceptions inapplicable the Anti-Eviction that are

With assigns any “lessee or tenant or the Act authorizes the removal of house, building, home or land a mobile any ... from mobile N.J.S.A. purposes.” for residential park home or tenement leased dispossession includ- grounds statute defines for 2A:18-61.1.3The 2 subject housing agency Housing to the "is a The Newark Authority public regulations Housing there ... and enacted United States Act of 1937 pursuant 222, 225, 670 A. 2d 1087 Newark v. 287 to." Hons. Auth. Raindrop, N.J.Super. of (App.Div.1996). 3 of action based The in a upon nonpayment complaint summary dispossess of the to the owner’s the rent "must state identity, relationship plaintiff expressly as the date of the and owner, [and] the the amount of rent owed of complaint,” outstanding for the tenant to the rent prior must include pay specific provisions 6:3-4(c). "shall be served with a summons that to R. must trial. complaint “directing the of R. 4:4-2.” R. 6:2-1. Instead conform with the requirements shall the defendant to answer, defendant to file an the summons require appear others, ing, among pay owing under failure “to rent due and the lease,” 2A:18-61.1(a), that, disorderly N.J.S.A. conduct after notice cease, “destroy[s] peace quiet occupants or the of the other tenants,” 2A:18-61.1(b), N.J.S.A. and substantial violation or 2A:18-61.1(e). lease, breach terms N.J.S.A. Jurisdic- grant statutory remedy contingent upon tion to is the exis- grounds tence of one or more of for these eviction. Hous. Auth. of (1994) Little, 274, 281, (citing Morristown v. 135 N.J. 639A.2d 286 Seidel, N.J.Super. (App.Div.), Levine v. 319 A.2d 747 denied, (1974)). 65 N.J. 325 A.2d 704 certif. jurisdiction Court, upon Superior

The statute confers Law Division, cases, Special they Part to hear Civil such but can be jury upon tried before a transfer to the Law Division. N.J.S.A. 2A:8-60, -61; 6:1-2(a)(3), :4-1(g). entry judg R. After the landlord, possession ment of in favor of the the Anti-Eviction Act Hardship and Tenant steps Act establish a series of that must be taken in accordance with a strict timetable before the landlord can dispossess step the tenant. The first is the issuance of a warrant judgment possession, removal to enforce the for issued absent contrary “sufficient cause ... shown to the when the action comes on for trial.” N.J.S.A. 2A:8-57. The warrant commands an persons premises, officer of the court “to remove all from the put possession the claimant into full thereof.” Ibid. The may expiration days warrant not be issued “until the of 3 after the entry judgment Thus, time, possession.” during for Ibid. this judgment yet empower not dispossess does a court officer to place, specified, and state a defense at a certain time and to be therein days summary dispossess time shall be not less than 10 actions ... nor more summons, days notify than 30 from the date of service of the and shall so, upon judgment by may defendant that failure to do default be rendered for complaint.” the relief demanded in the Ibid. When, case, grounds dispossess as in this for the action to the tenant is rent, nonpayment required upon the landlord is not to serve a demand N.J.S.A, give filing tenant or notice the tenant before the action. 2A:18-61.2. to disturb the tenant’s or authorize the landlord

the tenant property. prescribes the content of the Act also

The Fair Eviction Notice (1) tenant: provide must to the of removal. The warrant warrant stay” the court for a right apply her “to notice of his or (2) 2A:42-10.16(a); execution, notice of the N.J.S.A. warrant’s not earlier by the warrant be executed provision “[s]hall which upon the day following day personal service third than the excluded, N.J.S.A. tenant,” holidays and court with weekends (3) a 2A:42-10.16(b); regarding procedures notice property in accordance with the may the tenant’s landlord remove -84, statute, N.J.S.A. 2A:18-72 to Property Abandoned Tenant (4) 2A:42-10.16(e); en notice of the duties of law N.J.S.A. 2A:42-10.16(e). officers, N.J.S.A. forcement triggers a three- of removal second of the warrant issuance may not be statutory period, during which the warrant day 2A:42-10.16(b). At the conclusion of that executed. N.J.SA may officer execute the war- three-day period, the court second present from the rant, any persons other removing the tenant and ibid. Once the warrant has been executed premises. See landlord, the landlord property is restored to possession of the premises, left on the respect property may take action with requirements of and other provisions the notice compliance with here, in a setting In the which warrant N.J.SA 2A:18-72 to -84. rent, the tenant nonpayment for removal had been issued disposses- three-day period that during notice this second was on notice, may sion, be imminent. including a lockout with no further statutory period. After the yet significant There is another jurisdiction executed, Special Civil Part retains is warrant relief.” N.J.S.A. by the tenant for “lawful application hear an Hardship affords discretion to the Act 2A:42-10.16. The Tenant stay summary dispossess action to the warrant judge overseeing stay “proper under the removal, should he or she deem such entry circumstances,” longer than six months after for no provision That N.J.S.A. 2A:42-10.6. judgment possession. grant discretionary “enables courts to facing relief to tenants Little, 282, eviction.” 135 N.J. at 639 A.2d 286. “The courts, Hardship Tenant Act has allowed trial within the limits of statute, mitigate the summary-dispos the harsh nature of the procedure by postponing sess for a limited time the execution of a warrant of if presents hardship removal the eviction to the however, stay, only tenant.” Ibid. Such a if is available the tenant pays outstanding all rent and “the accrued costs of the action.” N.J.S.A. timely 2A:42-10.6. The tenant who fails to take action has remedy no provision. may under that A court also vacate a judgment pursuant grave injustice to Rule 4:50-1 if “a would Little, supra, occur.” 135 N.J. at (expounding 639 A.2d 286 that Rule “sparingly, 4:50-1 should be invoked in exceptional situations”). appellate Verniero,

