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State of New Jersey v. Derrick Brown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 6, 2012

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DERRICK BROWN, LEROY CARSTARPHEN AND KAREEM STRONG, DEFENDANTS-RESPONDENTS.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-08-2390.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 10, 2012 -

Before Judges Carchman and Baxter.

By leave granted, the State appeals from a May 6, 2011 Law Division order granting the suppression motion filed by defendants Derrick Brown, Leroy Carstarphen and Kareem Strong. The sole issue presented in the Law Division, and before us on appeal, is whether the Camden police possessed a reasonable basis to conclude that the Camden rowhouse in question was abandoned, thereby entitling the police to search the interior of the premises without a search warrant. Because the motion judge's findings of fact are well supported by the record, and his legal conclusions sound, we affirm.

I.

During the first week of May 2010, Trooper Kurt Kennedy of the New Jersey State Police received information from two confidential informants, whom he deemed reliable, and from a concerned citizen, that defendant Kareem Strong was conducting hand-to-hand narcotics transactions and distribution of controlled dangerous substances (CDS) from 820 Line Street in Camden. The trooper described the area surrounding 820 Line Street as a "[h]eavy narcotics area." The confidential informants also reported that Strong had a sawed-off shotgun, was using the building at 820 Line Street as a stash location for the distribution of CDS, and was using a key to lock and unlock the building.

Based on the information received, Trooper Kennedy, along with Trooper Moore,*fn1 conducted undercover surveillance of 820 Line Street to verify the information supplied by the three sources. On May 12, 2010, Trooper Kennedy observed a total of four hand-to-hand narcotics transactions in which unidentified individuals approached Strong and handed him paper currency, which he placed in his pants pocket, after which Strong went up the steps of 820 Line Street and opened the padlocked door with his key. After remaining inside the building for approximately thirty seconds, Strong returned to the sidewalk and handed the unknown individuals a small item. While Strong was inside 820 Line Street, defendant Carstarphen was observed continually looking up and down Line Street as if checking to see if police were approaching.

Five days later, on May 17, 2010, Trooper Kennedy conducted another undercover surveillance at that location, and observed an additional fourteen hand-to-hand narcotics transactions all involving Strong, Brown and Carstarphen. During each of the fourteen transactions, Strong used his key to unlock the padlock securing the front door of the building.

Based on the surveillance activity of May 12 and May 17, 2010, the troopers moved in and arrested all three defendants. Trooper Gregory Austin, who was part of the surveillance team, searched Strong and removed the set of keys that Strong had been using to open the front door of 820 Line Street. After arresting the three defendants, Trooper Austin and the other members of the surveillance team walked from the front of 820 Line Street to the rear of the property and, according to Trooper Austin, made the following observations:

[T]he front of the house had some broken windows in it. The meter was missing, the electric meter, which is a good indication the house is not being -- it's, you know, either abandoned or unoccupied.

Looking through the windows, the broken windows, you could see inside, see the trash all over the place inside the -- inside the house.

We even had other . . . arresting [officers] go around back. They [made] an observation of the back door being propped. It was off -- actually, off the hinges, but being propped up by something inside the house.

Based upon the missing electric meter, the trash strewn about inside the house, the broken windows in the front of the house, and the backdoor being off its hinges and propped up, the troopers concluded that the house was abandoned. In making that determination, they also relied upon the remarks of the confidential informants and the concerned citizen, all of whom believed the house was abandoned, as well as Trooper Kennedy's similar belief. Trooper Kennedy provided no basis for that conclusion, other than asserting that he reached that determination based upon his general knowledge of the area, gleaned from his three-year assignment to that section of Camden.

Trooper Austin testified that neither he nor any of the other troopers made an attempt to determine ownership of 820 Line Street, nor did any of the troopers test the utilities while in the house to determine if the heat and electricity were working. He acknowledged that there were electric appliances in the house, including a food grinder that was used to crush CDS.

Once the troopers entered the house, they opened some of the bags of trash they had been able to observe before entering, and found that the bags were filled with discarded clothing and other forms of trash. They also found "holes in the wall and human feces on the floor" that they had not been able to detect from outside the building.

At the same time as the troopers were conducting their undercover surveillance of 820 Line Street, they were also conducting surveillance of the nearby house at 815 Line Street, and were able to observe a fourth individual, Tyree Thomas, go in and out of that building after accepting currency from unidentified individuals, who promptly left the scene after receiving a small object in return. After arresting defendants Brown, Carstarphen and Strong, as well as Tyree Thomas, and believing that 815 Line Street was also being used for narcotics activity, the troopers secured the building. Because the troopers recognized that the house at 815 Line Street was an occupied residence, they sought a search warrant from a Superior Court judge, who, after reviewing the search warrant affidavit, issued a search warrant for 815 Line Street. The request for the issuance of a search warrant for 815 Line Street was submitted to the judge shortly after the troopers had entered, and searched, the premises at 820 Line Street which is the subject of this appeal. The search at 820 Line Street yielded a quantity of CDS, and packaging materials.

