Opinion
DOCKET NO. A-5964-12T3
03-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS A. EUSEBIO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Hudson County, Indictment Nos. 12-08-1423 and 12-11-2014. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, 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 Luis A. Eusebio appeals the trial court's denial of his motion to suppress evidence, including drugs and a gun, seized by the police officers who conducted a warrantless search of the ground-floor vestibule and hallway of the building where he lived and a consensual search of his third-floor apartment. Defendant argues that the police violated the federal and state constitutions when they conducted a warrantless search of the vestibule and hallway, and that he did not knowingly consent to the search of his residence. For the reasons that follow, we reverse the denial of defendant's motion to suppress the drugs seized from the vestibule and hallway and remand that issue for a further hearing. We deny defendant's motion to suppress the drugs, gun, and other evidence seized from his apartment.
I.
A grand jury charged defendant in a twenty-count indictment with, among other crimes, third-degree possession with intent to distribute a controlled dangerous substance (CDS), heroin, within 1000 feet of school property, N.J.S.A. 2C:35-5a(1), 2C:35-7 (third count), and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (twelfth count), counts to which he eventually pled guilty. Following the indictment, defendant moved to suppress the evidence the police seized from the vestibule or hallway of the apartment building, his third-floor apartment, and the fire escape outside his third-floor apartment. The trial court denied defendant's motion. Thereafter, defendant pled guilty to the third and twelfth counts as well as to a possessory drug offense charged in an unrelated indictment and to a conspiracy to commit burglary offense charged in an unrelated accusation. The court sentenced defendant to concurrent five-year prison terms on the two drug offenses and the weapons offense, and to a concurrent three-year term on the conspiracy offense. The court also imposed appropriate fines and assessments. Following his sentencing, defendant appealed the denial of his suppression motion.
The twenty counts in the indictment were: possession of a CDS, contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1), 2C:35-5b(3) (counts two and eight); possession of a CDS with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 (counts three and nine); possession of a CDS with intent to distribute within 500 feet of a public facility, contrary to N.J.S.A. 2C:35-7.1 (counts four and ten); distribution of a CDS, contrary to N.J.S.A. 2C:35-5a(1) & 2C:35-5b(3) (count five); distribution of a CDS within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count six); distribution of a CDS within 500 feet of a public facility, contrary to N.J.S.A. 2C:35-7.1 (count seven); conspiracy to distribute a CDS, contrary to N.J.S.A. 2C:5-2 (count eleven); possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b (counts twelve and thirteen); possession of a weapon, contrary to N.J.S.A. 2C:39-4a (counts fourteen and fifteen); possession of a defaced firearm, contrary to N.J.S.A. 2C:39-3d (count sixteen); possession of a weapon while committing a CDS offense, contrary to N.J.S.A. 2C:39-4.1a (count seventeen); certain person not to possess a handgun, contrary to N.J.S.A. 2C:39-7b (counts eighteen and nineteen); and possession of drug paraphernalia with intent to distribute, contrary to N.J.S.A. 2C:36-3 (count twenty).
Neither the State nor defendant argued before the trial court or argue here that the evidence seized from the fire escape directly outside defendant's back door should be subject to an analysis different from the analysis concerning evidence seized from the interior of defendant's apartment.
The State developed the following proofs at the suppression hearing. On the morning of the search, Jersey City narcotics officer Michael Burgess was conducting surveillance on 77 Grant Street, a three-story apartment house with one apartment on each floor. The second-floor apartment was vacant. According to Officer Burgess, to "get in and out of that building" one needs to use a key. "The door opens outward and it has a deadbolt lock. You have to manually lock it and unlock the door to enter inside the residence." The officer explained that "[o]nce you enter inside the vestibule, then there's a common area hallway where the first floor set of steps lead you up to the second floor, then there's another open area where it leads up to the third floor. It's all open hallway area."
Officer Burgess was conducting surveillance because "[n]umerous calls [were] coming into the narcotics office involving a black male with dreads with blond tips who was constantly day in and day out basically from day to nighttime which was the complaint, was dealing drugs in the area." Officer Burgess had been in the building previously.
Around 9:45 that morning, Officer Burgess observed an unidentified black male approach the building, ring the bell, and "yell up for someone inside the residence." Defendant, "a black male with dreads with blond tips," looked out a third floor window and signaled for the individual to wait downstairs. Defendant came to the building's front door, spoke briefly to the individual, reentered the building for about five seconds, then reappeared and did a hand-to-hand exchange. Although Officer Burgess radioed to perimeter units to stop the individual, they were unable to locate him.