The tenant also has remedies. Pressler & Rules, (2013) (“[I]t Current N.J. Court comment 2.1 on R. 6:3—4 is summary clear that dispossess judgments since are now rendered court, statutory constitutional rather than a they fully are appealable 3(a)(1).”);Little, pursuant to R. supra, 135 N.J. at 2:2— 286; Twp. Salon, 639 A.2d v. Figure Rosanna’s of Bloomfield Inc., (review- N.J.Super. (App.Div.1992) 602A.2d 751 error). ing for reversible

Notwithstanding jurisdiction the continued Special of the Civil grant discretionary Part to during relief ten-day period follow- lockout, ing the fundamentally tenant’s status has changed by stage time he or she reaches By of an executing eviction. dispossession the warrant for in accordance with N.J.S.A. 2A:42- 10.16, the court officer restores premises control of the to the Thereafter, landlord. may the landlord exclude the tenant from premises except purposes, for limited such as to collect property pursuant arrangements made with the landlord. See -74(c). 2A:18-57, Thus, N.J.S.A. under the Anti-Eviction Act and Act, Hardship Tenant pivotal stage proceeding— may when the landlord assume premises exclusive control of the and exclude the tenant from it—occurs when the court officer is three-day waiting following the the warrant

authorized to execute 2A:42-10.16(b). by N.J.S.A. period prescribed

V. that on Appellate Division’s determination We review had a reasonable April defendant and in his lived with his mother where he had that review with apartment. conduct in that We property located findings, factual which we trial court’s to the substantial deference “ findings supported long those are ... so as uphold ‘must ” Handy, v. 206 in record.’ State evidence the credible sufficient Elders, (2011) 192 N.J. 44, (quoting v. 39, 179 State 18 A.3d N.J. contrast, (2007)). law, in are 243, 224, 1250 Issues 927 A.2d Mann, 179; 45, 203 N.J. 18 State v. Id. at A.3d reviewed de novo. 161, 176, Gandhi, (2010); 989 337, 201 N.J. 328, State v. 2 A .3d379 (2010). here, ruling applies When, that as we consider 256 A.2d court, defer findings trial we factual of the legal principles to the of those application the review de novo findings but to those Harris, 391, 181 N.J. findings. State v. factual principles to the 364(2004). 416, 859 A.2d United States Constitution Amendment to the

The Fourth guard Jersey I, of the New Constitution Paragraph 7 Article home. first determine We against searches warrantless privacy under expectation of reasonable had a whether defendant Amendment. the Fourth objection to the law, considering an a court federal

Under must by a or seizure obtained search at trial of evidence admission challenged search whether a threshold determination: make priva- expectation of violated the defendant’s or seizure constitutional benchmark The current cy in invaded location. 421, Illinois, 128, 58 99 S.Ct. v. 439 U.S. in Rakas was articulated (1978). There, contested search the defendants L.Ed.2d revealed a automobile, they passengers, which in were an property had no the defendants in which weapon and ammunition 423, 129-30, L.Ed.2d at 392. 99 S.Ct. interest. Id. at Affirming the determination of appellate Illinois trial and courts standing, that the lacked Supreme defendants the United States rejected Court the defendants’ contention that under Jones v. States, 257, 725, (1960),5 United 362 U.S. 80 S.Ct. 4 L.Ed.2d 697 “ only they defendants need ‘legitimately establish that were on ” premises’ challenge [the] order to legality of a search in a Rakas, suppress motion to the fruits of that supra, search. 129-30, 132-35, 423, 424-25, 392, U.S. at 99 S.Ct. at 58 L.Ed.2d at (alteration original). 394-95 Rakas, Supreme

In dispensed Court separate with a stand- ing inquiry adopted “legitimate expectation privacy” analysis set concurring opinion forth Justice Harlan’s in Katz v. States, 347, 360-61, 507, 516, United 389 U.S. 88 S.Ct. 19 L.Ed.2d (1967) (Harlan, J., 587-88 concurring), to determine the Rakas, extent of a rights. defendant’s Fourth Amendment 138-39, 143, 439 U.S. at 99 S.Ct. at 58 L.Ed.2d at Supreme 401. The analysis Court concluded that “the better forth-rightly focuses on the particular right extent of a defendant’s Amendment, under the Fourth any theoretically rather than on separate, invariably but concept intertwined standing.” Id. at 99 S.Ct. at 58 L.Ed.2d at analysis, 398. Under that Supreme rejected claim, Court holding the defendants’ they had expectation established no privacy reasonable of in a vehicle in they passengers. 148-49, 433, were Id. at 99 S.Ct. at 58 at L.Ed.2d 404-05. Salvucci,

Rakas was followed in which the Court confirmed that a defendant has Fourth protection Amendment if he or she legitimate expectation has a privacy searched, place whether or not he or possessory she has a property interest in the Salvucci, seized in the course of the search. supra, 448 at U.S. 91-92, 2552-53, 100 628; S.Ct. at 65 L.Ed.2d at Minnesota v. cf. 5 rejected standing While Rakas the Jones merely United States v. proposition, (1980), Salvucci, 83, 85, 448 U.S. 100 2547, 2549, S.Ct. 619, 65 L.Ed.2d 623-24 standing overruled Jones' automatic rale. explicitly