All three defendants filed motions to suppress the evidence found at 820 Line Street, arguing that the missing electric meter, broken windows, trash bags inside the residence and broken rear door were an insufficient basis to conclude that the house was abandoned, even when combined with the information from the concerned citizen and the two confidential informants.

At the hearing on defendants' motion to suppress, the only additional evidence produced by the State to support its contention that the house was abandoned were several "database lookups" conducted by Trooper Kennedy concerning defendant Strong, which revealed that Strong did not live at 820 Line Street, but instead lived nearby at 791 Line Street. The database inquiries on defendant Strong also revealed several prior narcotics convictions.

At the conclusion of the March 22, 2011 hearing, the judge reserved decision, and issued a written decision on May 6, 2011. The judge granted defendants' motion to suppress, finding that the State had not made a sufficient showing that the property at 820 Line Street was abandoned. The judge reasoned:

The court finds that there has not been a sufficient showing by the State that the property located at 820 Line Street was abandoned. Based on the definition of abandonment in [State v.] Johnson, [193 N.J. 528 (2008)], the 820 Line Street premises cannot be deemed abandoned because the defendant [Strong] and his co-defendants had a lock and key to the front door and were clearly exercising control over the residence. In addition, the two-day surveillance revealed that the defendants were going in and out of the house, thus evidencing a possessory interest in the house and the property within the house.

The court does find . . . that the house was in deplorable condition. Some windows were broken, there was trash and human feces on the floor, and holes in the interior walls. The electric meter was missing and so ostensibly the dwelling had no electricity. However, . . . there may well be many people who live in the [C]ity [of Camden] who, due to poverty, live without electricity or have recently had their electricity shut off. While having electricity in a dwelling would certainly be a factor to be considered in making an abandonment determination, it is by no means dispositive. The same is the case for how one chooses to live. The State has not shown that the interior of the dwelling reflected abandonment as opposed to horrid living conditions occasioned by any of a set of circumstances apart from abandonment. [Moreover], the facts still reveal that at least two of the three defendants exercised possessory control over the premises by entering it by using a key in the door lock and, upon leaving, locking it up. In addition, the back door was propped shut evidencing a desire to keep intruders out and by so doing exercising a privacy claim. Parenthetically, the State has never come forth with any proof as to who, if anyone, was the legal owner or holder of a [d]eed to the property. Taking into consideration all of the evidence and argument as to the issue of abandonment, the court is not satisfied the State has proven by a preponderance of the evidence that the house was abandoned such as there was no expectation of privacy as was the case in State v. Linton, [356 N.J. Super. 255 (App. Div. 2002)].

Next, the judge addressed the issue of whether any other exceptions to the warrant requirement were present to justify the warrantless search of 820 Line Street. The judge found that neither the exigent circumstances or plain view exceptions were applicable. He concluded that there was no justification for the failure of law enforcement to obtain a warrant to search the property at 820 Line Street, noting that "those living in impoverished squalor are entitled to the same privacy protections under the Constitution as are individuals who reside in gated mansions." Finding the warrantless search of 820 Line Street unconstitutional, Judge Wells granted defendants' motion to suppress.

On appeal, the State presents a single argument for our consideration:

I. THE MOTION JUDGE ERRED IN FAILING TO RECOGNIZE THAT THE PADLOCKED PROPERTY HE FOUND TO BE "IN DEPLORABLE CONDITION" EXHIBITED SUFFICIENT INDICIA OF ABANDONMENT, DESPITE ITS UNCERTAIN OWNERSHIP. [Raised Below.]

II.

Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008). Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 246 (2007)). When police conduct a search without a warrant, the State bears the burden of demonstrating that an exception to the warrant requirement applies. State v. Pineiro, 181 N.J. 13, 19 (2004). If the State fails to sustain that burden, the search is invalid. State v. Alston, 88 N.J. 211, 230 (1981).

We have no quarrel with the State's assertion that a defendant has no constitutionally protected interest in property that has been abandoned. Johnson, supra, 193 N.J. at 548-49. We also agree with the State's argument that when the police look for narcotics in an "abandoned" house, such activity does not constitute a "search" under the Fourth Amendment to the United States Constitution. See State v. Linton, 356 N.J. Super. 255, 258 (App. Div. 2002). That is because a search occurs only when "an expectation of privacy that society is prepared to consider reasonable is infringed." Ibid. (citation and internal quotation marks omitted).

Applying those principles, we held in Linton that "a defendant who hides drugs in someone else's vacant property has no constitutionally-reasonable expectation of privacy." Id. at 259. Similarly, a squatter or trespasser has no constitutionally-reasonable expectation of privacy in property that is abandoned. Id. at 256.

