On appeal from the Superior Court, Law Division, Monmouth County.
Long, D'Annunzio and Keefe. The opinion of the court was delivered by Keefe, J.A.D. D'Annunzio, J.A.D., Dissenting.
[268 NJSuper Page 254] Several issues are presented by this appeal. However, the issue that divides the court is the question of whether the observation by a police officer of illegal conduct through a basement party wall
at the invitation of a tenant informant was an unconstitutional warrantless search. The majority concludes that it was not.
Defendants Eddie Saez, Luis Saez and Orlando Navarro were the subject of a nine count indictment charging them with: Count One, maintaining or operating a CDS production facility, contrary to the provisions of N.J.S.A. 2C:35-4 (first degree); Count Two, possession of Cocaine contrary to the provisions of N.J.S.A. 2C:35-10a(1) (third degree); Count Three, possession of cocaine within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-10 (third degree); Count Four, possession of cocaine in a quantity of one-half ounce or more, with the intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5b(2) (second degree); Count Five, possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5b(2) (third degree); Count Six, possession of heroin, contrary to the provisions of N.J.S.A. 2C:35-10a(1) (third degree); Count Seven, possession of heroin within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-10 (third degree); Count Eight, possession of heroin with the intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5b(3) (third degree); and Count Nine, possession of heroin with the intent to distribute within 1,000 feet of school property, contrary to the provisions of N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5b(3) (third degree).
Defendants' motion to suppress evidence relevant to the indictment was denied. Thereafter, they were tried to a jury who found Eddie Saez and Orlando Navarro guilty of counts one through five of the indictment, and found Luis Saez guilty as to all counts of the indictment.
The State's motion for extended term sentencing of Luis and Eddie Saez was granted. Eddie Saez was sentenced to a presumptive 50 year extended term with a 20 year parole disqualifier, and a $150,000 fine. Luis Saez was sentenced to a presumptive 50 year prison term with a 17 year parole disqualifier and the same fine. Orlando Navarro was sentenced to a 15 year prison term
with a 5 year parole disqualifier and a $50,000 fine. Appropriate DEDR penalties, VCCB penalties and laboratory fees were imposed as to all defendants.
On appeal, the following issues are presented for resolution.
POINT I: DID THE TRIAL JUDGE ERR IN DENYING THE MOTION TO SUPPRESS EVIDENCE?
POINT II: DID THE TRIAL JUDGE ERR IN ADMITTING INTO EVIDENCE AN UNCERTIFIED SCHOOL ZONE MAP?*fn3
POINT III: DID THE TRIAL JUDGE ERR IN DENYING DEFENDANTS' MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE?
POINT IV: DID THE TRIAL JUDGE ERR IN FAILING TO PERMIT THE DEFENDANTS TO CALL ASSISTANT MONMOUTH COUNTY PROSECUTOR PETER WARSHAW AS A WITNESS?
POINT V: DID THE ASSISTANT PROSECUTOR MAKE IMPROPER COMMENTS IN HIS SUMMATION?
POINT VI: DID THE TRIAL JUDGE ERR IN FAILING TO CHARGE "MANUFACTURING" BOTH AS TO N.J.S.A. 2C:35-4 AND N.J.S.A. 2C:35-5?
POINT VII: WAS THE SENTENCE IMPOSED ON DEFENDANT LUIS SAEZ and ORLANDO NAVARRO MANIFESTLY EXCESSIVE?
For the reasons stated herein, we affirm the convictions of all three defendants, and the sentence imposed as to defendants Luis Saez and Orlando Navarro.*fn4
On May 15, 1990, Investigators Cassidy and West, affiliated with the Monmouth County Narcotics Strike Force, met with a citizen-informant, who at the time was living at 111A Fifth Avenue in Asbury Park, New Jersey. During the meeting, the informant related that she had observed narcotic activity several times over the last month, occurring in the basement of the adjoining residence, 111B Fifth Avenue. The building containing 111A and 111B Fifth Avenue is a one-story ranch type house with two separate entrances. The basement of the building is divided by a wooden wall constructed, as the trial Judge observed, in a "somewhat
slap-dash [method] in that certain types of wood are used in one part, other types used in the area in question, vertical slats in one part, horizontal slats in another." The informant stated that she was able to observe the activity through holes or gaps in the wood partition.*fn5 The informant identified the occupant of the adjacent premises as defendant Eddie Saez. She said that Saez was accompanied by at least one other hispanic male, and that the activities usually took place around dinner time, although not on a daily basis. The informant had supplied information to the Task Force in the past, in connection with other apparently successful undercover investigations. She invited the investigators to observe the activity.
