August 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DYLAN D. RODAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-04-0738.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Skillman and Collester.
Defendant Dylan Rodas appeals from the May 16, 2006 order denying his motion to suppress evidence and the June 1, 2006 order denying reconsideration. Defendant subsequently entered a plea of guilty to first-degree maintaining or operating a drug facility, contrary to N.J.S.A. 2C:35-4, and he was sentenced to a custodial term of ten years with three-and-one-third years of parole ineligibility.
He argues the following on appeal:
POINT I - THE LOWER COURT ERRED WHEN IT RULED THAT DYLAN RODAS DID NOT HAVE STANDING TO CHALLENGE THE ILLEGAL SEARCH OF A APARTMENT 6A, WHICH PRODUCED EVIDENCE LATER USED TO SECURE AN INDICTMENT AGAINST HIM.
A. DYLAN RODAS HAD STANDING TO CHALLENGE THE ILLEGAL SEARCH AND SEIZURE OF THE APARTMENT IN QUESTION, BECAUSE HE HAS A PARTICIPATORY INTEREST IN BOTH THE PREMISES SEARCHED AND THE ITEMS SEIZED.
B. DYLAN RODAS IS ENTITLED TO PROTECTIONS OF THE FOURTH AMENDMENT BECAUSE HE HAD A REASONABLE EXPECTATION OF PRIVACY.
Having received information from a confidential source that defendant was involved in a drug operation, Bergen County police conducted surveillance on January 14, 2005, of defendant's residence at apartment 10B, 6 Grand Avenue in Hackensack. The officers observed three individuals enter defendant's apartment and stay for a short time before leaving in their vehicles. The police stopped each vehicle for traffic violations. In all three cases, marijuana was found either on the driver's person or in the vehicle. As a result, Detective Robert Carney obtained a search warrant for defendant's apartment and executed it the next morning at 6:30 a.m. After a search revealed a small amount of a marijuana, defendant was arrested and taken to police headquarters and advised of his Miranda*fn1 warnings. Defendant told Detective Carney that "he wasn't the guy they should be looking for" and gave an oral and written statement that Donald Sonnylal rented apartment 6A at 6 Grand Avenue to grow marijuana. Defendant said he had a key to the apartment and that he watered the marijuana plants, monitored electricity in the apartment, and watched the apartment when Sonnylal was away. He added that he sold marijuana for Sonnylal and that he was paid in marijuana.
After defendant gave his statement Carney and other officers went to the Sonnylal home at about 9 a.m. Defendant's father answered the door and woke up his son at the officers' request. Detective Carney spoke with Sonnylal and repeated the information he received from defendant that Sonnylal leased apartment 6A at the Grand Avenue apartment complex in Hackensack. He told Sonnylal that he wanted to conduct a search of the apartment and handed Sonnylal a consent to search form. After Sonnylal read and signed the form, Carney asked him to be present during the search. Sonnylal agreed and accompanied police to the apartment. He used two separate keys to open two different locks on the apartment door. Inside were ten marijuana plants and five pounds of marijuana.
Defendant and Sonnylal were indicted on drug charges along with Tara Bondesen and James Pestrichelli. Bondesen and Pestrichelli entered guilty pleas to possession of drug paraphernalia and possession of marijuana. Pestrichelli received a non-custodial probationary sentence, and Bondesen was admitted into the pre-trial intervention program.
Defendant and Sonnylal filed separate motions to suppress. Defendant argued that the marijuana found in his apartment should be suppressed because the affidavit in support of the search warrant did not substantiate probable cause and that, as a result, statements obtained from him at or about the time of his arrest should similarly be suppressed. Sonnylal argued that his consent to search apartment 6A was neither knowing nor voluntary and that the marijuana and marijuana plants should be suppressed.
The suppression hearings were heard over five days in March 2006. The trial judge concluded that the State had not met its burden of proof to demonstrate the Sonnylal's consent to the search of apartment 6A was knowingly, intelligently and voluntarily given. While acknowledging the consent form signed by Sonnylal stated that he had a right to refuse to consent, the court found no other evidence in the case to indicate Sonnylal knew he had a right of refusal. The court suppressed evidence found in the apartment as to Sonnylal. However, the judge denied the defendant's suppression motion on grounds that defendant did not have standing to challenge the search and seizure of apartment 6A and that as a result, evidence of the contents of the apartment could not be suppressed as to him.
On July 27, 2006 we denied defendant's motion for leave to appeal. However, on August 10, 2006 we granted the State leave to appeal the suppression of evidence against Sonnylal. On February 27, 2007, another panel of this court issued an opinion affirming the suppression against Sonnylal. State v. Donald Sonnylal, Docket No. A-6204-05T1, (App. Div. February 27, 2007). We now consider on defendant's direct appeal the question of whether the unlawful search of Sonnylal's apartment results in the suppression of its contents against defendant.
The State concedes that under the law of the State the defendant has standing to contest the search. State v. Johnson, 193 N.J. 528 (2008). However, the State contends defendant's privacy interests were not violated, and that as a result, he cannot profit from an illegal search of the apartment. We disagree.
Initially, the State argues that we should revisit the appeal in State v. Sonnylal and adopt a contrary view to uphold the search based on consent. We decline to do so.
The State next argues that while defendant had standing to seek the suppression of evidence in apartment 6A, his motion should be denied because he has no substantive right of privacy in the place searched or seized. The State cites State v. Johnson, 193 N.J. 528, 547 (2008), in support of its position. However, Johnson recognizes that individuals who have a "possessory, proprietary, and participatory interest" in the place searched or items seized have a right to assert a motion to suppress evidence under the Fourth Amendment. Ibid. See also State v. McAllister, 184 N.J. 17, 32-33, 36 (2005); State v. Hemple, 120 N.J. 182, 198-200 (1990). In this case, the defendant had a possessory, proprietary and participatory interest both in apartment 6A and in the marijuana grown there. Defendant not only cared for and nurtured the growth of the marijuana plants in the apartment, but also sold the marijuana grown there. We hold that he had a substantive privacy right to assert on a motion to suppress evidence. Therefore, his motion as to the contraband found in apartment 6A should have been granted.