230 373, 473-74, 469,

Carter, 83, 90-91, 142 L.Ed.2d 119 S.Ct. 525 U.S. in (1998) privacy expectation (holding no reasonable 380-81 defendant purpose of visit was business home when another’s evidence); v. United States object to seizure of thereby could not 635, 1936, 1938, 77, 81-82, L.Ed.2d Padilla, 123 113 S.Ct. 508 U.S. (1993) eoconspirators and codefendants (explaining that 640-41 rights if their were object of seized evidence only to admission can itself). by search violated v. Supreme noted Court

As the United States California analy- Ciraolo, Amendment inquiry governs the Fourth two-part sis: a “constitu- whether a has Amendment is analysis person

The touchstone of Fourth 360, 389 at [Katz, U.S. privacy.” tionally expectation protected (Harlan, concurring).] Katz J., two-part at 587 posits at 19 L.Ed.2d 516, 88 S.Ct. subjective manifested a individual expectation has the first, inquiry: willing recognize that object challenged is Second, society of the search? as reasonable? 215 210, 90 L.Ed.2d 1809, 1811, 106 S.Ct 207, 211, v. 476 U.S. Ciraolo, [California (1986) L.Ed.2d (citing 2577, 99 S.Ct. 61 735, 740, 2580, 442 U.S. v. Maryland, Smith (1979)); 132 S.Ct. Jones, -,-, States v. 565 U.S. accord United 226-27 220, (2012) (Sotomayor, concurring); v. J., 911, Kyllo 181 L.Ed .2d 945, 954-55, (2001).] L.Ed.2d 94, 101 2042-43, 121 S.Ct. 2038, 533 U.S. States, United to demonstrate his or her burden If does not meet a defendant test, challenge exclusion cannot this he or she prongs of both grounds. Florida Fourth Amendment disputed evidence on of the 699, 102 835, 445, 455, 109 L.Ed.2d Riley, S.Ct. v. 488 U.S. Kentucky, (1989) (O’Connor, J., Rawlings 448 U.S. concurring); v. (1980); 98, 104-05, 65 L.Ed.2d 100 S.Ct. n.1, n.1, Rakas, at 424 58 L.Ed.2d at 130 99 S.Ct. supra, 439 U.S. two-pronged here. We consid apply that standard 393 n.1. We suppression at the presented only limited information er hearing. the individual the federal test —whether inquiry first object subjective

manifested a only briefly in the record of this challenged addressed search —is suppression testified at the police officers who case. One of the premises as “his” identified hearing that defendant stated calling going on” and asking “what’s apartment,

231 however, witness, “my place.” The same testified that after Special Civil Part Officer Pratt identified himself and advised subject defendant that the was to a warrant of removal padlocked, and was about to be defendant admitted that he had no identify lease or other document that would as his own.

Assuming prong two-pronged defendant satisfies the first of the analysis, showing prong. federal he fails to make a on its second law, expectation privacy Under federal a tenant’s reasonable legal can turn on or his her status the wake of an eviction. In Curlin, (7th Cir.2011), United States v. F. 3d 563 Appeals United States Court of for the Seventh Circuit reviewed a trial suppression court’s denial of a motion filed a defendant subject proceeding. There, who was the of an eviction the defen attempted dant’s landlord twice compel appear defendant to pay court to his address failure to rent. Ibid. The landlord then order, an compelled obtained eviction defendant to vacate premises days within three and authorized an Indiana consta possession ble restore premises to the landlord. Ibid. After the constable copies twice left of the order at Curlin’s residence, assisting he and officers arrived at the residence to arrival, execute Upon the eviction order. they Ibid. their notified purpose the defendant of their protective and conducted a sweep marijuana guns revealed plain view. Id. at 563-64. Appeals The Court of held that in the wake of the eviction proceedings, the societally recognized defendant had no reason expectation able privacy: right [T]here is a distinction in this case —Curlin had no lawful key to be in the occupying residence he was on December 2008. Curlin had been evicted over following given two weeks earlier an action in court, Indiana and had been notice of his eviction when officers twice left of the eviction order at the residence. copies “burglar plying during Like a his trade in a summer cabin the off season,” Curlin’s “wrongful,” subjective was presence consequently any ” recognize he have had is not “one that is may as society prepared ‘reasonable.’ legitimate Because Curlin had no in the residence, no Fourth Amendment search occurred. (quoting [Id. at 565 Rakas, 439 U.S. at 143 n.12, S.Ct. n.12, n.12).]

