On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers the validity of a warrantless search of a duffel bag found within a home and whether defendant Andre Johnson had standing to object to the search of the bag after he disclaimed ownership.
On December 8, 2001, Johnny Holloway Jr. went to his girlfriend's apartment and threatened her with a .45 caliber gun. She filed a domestic violence complaint and a warrant was issued for Holloway's arrest. Five officers met at Holloway Sr.'s home, knocked on the door, and advised him that they had a warrant for his son's arrest. Holloway Sr. informed the officers that his son was inside and gave permission for the officers to enter the residence to make the arrest. In addition to Holloway Sr. and his son, the home was occupied by Mrs. Holloway, a young child, and defendant Johnson, whose criminal history was known to one of the officers. The officers arrested Holloway and placed him in the back of a patrol car. The officers did not find the gun during the search incident to the arrest. The officers asked defendant, who was clad only in boxer shorts and a T-shirt, why he was in the residence. He replied that he was visiting. At the officers' request, defendant agreed to leave the premises after he gathered his things. According to the officers, defendant got dressed and then put a cardboard box about the size of a cigar box in a duffel bag. As defendant began to walk out of the apartment with the duffel bag in one hand and a larger box containing a DVD or VCR player under his other arm, an officer asked defendant whether the items were his. The officers maintained that defendant equivocated, first saying yes and then denying that the bag was his. When the officer asked why he put the box in the duffel bag and tried to leave with it if it was not his, defendant denied knowing who owned the bag. Holloway Sr. also denied knowing who owned the bag. The officer grabbed the duffel bag from defendant's hand and opened both the bag and the box, discovering in the box a loaded .45 caliber gun.
Defendant was charged in one indictment with third-degree unlawful possession of a weapon and fourth-degree hindering apprehension, and in a second indictment with second-degree possession of a weapon by a person previously convicted of a crime. In bifurcated trials, a jury found defendant guilty of all three crimes.
The Appellate Division concluded that defense counsel's failure to file a suppression motion constituted ineffective assistance of counsel and ordered the trial court to conduct a suppression hearing to determine whether the handgun was obtained as a result of an unlawful search. After a four-day hearing, the trial court denied the motion to suppress the gun and upheld defendant's convictions. The court found that the actions of the officers were reasonable under the circumstances and that the search was constitutional based on defendant having abandoned the duffel bag and the existence of probable cause and exigent circumstances for conducting a warrantless search.
The Appellate Division reversed. The panel determined that the warrantless search of the bag was not incident to Holloway's arrest, and rejected the notion that defendant's disclaiming ownership of the bag justified the warrantless search in Holloway Sr.'s apartment or that defendant lacked standing to challenge the search of property that he was criminally charged with possessing. Finally, the panel declined to find exigent circumstances for the search.
HELD: Defendant has standing under state law to challenge the warrantless search of the duffel bag in the home in which he was present, and the fruits of the search are suppressed for failure to comply with the warrant requirements of Article I, Paragraph 7 of the New Jersey Constitution.
1. Both the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee the right of the people to be secure against unreasonable searches and seizures. The New Jersey Constitution has been construed to afford citizens greater protection against unreasonable searches and seizures than the Federal Constitution. In State v. Alston, 88 N.J. 211 (1981), the Court rejected the United States Supreme Court's rule that required a person alleging a Fourth Amendment violation to establish that law enforcement officials violated an expectation of privacy that the defendant possessed in the place searched or the item seized. The Court held instead that, under the New Jersey Constitution, a defendant has standing to move to suppress evidence from a claimed unreasonable search or seizure if he has a proprietary, possessory, or participatory interest in the place searched or the property seized, or if he is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt. The rationale for New Jersey's standing rule is that 1) a person should not be compelled to incriminate himself by having to admit ownership of an item that he is criminally charged with possessing in order to challenge the lawfulness of a search or seizure; 2) the State should not be placed in the position of taking seemingly conflicting positions by prosecuting a defendant for possessing an item in violation of the law while also arguing that the defendant did not, for standing purposes, possess a privacy interest in the property seized; and 3) allowing broader standing increases the privacy rights of all New Jersey citizens and encourages officers to honor fundamental constitutional principles. (Pp. 13 - 21).
2. Although defendants are provided automatic standing when the seized property satisfies an element of the charged offense, if the State can show that the property was abandoned, a defendant will have no right to challenge the search or seizure of the property. This represents a narrow exception to the automatic standing rule. For the purposes of standing, 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. Here, the Court does not conclude that the duffel bag was abandoned or that defendant freely disclaimed a possessory or proprietary interest in it. The home was occupied by at least five people. That defendant and Holloway Sr. denied knowing who owned the bag did not forfeit the rights of the other occupants. New Jersey's rule of standing protects the privacy rights of not just the accused, but also others in a home who might not have a ready forum in which to makes their voices heard. The Court also does not conclude that defendant should be stripped of standing because he disclaimed ownership of the bag in response to police questioning. A defendant should not have to sacrifice his right against self-incrimination to assert his constitutional right to be free from an unlawful search. Under the circumstances of this case, the duffel bag was not abandoned property and defendant had standing to challenge the search and seizure. (Pp. 21 -29).
3. Under both the federal and New Jersey constitutions, judicially-authorized search warrants are strongly preferred, particularly of a home. Because defendant had standing and the search was conducted without a warrant, the State has the burden of proving by a preponderance of the evidence that the search of the duffel bag and seizure of the gun were premised on probable cause and fell within an exception to the warrant requirement. Here, officers received Holloway Sr.'s consent to enter the home and arrest his son. Assuming for the sake of discussion that officers did not have time to obtain a search warrant before they appeared at Holloway Sr.'s apartment and had probable cause to believe that the gun was on the premises, the Court must address whether the State correctly relied on the exception of exigent circumstances. At the very least, exigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene. (Pp. 29 - 34).
4. Five officers participated in Holloway's arrest. When defendant placed a cardboard box in the duffel bag and began to walk out with the bag, defendant's equivocal responses to the officer's questions heightened the officer's suspicions. The officer then took the duffel bag from defendant. With the bag in his hands and other police officers in the same room, there was no suggestion that the officers or the apartment's occupants were in any immediate danger or that evidence might be destroyed if he failed to search the bag in the house at that moment. Therefore the trial court's finding that there were exigent circumstances is not supported by the record. If the officer had believed that there was a need to act with dispatch, he could have maintained the status quo in the apartment and applied for a telephonic search warrant. When circumstances are sufficiently exigent that appearing before a judge to obtain a written warrant is either impossible or impracticable, but there is sufficient time to stabilize the situation and call for a warrant, police officers must obtain a telephonic warrant rather than conduct a warrantless search. Here, the search of the duffel bag was an unreasonable search, pursuant to Article I, Paragraph 7 of the New Jersey Constitution, and the evidence of the gun must be suppressed. (Pp. 34 - 37).
The judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN'S opinion.
The opinion of the court was delivered by: Justice Albin
Argued September 25, 2007
The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution accord the highest degree of protection to privacy interests within the home. In this appeal, we must determine the validity of a warrantless search by police of a duffel bag within a home. The primary issue is whether, under the New Jersey Constitution, defendant had standing to object to the search of the bag after he disclaimed owning it in response to police questioning. A gun recovered from the bag was the key evidence presented against defendant in a prosecution for unlawful possession of a weapon.
The State argues that the search was constitutional because defendant abandoned the bag and thus surrendered any reasonable expectation of privacy he possessed in the property. Alternatively, the State contends that the police had probable cause to believe that the gun was in the home and exigent circumstances did not permit time to obtain a warrant. On the other hand, defendant submits that he has automatic standing to object to the search under State v. Alston, 88 N.J. 211 (1981). In particular, he states that the duffel bag was not abandoned property in a home where it had potential owners and that he did not lose standing merely because he did not incriminate himself by admitting to owning the bag. He also maintains that an ample number of police officers had secured the premises and that no exigency excused the failure to secure a telephone warrant before conducting the search.
The trial court held that the search was constitutional. The Appellate Division reversed and suppressed the evidence. We conclude that, despite his response to the police questioning, defendant did not lose his standing to challenge the search of a duffel bag that had other apparent owners. In addition, because of the absence of exigent circumstances, the police should have obtained a telephonic warrant from a judicial officer before searching the bag. We therefore affirm the Appellate Division's suppression of the evidence.
A Middlesex County grand jury charged defendant Andre Johnson in one indictment with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3), and in a second indictment with second-degree possession of a weapon by a person previously convicted of a crime, N.J.S.A. 2C:39-7(b). In bifurcated trials, the second indictment being tried after the first, a jury found defendant guilty of all three crimes.*fn1 The trial court sentenced defendant to a seven-year term in state prison with a five-year period of parole ineligibility for possession of a weapon by a previously convicted person, to a concurrent term of four years with a two-year parole disqualifier for unlawful possession of a weapon, and to a concurrent term of eighteen months for hindering apprehension.
On appeal, the Appellate Division concluded that defense counsel's failure to file a suppression motion to contest the search constituted ineffective assistance of counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987). State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004). The panel ordered the trial court to conduct a suppression hearing to determine whether the handgun admitted into evidence at defendant's trial was obtained as a result of a lawful search. Ibid. On remand, the trial court conducted a four-day hearing to decide the constitutionality of the contested search.
At the hearing, the State presented the testimony of North Brunswick Public Safety Director Kenneth McCormick, who at the time of the search was a North Brunswick police sergeant, and North Brunswick Patrolman Scott Henry.
In response to a report of domestic violence, Officer Henry was dispatched to the apartment of Amanda Glover in North Brunswick, arriving at approximately 9:24 a.m. on December 8, 2001. Earlier that morning, Ms. Glover filed a domestic violence complaint against Johnny Holloway Jr. (Holloway), her boyfriend, who had threatened her with a gun and knife after she returned home from a holiday party. As a result of that incident, warrants were issued for the arrest of Holloway for assault and terroristic threats. At the time, Holloway also had an outstanding arrest warrant for a traffic offense.
On arriving at Glover's apartment, Officer Henry spoke with her nine-year-old son, who was home alone. The young boy told the officer that, earlier, Holloway had banged on the front door of the apartment while holding a .45 caliber handgun. When Ms. Glover returned to the apartment soon afterwards, she was speaking on her cell phone with Holloway. Although Holloway would not tell her where he was, she could hear Holloway's father in the background. ...