Meanwhile, as Office Burgess continued his surveillance, at approximately 10:30 he saw another individual, later identified as Albert Cherry, approach defendant, who was now standing in front of the building. They spoke briefly, defendant went into the building, returned in approximately five minutes, handed something to Cherry, and took cash that Cherry then handed to him. Believing that a second drug sale had taken place, Officer Burgess radioed his "perimeter units." Officer Carlos Lugo arrested Cherry. Other officers searched him and seized a bag of what appeared to be heroin marked with the logo stamp "ladybug."
After arresting Cherry, Officer Lugo, went to 77 Grant where he and other perimeter unit officers arrested defendant, read him his Miranda rights, searched his person, seized $453 and a set of house keys, and placed him in an unmarked police vehicle. Officer Lugo later used defendant's keys to enter both the building and defendant's third floor apartment.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The officers did not attempt to obtain a search warrant before entering the building. Officer Burgess believed there were drugs in the building's hallway. He explained:
Based on the hand-to-hand, based on the two observed sales, one to the unidentified male and then one to Cherry who was apprehended, the sales, each time he entered the residence it was within five seconds, so being that I already observed him in the third floor apartment, it was just too quick of him to go up to the third floor and then come back down. So based on those two observed sales, I believed that the drugs were being stored in the hallway of the residence.In response to the prosecutor's leading questions, Officer Burgess acknowledged that if something was secured in the vestibule, it could be easily picked up by anybody who was in the building and that there would be some concerns as to other people running across the narcotics.
When Officer Burgess first testified about defendant entering the building after talking to Cherry, the officer said defendant was in the building approximately five minutes, not five seconds. It is unclear whether this was a typographical error or a conflict in the officer's testimony.
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Officer Lugo also believed there were drugs in the hallway of the building. Like Officer Burgess, Officer Lugo was familiar with the building. Officer Lugo had "been involved in numerous investigations . . . at 77 Grant [and] . . . shortly before [the day he arrested defendant], a gun was recovered in that hallway and also drugs." The officer testified that the vestibule and hallway were common areas because "[b]asically, all tenants, you have your first floor tenant who would utilize that as entrance and an egress. Also the second floor tenant, and the third floor tenant." The officer further confirmed that there had been a fair amount of traffic in and out of 77 Grant and there had been numerous complaints at that location.
When asked during cross-examination who gave the order to place defendant's keys inside the exterior lock or whether it was his decision, Officer Lugo responded, "I was, I pretty much went in. . . . I pretty much utilized the keys to enter the door." When asked why he entered the building, the officer explained:
Knowledge that the area right there, that vestibule area, from previous investigations is known where weapons have been recovered and stash of drugs based upon the surveillance of [Officer] Burgess' observations where he observed [defendant] enter and exit, exiting within five seconds, approximately five seconds, that that leads me to believe that he's not going up to the third floor to recover anything from there.
Five seconds would only put you in . . . the common area.
Officer Lugo used the keys seized from defendant to unlock the building's exterior door and enter the vestibule. He testified:
I entered the building . . . with Lieutenant Cassidy or Sergeant Cassidy, she's a lieutenant now. And also Police Officer Matt Scanlon, Police Officer Mark Hennessey and myself entered the vestibule area, at which point Police Officer Matt Scanlon advised that he had recovered CDS.Officer Lugo also testified that Officer Scanlon recovered sixteen bags of heroin — "four logo stamped Ebay, two stamped Ladybug, . . . [and] ten more glassine bags stamped with Date" — along with four bags of marijuana. Officer Scanlon did not testify and Officer Lugo did not say exactly where Officer Scanlon found the drugs.
After Officer Scanlon recovered the drugs, Lieutenant Cassidy asked Officer Hennessey to obtain consent from defendant to search the third-floor apartment. This occurred "probably within [fifteen] minutes of when he was arrested." Officer Hennessey testified he told defendant:
[W]e're going in one way or another . . . . If we, if we, if you sign a consent, we're going to go in there right now and we'll get it over with right now. If not, you're going to sit and wait while we do a search warrant and then we'll go back and, you know, we'll type up a search warrant and come back.
