STATE OF NEW JERSEY v. PHILLIP KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

PHILLIP KING,

Defendant-Respondent.

__________________________________

December 11, 2014

Argued November 17, 2014 - Decided

Before Judges Sabatino, Simonelli, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-06-1604.

John Santoliquido, Assistant Prosecutor, argued the cause for appellant (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Santoliquido, on the brief).

Holly D. Bitters, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Bitters, on the brief).

PER CURIAM

On leave granted at the State's request, we review the trial court's order suppressing a handgun that Atlantic City police officers inspected and seized from defendant's car without a warrant. The police entered the car after a casino valet attendant had discovered the butt of the gun sticking out of the center console.

We reverse the suppression order because (1) the trial court misapplied what is known in our case law as the "third-party intervention" exception to the constitutional warrant requirement; and (2) defendant lacked a reasonable expectation of privacy in the gun and its ammunition magazine, having left them within the car in an unsecured manner, and having turned over his car keys to the casino's valet service.

I.

The following pertinent facts emerged at the suppression hearing.

On the afternoon of April 14, 2013, Atlantic City Police Department officers responded to a dispatch report that a handgun had just been found in the center console of a passenger car parked at Trump Plaza Casino. Once the officers arrived there, a casino valet attendant1 directed the officers to the vehicle, a Mazda 6 sedan with Pennsylvania license plates. The car had been driven to the casino by defendant, Phillip King.

The valet attendant had discovered the firearm when he entered the Mazda's cabin to park the car after defendant left the car keys. Once inside in car, the attendant noticed that the center console was partially opened. When he tried to shut it completely, the attendant noticed that an object was obstructing the closure of the console lid. He then looked into the console, and found within it the handgun in question. The attendant immediately contacted his supervisor, who in turn contacted the police.

Police Officer Ermindo Marsini was the first officer to arrive on the scene. The attendant directed Marsini to the vehicle. Marsini observed that the console lid had been returned to a partially-closed position. The officer entered the vehicle's cabin, fully opened the console lid, peered inside, and observed the handgun. As Marsini explained in his testimony, "the gun was in a holster already. But, you know, it was a black gun and, you know, it's clearly visible. You could tell what it was, but it was secured in a holster with a magazine also in there." Marsini did not touch the gun at that point, but instead reclosed the console lid and called his supervisor.

A short while later, Police Detective Paul Walsh, Police Officer Julie Cash, and a fourth police officer responded to the scene. Detective Walsh was there to document and photograph the incident. The detective entered the Mazda's cabin and opened the center console to observe the gun within it. Walsh then removed the gun from the console, removed it from its holster, and inspected it.

Detective Walsh identified the handgun as a Kel-Tec P-11 9mm Luger, and notated its serial number. Upon inspecting the gun, Walsh observed that it had an empty chamber, with eight rounds loaded in the magazine. The holster held a second ammunition magazine holding eleven rounds.

Having made these observations, Walsh seized the gun. The officers then impounded the Mazda.

Defendant returned to the casino's parking garage later that afternoon, at about 3:45 p.m. Officer Cash confronted him about the handgun found in his car. Defendant acknowledged that the firearm belonged to him. However, he claimed that he did not know he was prohibited from bringing the handgun to Atlantic City with him, or leaving it in the vehicle. Defendant produced a valid Pennsylvania driver's license, as well as a valid Pennsylvania carry permit. Officer Cash then arrested him. He was subsequently charged him with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).

Following his indictment, defendant moved to suppress evidence of the handgun. The court conducted a one-day suppression hearing, at which Officer Marsini and Detective Walsh testified. The State also furnished the court with several photographs of the car's cabin. Defendant did not testify or present any witnesses or exhibits.

The State argued at the hearing that the officers' warrantless recovery of the gun was lawful, based alternatively on: (1) the community caretaking exception, (2) the automobile exception, and (3) the third-party intervention (or "private search") exception to the warrant requirement.

The motion judge rejected the State's reliance on the first two exceptions. The judge reasoned that there was no exigency that would have hindered the officers' reasonable ability to obtain a search warrant, once they had surrounded and secured the Mazda in the casino garage.

The judge also found the third-party intervention exception inapplicable because, as he perceived it, Detective Walsh's seizure and inspection of the handgun impermissibly exceeded the scope of the valet attendant's private search.

Accordingly, the judge held that none of the proffered exceptions to the warrant requirement applied. Consequently, the judge granted defendant's motion to suppress the handgun and the other fruits of the search.

We granted the State's leave to appeal. On appeal, the State confines its arguments to the third-party intervention doctrine and does not renew its invocation of the community caretaking or automobile search doctrines. As part of its contentions, the State further asserts that defendant had no legitimate expectation of privacy that was infringed.

