On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2012
Before Judges Parrillo and Maven.
Following denial of his motion to suppress, defendant, Ibn Warren, pled guilty to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3), in exchange for the State's agreement to dismiss the remaining counts of two indictments and to recommend a three-year term of incarceration with a one-year period of parole ineligibility to run concurrently with the sentence he was then serving. Defendant was sentenced in accordance with the plea agreement and this appeal from the denial of his suppression motion follows. We affirm.
According to the State's proofs adduced at the suppression hearing, on September 8, 2009, at approximately 6:00 p.m., East Orange Police Detective Michael Williams and his partner Detective Ronald Fletcher responded to a three-story multi-apartment dwelling on North 17th Street to investigate a report of several males at that location with handguns. Upon their arrival, the officers exited their unmarked police vehicle and approached two males standing in front of the building. Although in plain clothes, the detectives wore visible police badges around their necks. While detaining the two males for questioning, Detective Williams saw three other men, including defendant, walk out of the doorway and onto the porch of the residence. Defendant was carrying a black plastic bag in his hand and one of the other men, Jerome Mitchell, had a black handgun in his waistband. Detective Williams had a clear view of the handle of the gun, which Mitchell was seen grabbing in his pants.
Resisting Detective Williams' order to stop and get on the ground, the three men ran back inside the building. Defendant was the last of the three men to re-enter and slammed the door as Detective Williams, in pursuit of the trio, tried to enter. Hearing the men running up the staircase inside, Detective Williams kicked open the front door in continued pursuit of the suspects and then yelled for assistance to his partner, who had remained outside speaking to the two unknown males. Detective Fletcher entered the dwelling and the two officers then ran up the stairs to the second floor, where there was a partially open door on the right leading to an apartment. There, Detective Williams saw defendant, who was sitting on the floor of the apartment breathing heavily. Detective Williams apprehended defendant, placed him in handcuffs, and instructed Detective Fletcher to go after one of the other suspects, Mitchell, who was running up the stairs to the third floor.
During the brief chase, Detective Fletcher observed Mitchell kick open the door to the third-floor apartment. Detective Fletcher pursued Mitchell into the apartment, and saw the suspect throw a black object, later found to be a black handgun, toward the corner of the living room near a futon couch. Mitchell continued running into the kitchen, where he was eventually apprehended. By then, the third suspect had jumped out a second- floor window and was apprehended on North 16th Street, as he was running east.
Meanwhile, Detective Williams had made his way to the third floor where, near the doorway to the apartment, he seized the black plastic bag defendant had earlier been seen carrying. The bag contained seventy-eight pink top glass vials of cocaine, sixteen gray top glass vials of cocaine, and seventy-six clear ziplock bags of cocaine. Detective Williams also recovered the handgun, which was loaded with seven bullets, behind the futon in the living room of the third-floor apartment. The officers uncovered $690 in cash on defendant's person.
At the close of evidence, the motion judge upheld the seizure of the cocaine on the ground that defendant had abandoned the property and therefore lacked standing to challenge the officers' actions. Citing State v. Johnson, 193 N.J. 528 (2008), the judge expressly found that defendant had possession and control of the plastic bag; freely and knowingly discarded the bag while fleeing from the police, thereby relinquishing his interest therein; and that there were no other apparent or known owners of the bag.
On appeal, defendant contends the court erred in denying his suppression motion. We disagree.
New Jersey adheres to a policy of automatic standing when the seized property satisfies an element of the charged offense, i.e., possessory offense cases, or where a defendant retains a proprietary, possessory or participatory interest in the place searched or the property seized. Johnson, supra, 193 N.J. at 548-49. A narrow exception to this automatic standing rule has been carved out, however, for abandoned property. Thus, if the State can demonstrate that property was abandoned, a defendant will have no right to challenge the search or seizure of that property. Id. at 548. "Stated differently, a defendant will not have standing to object to the search or seizure of abandoned property." Id. at 548-49.
Traditionally, abandonment has been defined as "[t]he relinquishing of a right or interest with the intention of never again claiming it." Black's Law Dictionary 2 (8th ed. 2004); see also State v. Bailey, 97 N.J. Super. 396, 400 (App. Div. 1967) (relying on same definition). For purposes of standing, "property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property." Johnson, supra, 193 N.J. at 549.
Here, although defendant was not seen actually discarding the plastic bag, Detective Williams observed him holding the bag and moments later discovered defendant only one floor from where the bag was found, sitting on the floor and breathing heavily. In the short interim, defendant had fled into the three-story apartment building upon seeing the police, slammed the door on them, and immediately ran up the stairs in flight from the pursuing officers. From these facts, it is entirely reasonable to infer that from where he was eventually found on the second floor, defendant ...