On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-08-02236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Waugh and St. John.
Defendant Gene Hinton appeals from his conviction for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1), and third-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1). He also appeals the denial of his application for entry into a pre-trial intervention program (PTI). Because we conclude that Hinton's motion to suppress should have been granted, we reverse the conviction.
We discern the following facts and procedural history from the record on appeal, including the transcripts from the motion to suppress and the subsequent bench trial.
For approximately six years prior to April 2009, Hinton had been living with his mother, who had been diagnosed with cancer, in a rent-subsidized apartment in Newark. Hinton was not named on the lease and was not authorized to live in the apartment. However, according to Hinton, the building's superintendent was aware that he was living there. It appears that, in about April 2009, the Newark Housing Authority initiated eviction proceedings against Hinton's mother and eventually obtained a warrant of removal. Although the record is not entirely clear, it also appears that Hinton's mother had died shortly before the filing of the eviction notice.
On April 6, 2009, Ricardo D. Pratt, a Special Civil Part officer, went to the Hinton apartment to serve the warrant and give the required "72-hour notice" that the warrant of removal would be executed if the apartment was not vacated within that period. When no one answered the door, he slipped the notice under the door. Hinton found the notice and, on April 13, 2009, went to court in an effort to resolve the matter. According to Hinton, he had verified with the building superintendent that the rent was current.
While Hinton was in court, Pratt returned to the apartment to enforce the warrant of removal. He again knocked on the door and received no response. He proceeded to effectuate a lockout. He entered the apartment to make sure that there was no one inside and that there were no fire hazards. In the course of looking around, Pratt found an open shoe box on the bed. It contained what appeared to be CDS. There was a plastic bag containing money next to the shoe box. He left the apartment after changing the locks.
Pratt promptly reported his discovery to the Newark Police Department. Several police officers came to the apartment building in response to Pratt's report. Pratt took them into the apartment and showed them what he had discovered. They reported to their supervisors, after which several more police officers arrived at the scene.
Hinton returned from the courthouse and found Pratt, a maintenance technician for the building, and the police officers at the apartment. Pratt showed him the warrant of removal.
Newark Police Sergeant Robinson Rodriguez asked Hinton whether he lived in the apartment and whether anyone else was staying there. Hinton informed Rodriguez that he had lived there alone since his mother's death.
Rodriguez then took Hinton into the bedroom and asked if the shoe box on the bed was his. Hinton responded that it was. He was then placed under arrest. Hinton declined to give a statement after he was taken to the police station. The police ...