II.

A warrantless search and seizure by law enforcement officers is generally presumed invalid under the Fourth Amendment of the Federal Constitution and under article 1, paragraph 7 of the New Jersey Constitution, "unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981). The remedy for such improper searches and seizures is the exclusion of that evidence at the defendant's criminal trial. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct 1684, 6 L. Ed. 2d 1081 (1961) (declaring the exclusionary rule implementing the Fourth Amendment applicable to states through the Fourteenth Amendment); State v. Hempele, 120 N.J. 182, 223 (1990) (likewise applying the exclusionary rule where evidence has been seized in violation of the New Jersey Constitution).

Here, the State relies on what has been termed in New Jersey case law as the "third-party intervention" exception to the warrant requirement, more widely known elsewhere as the "private search" doctrine. The exception is based upon the fundamental principle that the constitutional warrant requirement applies only to governmental searches and not searches by private actors. Burdeau v. McDowell, 256 U.S. 465, 476, 41 S. Ct. 574, 576, 65 L. Ed. 1048, 1051 (1921) (holding that the Fourth Amendment had not been violated when private detectives seized incriminating items from the defendant's office and turned those items over to government officials).

In a seminal case with close parallels to the present one, the United States Supreme Court applied this "private search" exception in United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), to a situation in which a private party had discovered apparent contraband and then turned that item over to government agents. In Jacobsen, a private mail carrier intercepted and searched a cardboard tube, discovering inside it several plastic bags containing a white powdery substance. Id. at 111-12, 104 S. Ct. at 1655, 80 L. Ed. 2d at 93. When FBI agents were then summoned to the scene, those agents not only reenacted the private party search, but they also went further to remove a small portion of that powder and destroy it in the course of conducting a field test to either confirm or discount the powder as cocaine. Ibid.

Even though the police seizure in Jacobsen exceeded the scope of the earlier private search, the Supreme Court upheld the constitutionality of the agents' actions. The Court reasoned that the defendant in that case had no legitimate expectation of privacy in the cocaine, nor was the agents' search and seizure unreasonable. Id. at 122-26, 104 S. Ct. at 1661-63, 80 L. Ed. 2d at 100-02. The Court reiterated the oft-repeated concept that the "touchstone" of search and seizure analysis is "reasonableness." Id. at 124-25, 104 S. Ct. at 1662, 80 L. Ed. 2d at 101-02. Reasonableness in this context is gauged by "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. at 125, 104 S. Ct. at 1662, 80 L. Ed. 2d at 101-02 (citing United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 118 (1983)). Applying these reasonableness principles, the Court in Jacobsen upheld the constitutionality of the agents' field testing of the white powdery substance, despite the fact that the testing exceeded the scope of the private search. Ibid., 104 S. Ct. at 1663, 80 L. Ed. 2d at 102. As the Court recognized, the testing was de minimis and limited to only confirming whether the powder was or was not cocaine. Id. at 126, 104 S. Ct. at 1663, 80 L. Ed. 2d at 102. Moreover, the Court found that the defendant lacked a legitimate privacy interest in the shipped cocaine that was infringed. Ibid.

Similarly, in State v. Marshall, 123 N.J. 1, 67-69 (1991), the New Jersey Supreme Court recognized that a police investigator's actions in opening an envelope that a private party had pointed out to him was a seizure. However, the seizure was not unreasonable in light of the fact that the investigator, at the time of the seizure, had already formulated a reasonable basis to believe that the envelope contained evidence relating to a murder. Ibid. As the Court in Marshall reiterated, "[t]he [F]ourth [A]mendment prohibits not all searches and seizures but only those that are deemed unreasonable." Id. at 67 (citing State v. Campbell, 53 N.J. 230, 233 (1969)); see also State v. Minitee, 210 N.J. 307, 323 (2012) (holding that the police's delay in conducting an automobile search was not constitutionally defective, and explaining that "[i]t is only searches that are objectively unreasonable that run afoul of constitutional principles" (citation omitted)).

In that same vein, in State v. Saez, 268 N.J. Super. 250 (App. Div. 1993), rev'd on dissent, 139 N.J. 279, 280 (1995), this court was confronted with a circumstance in which a private person had suspected that her neighbors were potentially conducting narcotic activity. Id. at 256-57. Peering through a hole within the basement wall adjoining their two homes, the informant was able to oversee and overhear her neighbors manufacture and package cocaine. Id. at 257. She alerted police about her findings and then invited them to her basement. Ibid. Thereafter, the police conducted an extended surveillance of the narcotics activity through the neighbor's basement. Id. at 258-59.