Based on the information received from the informant, a decision was made to set up an undercover investigation of the property. On May 16, 1990, Cassidy drove by the premises and made observations as to cars in the driveway, as well as the physical condition of the property. He also investigated into Eddie Saez's background, and discovered that Eddie Saez had previously been involved in narcotics related incidents.
On May 17, 1990, at approximately 5:40 p.m. Cassidy arrived at 111A Fifth Avenue, and was admitted to the basement by the tenant-informant. Cassidy testified at the suppression hearing that he was able to observe activity in the basement almost immediately upon his entry. He observed Eddie and Luis Saez, and another unknown hispanic male, in the process of "rerocking" cocaine. The process described is one of adding filler to cocaine and then adding water, thereafter compressing it until it becomes hard or rock-like. After the substance was formed into a rock-like appearance, the unidentified hispanic male cut the rocks into smaller pieces and placed them into small plastic bags.
Cassidy was able to make these observations through little holes and through horizontal cracks in the wooden wall. He also
testified that he used a piece of broken mirror that he had found in the basement, and, while holding it over his head, he could see the activity in the adjoining basement through a gap in the wall located above a furnace. Cassidy admitted that this activity could not have been seen through basement windows located in the adjoining basement because they had been painted over and covered with cloth material.
Approximately thirty minutes into his observations, Cassidy saw a dark colored Toyota Celica enter the driveway of 111B. The vehicle was driven by a person later identified as defendant Navarro. Navarro entered the basement and assumed the duties of the unidentified participant who then left the premises.*fn6
During his observations of the activities, Cassidy would occasionally leave his point of observation so that he could transmit information to other members of the Task Force by radio. Upon returning to the basement wall after making one of those transmissions, Cassidy observed that the rerocking activity had ceased, and that Luis Saez and Orlando Navarro were leaving the premises, carrying an aerosol can and a package of aluminum foil. He immediately radioed that information to the surveillance team.*fn7
After Cassidy's transmission, the investigation was taken over by members of the Task Force outside of the premises. The Toyota Celica was followed to a location in Asbury Park which was later determined to be the residence of defendant Luis Saez. Sergeant Campbell of the Task Force, and a uniformed Asbury Park police officer, approached the vehicle. Campbell testified that Luis Saez opened the door and attempted to run from the scene. Campbell apprehended him and obtained a small tin foil package from his hand. Campbell inferred from his observation that the package in all likelihood contained cocaine and placed
Saez under arrest. Navarro was also secured and arrested, and Asbury Park police officer Kirschenbaum was directed to take custody of the vehicle and drive it the impoundment area of the Asbury Park police station.
Kirschenbaum testified that as soon as he entered the vehicle, he could see an aerosol can on the floor on the passenger side of the car. At police headquarters, Kirschenbaum commenced a search of the vehicle, including the aerosol can. He noted that the can was a rather worn old can of Gunk, with a bottom which looked as though it had been cut. He shook the can, and determining it to be dead weight rather than sounding like an aerosol can, proceeded to remove the bottom. Inside the can, he found rock cocaine, as well as bags of heroin.
Although Luis Saez and Orlando Navarro were arrested on the evening of May 17, 1990, defendant Eddie Saez was not. Apparently the reason for not arresting him was so that further observations of his conduct could be made from the basement adjoining 111A. Subsequent observations by Cassidy did not prove fruitful. However, the informant apparently did see additional activity on or about May 25, 1990. Based upon that information a search warrant was issued on May 29, 1990.*fn8 The warrant, executed on June 3, 1990, produced evidence of narcotic activity: a blue mixing bowl, a spoon, pieces of aluminum foil, and a number of small plastic bags inside a larger bag. Defendant Eddie Saez was arrested at that time.
