September 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
PATRICK JULNEY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-12-1204-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Collester and C.S. Fisher.
Pursuant to leave granted the State appeals the July 16, 2007 order granting in part defendant's motion to suppress evidence.
At the June 1, 2007 suppression hearing the State produced Elizabeth Police Officers Vincent Napoli and James Diorio, and defendant testified on his own behalf. In summary, the facts are as follows. Based on information from a confidential informant, Officer Napoli applied on September 6, 2006 to Judge Stuart Peim for a search warrant of defendant's person and his residence. The signed warrant limited the scope of the search as follows:
38 Dehart Place attic apartment in Elizabeth, New Jersey and all common areas of ingress, egress and access associated with that apartment and for the person of Patrick Julney, D.O.B. February 15, 1984.
Before the warrant was executed, Napoli received a call at about 8 p.m. from the same confidential informant who indicated that defendant was in possession of a large amount of cocaine. Napoli then called Officer Diorio to conduct surveillance of defendant's residence while Napoli searched other locations in Elizabeth frequented by defendant.
Officer Diorio saw defendant arrive and park his car in front of 38 DeHart Place. Defendant then walked down a side alley and entered the rear of the apartment building. About five minutes later defendant returned to his car and drove away. Diorio followed and called for a marked patrol car to stop defendant. As defendant came to a stop sign, a marked police car passed through the intersection, came to a sudden stop and made a u-turn. Diorio testified that he saw defendant open the driver's side door and throw a small white object to the pavement before continuing through the intersection. As the patrol car pursued defendant, Diorio stopped to retrieve the thrown object, which was a tied, clear plastic sandwich bag containing a white, rocky substance subsequently identified as cocaine.
Meanwhile, defendant's car was pulled over a few blocks away. He was placed in custody and brought to his residence at 38 DeHart Place. Officer Napoli explained to defendant that he had a search warrant for defendant's person and his attic apartment at 38 DeHart Place. Defendant did not say anything at first, but while Napoli was walking away, defendant indicated to another officer that he wanted to tell Napoli something. When Napoli went back to the patrol car, defendant told him that "whatever drugs we find were his, not to involve his family, that he had drugs stashed in the ceilings, and sheetrock in the basement, and drugs in his bedroom, that his family had no knowledge of it, to not involve his family." In defendant's bedroom the police recovered a knapsack containing several bags of cocaine as well as paraphernalia. Following defendant's statement to Napoli, the officers went into the basement and found more controlled dangerous substances hidden in the sheetrock of the basement. Napoli described the access to the common entryway and basement as follows:
A. . . . You walk through that alley to the rear of 38 DeHart Place. In the rear there's a door. That door leads - there's a staircase. If you enter through that exterior door, there's a small landing and a staircase that goes all the way upstairs, first, second, and third attic apartment. And there's also a few steps that go downstairs into the basement. As you walk down the steps, and you're now down into the basement, there's a door to the left. That door to the left is that other illegally converted apartment in a basement.
If you're facing - if - as you're walking down those steps, . . . the steps down to the basement, to the left is that door, straight ahead of you is just one whole open area, . . . there was boxes and other stuff in there, and a heating unit, the boiler system for the house.
Q: Now the boiling system and heating unit was for all four apartments, correct?
A: That's correct. None of that was secured, or, you know, with a door or anything. That was just totally wide out in the open.
Q: And did these stairs - the door led to stairs for all four apartments, correct? . . . .
Q: Officer, when you go in the back door and you see the stairs going down, does - that leads into all four apartments in the building? You can get to the first floor, second floor from the back door?
A: From the back door once you enter the back door?
A: Correct. Yes.
Q: So anybody in the apart - anybody on all four floors has the same access?
Defendant testified at the suppression hearing that on the night in question he was pulled over by the police and arrested. He denied throwing anything out of his car door at any time that evening.
At the conclusion of the suppression hearing, Judge Joseph P. Donohue stated that he found the testimony of Officer Diorio to be more credible than defendant's version of the events. Judge Donohue found that there were three separate seizures in the case. The first was the bag of controlled dangerous substance recovered by the police after it was discarded by defendant, which the judge found was abandoned by defendant resulting in no unlawful search and seizure. The second seizure occurred when a quantity of controlled dangerous substances was found in the bedroom of defendant's apartment, an area clearly falling within the scope of permissible search under the search warrant. Accordingly, the trial judge denied the motion to suppress these items, and no appeal was taken by defendant.
However, Judge Donohue suppressed the seizure of the controlled dangerous substance located behind the sheetrock ceiling in the basement, holding that the area was not encompassed by the search warrant. The State argues that the trial court erred in suppressing the evidence found in the basement because the search warrant applied to common areas of "ingress, egress, and access associated with" defendant's apartment. Additionally, the State argues that defendant had no reasonable expectation of privacy in the basement. We disagree with the State's arguments.
Under the Fourth Amendment to the Federal Constitution and Art. I, Par. 7 of the New Jersey Constitution, a search warrant must "particularly" describe the area to be searched both to limit discretion of the executing officer and to sufficiently describe the area so that the executing officer can reasonably ascertain the location and search only those places appropriate under the scope of the warrant. State v. Reldan, 100 N.J. 187, 195 (1985), citing Harris v. United States, 331 U.S. 145, 152, 67 S.Ct. 1098, 1102, 91 L.Ed. 2d 1399, 1407 (1947); Stele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925). Of course the scope of the warrant is determined by its language describing the area and persons to be searched. Reldan, supra, 100 N.J. at 211; Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 237 (1927). While "pin-point precision" is not required, the warrant must describe the premises to be searched with reasonable accuracy. State v. Wright, 61 N.J. 146, 149 (1972); State v. Bisaccia, 58 N.J. 586, 588 (1971); see generally, Kevin G. Byrnes, New Jersey Arrest, Search, And Seizure, pp 155-166 (2008).
The wording of the search warrant in this case limited its scope to the third floor apartment, areas available to a person going to or leaving the apartment, and areas from which access to the apartment could be obtained. While the basement may be considered a common area in the sense that all tenants have access and there is no door securing it from those who choose to enter, there is no specific association with the third floor attic apartment. The record indicates that part of the basement was an illegal tenancy and the remainder contained storage and other items not directly connected to defendant or his apartment. The record also reveals that the police executing the warrant did not consider the basement as an area covered by the warrant, for no search was made of the basement until after they had received information that defendant made an admission that he concealed drugs in the ceiling.
While defendant may have had a limited expectation of privacy in the common basement area, that fact does not excuse the necessity for obtaining a warrant to search the area. "[A] lower expectation of privacy is not a sufficient basis on which to carve out an exception to the warrant and probable cause requirement." State v. Hempele, 120 N.J. 182, 218 (1990) (holding that there is a limited privacy in garbage bags left for curbside collection so that a warrant is required to search them).
As noted by Judge Donohue, after defendant told police of contraband in the basement, the police were fully able to secure the premises and obtain a search warrant through the personal appearance process or a telephone warrant by reason of exigent circumstances. R. 3:5-3(b). See also State v. Valencia, 93 N.J. 126, 138-39 (1983).
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