L.Ed.2d at 401 232 reasoning equally is sound Curlin

The Seventh Circuit’s apart- departed defendant from the applicable to this case. When 2009, 13, that a could April he was on notice court officer ment on to the landlord and authorize apartment, restore control enter unsuper- deprive that would defendant of change of the locks societally If ever had a apartment. access to the defendant vised apartment expectation privacy of recognized reasonable apartment, any such mother the tenant of the when his was stage late of the eviction. Given expectation terminated at this that the landlord’s eviction was served with notice that defendant lockout, point of an imminent defen- progressed action had to the societally recognized expectation privacy of did not have a dant law, had Accordingly, under federal defendant the relevant time.6 of expectation privacy of to contest the admission no reasonable dispute. the evidence 6 previously held the status of We do not reach the issue of whether defendant guest apartment instituted leased to his mother before the landlord in the gave expecta proceedings such a status rise to a reasonable eviction or whether law, privacy circumstances. Under federal an in these

tion of may, ownership in a in some no or leasehold interest home individual with premises, by settings, expectation privacy in the virtue of have a reasonable guest v. as a of the lawful owner or renter. See Minnesota his or her status 1684, 1689, Olson, 91, 99, (1990) (holding L.Ed.2d 95 U.S. 110 S.Ct. 109 495 expectation privacy despite overnight guests legitimate the fact are "entitled legal premises they legal not have the interest in the and do have no household"); may may authority enter the contra to determine who or not 473-74, Carter, 90-91, at 380-81 119 S.Ct. at 142 L.Ed.2d 525 U.S. at privacy purpose (holding expectation home when in another's no reasonable evidence). object thereby could not to seizure of was business and of visit may privacy Similarly, guest in a rental have a reasonable a hotel guest been terminated. See United States v. room until his or her status has (9th Cir.2009) (holding guest Young, hotel retained F.3d 720-21 573 property privacy in hotel room and in room because properly and hotel staff did not inform him he was not evicted from room he was Cir.2004) Bautista, (9th evicted); being United v. 362 F.3d States (concluding guest expectation of in hotel room unless retains reasonable terminated). "guest” lawfully occupancy Whether defendant was a for has been purposes is when he lived with his mother in the Fourth Amendment April longer enjoyed that status as of irrelevant because defendant no proceedings in this case. virtue of eviction

VI. Amendment, I, Like the Fourth Paragraph Article 7 of generally protects our State Constitution individuals from war law, rantless searches of the home. Under state a “defendant legitimate expectation must show that a reasonable or Evers, authorities.” State v. by government was trammeled Reid, 355, 368-69, N.J. (2003); see also State v. 815 A.2d 432 386, 396, (2008) N.J. 401, (finding 945 A.2d 26 expecta reasonable privacy information); tion of in internet subscriber State v. Hem pele, 120 N.J. 182, 200, 206, (1990) 576 A.2d (finding 793 reason expectation privacy garbage). able of in curbside norms,

Under state as as well federal constitutional “[a] person’s warrantless search of a subjected home ‘must be particularly scrutiny,’ ‘physical careful entry because of the home against wording is the chief evil which the of the Fourth Amend ” Cassidy, State v. 150, 160, ment is 179 N.J. direct[ed].’ 843 A.2d (2004) (second Bolte, original) 1132 State v. (quoting alternation denied, 579, 583, 115 N.J. 644, cert. 936, 493 U.S. 560 A.2d 110 330, 107 Hutchins, S.Ct. (1989); L.Ed.2d 320 v. 457, State 116 N.J. 463, Ramirez, (1989)); accord Groh v. 551, 561 A.2d 1142 540 U.S. 559, 1284, 1290, S.Ct. 124 (2004); Kyllo, 157 L.Ed.2d 1079 533 U.S. at 2041-42, 121 S.Ct. at 100; 150 L.Ed.2d at Vargas, State v. 301, 312-13, 213 N.J. (2013); State v. 63 A.3d 175 Edmonds, 117, 129, (2012). 211 N.J. 47 A.3d 737

In addressing a expectation defendant’s reasonable searched, privacy place however, in a Jersey jurisprudence New diverges significant from federal respects.7 law Unlike federal law, Jersey New law standing confers automatic on a defendant “in cases where the charged defendant is an with offense in which 7 protections every federal and state respect constitutional are not in coextensive; I, interpreted Paragraph this Court has Article 7 of our State provide protections beyond Constitution to those afforded the Fourth Amend See, e.g., 793; Hempele, supra, Mollica, ment. 120 N.J. at 576 A.2d State v. 329, 344, (1989). 114 N.J. 554 A.2d 1315

234 time of the contested evidence at the possession of the seized Alston, guilt.” v. 88 N.J. State search is an essential element (1981). this, 211, 228, settings In where the such as 440 A.2d 1311 by the in his or exclude evidence offered State defendant seeks to offense, standing to possessory the defendant’s her trial for a I, Paragraph 7 of the New rights under Article assert his or her dispute. a defendant beyond Even when Jersey Constitution is if, here, merits rest on whether standing, as has automatic expectation privacy, the court possesses a reasonable defendant part of the constitutional that issue as substantive must address question separate and distinct from the analysis. inquiry is That Harris, 566, 589-90, See, 50 e.g., v. N.J. standing. State (2012) rejecting argument (considering and defendant’s A.3d privacy in firearm serial that he had reasonable into National Crime Information by officers numbers entered 355, 357-58, Stott, database); v. 171 N.J. State Center (2002) involuntary patient hospital had (determining at A.2d 120 room); Hempele, his shared reasonable persons (finding A.2d 793 have supra, 120 N.J. bags opaque in contents of trash expectation of 478, Harris, collection); N.J.Super. v. 298 for State left at curb forcefully 484-85, (App.Div.) (holding defendant who A.2d 846 689 privacy apartment had no reasonable into another’s intruded norms), recognized by general societal premises in as interest (1997). denied, 74, A.2d 546 151 N.J. 697 certif. noted, not a “[although we do use has

As this Court standing purposes in privacy analysis for expectation of reasonable a cases, analysis to determine whether apply do criminal we or an right privacy place in a searched of person has a substantive Johnson, A.2d 1185 193 N.J. 940 v. item seized.” State 36, 17, 32-33, (2008) McAllister, 875 A .2d 184 N.J. (citing v. State 793). 198-200, 576 A.2d (2005); supra, 120 N.J. at Hempele, 866 standing to seek under Alston has automatic While defendant determine whether we must nonetheless suppression, in this case a privacy premises of expectation he had a reasonable —as inquiry as to whether an part of the law—as matter of substantive Johnson, N.J. at supra, 193 unlawful search occurred.