Although a majority of this court in Saez upheld the police surveillance, the dissent held that ongoing police surveillance in the defendant's basement constituted "a new invasion of privacy" for "each moment of surveillance." Id. at 272-73 (D'Annunzio, J.A.D., dissenting). The Supreme Court thereafter adopted the reasoning of the dissent, further explaining that "under the circumstances the extended surveillance of the activities conducted in the adjacent basement was not a reasonable search." State v. Saez, 139 N.J. 279, 281 (1995).

Most recently, this court applied the third-party intervention exception to uphold a warrantless police search and seizure of drugs and other contraband from an apartment in Wright, supra, 431 N.J. Super. at 558. The search and seizure in Wright arose out a situation in which a landlord and a plumber had entered the apartment unit at the tenant's request to repair a leak. Id. at 566-67. While tracing the source of the leak, the landlord and plumber observed marijuana and other drug paraphernalia on a night stand in plain view. Ibid. There was also a cardboard box in an open drawer, containing powder and crack cocaine. Ibid. The landlord notified the police of the discovery. Ibid. Officers responded and were shown the marijuana. Id. at 567-68. The tenant on the lease soon arrived, and the officers obtained her consent to conduct a full search of the apartment. Ibid. That wider search turned up more incriminating evidence against the tenant's boyfriend, who had also occupied the unit. Id. at 568-70.

In upholding the officers' actions in Wright in the aftermath of the landlord's discovery, we applied the third-party intervention exception. Id. at 575-82. We recognized, however, that in a residential search setting, such as the tenant's apartment unit, the doctrine should be subject to certain limitations. Ibid. Noting the "heightened protection" that both the United States and New Jersey Constitutions accord to residences, id. at 563, we held that the third-party intervention doctrine will not justify a warrantless search resulting from a landlord or other third party's entry into a private residence

if it is (1) illegal or unauthorized, or (2) in violation of the resident's property rights or reasonable expectation of privacy. If such a wrongful private entry has occurred, it cannot supply the foundation for an ensuing police search of the premises, unless, of course, some other recognized exception to the constitutional warrant requirement applies.

[Id. at 587-88.]

Here, we do not have before us a warrantless search of a private residence. Instead, we consider the constitutionality of a search of a center console of a car that had been willingly left with a valet, and the ensuing inspection and seizure of a gun that was obstructing the closure of the console. The special heightened protection afforded to private residences is irrelevant here.

Although Detective Walsh's inspection of the console and gun slightly exceeded the scope of the valet attendant's own actions, the detective's additional steps were de mimimis and reasonable. Here, as with the testing of the suspicious powder in Jacobsen, the scope of the governmental action did not significantly exceed the scope of the private search. The detective's protective actions in ascertaining whether the gun was loaded, and whether it bore a registration number, were reasonable measures to safeguard the public safety. The police did not have to obtain a warrant before securing the gun immediately. The search was lawful under the third-party intervention doctrine.

We further agree with the State that defendant lacked a reasonable expectation of privacy in the handgun and ammunition, having carelessly and illegally left the gun protruding from the Mazda's center console. Although defendant held a valid carry permit in the State of Pennsylvania, that permit did not authorize him to transport the gun through New Jersey in his car in the manner that he did. See, e.g., N.J.S.A. 2C:39-6(g) (prescribing the manner in which weapons can be transported in a vehicle); N.J.A.C. 13:69D-1.13 (regulating handgun possession on casino property). Even with defendant's out-of-state carry permit, his firearm could not be transported through New Jersey in the cabin of his vehicle. Instead, the gun had to be unloaded and placed in a secure container within the trunk of the vehicle, away from any passenger access. N.J.S.A. 2C:39-6(g). There was no indication to the valet staff or the police officers that defendant himself was a law enforcement official with a right to circumvent these gun safety requirements.

In sum, the officers' actions on the heels of this private discovery of a handgun within a valet-parked car were eminently reasonable. The actions, despite the absence of a warrant, did not infringe upon any reasonable expectations of privacy, nor did they offend the federal or state constitutions.

Reversed and remanded.

1 The valet attendant did not testify at the suppression hearing. Without objection from defense counsel, the motion judge considered the valet's hearsay account of the events as set forth in the police reports furnished to the court. See N.J.R.E. 101(a)(2)(E) (providing that the rules of evidence may be relaxed to consider "relevant and trustworthy evidence in the interest of justice" during proceedings to determine the admissibility of evidence); N.J.R.E. 104(a) (providing that when evaluating the admissibility of proffered evidence, a judge is not precluded from considering, in making that ruling, proofs that otherwise would be excluded by the evidence rules, except for N.J.R.E. 403 or a valid claim of privilege); see also State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013), certif. granted, 217 N.J. 283 (2014).