Defendants contend on appeal, as they did in the trial court, that Cassidy's observations through the common wall of the basement constituted a search; and, because the search was warrantless and fell within none of the exceptions to the requirement for a warrant, it was unconstitutional. They further reason
that, because Cassidy's observations constituted an unconstitutional search, all arrests and subsequent searches were the fruits of the poisonous tree.
The critical question to be answered is whether the Fourth Amendment to the United States Constitution or Article I, paragraph 7 of the New Jersey Constitution required Investigator Cassidy to obtain a search warrant before making observations through the common wall dividing the basement of defendant Eddie Saez's premises from that of the informant. In the circumstances of this case, we perceive no difference in the outcome whether the issue is analyzed under federal or state law.
Under either constitutional provision, a search takes place when an expectation of privacy that society is prepared to consider reasonable is infringed. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984); State v. Hempele, 120 N.J. 182, 198-200, 576 A.2d 793 (1990). Further, objective "[e]xpectations of privacy are established by general social norms." State v. Hempele, supra, 120 N.J. at 200, 576 A.2d 793, quoting Robbins v. California, 453 U.S. 420, 428, 101 S. Ct. 2841, 2847, 69 L. Ed. 2d 744, 751 (1981) (plurality opinion), overruled on other grounds, United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). However, the search and seizure clause of neither the United States nor the New Jersey constitutions protects citizens from unreasonable searches by private parties. United States v. Jacobsen, supra, 466 U.S. at 113-14, 104 S. Ct. at 1656, 80 L. Ed. 2d at 94; Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 95, 609 A.2d 11 (1992).
New Jersey has, in some instances, departed from the federal search and seizure analysis where we have found that our Constitution "affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment." State v. Hempele, supra, 120 N.J. at 195, 576 A.2d 793, quoting State v. Novembrino, 105 N.J. 95, 145, 519 A.2d 820 (1987). Indeed, Hempele was one such example. In that case, the New Jersey Supreme Court found that New Jersey citizens have a
reasonable expectation of privacy in garbage left at the curb for collection under the New Jersey Constitution, although they may not be afforded such protection under the federal constitution. Id., 120 N.J. at 215, 576 A.2d 793. This somewhat different Conclusion, resulting from an analysis of the same facts under two nearly identical constitutional provisions, is explained in Hempele as being a result of "the diversity of laws, customs, and mores within [this country]." Id. at 197, 576 A.2d 793. However, regardless of the possibility of differing results stemming from an analysis under either the federal or State search and seizure clause, our Supreme Court, nonetheless, acknowledges a common ground for search and seizure protection reflecting "our societal understanding that certain areas deserve the most scrupulous protection from government invasion." Id. at 200, 576 A.2d 793, quoting Oliver v. United States, 466 U.S. 170, 178, 104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214, 224 (1984).
We are satisfied that both the United States Supreme Court and our own Supreme Court would conclude, under the facts of this case, that a person conducting activities within the confines of his own residence, and taking precautions to have those activities obscured from public view, would have a reasonable expectation of privacy in such activities. Defendants here did not knowingly expose their activities to public view. See Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Foley, 218 N.J. Super. 210, 527 A.2d 482 (App.Div.1987); State v. O'Herron, 153 N.J. Super. 570, 380 A.2d 728 (App.Div.1977), cert. denied, 439 U.S. 1032, 99 S. Ct. 637, 58 L. Ed. 2d 695 (1978). While defendants may have been negligent in shielding their activities from their common neighbor, their expectations as to government intrusion can be viewed differently. As noted by our Supreme Court in Hempele,
[a]lthough a person may realize that an unwelcome scavenger might sort through his or her garbage, "such expectations would not necessarily include a detailed, systemized inspection of the garbage by law enforcement personnel."