The question here, of course, is whether the property at 820 Line Street was in fact abandoned, for if it was, both Johnson and Linton make it clear that defendants would have no basis upon which to challenge its search. For that reason, the critical inquiry is whether the State met its burden of proving that the property at 820 Line Street was abandoned. There are few reported opinions on this subject. In State v. Perry, 124 N.J. 128 (1991), our Supreme Court had the occasion to identify factors that ultimately led the Court to conclude that the defendant, who was temporarily in possession of the premises, had no legitimate basis for asserting an expectation of privacy. The Court stated:

[O]ther reasoning demonstrates that [the defendant's] expectation of privacy was not impinged. He was in a house, not his own, that appeared vacant and whose front door was not only unlocked but open. The open door, uncertain ownership, and vacant nature of the edifice create[d] a situation far from unambiguous and make it difficult to give its transient user a constitutionally-reasonable expectation of privacy. [Id. at 149-50.]

The facts here are markedly different from those in Perry. Here, the front door was not standing open, but was secured by a padlock to which defendant Strong maintained a key. And, unlike the circumstances in Perry, where the house was described as "vacant," id. at 150, none of the troopers conducting surveillance at 820 Line Street observed the house on any occasions other than May 12 and May 17, 2010. On both of those occasions, defendant Strong was observed repeatedly going in and out of the house, thereby negating the conclusion that the house was vacant.

The State asserts that the house was abandoned by its rightful owner and that defendants were merely trespassers with no constitutionally-protected expectation of privacy in the premises. We agree with Judge Wells's conclusion that the "deplorable" condition of the premises was insufficient, without more, to justify the conclusion that the property was abandoned. Although Strong lived elsewhere, namely 791 Line Street, that fact is insufficient to demonstrate that Strong had no possessory interest in 820 Line Street, either through outright ownership, or through permission from the owner to use it.

The State argues that "[w]hether the identity of a property owner is . . . confirmed is not meaningful in the abandonment calculus. Even those other than the owners listed on a recorded deed can nevertheless assert a reasonable expectation of privacy, . . . such as a tenant rather than a trespasser." The State proceeds to argue that because "tenancy relationships and occupancy status can change rapidly, particularly in an urban setting," police should not be required to conduct an investigation to determine property ownership before deeming a property to be abandoned. We disagree. A simple check of the ownership records would have identified the last lawful owner, and from there the police could have determined if that owner gave permission to Strong or any of the other defendants to use the property, or gave permission to a third party who might, in turn, have granted access to these defendants. We cannot agree with the State's assertion that a check of property records would have been either an onerous task or inconclusive in its results.

Had the troopers conducted a check of the recorded deeds maintained by the County Clerk's Office in the City of Camden, they would have learned the legal status of the property. Such an inquiry would have disclosed whether the property was owned by an individual, by a bank in foreclosure, or by the City of Camden through a tax sale foreclosure. Upon learning the identity of the owner of the property, the troopers could have conclusively determined whether the owner had abandoned the property, in which case, Strong and the other defendants were trespassers and squatters with no legal right to the premises, or whether instead the owner had given Strong permission to use the property. Judge Wells correctly determined that the State's proofs failed to address this significant issue.

We also agree with the judge's determination that the combination of the missing electric meter, trash-strewn interior, two broken windows and a back door that was off its hinges, but secured from the inside with a piece of wood, were insufficient to demonstrate that the property had been abandoned by its owner. The troopers never checked the electric grinder that they found in the house, or the light switch, to see if the electricity was working. Because they did not do so, we are unwilling to conclude that there was no electricity in the property.*fn2 Unquestionably, if there was no electricity in the house, this would have been some evidence that the property was abandoned, but because the troopers did not investigate to determine whether this was so, we cannot fault the judge for refusing to assume that such was the case.

We likewise reject the State's contention that the information supplied by the concerned citizen and two credible confidential informants lent further support to the troopers' conclusion that the property at 820 Line Street was abandoned. As the Court has held, we will not credit information supplied by a citizen informant absent proof that the person supplying the information had a factual basis to support the information imparted. State v. Stovall, 170 N.J. 346, 362 (2002). When the informant is from the criminal milieu, his information will be subjected to even greater scrutiny. State v. Kurland, 130 N.J. Super. 110, 114-15 (App. Div. 1974). Nothing but conclusory information was provided here. For that reason, we decline to consider the information provided from those three sources in conducting our "abandonment" analysis.

Finally, the State relies upon the fact that the property at 820 Line Street was surrounded by two boarded-up abandoned houses. From that fact, the State urges us to conclude that the subject premises were abandoned as well. We decline to do so for two reasons. First, the property at 820 Line Street, unlike the abutting properties, was not boarded up. Second, the property at 815 Line Street, which was nearby, and for which the troopers sought and obtained a search warrant, was obviously not abandoned, thus negating the inference that the entire area consisted of abandoned properties.

Taking all of these factors into consideration, we have no occasion to disturb the motion judge's findings of fact, which are amply supported by the record. Nor are we prepared to disturb his conclusion that the State failed to satisfy its heavy burden of establishing an exception to the constitutional requirement that police obtain a warrant before conducting a search.

Affirmed.


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