Opinion
DOCKET NO. A-0849-13T4
07-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DIVINE J. CONCEPCION, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-10-2400. Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Divine J. Concepcion appeals from his conviction following a guilty plea to third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3). Prior to entering his plea, defendant moved to suppress drugs seized without a warrant from a locked hotel room safe in a room registered in his name, which he shared with another. Defendant argued he had an expectation of privacy in his exclusive property placed in the safe, to which third-party consent to search by the co-occupant did not extend. The State argued, even if an expectation of privacy attached, it ceased when defendant was evicted from the room for illegal activity when the hotel clerk undertook a search of the safe and released the contraband found therein to police officers, who remained present at the clerk's request. The Law Division judge denied the motion to suppress.
On appeal, defendant argues:
POINT I
THE SEARCH OF THE LOCKED SAFE INSIDE DEFENDANT'S HOTEL ROOM VIOLATED BOTH THE FEDERAL AND STATE CONSTITUTIONS. NEITHER THE CONSENT EXCEPTION NOR THE THIRD-PARTY INTERVENTION DOCTRINE EXCUSED THE POLICE FROM THE REQUIREMENT OF OBTAINING A SEARCH WARRANT.
A. THE CONSENT SEARCH WAS INVALID AND, IN ANY EVENT, DID NOT EXTEND TO THE SAFE INSIDE THE HOTEL ROOM.
B. THE THIRD-PARTY INTERVENTION DOCTRINE IS INAPPLICABLE HERE, AS THIS SEARCH WAS INITIATED, CONTROLLED, AND JOINTLY EXECUTED BY POLICE.
Prior to releasing our opinion, the Supreme Court issued State v. Wright, ___ N.J. ___ (2015), defining the scope of the third-party intervention doctrine. The Court did not reject the private search doctrine in its original form. Id. at 31. However, it clarified the doctrine does not apply when police enter and search a private home, even if a private actor legally searched the premises prior to notifying police. Id. at 3.
We permitted post-argument submissions to address the Court's holding. Defendant maintains Wright's rejection of the third-party intervention doctrine when searching a residence extends to and also protects defendant's privacy interest in his hotel room. Conversely, the State suggests defendant's eviction from the hotel room makes Wright inapposite.
Following our review, we agree a co-occupant could not consent to a search of the safe. However, this record does not support that the hotel clerk, who opened the hotel safe after defendant had been evicted, was prompted or requested to do so by police. We conclude once evicted by the hotel clerk, defendant lost any legitimate expectation of privacy in the hotel room, including the safe. Thereafter, the clerk's independent action of opening the safe to protect the hotel from possible liability for later claimed lost valuables did not implicate Fourth Amendment protections. Accordingly, we affirm.
The suppression motion record presents these facts leading to the seizure of the contraband in the hotel safe. The sole testifying witness was the arresting detective.
On the afternoon of July 23, 2009, Detective Michael Ruzzo of the Atlantic City Police Department Special Investigations Unit (the Unit) was on street patrol with his partner Detective Paul Petinga. The Unit focused on criminal activity involving illicit drugs, prostitution, and alcohol violations. The officers wore plain clothes and drove an unmarked police car.
On the corner of Kentucky and Arctic Avenues, the detectives observed a woman who appeared to be waving people down. Circling the block, the officers pulled the car up to the woman and Detective Ruzzo asked if she "wanted to party." She responded "yeah" and entered their car. The police told the woman, named Denise, they "wanted sex from her and . . . offered her $100." Detective Ruzzo also asked whether "she could supply . . . some cocaine for our party." Denise agreed to have sex and stated she could get drugs "from a man named Divine," who was staying at a hotel. Detective Ruzzo then informed Denise he was a police officer, showed her his badge, and placed her under arrest. Denise offered to produce the cocaine and Detective Ruzzo advised her of her Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
En route to the police station, Denise told police "she had a pimp named Divine" who was staying in room 315 at the hotel near Tennessee and Pacific Avenues, and that he had cocaine and possibly a handgun. Denise had a room key and advised she and "other females [were] staying in that room" with him. Detective Ruzzo requested Denise's consent to search the room. He informed her she had a right to refuse consent, to be present during the search, and to stop the search at any time. Denise executed a consent to search form, stated she did not want to go back to the room, and gave Detective Ruzzo her room key. Denise was charged with prostitution and detained.