Officer Hennessey also testified that he did not say it as a threat, but rather because "it's what's going to happen." After defendant was given a copy of the consent form and made aware of his right to refuse, he signed the form, consenting to the search of his apartment. Officer Hennessey was not questioned about whether he told defendant that officers had found drugs in the vestibule or hallway. Consequently, the record is silent as to whether defendant knew the drugs had been discovered before Officer Hennessey asked for consent to search the third-floor apartment.
Officers went to the third-floor apartment, knocked on the door, and announced themselves. Receiving no response, they entered the apartment, using defendant's keys. During their search of the apartment and a garbage bag immediately outside the rear door on the fire escape, they found more heroin, two handguns, suspected CDS proceeds, and drug paraphernalia. The officers also found a juvenile in defendant's apartment who was "potentially getting rid of narcotics."
Based on the testimony of the three officers, the court denied the suppression motion. The court first concluded that the search of defendant's person was a constitutional search incident to a valid arrest. The court explained that the anonymous description the police had received of the person dealing drugs matching defendant, Officer Burgess' observations of what appeared to be two drug transactions, and the perimeter units finding what appeared to be a bag of heroin on one of the buyers, established probable cause that defendant was dealing drugs.
Next, the court concluded the search of the vestibule was unconstitutional. Noting "[c]ourts have held that the occupants of an apartment house have a reasonable expectation of privacy in a common hallway, at least where the door leading into the hallway is kept locked," the court explained that because the door to the common vestibule of defendant's apartment house "was locked with a deadbolt, the expectation of privacy was heightened." According to the court, the heightened expectation of privacy "was not lessened by the fact . . . that the second floor, vacant at the time of [d]efendant's arrest, had a high volume of narcotics traffic[, because] the area had been previously secured and, on the date of [d]efendant's arrest, officers had witnessed [d]efendant exit the building and lock the door behind him." The court ruled that "[t]o overcome the expectation of privacy, the State must demonstrate the existence of exigency or another exception to the warrant requirement to justify intrusion into the vestibule by the police." The court concluded, "[t]here is insufficient evidence to characterize these events as exigent circumstances or to include them within any other warrant exception."
Notwithstanding its finding that the search of the vestibule and hallway was unconstitutional, the court ruled that the drugs seized from the vestibule or hallway were admissible. The court found that police had probable cause to search defendant's apartment and defendant's consent to the search was valid. The court found explicitly that "[t]here is no evidence that [d]efendant was aware of the initial, illegal entry and the proceeds of that entry, meaning that there is no evidence leading to the conclusion that [d]efendant was effectively coerced by the initial seizure." Having determined that defendant voluntarily consented to the search of his third-floor apartment, the court reasoned that the police would have inevitably discovered the drugs in the vestibule or hallway when they entered to go to the third floor because the drugs were in plain view. This conclusion apparently rested on the court's finding that "Officer Scanlon recovered from the floor, in plain view, six glassine bags of suspected heroin, four stamped 'Ebay' and two stamped 'Lady Bug.'" The record does not support that factual finding.
On appeal, defendant makes this argument:
THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
BECAUSE THE ILLEGAL WARRANTLESS SEARCH OF THE VESTIBULE OF 77 GRANT STREET TAINTED THE SEARCH OF THE THIRD FLOOR APARTMENT, AND BECAUSE THE STATE FAILED TO PROVE (OR EVEN ASSERT) THAT THE DRUGS FOUND IN THE VESTIBULE WOULD INEVITABLY HAVE BEEN DISCOVERED.His argument consists of two points: the court erred in finding that the police would have inevitably discovered the drugs in the vestibule, a point the State did not make to the trial court; and the illegal vestibule search tainted his consent to the apartment search.
The State makes three arguments as to why the vestibule search was not unconstitutional: defendant had no reasonable expectation of privacy in the building's common vestibule and hallway, and therefore the police did not need a warrant to search there; exigent circumstances necessitated the warrantless search; and, as the trial court found, the police would have inevitably discovered the drugs in the first-floor hallway.
When reviewing orders granting or denying suppression motions, we accept the trial court's findings of fact that are "supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We do so "because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Id. at 424-25 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We need not, however, defer to the trial court's legal conclusions reached from the established facts. State v. Jefferson, 413 N.J. Super. 344, 352 (App. Div. 2010). "'If the trial court acts under a misconception of the applicable law', we need not defer to its ruling." Ibid. (quoting State v. Brown, 118 N.J. 595, 604 (1990)).