A .2d1185. ACLU, or the by defendant

Advancing argument an not made holding that our contravenes dissenting colleague asserts our Johnson, “an he characterizes as by imposing what Alston analy layer standing extra —a 242-45, A at at 78 .3d jurisprudence. Post upon this Court’s sis”— apply the unfounded. We colleague’s contention is 571-73. Our Alston, that a in the Court confirmed standing rule object to the admission standing to has automatic defendant charged with an offense which if or she is seized evidence he at essential element. 88 N.J. possession of that evidence is an Johnson, a defendant noted 440 A.2d 1311. As the Court may progeny and its standing under Alston has automatic —and by charge suppression of virtue accordingly seek evidence — seized, not the item whether or possessed that he or she privacy in area expectation of has a reasonable defendant (cita Johnson, 940 A.2d 1185 supra, 193 N.J. at searched. omitted). tions suppress, standing to file a motion to

A automatic defendant’s has a however, finding that he or she equate does not place that mandates right privacy in the searched substantive 1185, (citing 940 A.2d grant of that motion. Id. at 866; McAllister, 32-33, 36, Hempele, A.2d 184 N.J. 793). 198-200, standing 576 A.2d Defendant’s supra, 120 N.J. at offense, possessory of a suppression of evidence the trial to seek and the of a reasonable existence —relevant suppression motion —are standing merits of the not to but to the Here, recognize automatic separate we defendant’s stand- issues.8 standing and substantive is illustrated The distinction between the inquiries search that resulted in claims he did not consent a defendant who ground. charges, on that Under and who files a motion to firearms suppress charged, such a defendant has Alston, virtue of the offense possessory by challenge standing Alston, 228, the search. 88 N.J. at automatic and proceed

ing suppression under Alston to seek currency- of the heroin and by police determine, however, seized officers. We that he lacked right privacy “a place substantive of in [the] searched” within the Johnson, meaning of 193 N.J. at 940 A.2d 1185. This typical is not a case in which a suppression defendant seeks Instead, items found his or her home. this novel case arises in circumstances, unusual in which we expec- consider the reasonable privacy setting tation of proceeded of an eviction that has stage. an advanced holding comports Our thus jurispru- with the dissent, by dence cited which overstates the reach prior of our case law. test,

Unlike Jersey the federal the New constitutional standard require subjective does not prove expectation the defendant to privacy. 198-99, Hempele, supra, In 120 N.J. at 576 A.2d rejected two-pronged analysis this Court the federal because it arbitrary an “entails distinction between facts that manifest a subjective privacy expectation and those that indicate the reason- privacy expectation.” Instead, I, ableness of the Article Para- graph Jersey 7 of the “requires only New Constitution that an expectation privacy be reasonable.” Id. at 576 A.2d 793. inquiry This governs suppression streamlined premised motions I, upon Paragraph Article 7 of our State Constitution. Appellate

This Court and the recognized Division have circum stances in which no reasonable can be found, notwithstanding setting police the residential activity. See, Johnson, e.g., 209-10, v. State 171 N.J. 793 A.2d 619 (2002) (finding defendant had no

when porch multi-family officers observed contraband on home by occupants visitors); used Dep’t other N.J. Prot. v. of Envtl. however, standing, 440 A.2d 1311. The defendant's does not resolve the sub- suppression hearing stantive issue to be decided the court in the —whether prevail State has demonstrated the defendant's consent to the search. To on the burden, standing merits if the State has satisfied its a defendant with automatic inquiry knowingly voluntarily must still address the substantive he —whether consented to a search.

237 (2013) Huber, 338, 370, (holding private 213 63 A .3d197 land N.J. subject expectation privacy cannot claim full of in lands to owners restrictions); 358, Anglada, N.J.Super. 144 recorded deed State v. 360-61, 363, (holding (App.Div.1976) 365 A.2d 720 defendant had expectation investigators privacy no reasonable when were marijuana). invited into home and observed evidence of settings, In other our courts have found that a defendant does property a in a that he not have occupies unlawfully. Perry, In 124 or she State v. N.J.

149, (1991), A.2d 624 the Court considered the defendant’s challenge drugs paraphernalia to the and seized in an admission apparently building abandoned that the defendant had entered to inject drugs. citing himself with In addition the officers’ “unrelated, legitimate purpose” brought that them to view the contraband, “expectation the Court determined that defendant’s impinged,” observing: was not [Defendant] inwas not his that vacant and whose front house, own, appeared door was not but door, unlocked The uncertain and only open. open ownership, unambiguous

