Submitted June 2, 2015
Approved for Publication July 1, 2015.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-06-1080.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant ( Megan B. Kilzy, Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent ( Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges KOBLITZ, HAAS and HIGBEE. The opinion of the court was delivered by KOBLITZ, J.A.D.
[441 N.J.Super. 388] KOBLITZ, J.A.D.
After a suppression hearing, and with leave granted, the State appeals from the December 17, 2014 order granting defendant Aaron Jessup's motion to suppress the controlled dangerous substances (CDS) found on top of a tire of a car parked in the driveway of an abandoned home in Jersey City. We reverse, concluding that defendant had no expectation of privacy in a bag containing CDS that the police saw him place on top of a car's rear tire.
The testimony at the motion to suppress revealed the following facts. On April 2, 2014, at 9:50 p.m., Jersey City Police Officer Burgess set up surveillance using binoculars. Ten minutes later he saw defendant enter into a driveway located on property with a boarded up residence with broken windows that he knew through lengthy observation had been abandoned. Once in the driveway defendant approached a red four-door Corolla with no license plates, which was parked with the rear of the vehicle facing the street. Officer Burgess observed, through binoculars, as defendant removed a zip-lock bag from the top of the rear driver's side tire and took items from the bag. After defendant was finished removing the items from the bag, he placed the zip-lock bag back on top of the rear driver's side tire. Defendant then exchanged what he had retrieved from the zip-lock bag for money given to him by another man (the buyer).
After witnessing the transaction between defendant and the buyer, Burgess radioed to police officers located on the perimeter to stop the buyer, who had begun walking away from the area. The buyer was stopped shortly after 10:00 p.m. The buyer had on his person two glassine bags containing heroin, stamped with the logo " crazy," and two vials with a yellow cap containing cocaine.
[441 N.J.Super. 389] Upon direction from Officer Burgess, thirty-four bags containing heroin, stamped with the logo " crazy," and six vials with yellow caps containing cocaine were recovered from the zip-lock plastic bag on top of the rear tire of the red Corolla. Defendant was arrested later that night, at approximately 11:00 p.m., with $189 on his person. He was driving his grandmother's minivan. No car was registered in his name.
A State's witness, who was going to testify that the residence was abandoned, did not appear timely to testify at the suppression hearing. Defense counsel indicated that he would be willing to stipulate that the driveway was on abandoned property, stating, " Whether or not the house is abandoned, we don't think that has a lot of bearing on really the heart of the issue, so we are cool with just moving on without the testimony." Based on that agreement, the hearing proceeded ...