With these standards in mind, we first address defendant's argument that the police unlawfully searched the vestibule and hallway of his apartment.
The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. A "search" triggering constitutional scrutiny occurs when government agents intrude into an area where an individual has a reasonable expectation of privacy. See Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 899 (1968) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 587-88 (1967) (Harlan, J., concurring)); see also State v. Hinton, 216 N.J. 211 (2013).
Absent a reasonable expectation of privacy in the place or thing searched, an individual is not entitled to protection under either the Fourth Amendment or Article I, Paragraph 7 of the New Jersey Constitution. Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S. Ct. 421, 433, 58 L. Ed. 2d 387, 404-05 (1978); Hinton, supra, 216 N.J. at 239-40 (holding that because defendant lacked an objectively reasonable expectation of privacy in the apartment police searched, the "police action in his apartment was not a 'search' for purposes of either the Fourth Amendment of the United States Constitution or Article I, Paragraph 7 of the New Jersey Constitution").
In many, if not most cases, the question of whether a defendant has a reasonable expectation of privacy in a place or object searched will present a question of law. For example, the Fourth Amendment provides explicitly that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. Our Supreme Court has held that individuals have a reasonable expectation of privacy in garbage placed in opaque bags, State v. Hempele, 120 N.J. 182, 225 (1990), and bank records maintained by third parties, State v. McAllister, 184 N.J. 17, 30-33 (2005). On the other hand, a defendant has no reasonable expectation of privacy in a vacant building with an opened and unlocked front door, State v. Perry, 124 N.J. 128, 149-50 (1991), or in a stolen vehicle, State v. Lugo, 249 N.J. Super. 565, 568 (App. Div. 1991).
There may be situations, however, in which the question of whether an individual has an expectation of privacy requires a fact-sensitive analysis. To determine whether, for Fourth Amendment purposes, a person has a reasonable expectation of privacy in a place or object, Courts must make "a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220, 226-27 (1979)). Unlike the federal two-part inquiry, the New Jersey constitutional standard does not require the defendant to prove a subjective expectation of privacy. Hinton, supra, 216 N.J. at 236. Rather, "Article I, Paragraph 7 of the New Jersey Constitution 'requires only that an expectation of privacy be reasonable.'" Ibid. (citing Hempele, supra, 120 N.J. at 200).
"[E]xpectations of privacy are established by general social norms[,]" and must align with the "aims of a free and open society." Hempele, supra, 120 N.J. at 200-01 (citations and internal quotation marks omitted). Under federal law, defendants have the burden of proving they had a legitimate expectation of privacy in the place or object searched. Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633, 641 (1980). "Under state law, a 'defendant must show that a reasonable or legitimate expectation of privacy was trammeled by government authorities.'" Hinton, supra, 216 N.J. at 233 (quoting State v. Evers, 175 N.J. 355, 368-69 (2003)).
In the case before us, we conclude that the question of whether defendant had a reasonable expectation of privacy in the vestibule and hallway of his apartment house cannot be determined as a matter of law, but rather requires a fact-sensitive inquiry. We decline the State's invitation to formulate a bright line rule that residents of apartment houses, buildings, or complexes do not have a reasonable expectation of privacy in the vestibule and common hallway leading from the front entrance of the building to the apartment units.
The State argues that our Supreme Court has held "without qualification, that a defendant does not have a reasonable expectation of privacy in common areas of a multi-unit residence." The case the State relies upon, State v. Johnson, 171 N.J. 192 (2002), involved the plain view doctrine. In discussing whether the plain view doctrine applied to a police officer's seizure of drugs placed by a defendant "into a hole beside a post on the porch of a multi-family dwelling," the Court noted, "the porch involved in this case, although part of the curtilage, has a diminished expectation of privacy." Id. at 199, 209. The Court also "agree[d] with the Appellate Division that '[t]he curtilage concept has limited applicability with respect to multi-occupancy premises because none of the occupants can have a reasonable expectation of privacy in areas that are also used by other occupants.'" Id. at 209 (quoting State v. Ball, 219 N.J. Super. 501, 506-07 (App. Div. 1987)).