vacant nature of the edifice create a situation far from and make it give difficult its transient user a constitutionally-reasonable subjective the evidence own Moreover, shows defendant’s privacy. expecta- tions were not thwarted the officers’ entrance. He their arrival, “expected” cooperating investigation, wished continue with them in the murder and did not object ascending to them the stairs entered and he once saw them. they [Id. at (citing Katz, 389 U.S. at 88 S.Ct at 590 A.2d 624 149-50, 516, 19 (Harlan, concurring)).] L.Ed.2d at 588 J., Appellate The Division reached the same conclusion in v. State Linton, 255, 258-59, N.J.Super. (App.Div.2002). 812 A.2d 382 There, drugs the defendant concealed on the first and second floors of an building legal “abandoned had no [he] interest,” police property entered the without a warrant and seized them. Id. at Appellate 812 A.2d 382. The Division grant suppress reversed the trial court’s of a motion to on panel Perry. evidence found the first floor. Ibid. The on relied Id. at explained building 812 A.2d 382. It that “the was defendant, squatter, abandoned and at best a transient had no Id. constitutionally-reasonable expectation privacy.” A .2d382. Perry distinguishable from that of setting of this case is Here, Linton. occupy stranger’s aban- defendant did not apartment while an premises lived in his mother’s

doned but deciding Perry pending. The courts proceeding eviction was Linton, however, principle that is relevant to this articulated expecta- objective of the defendant’s that the reasonableness case: I, Para- property, purposes in for of Article privacy tion of that 7, legal right occupy large part in on his or her graph turns property at issue. legal respect status with to a significance of the defendant’s Mark, 262, 264-65, v. 46 N.J. State in

residence was underscored (1966), in which this Court addressed a search 216 A.2d 377 subject tenancy that police in a room to a week-to-week officers day defendant not renewed. On the that the the defendant had out, in moving belongings his remained the room but his was while in, investigate key police searched his room to had been turned and, warrant, obtaining a tenant after the murder of another 268, 265-66, Id. at belonging to the defendant. seized items of expressly did not address the issue A.2d 377. The Court in Mark had a reasonable whether the defendant determining propriety of privacy in home.9 In his former room, however, consid police entry into the defendant’s the Court tenancy began January on that “when the search ered ac already expired and the landlord had the defendant had the conduct of the officers.” Id. at 274- approved in quiesced stage process, of eviction 216 A.2d 377. the late Given and Ciraolo’s of the test for Mark was decided before adoption two-part Katz Amendment and before for Fourth reasonable expectation privacy purposes Mark, In New constitutional standard in this Court stated the Jersey Hempele. it with the that Court did not evaluate the facts before in accordance analysis this of the focused instead the reasonableness we to this case but upon police apply light Mark, 46 N.J. at in facts conduct "particular presented.” 216 A.2d 377. police Court in Mark held that the conduct did not constitute an 275-76, unreasonable search. Id. at 216A .2d377.

Here, we legal consider defendant’s interest in the determining, under principles, State constitutional whether he had objectively an on the relevant three-day period date. The between notice of the warrant of removal and execution the warrant afforded the tenant an opportunity premises. three-day to vacate the That period ex Thus, pired April April on 2009. as defendant had been on proceeding notice for a week that an eviction pending was pivotal stage. and that it had reached a Defendant was advised apartment’s the warrant of removal that while the “tenant” re “legal possession” during three-day mained period— notice preventing conducting the landlord from a lockout —this status change would days. the end of the three The remedial action identified in the warrant of removal —court intervention —was sought neither nor during three-day period. obtained the critical If defendant expected somehow his preserved eviction, would be stage at this late expecta of the that Moreover, tion was potential unreasonable.10 the for defendant to remedy obtain a during ten-day court period following the the execution of the warrant of appellate removal and to seek review give does not rise to a reasonable consider ing ability the landlord’s to enter and remove posses defendant’s during sions that time. See N.J.S.A. 2A:8-72 to -84. hold, upon

We based the evidence in suppression adduced the hearing, April on the afternoon of defendant lacked objectively an the living. where he had been Accordingly, April police the 10 Maglies 193 N.J. 108, 126, 936 A.2d (2007), In v. Estate Guy, this determining Court articulated a standard for whether an individual who was not the documented tenant could aas functional co-tenant for qualify purposes search and seizure We need not that standard to analysis. defendant here. apply Even if Maglies, defendant was a functional co-tenant under such status any terminated at the end of the three-day period. purposes of either not a “search” for was

action his or Constitution of the United States Fourth Amendment the I, Jersey Constitution. We 7 of the New Paragraph Article respect to this with Appellate Division’s determination the reverse issue.

VII. a search did not constitute holding police action that the Our trial court question of whether the entirely the not resolve does In addition to suppress. motion properly denied defendant’s an unlawful search conducted contending police that the officers seizure of challenged the officers’ apartment, defendant his appeal, trial court. On motion before the in his disputed evidence by in detail was not addressed constitutionality of the seizure separately not Appellate Division did The parties or amicus. Appellate Division nor the Neither this Court address that issue. by a trial court should squarely the standard has addressed is property that constitutionality of a seizure of determine or Article no Fourth Amendment in a residence when discovered I, occurs. Paragraph 7 search Division for a Appellate to the this matter therefore remand

We parties and determination, briefing supplemental after of the amicus, constitutionality police officers’ seizure of the of the suppress. subject motion of defendant’s evidence that was the issues remand, should also consider Appellate Division On trial court’s of its reversal that it did not reach because suppress. motion to of defendant’s denial

VIII. reversed and the Appellate Division is judgment of the opinion. with this is remanded accordance matter ALBIN, dissenting. JUSTICE of this three decades more than

