STATE OF NEW JERSEY v. SHAWN A. REASON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5740-07T45740-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN A. REASON, a/k/a KEVIN COX,

Defendant-Appellant.

___________________________________

 

Submitted January 21, 2010 - Decided

Before Judges Sabatino and Newman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-04-00281-I and 07-07-00606-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Shawn A. Reason appeals from an order denying his motion to suppress evidence seized pursuant to a search warrant. Twenty-five bricks of heroin and $53,285 were found in the washing machine in the basement of a multi-family building on Louisa Avenue in Elizabeth, New Jersey. Pursuant to a plea agreement, the trial court sentenced defendant to an aggregate term of nineteen-years imprisonment with eight years of parole ineligibility. Defendant reserved his right to appeal the denial of the suppression motion. We now affirm.

The relevant facts may be summarized as follows. Defendant occupied the second floor apartment in this two-and-one-half story building with his girlfriend, co-defendant Walesca Echevarria. The same premises were the subject of a search warrant on December 1, 2006. The search warrant at issue was executed on March 7, 2007. The warrant provided for a search of the second floor apartment, a 1998 Mercury Sable, and a 1993 Ford Probe. The search was limited to the second floor apartment and "all common areas of ingress, egress, and access associated with that apartment . . . ."

In the transcript before Judge Scott J. Moynihan who issued the search warrant, Assistant Prosecutor Julie Peterman asked Officer James Diorio of the Elizabeth Police Department the following question:

And you are seeking then to search only the second floor apartment of [the] Louisa Street [building] and the detached two-door garage of that address, as well as all common areas of ingress, egress and access, associated with that apartment, including the basement. Correct?

Officer Diorio responded: "Correct".

In granting the search warrant, Judge Moynihan granted access based on probable cause for everything except the garage. Unfortunately, the tape skipped when Judge Moynihan stated that he "definitely finds probable cause for the second floor apartment and . . . (Tape Skip)." Nonetheless, the subsequent colloquy reveals Judge Moynihan's surprise when he learns that there was no door leading to the basement. Inferentially, it suggests he had extended the search warrant to cover the basement area and did not even realize when he did so that there was no barrier to entering that area.

When the search warrant was originally issued in December of 2006, the police chose not to search the basement. However, when a similar warrant was issued in March of 2007, the police did go into the basement, after speaking with the owner of the premises. The owner told the police that the second floor tenant had access to the basement, that there was not any door separating the basement from the upstairs, and that the tenant did use the basement for storage.

In denying the motion to suppress, Judge Heimlich found that the basement area was included within the four corners of the warrant. The judge reasoned as follows:

Judge Moynihan says, when he finds there's probable cause for the second floor apartment, and the blank, there's then a discussion concerning the back stairway. And the fact that there is no door leading to the basement, and the fact that the first floor tenant, there's no issue as to who is the owner, I don't know that, but the first floor tenant advises that the second floor tenant stores items in that basement. And it is in that basement that not only does it not have a lock, it does not even have a door to it.

So when Judge Moynihan is indicating in the search warrant that it is related to the second floor, and, in addition to that, all common areas of ingress, egress, and access associated with the apartment, clearly the basement is -- has access associated with that apartment. It's part of the apartment. It's where the tenant says the tenant on the second floor stores their items. It would be logical that that would be part of the area to be searched.

And for that reason, the Court finds that on the four-corners of the warrant itself, and when you read the affidavit, that it is anticipated that the common area where there is access is the basement.

Even if the basement was not included under the warrant, Judge Heimlich, as an alternate ground, found that defendant had no privacy interest in the basement area and the police could lawfully search the area. He put it this way:

clearly where you have an area where people are entering that back door, the two people who came, that were found later with 2,500 bags of heroin entered through the back door, the defendant exited the back door, and it's that back door that when you enter it there is no door there, so that's an area that there's been an abandonment of privacy to that area by the tenant who lives on the second floor.

On appeal, defendant raises the following point for our consideration:

POINT I

BECAUSE THE SEARCH WARRANT FOR A SECOND-FLOOR APARTMENT OF A MULTI-FAMILY BUILDING DID NOT AUTHORIZE A SEARCH OF THE BASEMENT, THE MOTION TO SUPPRESS EVIDENCE WAS ERRONEOUSLY DENIED. U.S. CONST. AMEND. IV; N.J. CONST. (1947) ART. I, PAR. 7.

We affirm substantially for the reasons expressed in Judge Heimlich's oral decision of November 13, 2007. If, as described, the basement was clearly accessible to defendant, it fit within the area targeted by the search warrant. On the other hand, if other tenants used the basement, which they did, then defendant lacked an expectation of privacy in the basement. Nor is a washing machine, available for other tenants' use, the same as a container which conceals its contents from plain view. See United States v. Ross, 456 U.S. 798, 822-23, 102 S. Ct. 2157, 2171-72, 72 L. Ed. 2d 572, 592 (1982). Either way, defendant appropriately lost his suppression motion.

 
Affirmed.

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A-5740-07T4

February 10, 2010