Nevertheless, the Supreme Court has also determined that "[o]nce the protections of Article I, paragraph 7 apply, a lower expectation of privacy is not a sufficient basis on which to carve out an exception to the warrant and probable-cause requirement. We can dispense with that requirement '[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impractical . . . .'" Hempele, supra, 120 N.J. at 218 (second alteration in original) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 747, 83 L. Ed. 2d 720, 741 (1985) (Blackmun, J. concurring)). And in Johnson, the Court did not dispose of the case on the basis that defendant had no reasonable expectation of privacy, but rather held "that the conduct of the police in seizing the clear plastic bag from the hole was reasonable under the plain view doctrine and violated neither the Federal nor the New Jersey Constitution." Johnson, supra, 171 N.J. at 220.
As we noted in State v. Penalber, 386 N.J. Super. 1, 10 (App. Div. 2006), federal authorities are divided as to whether a tenant in a two-occupant apartment house has a reasonable expectation of privacy in a common hallway, at least where the door leading into the hallway is kept locked, and our Supreme Court has not decided the issue. We have also previously held that a defendant has no expectation of privacy in a basement room used for recycling where he has left an object in plain view if the building superintendent and an employee other than the defendant also have keys to the room. State v. Brown, 282 N.J. Super. 538, 544 (App. Div.) certif. denied, 143 N.J. 322 (1995). Viewing the concept of expectation of privacy from societal norms, we explained there that "[o]ne with an expectation of privacy would not openly leave a personal possession that he wished to remain private on a couch in a room to which others have access. Defendant's subjective belief that the porter's room was private was irrelevant." Id. at 547. On the other hand, with respect to the entry door of a building containing three apartment units, one on each floor, we have considered "the fact of whether a door is locked or unlocked a far more reliable predictor of a reasonable expectation of privacy than the size of the building in which one resides." State v. Nunez, 333 N.J. Super. 42, 51 (App. Div.) certif. denied, 167 N.J. 87 (2001).
In the case before us, the exterior door to the apartment house was locked and secured by a deadbolt. There were only two occupied units in the building, and there was no evidence that the first-floor occupants, if present, used the precise area where the drugs were located. In fact, there was no evidence that established precisely where Officer Scanlon located the drugs. He did not testify and the officers who did testify either did not see, or did not say, where he found the drugs.
Based on the facts developed during the suppression hearing, we cannot conclude that defendant either did, or did not, have a reasonable expectation of privacy in the vestibule and hallway. For that reason, and because Hinton was decided after the suppression hearing, we remand for a new hearing at which defendant must make a threshold showing that he had a reasonable expectation of privacy in the vestibule and common area of the apartment house.
The remand would be unnecessary were we to uphold the court's conclusion that the drugs in the vestibule or hallway would inevitably have been discovered after the officers obtained defendant's consent to search his third-floor apartment. However, as we have previously pointed out, there is no competent evidence in the record from which the court could have reasonably concluded that the drugs were in plain view. Consequently, the factual underpinning of the court's decision does not exist.
The State also argues, alternatively, that exigent circumstances justified the police officers' warrantless entry into the vestibule and hallway. The State's argument is not supported by the facts developed at the suppression hearing. More significantly, based on the trial court's findings of fact, no exigency existed. The trial court's findings as to that issue are supported by ample credible evidence in the record and therefore, we will not disturb them.
Defendant's argument that his consent to search his third-floor apartment was not knowingly and intelligently given, or was tainted by the search of vestibule and hallway, is without sufficient merit to warrant discussion. R. 2:11-3(e)(2). No competent evidence supports that claim.
For the foregoing reasons, we reverse the trial court's determination that defendant had a reasonable expectation of privacy in the vestibule and hallway, as well as the court's determination that the drugs in the vestibule and hallway would have inevitably been discovered because they were in plain view on the hallway floor. We do not preclude the State from adducing competent evidence as to that issue if defendant first demonstrates that he had a reasonable expectation of privacy in the vestibule or hallway where the drugs were found. We affirm as to all other issues.
We do not vacate defendant's guilty plea. It appears from the transcript of defendant's guilty plea that he pled to a possessory drug offense based on the drugs seized from his third-floor apartment. If that is so, it may or may not be necessary for the trial court to address whether defendant would have pled guilty had the drugs seized from the first floor been suppressed. That may depend on the outcome of the remand hearing. Nor should our opinion be read as precluding the trial court from dispensing with the remand hearing as moot should defendant abandon his effort to reverse his conviction in view of our upholding the search and seizure of contraband from his third-floor apartment.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION