This has been a Motion to Suppress Evidence seized as the result of several warrantless searches of defendants' property known as Viking Terminal, Jernee Mill Road, Sayreville, New Jersey. The first of these searches was conducted on May 5, 1987. Subsequent searches took place in May, June, September and October of 1987 as well as in April, June and October of 1988. This Court has heard the testimony of Dennis Malinowski, Thomas Mizerak and Glen Parsons, reviewed the briefs submitted and considered the arguments of all parties. I now make the following findings of fact and conclusions of law.
I find that on May 5, 1987 Dennis Malinowski, Project Coordinator for the Middlesex County Health Department received a telephone complaint regarding construction debris on a particular piece of property. At the time of the complaint ownership of the property was uncertain. Mr. Malinowski instructed Thomas Mizerak, a Sanitary Inspector with the Health Department,
to investigate as to whether there was a landfill on the property.
Mr. Mizerak proceeded to the area and observed the storage of solid waste. He made his observation from property adjacent to defendants' property. The area of solid waste storage was located on defendants' property. As part of his investigation Mr. Mizerak photographed the landfill. All subsequent visits to the landfill with the exception of one in June of 1988 were follow-up visits to the initial complaint and investigation.
I further find that portions of defendants' property are leased to various businesses. Defendants also maintain their primary residence on the property. Defendants are not licensed or authorized to store or dispose of solid waste on their property nor were they so licensed or authorized at the time of the searches at issue here.
Defendants argue that the warrantless search of their property on May 5 violated their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. Specifically, defendants claim that their property is private property as manifested by the fence and "No Trespassing" signs, and as such is protected from warrantless searches generally. Moreover, because defendants are not licensed as a solid waste facility, they argue that they are outside the authority of the County Health Department to conduct warrantless administrative searches.
Searches of private property without consent are generally held unconstitutional unless authorized by a valid search warrant. However, the Courts have established several exceptions to the search warrant requirement. This case requires consideration of two of those exceptions, the "open fields" exception and the exception for administrative searches of closely regulated industries.
New Jersey Courts have never adopted the "open fields" doctrine as an exception to the warrant requirement of Article
I, Paragraph 7 of our Constitution. In State v. Bonaccurso, 227 N.J. Super. 159 (Law Div.1988), a case finding reasonable an inspection of a slaughterhouse and surrounding premises by the Department of Environmental Protection, the Court declined to adopt the doctrine for New Jersey, however, it suggested that New Jersey Courts would give similar construction to Article I, Paragraph 7 as the Federal Courts have given the Fourth Amendment with regard to the "open fields" doctrine.
The "open fields" exception to the warrant requirement has been developed by the United States Supreme Court in a series of cases. United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987); Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924). "The term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage." Dunn, supra, 480 U.S. at 303-04, 107 S. Ct. at 1140-41, 94 L. Ed. 2d at 336. Steps to protect privacy such as erecting fences and posting "No Trespassing" signs do not automatically establish a ...