Argued January 28, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-11-2230.
Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).
Jeanne Screen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Screen, of counsel and on the brief).
Before Judges Parrillo, Sabatino and Maven.
This criminal appeal concerns the "third-party intervention" doctrine, often referred to as the "private search" doctrine. In certain instances, New Jersey courts and various other jurisdictions have applied the doctrine to authorize the police to inspect or search a defendant's property without a warrant, so long as the police do not exceed the scope of the private actor's intrusion that led to the police's involvement.
The trial court relied upon this doctrine in denying defendant's motion to suppress drugs and other incriminating evidence seized by the police from his girlfriend's apartment. The landlord had entered the apartment at the girlfriend's request to repair a leak. While he was there, the landlord observed drugs on a night stand and, in fear, he called the police. The police responded to the scene, were let into the apartment by the landlord, and confirmed his observation of the drugs and other contraband in open view. The girlfriend then arrived and the police secured her consent to a search of the apartment, through which they found a gun and other evidence of criminal conduct.
Given the heightened protection that the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution accord to the privacy of residential premises, we join with several other courts in limiting the extent to which the third-party intervention doctrine may authorize warrantless police searches of private residences. In particular, we hold that, at the very least, the doctrine does not apply in situations where the third party who provides the police with access to a dwelling has entered it unlawfully or otherwise in violation of the resident's property rights or her reasonable privacy expectations. Apart from that limitation, the doctrine also should not apply if the totality of the intrusion by the private party and law enforcement officials is objectively unreasonable.
Viewed in light of the motion judge's credibility findings, the record establishes that no such violation of the tenant's reasonable privacy expectations or property rights occurred here. The landlord entered the apartment at the tenant's invitation to address ongoing water damage and a potential health and safety hazard. He acted justifiably in letting the police into the apartment after observing illegal drugs within the premises in open view. We also find it significant that the police did not go beyond the physical scope of the landlord's entry into the premises until they first obtained the tenant's valid consent to a full search of the premises. The conduct of both the landlord and the police in these particular circumstances was reasonable and did not offend the federal and state constitutions.
Consequently, for the reasons amplified in this opinion, the third-party intervention doctrine justifies the warrantless search that was performed in this case. We therefore affirm the trial court's suppression ruling and defendant's ensuing conviction.
The eight-count indictment charged defendant Ricky Wright ("defendant") and his girlfriend, co-defendant Evangeline James, with third-degree possession of cocaine, a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1) (count one); second-degree possession of cocaine, with intent to distribute that CDS, N.J.S.A. 2C:35-5b(2) (count two); third-degree possession of cocaine with intent to distribute that CDS within a school zone, N.J.S.A. 2C:35-7 (count three); second-degree possession of a firearm in the course of committing a CDS offense, N.J.S.A. 2C:39-4.1a (count four); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and fourth-degree possession of a prohibited weapon or device, specifically body armor piercing bullets, N.J.S.A. 2C:39-3f(count six). In addition, the indictment charged defendant alone with two more offenses: third-degree making of terroristic threats, N.J.S.A. 2C:12-3 (count seven); and second-degree tampering with a witness or informant, N.J.S.A. 2C:28-5a (count eight).
The State's evidence against defendant substantially consisted of drugs, a gun, and other contraband seized by the police on March 30, 2009 through a warrantless search of an apartment in Asbury Park. The building had two apartment units. James leased the downstairs apartment and resided there with her three minor children, the youngest of whom was also defendant's child. Although he was not a co-tenant on the lease, the record indicates that defendant stayed in the apartment several days each week.
The circumstances relating to the search and seizure were developed at a three-day suppression hearing held before the trial judge, Hon. Ronald Lee Reisner, J.S.C., in July and August 2010. The State presented testimony at the hearing from three Asbury Park police officers: Carl Christie, Lorenzo Pettway, and Eddie Raisin. In addition, the State presented, without objection by defense counsel, two videotaped interviews of the landlord, Alfred Santillo, conducted at the police station later in the day of the search. Defendant did not testify himself at the suppression hearing, but presented testimony from James, whom his attorney had subpoenaed.
It is undisputed that on Sunday evening, March 29, 2009, James called Santillo to report a leak in the kitchen ceiling of her apartment and asked him to address the problem. It is also undisputed that Santillo entered the apartment the following day, March 30, along with a plumber, Nicholas Alexo, for the purpose of repairing the leak.
More specifically, according to Santillo's account to the police,  he received the call from James at about 5:00 p.m. on March 29. Surmising that the leak came from a broken water pipe, Santillo instructed James to turn off the main water valve, although she apparently was unable to do so. According to Santillo, he assured James that he would be "there in the morning to fix it, " and she responded that was "fine."
The following morning, March 30, Santillo and Alexo arrived at the apartment at around noon. No one was home. According to Santillo, he called James when he arrived, told her that he was going in to fix the leak, and she responded, "okay." Santillo then waited approximately a half hour. When James did not appear, he opened the door and went into the apartment with Alexo. Santillo noted that he similarly had let himself in the apartment two or three times in the past. Once they got inside, he and Alexo saw that the ongoing leak in the kitchen was "pretty bad."
Concerned that the leak might not be confined to the kitchen, Santillo asked Alexo to go into the bedrooms to look for additional leaks. The water pipes in the ceiling of the kitchen led to the rear bedroom. While in the master bedroom checking for leaks and damage, Alexo saw, on top of a night stand, a small clear plastic bag containing what appeared to be marijuana. Alexo also saw, in an open drawer of the night stand, an open cardboard box containing what appeared to be powder and crack cocaine. Alexo called Santillo into the bedroom, and showed the landlord what he had seen. Santillo observed the same items. Neither Alexo nor Santillo touched the items.
Santillo and Alexo immediately walked out of the apartment. Santillo then called the police because he was, as he put it, "afraid" that "the guy [presumably referring to defendant] was going to come back[.]"
Within about five minutes, Officer Christie, responding to the police dispatch, arrived at the scene. Officer Christie walked to the front door of the apartment, where he was met by Santillo and Alexo. Santillo explained to Officer Christie that he had come to the apartment at the tenant's request to address a major water leak. Santillo advised the officer that both he and Alexo had seen drugs inside the bedroom.
Santillo led Officer Christie into the apartment, accompanied by Alexo. The officer was shown the leak in the kitchen, observing the large hole in the ceiling from which water was dripping down to the floor and table.
Officer Christie then went to the master bedroom, as he described it, "to confirm what [Santillo and Alexo] saw." The officer saw marijuana on a night stand, as well as an open drawer with a cardboard box inside it containing powder and crack cocaine. He also saw a small scale inside the open drawer. Officer Christie did not have to touch anything in the room in order to observe these items. He did not seize the marijuana, the cocaine, or the scale at that time.
Officer Christie returned to the kitchen while Santillo and Alexo continued to work on the leak. The officer stayed in the kitchen and called the dispatch unit to inform them of what he had observed. Officer Christie then stood in the kitchen at the apartment's front door, watching as Santillo and Alexo worked on the leak, to ensure that no one went into the bedroom.
Officer Johnny Washington arrived at the apartment roughly five to fifteen minutes after Officer Christie arrived, but before Officer Christie called dispatch. Officer Washington stayed outside to ensure that no one else entered the apartment.
About ten to twenty minutes after Officer Christie called dispatch, Officer Pettway arrived, along with Officer Raisin and two other Asbury Park officers. Officer Pettway then spoke with Santillo and Alexo. Santillo explained the situation to Officer Pettway in essentially the same manner as he had to Officer Christie.
Officer Pettway obtained James's phone number from Santillo and called her. He advised her that the landlord had found "items" in her apartment, and that she should return to the apartment so those items could be retrieved. While Pettway made this phone call, he and the other officers were outside the apartment. Santillo and Alexo, meanwhile, continued to work on the leaking pipe.
James arrived at the apartment by taxi about fifteen or twenty minutes later. Officer Pettway told James that narcotics had been found in her apartment, and that he needed to enter her apartment to remove them and check for other narcotics. According to Officer Pettway, James appeared nervous, but she was not shaking.
Officer Pettway informed James of her Miranda rights and that she had the right to refuse to allow the search of her apartment. James acknowledged that she understood her Miranda rights and signed a card to that effect. Officer Pettway also showed a consent-to-search form to James and explained its contents to her. She signed the form, confirming that she understood her right to refuse to allow a search and that she consented to the search. James did not, however, waive her right to be present while the search was conducted.
According to Officer Pettway, at no time did any officer tell James that if she refused to consent to a search that the Division of Youth and Family Services ("DYFS") would be called to remove James's children from her custody. He further testified that none of the officers who were present coerced James into filling out the consent-to-search form. Officer Pettway was confident that James understood all of her rights because "as [he] was reading the form, she was kind of following along with [him]. She acknowledged she understood . . . the entire form and [her] rights."
James then telephoned defendant and asked him to come to the apartment. Officer Pettway was told by Santillo that defendant lived at the apartment with James. When James advised Officer Pettway that she was unsure if defendant would come back, Officer Pettway asked her to call defendant again so that he could speak with him. She obliged, and Officer Pettway asked defendant to return to the apartment because narcotics had been found there. According to Officer Pettway, defendant stated that he would come to the apartment, but claimed that he did not "really live there[.]"
At that point, James led Officer Pettway and other officers into her apartment. She showed them the leak in her kitchen, and then her bedroom which she shared with defendant. In the bedroom, Officer Pettway observed in open view a bag of marijuana and baking soda on top of the night stand. He also saw several bags of cocaine inside an open drawer in the night stand. He observed these items as soon as he entered the bedroom. He did not have to touch anything to see the marijuana and cocaine.
Officer Pettway also saw a digital scale in the night stand drawer with powder residue on it, which he observed when he stood over the night stand. The drawer was about halfway open, but Officer Pettway opened it more so that he could take a better picture of its contents before seizing them.
Next, Officer Pettway found a partially opened black and red backpack standing up against the night stand, which looked to him like it had the butt of a handgun inside. Officer Pettway opened the bag and found a handgun inside. A magazine was loaded inside the gun, and a hollow point round was in the chamber.
Officer Pettway also found a camera bag in the closet in the bedroom which contained roughly one hundred bullets of various calibers, including hollow point bullets. According to Officer Pettway, James was with the officers during the entire search. At no time did she deny ownership of the items the officers found, ...