STATE OF NEW JERSEY v. ASMAR TROY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3128-09T23128-09T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ASMAR TROY,

Defendant-Respondent.

_______________________________

 

Submitted May 18, 2010 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 09-02-0356.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for appellant (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant Asmar Troy was charged with second-degree possession of a weapon, N.J.S.A. 2C:39-5(b). The trial court granted defendant's motion to suppress the evidence obtained in a warrantless seizure. By leave granted, the State appeals, arguing the gun was properly seized. We agree and reverse.

These are the facts, as recited by the court following the suppression hearing. On July 22, 2008, Lieutenant Jest of the East Orange Police Department responded to a call to investigate a reported trespassing at South Clinton Street. Detectives B. Wynn, Jr. and J. Bocchino arrived on the scene to assist in the investigation. Jest ordered Wynn and Bocchino to the front entrance of the house while he moved to the rear. When the officers knocked on the front door, Wynn observed three or four males running from the kitchen area up an interior stairwell. Jest also saw a group of males, who had been headed toward the rear exit, turn around and ascend the stairs.

After the men ran up the steps, the homeowner's niece, who resided in the premises, answered the door. Wynn recognized the woman and spoke to her. Wynn then heard a window being opened on the side of the house. He stepped toward the area and illuminated it with his flashlight. Wynn saw a black male with long dreadlocks, later identified as defendant, lean out the window and toss an object toward the backyard. Wynn radioed Jest, who stated he had also observed the event and had nearly been hit with the projectile. Jest recovered the object -- a .38 caliber handgun loaded with seven live rounds.

The homeowner, Cleaster Murray, was called to the front door. She told the officers the males did not have her permission to be in the home and she had attempted to remove them earlier that evening. Her niece corroborated that the men were in the home unlawfully. Wynn and Bocchino removed three males and a female from inside the house. The homeowner explained the female was also a relative and she was released. Jest detained two other men who attempted to flee through the back door.

The men were charged with defiant trespass, N.J.S.A. 2C:18-3(b). Defendant was arrested and additionally charged with second-degree possession of a weapon, N.J.S.A. 2C:39-5(b).

Defendant moved to suppress the gun, arguing the police lacked "constitutional justification" for entry into the backyard; thus, collection of the weapon was an unlawful warrantless seizure. In contrast, the State contended the weapon was properly admitted under the plain view exception to the warrant requirement or, in the alternative, that defendant had abandoned the weapon by throwing it out the window.

Following a hearing, the trial court granted defendant's motion, concluding the seizure did not fall under the plain view exception. The motion judge found the discovery of the gun was inadvertent and the weapon was recognized as suggestive of criminal activity. Further, she determined Wynn was lawfully on the front porch when he observed the object thrown from the window. However, he could not identify it as a gun. Jest, who recovered the weapon, was in a different position and saw the object was a gun but did not testify. Examining the evidence reporting Jest's location, the motion judge determined insufficient evidence existed to show he was lawfully in a position to make the plain view discovery and seize the weapon. In rendering her findings, the motion judge commented:

Detective W[ynn] did not testify to the layout of this backyard. It is unknown whether there's a fence . . . . There has been nothing put forward as to the use of the yard or whether the home was rented or owned by the defendant.

. . . .

Lieutenant Jes[t] did not testify at the hearing. Detective W[ynn] did state on cross-examination that there was a fence that separated the house from the next house. Assuming that this fence continued back past the yard, the backyard in fact had been part of the curt[i]lage of the house. That the item seized was found within the curt[i]lage however does not foreclose the applicability of the plain view exception [in] that the curt[i]lage may include certain semi[-]private areas where visitors would be expected to go such [a]s walkways, driveways, and porches.

. . . .

[T]he court did not have any information as to how long [Jest] was in the yard, what probable cause he had to be in the yard or where the gun allegedly landed, and how he determined that the object that had been thrown out of the window was in fact . . . found to be a gun.

None of this was shown and the State has not met its burden in demonstrating that [Jest] was in a lawful position to view the object being thrown from the window.

The court also rejected the State's argument that defendant had abandoned the weapon, concluding individuals other than defendant present in the backyard "arguably . . . could have been the possessors of what was retrieved from the backyard." Finally, the motion judge determined

the State has failed to meet its burden [of showing] that the weapon recovered was the object thrown from the window or whether it was something one of these [other] individuals could have left in the yard.

Lieutenant Jes[t] did not testify at the suppression hearing and therefore the [c]ourt [wa]s left without any testimony as to how he knew that the gun that he picked up was the object that [Wynn] had seen thrown by the [d]efendant.

We granted the State's motion for leave to appeal.

In reviewing a motion to suppress evidence, this court must defer to the trial court's factual findings underlying its decision, "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotations omitted). We may not substitute our own conclusions regarding the evidence, even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see State v. Robinson, 200 N.J. 1, 15 (2009); Elders, supra, 192 N.J. at 243-44. We specifically defer to the credibility determinations of the trial court, particularly its review of competing factual testimony, Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966), as these factual determinations "are substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 161). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. However, we need not defer to any legal conclusions reached from established facts. See State v. Brown, 118 N.J. 595, 604 (1990) (holding that if "the trial court acts under a misconception of the applicable law," we need not defer to its ruling). The trial court's application of the law is subject to plenary review on appeal.

