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State, Dep't of Environmental Protection, Division of Fish and Wildlife v. Bennett

September 8, 2008

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH AND WILDLIFE, PLAINTIFF-RESPONDENT,
v.
MARYBETH BENNETT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 54-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant, Marybeth Bennett, appeals from the judgment of the Egg Harbor Municipal Court and, upon de novo review, the judgment of the Law Division finding that she illegally possessed regulated non-game, endangered and wild bird species. She was ordered to pay $5,248 in fines and court costs, which was stayed pending appeal. We affirm.

The charges against defendant arose out of an investigation initiated by the New Jersey Division of Fish and Wildlife (DFW) on the basis of a tip it received on October 14, 2004, that defendant was illegally housing certain bird species at 1560 Somers Point/Mays Landing Road in Egg Harbor (1560 Somers Point Road). The source of the information was James Bealle (Bealle), who claimed that he was a former tenant at 1560 Somers Point Road. Bealle told DFW Conservation Officer Michael Massey (Massey) that he met Bennett when she obtained permission from Jack Snyder, the owner of 1560 Somers Point Road, to construct an aviary on the property. Bealle stated that he built the aviary at the rear of the property away from the house. He explained to Massey that the aviary was not visible from the house but could be accessed from a road that ran to the left of the driveway leading to the house. Bealle also told Massey that he had assisted Bennett in caring for the birds until he became concerned that he might get into trouble. After telling Bennett that he did not want the hawks kept at the premises and arguing with her, he was told that he had to move. Bealle did not believe anyone occupied the premises after he left. Based on this information, Massey, who knew of Bennett from a previous investigation, drove to the location on October 20, 2004.

When he arrived at 1560 Somers Point Road, he observed overgrown grass and a cluttered appearance, which he believed to be indicative of an unoccupied residence. Adjacent to the driveway of the residence was a dirt road. Massey walked up the dirt road, approximately 250 feet beyond the residence, and observed an aviary. It was surrounded by woods on three sides and a dirt road on the other side. He conducted no further investigation at that time. Massey returned to the location the next day, at which time he approached the residence and knocked on the door. When he received no response, he drove his vehicle along the dirt road to the aviary. On October 22, 2004, Massey made another visit to the location and remained there for two hours. He observed no activity. He walked through the woods to the aviary where he saw the captive birds. He left the premises and appeared before a Superior Court judge requesting a search warrant for the aviary.

In the affidavit submitted in support of the search warrant application, Massey recounted the information Bealle provided, including that Bennett was housing raptors in the aviary that Bealle had built and that Bealle used to care for the birds until he became fearful of getting into trouble. Massey also advised the judge that Bealle stated that he did not believe the residence was being occupied at that time. Massey's affidavit disclosed his three visits to the location, the fact that the residence appeared to be unoccupied, that there were several cars parked in the back yard surrounded by overgrown weeds, and his observation of the aviary and birds. Additionally, Massey's affidavit stated that he knew Bennett based upon an investigation he conducted into her alleged bird rehabilitation program in 2001 that resulted in a denial of certifications to her to conduct wildlife rehabilitation. The Superior Court judge issued the search warrant. As a result of Massey's search of the aviary, sixteen wild birds were seized, including four red-tailed hawks, one shouldered hawk, one turkey vulture, one common crackle, five mourning doves, and four common crows. Massey issued summonses to Bennett and also to Snyder, as the property owner. Massey charged Bennett with illegally possessing regulated non-game, endangered and wild bird species.

Bennett and Snyder moved to suppress the evidence seized, arguing that the warrant was issued based upon illegal information that was provided to the court. The motion was heard in Superior Court pursuant to Rule 7:5-2(a). The State urged that the aviary was located in an "open field" for which there was no reasonable expectation of privacy. The State also argued that there was probable cause for the issuance of the warrant based upon Bealle's tip, Massey's personal knowledge of defendant's prior history of caring for wildlife, and Massey's follow-up investigation.

The motion judge denied the motion, finding that the aviary was "not located within the immediate perimeter of the residence; rather, it was located some 250 feet away at the end of a dirt road on property characterized as an 'open field.'" The judge also found that the information provided by Bealle possessed the requisite indicia of reliability because Bealle was a former resident of the property, built the aviary, assisted defendant in caring for the wild birds, and admitted his participation in the illegal activity. The judge concluded that "[t]he veracity and reliability of [] Bealle and the information he provided was corroborated by Officer Massey's familiarity with [] Bennett and her past activities involving wild birds, as well as the observations made upon entering the property."

Trial was conducted in the Egg Harbor Municipal Court where Bennett was found guilty of the charges and ordered to pay $7,248 in fines and court costs. Defendant filed a de novo appeal to the Law Division, and following oral argument, the Law Division judge found defendant guilty of the charges but reduced the fines and costs to $5,248. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT II*fn1

PRE-WARRANT SEARCH WAS UNREASONABLE BECAUSE THE AVIARY WAS NOT LOCATED IN AN OPEN FIELD, THERE WAS A REASONABLE EXPECTATION OF PRIVACY IN THE AREA IN WHICH IT WAS LOCATED, AND THERE WERE NO ...


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