Today’s decision weakens 1, Paragraph 7 of the under Article standing jurisprudence Court’s Jersey New Constitution. today, person Before if a posses had a sory, proprietary, participatory home, or place interest in a called person standing object had to an unlawful search of the premises person’s and that expectation privacy reasonable Now, would not be an disregard issue. precise dictates Alston, of this Court’s 211, 227, decisions State v. 88 N.J. (1981) Johnson, A.2d and State v. 193 N.J. 940A.2d (2008), general and our standing jurisprudence, majority insists that even when a standing object defendant has to a home, search of his the court must determine whether he had a expectation reasonable premises. op. See at 233- 34, 78 A.3d at 566. Alston, Johnson,

In supra, supra, rejected we the notion that a defendant with standing object to a search under state law must clear layer “another standing” based in federal jurisprudence is, have a court find that he had reasonable —that Johnson, privacy. 193 N.J. at 940 A.2d 1185. majority does exactly here what we said we would not do in Alston time, and Johnson. For the first this Court finds that a defendant has standing possessory or proprietary inter- —a place est in the only to declare that the defendant has searched — no place searched. Not only does this formulation law, contravene our case but it could practitioners confound judges expanded if beyond the novel scenario in this case. departure Because this from our law is unwarranted, I respectfully dissent.

I. Defendant Gene Street, Hinton Dayton lived at 130 Apartment 8K, in Newark years for six police before the searched his April on mother, Essie, 2009. Hinton’s who died on 14, March was the apartment. leaseholder of the Although Essie’s only lease, name was the one on the it seems that both the building superintendent building and the manager knew that Hinton resided with his Arguably, mother. Jersey the New Anti- -61.12, Act, provided to Hinton with

Eviction N.J.S.A. 2A:18-61.1 premises, on the even after his mother’s death. a basis to remain 108, 112, Maglies Guy, 193 N.J. 936 A.2d See v. Estate of (2007) daughter, the (prohibiting eviction of a after “the causeless mother, daugh to of the landlord consented the death her where the daughter’s income factored into ter’s and where the residence paid family subsidy the land and federal voucher to contribution lord”). death, landlord, the the Newark

Apparently unaware of Essie’s nonpayment for of Housing Authority, initiated an eviction action Superior judge a a Court issued rent. On March to the directing Special a Part Officer remove warrant Civil April premises. her from the On property tenant —Essie—and the under Special placed Part warrant removal the Officer Civil gave “Ms. Hinton” 72 apartment. The warrant the door of the judicial apartment relief. to the or seek hours vacate Act, “Special the Civil Jersey Anti-Eviction Under the New days jurisdiction period subsequent to Part shall for a retain purpose for for possession the the actual execution the warrant relief.” by tenant for lawful N.J.S.A. hearing applications the 2A:42-10.16(e). Here, the Special Civil Part Officer executed the property in the took account of the April removal 13 when he on had ten changed lock on the door. Hinton the judicial from the lockout. days point from to seek relief that lockout, conducting Special Civil Part Officer As he was illegal drugs in a He to be bedroom. observed what he believed Depart- to Newark Police properly reported his observations provided probable disputes that those observations ment. No one only question Hinton to The is whether cause conduct search. entry right challenge the warrantless has police Newark officers. challenge standing Hinton majority The has concedes is, proprietary, participa- or possessory, search —that he has Nevertheless, majority con- apartment. tory interest Hinton did have a reasonable tends that not premises. majority imposes layer an extra of stand- ing privacy analysis we have —a —when instructed courts not to do so. That is clear from the seminal case guiding our standing jurisprudence, Alston, State v. I

which now turn.

II. A. Alston, In State v. the Court governing articulated the princi ples standing for in cases in which a defendant claims a search or 1, seizure paragraph violates Article 7 of Jersey the New State so, Constitution. In doing parted this Court with the United Supreme States newly Court’s standing minted jurisprudence in Illinois, 128, 421, Rakas v. 439 U.S. 99 (1978), S.Ct. 58 L.Ed.2d 387 Salvucci, and 83, United States v. 2547, 448 U.S. 100 S.Ct. 65 (1980),jurisprudence L.Ed.2d 619 requires person a to have a expectation reasonable privacy in place searched or the thing challenge seized to make a under the Fourth Amendment. Alston, 226, See supra, 88 N.J. at Alston, 440 A.2d 1311. In we specifically rejected amorphous “the ‘legitimate expectations of privacy in the area searched’ applied Raleas, standard as Salvucci Rawlings,”1 and standing “retain[ed] rule of traditionally applied in Jersey, namely, New that a criminal defen dant is entitled bring suppress motion to evidence obtained in an unlawful search and if seizure he has a proprietary, possessory or participatory interest place either the searched or the property 228, seized.” Id. at 440 A.2d 1311. The Court came to this conclusion because this rule of standing is “more consonant interpretation with our own plain 1, meaning of Article paragraph 7 of our State Constitution.” Id. at 440 A. 2d 1311. 1Alston, supra, uses the "legitimate” expectation terms "reasonable” and at 218, 440 A.2d See, privacy interchangeably. e.g., 88 1311. N.J.

244 Alston, consistently applied the

“Following our courts have charged with standing possessory to defendants automatic rule offenses, they had an regardless whether Johnson, at A.2d 193 N.J. 940 in the searched.” area added). Johnson, examples, as gave such (emphasis 1185 In we Miller, (App.Div. A .2d N.J.Super. 348 State v. 2001), challenge standing had the search in which the defendant reside, visiting not he but where he did of a home where was Paz, 181, 193-95, N.J.Super. v. 766 A.2d 820 State De La (2001), denied, N.J. 773 A.2d 1158 (App.Div.), certif. standing challenge the warrantless which the defendant had Johnson, guest. supra, 193 N.J. entry home where he was a of a 1185. 940A.2d here, Johnson, argued, In as it does that “without the State having thing searched I, seized, ... Article a[n] or item defendant cannot make out rejected 1185. Paragraph 7 violation.” Id. at 940 A.2d We layer of “placet] refused to another argument. that Ibid. We analysis] top expectation privacy’ of standing reasonable [‘a —on — crystal that standing rule.” Ibid. made clear of our automatic We expectation privacy analysis for a of “we do not use reasonable caveat. at in criminal cases”—with one Id. standing purposes in cases we recognized We Johnson that novel 940 A.2d 1185. possesses a whether an individual would have to “determine privacy objects general in a or right of class of a substantive added). example, by determining For place.” (emphasis Ibid. expectation privacy in their bank people that have reasonable McAllister, 17, 32-33, records, 875 A.2d 866 v. N.J. see State (2005), standing to jurisprudence apply will signaled we that our However, nothing there is novel about the consti those records. notions to the home. protections “[T]raditional tutional afforded home, question here is standing” apply to the therefore participatory or possessory, proprietary, had a whether Hinton Johnson, supra, 193 N.J. See interest in the searched. at 1185. 940A.2d

B. majority that, suggesting The is mistaken in because Hinton is charged possessory offense, with a only principles of automatic standing apply in this right case. Hinton had the to assert that he general object standing had to to the apartment. search of his Practice, generally Jersey See 32 New Criminal Practice and (Leonard Arnold) (2011). § Procedure 16:33 N. At the motion to suppress hearing, questioned no one whether standing Hinton had challenge the search. questioned No one whether he had a expectation reasonable premises. The trial court apparently accepted that Hinton standing had and determined that police the Newark officers had constitutional basis conduct a warrantless search of apartment. This Court has never before found that a defendant standing object had to the place search of a and then turned to whether that defendant had a place searched. majority The refers to cases a “transient user” and a “tran squatter” sient 237-38, buildings, op. abandoned 78 A .3d at 568-69, in way comparable no present to the one in which a —cases son lived with his mother in years an for six with the knowledge almost certain building superintendent. Per haps significantly, more majority ignores that this Court recently said that “in a challenge seizure,” to a search or “ ‘reasonable privacy’ standard” is not the standard determining when property Johnson, “whether is abandoned.” at 549 N.J. n. 940A.2d 1185. In overruling Appellate denying Division and Hinton’s mo suppress, tion to majority principles guide discards core standing jurisprudence. our automatic majority forgotten has possessory, “[o]ur that proprietary participatory standing and analysis only incorporates not the notion of expecta a reasonable privacy, tion of but also advances important other state interests.” Ibid. One of “by those interests is allowing that a defendant standing broader challenge to evidence derived from unreasonable Constitution, searches and seizures under our State we increase encourage and law Jersey’s all New citizens rights the of principles.” to honor fundamental constitutional enforcement officials Alston, A.2d (citing supra, N.J. at n. id. Ib 1311). juridical majority opin- are in the principles overlooked These ion.

III. apartment a police in this an without The officers case searched or seeking the consent the owner warrant and without ever agent dwelling. They did not even seek out an leaseholder of that Housing Authority authorization breach the for Newark suggests threshold Hinton’s home. No one the officers in this exigent justify the warrantless search had circumstances possessory, Hinton had question is whether case. real apartment proprietary, participatory interest the or —and challenge him to property allows of that —that but guest not a transient or visitor a resident search. He was years, charged possessory for six and he was with a Alston, offense, standing. ordinarily triggers automatic See Special 440 A.2d Even after the Civil 88 N.J. at 1311. changed the warrant of removal Part Officer executed days, period for a ten had a apartment, locks on Hinton 2A:42-10.16(e). judicial statutory right to seek relief. N.J.S.A. interest, possessory proprietary or Hinton therefore retained privacy, home. and even a reasonable his standing principles traditional or under the our Whether under right majority, challenge Hinton had a ones now created the search in this case.

IV. standing jurisprudence In for and sei- weakening the searches Paragraph 7 of our Constitution zures under Article State Hinton, majority step eroding takes a toward case Gene Jersey’s forgoes citizens” privacy rights “the of all New “encourage honor sending signal law enforcement officials to Johnson, supra, principles.” constitutional 193 N.J. fundamental misreading Although majority’s at 940 A.2d 1185. of our standing jurisprudence could sow confusion in the ranks of our courts, hope damage will be trial there is done here ease, majority limited to the “unusual” facts of this Op. A characterizes as “novel.” 78 .3dat 567-68. expressed, respectfully

For the reasons I dissent. RABNER, For reversal and remandment —Chief Justice LaVECCHIA, Justices HOENS and PATTERSON —4. Judge

For ALBIN and RODRÍGUEZ affirmance —Justice (temporarily assigned) —2. participating Judge (temporarily assigned).

Not CUFF —

Case Details

Case Name: State v. Gene Hinton (070386)

Court Name: Supreme Court of New Jersey

Date Published: Oct 24, 2013

Citation: 78 A.3d 553

Docket Number: A-3/4-12

Court Abbreviation: N.J.