The Fourth Amendment to the United States Constitution, and Article I, paragraph 7 of the New Jersey Constitution require that "police officers obtain a warrant before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement." State v. Cassidy, 179 N.J. 150, 159-60 (2004) (internal quotations omitted); see also Robinson, supra, 200 N.J. at 3 ("The warrant requirement embodied in both" the State and Federal Constitutions "limits the power of the sovereign to enter our homes and seize our persons or our effects."). A warrantless search is presumed invalid. The burden is placed on the State to prove that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Generally, evidence left in plain view may be seized without a warrant. See State v. Bruzzese, 94 N.J. 210, 235-36 (1983) (adopting the plain view warrant exception set forth in Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (plurality opinion)), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The "plain view" doctrine, advanced by the State in this matter to justify the warrantless seizure of the weapon thrown by defendant, requires police discovery of the evidence to be "inadvertent," meaning the officers "did not know in advance where evidence was located or intend beforehand to seize it." Ibid. Additionally, the officers must have immediately recognized the objects as evidence of a crime, contraband, or otherwise subject to seizure. State v. Johnson, 171 N.J. 192, 207 (2002); see also Brown, supra, 460 U.S. at 738, 103 S. Ct. at 1531, 75 L. Ed. 2d at 511; State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004). Finally, the police must be "lawfully [] in the viewing area." Johnson, supra, 171 N.J. at 206 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)).

In this matter, the motion judge misconstrued important principles of established Fourth Amendment jurisprudence. As we stated above, she determined the discovery was inadvertent and the police had probable cause to recognize the gun as an instrumentality of crime. However, after suggesting Jest's location in the backyard was part of the curtilage of the house and "not traditionally utilized by visitors," she concluded the State failed to show Jest "was in a lawful position to view the object being thrown from the window." We examine this last determination.

In New Jersey, it is well settled that "'[c]ertain lands adjacent to a dwelling called the 'curtilage' have always been viewed as falling within the coverage of the Fourth Amendment.'" Johnson, supra, 171 N.J. at 208 (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 2.3(f) (3d ed. 1996)).

At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of [one's] home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.

[Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214, 225 (1984) (internal quotations omitted).]

Whether an area designated as curtilage is afforded Fourth Amendment protection depends upon a review of

(1) "the proximity of the area . . . to the home;" (2) "whether the area is included within an enclosure surrounding the house;" (3) "the nature of the uses to which the area is put"; and (4) "the steps taken by the resident to protect the area from observation by people passing by."

[State v. Lane, 393 N.J. Super. 132, 145 (App. Div.) (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987)), certif. denied, 192 N.J. 600 (2007).]

See also State v. Domicz, 188 N.J. 285, 302 (2006); Johnson, supra, 171 N.J. at 208.

"An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded Fourth Amendment protection because the resident has given implicit consent to visitors to approach the home that way." Domicz, supra, 188 N.J. at 302. "In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on to the property." Ibid.; see also Johnson, supra, 171 N.J. at 209 (declaring the Fourth Amendment is not offended "'when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go'") (quoting LaFave, supra, 2.3(f)). The appropriate inquiry is whether the officers have intruded into an area that the resident seeks to preserve as private. Accordingly, when the police restrict their movements on private property to places visitors could be expected to go, observations they make from such vantage points are not protected by the Fourth Amendment. Johnson, supra, 171 N.J. at 209.

The motion judge made an extensive analysis of whether Jest was properly on the premises when he seized the gun. However, such an analysis is unnecessary in this matter as it overlooks the fundamental constitutional rationale extending the Fourth Amendment's protections to areas of curtilage. We reasonably extended the Fourth Amendment's prohibition against warrantless searches and seizures beyond the physical structure of a residence to incorporate adjacent areas in which an owner or resident retains a reasonable expectation of privacy. This is because safeguarding the privacy interests of homeowners and residents is fundamental to preserve the "sanctity of one's home," a precept which "is among our most cherished rights." State v. Frankel, 179 N.J. 586, 611, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004); Lane, supra, 393 N.J. Super. at 143-44; Cassidy, supra, 179 N.J. at 160.

To invoke the protections of the Fourth Amendment, a defendant must establish that he held a reasonable expectation of privacy, which was invaded by police. State v. Marshall, 123 N.J. 1, 66 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). The facts at hand are unequivocal: defendant was a trespasser. As such, he holds no expectation of privacy, with respect to the house or its curtilage. To suggest, as did the motion judge, that the private homeowner's reasonable expectation of privacy veiled defendant's illegal actions improperly distorts the limitations of the law.

Here, the officers responded to a trespassing complaint. They properly stationed themselves at the home's exits. Both the owner and her niece confirmed defendant and his companions were not authorized to be in the premises and the homeowner had unsuccessfully attempted their ejection. The easily observable frenetic movements of the trespassers and the sound of a window opening alerted the police of possible illicit activity, and they properly moved toward the noise. Defendant was viewed throwing his weapon and almost striking Jest, who readily retrieved it. There is no support for defendant's suggestion that his constitutional right to privacy was infringed.

We conclude the weapon seized by police on July 22, 2008 was admissible in evidence as the product of a lawful, warrantless seizure of evidence found in plain view. The January 22, 2010 order suppressing the evidence is reversed and
the matter is remanded for trial.

We are not provided with the transcript of the testimony presented during the suppression hearing; the record includes only the motion judge's opinion.

Although the inadvertence requirement was eliminated under federal law, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990), it remains under State jurisprudence.

Defendant's assertion that the State failed to prove he was a trespasser is meritless, warranting no further discussion. R. 2:11-3(e)(2).

(continued)

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A-3128-09T2

July 1, 2010