Detectives Ruzzo and Petinga went to the hotel and presented the room key to the front desk clerk, who confirmed it was the key to room 315. The clerk revealed the room was registered to defendant and a "female had paid for the room." Searching defendant's name, Detective Petinga discovered an outstanding arrest warrant. When backup officers arrived, the detectives went to the room.
Using the room key provided by Denise, the police entered the room with their guns drawn "at low-ready." Defendant was lying on the bed and another man was brushing his teeth. Neither man had identification. Detective Ruzzo described the room as "a mess" as if "some kind of fight" had taken place. He observed "numerous drug paraphernalia . . . . empty [b]aggies, . . . baking soda . . . and a razor blade," along with a small scale on a corner table. Defendant initially told police Divine Concepcion was his cousin. They did not believe him, and arrested him.
Detective Ruzzo notified the front desk clerk he was taking defendant into custody, a courtesy police "normally do . . . when someone is being put in custody." The clerk "came up to the room to evict the male," which Detective Ruzzo termed a "routine practice," explaining, "when the person we arrest is one of the occupants . . . [t]hey get kicked out of the room. The door's locked and they change the locks." After the clerk "formally evict[ed]" the men from the room, he told police to take defendant's "belongings with them to jail." The police declined.
Detective Ruzzo testified the clerk then said "the safe was locked and he wanted to open the safe because he didn't want [police] to take [defendant] out of there and [risk him coming] back when he was . . . later released and say[ing] the safe was broken into." The clerk "opened the [room] safe and wanted [police] to be present there just to make sure there wasn't . . . jewelry or something that they could steal or money."
The clerk opened the safe and looked inside. The safe contained $605 and "[twenty-one] bags of a white powdery substance . . . which later field-tested positive for cocaine . . . ." Defendant told police not to arrest the other man because "they're my drugs."
On cross-examination, Detective Ruzzo admitted the only evidence that Denise was a registered occupant of the room was her possession of the room key. Also, he repeated he did not ask the clerk to open the safe and neither he nor Detective Petinga attempted to open the safe. The judge found Denise voluntarily gave consent to search room 315, to which she had a key and, therefore, equal access, even though she was not actually listed as a registered occupant. He also concluded Denise had authority to allow the officers to search the room, but not the safe. The judge next considered hotel management's role in evicting defendant from the room, opening the safe, looking inside, and observing contraband. He determined police did not request or order the safe be opened; it was opened by the hotel, which was not acting as an agent of the State. Therefore, police had a legal basis to seize the drugs and cash discovered by the hotel clerk. Accordingly, the judge denied the motion to suppress the safe's contents.
Defendant pled guilty to a charge of third-degree possession of cocaine with intent to distribute. He was sentenced to a five-year term, subject to a three-year period of parole ineligibility, along with applicable fines and assessments. This appeal ensued.
Defendant argues the motion judge erred in concluding the search fell within legal exceptions obviating the need to obtain a warrant. He argues Denise's consent did not extend to the safe and the hotel clerk's actions were not covered by the third-party intervention doctrine because the clerk did not act independently, but rather at the direction of the police.
The State maintains the seizure was valid. It argues Denise's voluntary consent controls and excepts the warrant requirement. Alternatively, relying on the private search by the hotel clerk, the State maintains the safe was opened by a third-party, without prompting from police, allowing the contraband in plain view to be validly seized.
Our review of a trial court's decision on a suppression motion requires we defer to the judge's factual findings, so long as they are supported by sufficient credible evidence. State v. Lamb, 218 N.J. 300, 313 (2014). However, the same standard does not apply to legal conclusions. On such matters, "a reviewing court owes no deference to the trial court's determinations" and decides the question de novo. State v. Coles, 218 N.J. 322, 342 (2014).
"The New Jersey and Federal Constitutions guarantee the rights of persons to be free from unreasonable searches and seizures." Id. at 337 (citing N.J. Const. art. I, ¶ 7; U.S. Const. amend. IV). "[W]arrantless searches are presumptively invalid." State v. Brown, 216 N.J. 508, 527 (2014). "The State bears the burden of proving by a preponderance of the evidence the validity of a warrantless search." State v. Edmonds, 211 N.J. 117, 128 (2012).
The State may "sustain the validity of a warrantless search," if it demonstrates "the search fits within an accepted exception . . ., one of which is the long-recognized consent-to-search exception." Coles, supra, 218 N.J. at 337. Accord State v. Domicz, 188 N.J. 285, 305 (2006). "In order to determine whether valid consent to search an area was given by a third party, the State must prove the third party 'possessed common authority over or other sufficient relationship to the premises or the effects sought to be inspected.'" Lamb, supra, 218 N.J. at 318-19 (quoting State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985)). See also State v. Suazo, 133 N.J. 315, 320 (1993) ("A third party who possesses 'common authority over or other sufficient relationship' to the property sought to be inspected may consent to its search." (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974))).
Fourth Amendment protections prohibiting unreasonable searches and seizures apply equally to leased residential premises. See Wright, supra, slip op. at 26; Coles, supra, 218 N.J. at 327-28. Further, the United States Supreme Court has found a hotel room may be "a constitutionally protected area" when a person relies upon the area for security of his or her property. Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 413, 17 L. Ed. 2d 374, 381 (1966). See also Minnesota v. Olson, 495 U.S. 91, 99, 110 S. Ct. 1684, 1689, 109 L. Ed. 2d 85, 95 (1990) (holding an overnight guest was "entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household"); United States v. McNeill, 285 F. App'x 975, 979 (3d Cir. 2008) (stating presumption that warrantless searches of homes are unreasonable "carries over to hotel rooms, as '[a] hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office'") (alteration in original) (quoting Hoffa, supra, 385 U.S. at 301, 87 S. Ct. at 413, 17 L. Ed. 2d at 381).
Because defendant challenges the trial judge's conclusion Denise's consent was valid to search the hotel room, we briefly address the scope of third-party consent to search. In Coles, our Supreme Court reviewed the history of United States Supreme Court authority addressing the right of police officers to conduct warrantless searches of homes based on consent granted by a person whom police reasonably believed possessed common authority over the premises to be searched, Coles, supra, 218 N.J. at 337-40, as well as the development of the consent jurisprudence establishing the consent exception in this state, id. at 340-41. Notably, "'a warrantless search of a shared dwelling for evidence' against a co-inhabitant 'over the express refusal of consent by a physically present resident cannot be justified . . . as to him on the basis of consent given to the police by another resident.'" Lamb, supra, 218 N.J. at 316 (quoting Randolph, supra, 547 U.S. at 120, 126 S. Ct. at 1526, 163 L. Ed. 2d at 226).
In Lamb, decided the same day, the Court clarified the limits of federal guidance, addressing the reasonableness of a warrantless search under circumstances where one co-occupant grants consent to search, but the search is objected to by an absent co-occupant. Lamb, supra, 218 N.J. at 315-18, 320 (citing Georgia v. Randolph, 547 U.S. 103, 120, 126 S. Ct. 1515, 1526, 163 L. Ed. 2d 208, 226 (2006)). See also Matlock, supra, 415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250 (holding a co-tenant possessing common authority over or a sufficient relationship to the premises may effectively consent against an absent, but objecting co-tenant); Fernandez v. California, ___ U.S. ___, ___, 134 S. Ct. 1126, 1134, 188 L. Ed. 2d 25, 35 (2014) ("[A]n occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.").
Focusing on the privacy interest of a hotel room occupant, which is at issue here, the United States Supreme Court also has "explicitly refused to permit an otherwise unlawful police search of a hotel room to rest upon consent of the hotel proprietor." Stoner v. California, 376 U.S. 483, 489-90, 84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 860-61 (1964) (noting that although a hotel room occupant "gives implied or express permission to such persons as maids, janitors or repairmen to enter his room in the performance of their duties," that consent does not grant hotel personnel access beyond that necessary to perform their duties or endow them with the authority to grant unlimited access to law enforcement officers (citation and internal quotation marks omitted). Cf. Wright, supra, slip op. at 26 ("[A]partment dwellers do not cede their rights under the Fourth Amendment or the State Constitution to their landlord.").
Under these principles, we determine the record contains no evidence to challenge Denise's voluntary consent to allow police into the jointly occupied hotel room. The proofs show she possessed common authority over the hotel room and waived her right to be present. Therefore, we conclude the police lawfully entered the hotel room using the key Denise provided.
We decline to consider the State's additional argument suggesting defendant's challenge to Denise's consent attacked its voluntariness, which he does not have standing to present. --------
Also, this record contains no evidence defendant voiced an objection to the search. Such an objection would have overridden Denise's consent and prevented any warrantless search. Lamb, supra, 218 N.J. at 320 (citing Randolph, supra, 547 U.S. at 120, 126 S. Ct. at 1526, 164 L. Ed. 2d at 225-26). Nevertheless, the motion judge correctly concluded the scope of Denise's consent would not extend to the hotel room safe. We reject the State's argument to the contrary. Nevertheless, this does not end our examination and we must next examine the actions and authority of the hotel clerk in opening the safe.
The State asserts the hotel clerk's actions implicate the third-party intervention doctrine, also known as the "private search doctrine," which under narrow circumstances applies to justify a warrantless police search of property, after a private actor discovered contraband during his or her own search of the premises, so long "the officers' search of the item does not exceed the scope of the private search . . . ." Wright, supra, slip op. at 2, 15-18. "The doctrine has its roots in Burdeau v. McDowell[, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048 (1921)], in which the [United States] Supreme Court held that the Fourth Amendment's warrant requirement applies only to government agents, not private actors." Wright, supra, slip op. at 15. See also Burdeau, supra, 256 U.S. at 475, 41 S. Ct. at 576, 65 L. Ed. at 1051 (observing the Fourth Amendment's "origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies . . . ."); State v. Saez, 139 N.J. 279, 280-81 (1995).
In Wright, our Supreme Court thoroughly examined the scope of the doctrine and unanimously declined to apply it to justify a warrantless search of a private dwelling. Wright, supra, slip op. at 27. Emphasizing "the search of a home . . . raises special concerns," id. at 13, the Court noted the law "'expresses a clear preference for police officers to secure a warrant before entering and searching a home.'" Id. at 15 (quoting Brown, supra, 216 N.J. at 527). "Absent exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has already searched the area and notified law enforcement." Id. at 27. Accordingly, a third-party's discovery of illicit activity in a private home "does not create an exception to the warrant requirement." Id. at 28. See also United States v. Allen, 106 F.3d 695, 699 (6th Cir.) (declining to extend third-party intervention doctrine to "cases involving private searches of residences," including the search of a motel room, which the court characterized as a "temporary abode containing personal possessions"), cert. denied, 520 U.S. 1281, 117 S. Ct. 2467, 138 L. Ed. 2d 223 (1997); United States v. Young, 573 F.3d 711, 713, 720-21 (9th Cir. 2009) (declining to apply doctrine to search of a hotel room, because "[u]ntil a hotel guest's lease of the room expires or he checks out, the room is like a home").
Defendant challenges the application of the third-party search doctrine contending the search was the product of State action. He argues police had prior knowledge of the third-party's intentions to open the safe evincing joint participation in the search and mandating a warrant be obtained.
Following our review, we conclude defendant's argument lacks evidentiary support. Moreover, Wright's bar against applying the private search doctrine to justify a police search of a private residence after a private actor discovered contraband not implicated under the facts of this case.
First, the record does not support defendant's characterization of the search as the product of State action. Although the private party and the police were simultaneously present during the search, no evidence shows police directed the clerk's conduct. In State v. Stelzner, 257 N.J. Super. 219 (App. Div.), certif. denied, 130 N.J. 396 (1992), this court noted for State action to exist, facts must support "tacit cooperation" between police and the third-party. Id. at 230 (citation and internal quotation marks omitted). In addition, the act must be prompted by the State. Id. at 232.
The only evidence was the testimony of the officer at the scene. Detective Ruzzo recited the clerk's expressed motivation to protect the hotel from possible liability claims for loss of valuables in the safe. The fact that Detective Ruzzo had prior experience with a hotel eviction policy does not join police in the hotel's action or suggest the clerk's conduct was prompted by police. As noted, the motion judge accepted Detective Ruzzo's uncontroverted testimony surrounding: (1) the hotel clerk's distinct actions, undertaken to gain control of the premises and to protect the hotel's interest, and (2) that there was no police direction to evict defendant or open the safe. We must defer to the judge's findings, supported by sufficient credible evidence, as he heard the witness testify. State v. Kuropchak, ___ N.J. ___, ___ (2015) (slip op. at 26); Lamb, supra, 218 N.J. at 313. These facts support the conclusion the hotel clerk's actions were independently motivated by the hotel's legitimate concerns as to liability and not at the behest of law enforcement to make him a state actor.
Second, turning to the search of the safe, our examination of the facts and circumstances must be fact-sensitive. See Hoffa, supra, 385 U.S. at 301-02, 87 S. Ct. at 413-14, 17 L. Ed. 2d at 381-82. Our decision is limited by the evidence presented during the suppression hearing. Detective Ruzzo's unchallenged testimony was the hotel clerk came to the room and "formally evict[ed]" defendant. Once evicted, police refused the hotel clerk's request to remove defendant's personal property. The clerk then requested police remain in the room as he checked the safe. They complied. The clerk opened the safe and told Detective Ruzzo "there are drugs in there." The police removed the contraband.
Courts specifically have found privacy rights of a hotel guest end when authorized use of the hotel room terminates. See United States v. Molsbarger, 551 F.3d 809, 811 (8th Cir.) ("Justifiable eviction terminates a hotel occupant's reasonable expectation of privacy in the room."), cert. denied, 556 U.S. 1226, 129 S. Ct. 2168, 173 L. Ed. 2d 1164 (2009); United States v. Spicer, 549 F. App'x 373, 376 (6th Cir. 2013) ("Once a hotel guest's rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room or in any article therein of which the hotel lawfully takes possession." (quoting Allen, supra, 106 F.3d at 699 (internal quotation marks omitted))).
Spicer addressed a situation similar to the one at bar. The court stated:
A hotel may lawfully terminate a guest's occupancy for unauthorized activity, including possession of illegal drugs. [Allen, supra, 106 F.3d at 699]; see also United States v. Lanier, 636 F.3d 228, 233 (6th Cir. 2011) (finding it "eminently reasonable" for a hotel to terminate occupancy when it "discovers that the guest has been using the room to peddle drugs"). A hotel terminates a guest's occupancy by taking "justifiable affirmative steps to repossess [a] room . . . and to assert dominion and control over it," even if, for some reason, it is unsuccessful in keeping the guest out of the room. United States v. Cunag, 386 F.3d 888, 890, 895 (9th Cir. 2004) (holding that a hotel successfully terminated the defendant's occupancy where it tried to lock him out after discovering his credit card fraud but the manager later "discovered to his surprise that someone was in the room" when the manager went back to the room with the police). Once the guest's tenancy is terminated, a hotel employee with hotel given-authority may consent to a search of the guest's former room. See Allen, [supra,] 106 F.3d at 699.See also United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987) ("[O]nce the guest's access to the room is no longer his 'exclusive right,' he has no legitimate expectation of privacy in the room even though he himself still has access."); State v. Perry, 124 N.J. 128, 149-50 (1991) (holding squatter in abandoned building had no recognized reasonable expectation of privacy in the structure).
[Spicer, supra, 549 F. App'x at 376 (second alteration in original).]
From this record, we determine that prior to any search of the safe, the hotel clerk's individual action of evicting defendant lawfully terminated defendant's occupancy and, concomitantly, his privacy interest in the premises. See State v. Hinton, 216 N.J. 211, 231 (2013) ("Under federal law, a tenant's reasonable expectation of privacy can turn on his or her legal status in the wake of an eviction."); see also Cunag, supra, 386 F.3d at 895 (upholding a hotel's termination of a guest's occupancy by taking "justifiable affirmative steps to repossess [his] room" by asserting "dominion and control over it"). Accordingly, we affirm the court's denial of defendant's motion to suppress the cocaine located by the hotel clerk following defendant's eviction from the hotel, because this stripped him of any expectation of privacy. We find no Fourth Amendment violation by police in seizing the readily visible contraband. See State v. Earls, 214 N.J. 564, 592 (2013) (noting police may seize evidence in plain view).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION