STATE OF NEW JERSEY v. ALLAN FARMER
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3892-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
V.
ALLAN FARMER, a/k/a
RAHEEM TUBBLETON, A.J.
FARMER, and ALLEN J. FARMER,
Defendant-Appellant.
Submitted January 23, 2018 - Decided February 15, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
08-12-1156, 09-04-0317, 09-04-0318, 09-10-
0926, 10-08-0870, and 11-02-0159.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Gurbir S. Grewel, Attorney General, attorney
for respondent (Sarah D. Brigham, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
In this appeal, defendant Allan Farmer challenges the denial
of his motion to suppress drugs and a weapon that were seized
during a search of his motel room, and a weapon that was seized
during a subsequent search of an unoccupied apartment. Both
searches were conducted without a warrant, and had their genesis
in a tip police received from a known informant that defendant
possessed an assault weapon, which he planned to move from one
room to another room in the motel. For the reasons that follow,
we affirm.
I.
Defendant was charged with first-degree attempted murder and
various drug and weapons offenses in a series of Union County
indictments, including Indictment Nos. 08-11-0953-I, 08-12-1156-
I, 09-04-0317-I, 09-04-0318-I, 09-07-0600-I, 09-10-0926-I, 10-08-
0870-I, and 11-02-0159-I. Specifically at issue in this appeal
are Indictment Nos. 09-04-0317-I and 09-04-0318-I, which stem from
the December 4, 2008 warrantless searches of the motel room and
vacant apartment.
Indictment No. 09-04-0317-I charged defendant with third-
degree possession of cocaine,
N.J.S.A. 2C:35-10(a)(1) (count one);
second-degree unlawful possession of an assault firearm,
N.J.S.A.
2C:39-5(f) (count two), fourth-degree possession of a large
capacity ammunition magazine,
N.J.S.A. 2C:39-3(j) (count three);
2 A-3892-15T1
third-degree unlawful possession of a shotgun,
N.J.S.A. 2C:39-
5(c)(1) (count four); and third-degree possession of a prohibited
weapon (sawed-off shotgun),
N.J.S.A. 2C:39-3(b) (count five). In
Indictment No. 09-04-0318-I, defendant was charged with second-
degree certain persons not to possess weapons,
N.J.S.A. 2C:39-
7(b)(1) (count one); and fourth-degree certain persons not to
possess weapons,
N.J.S.A. 2C:39-7(a) (count two).
From March 19, 2010, to April 12, 2010, the trial court
conducted evidentiary hearings on defendant's motions to suppress
evidence relating to Indictment Nos. 08-11-0953-I, 09-04-0317-I,
09-04-0318-I, and 09-07-0600-I.1 Pertinent to this appeal, on April
19, 2010, the motion judge denied defendant's motion to suppress
the guns and drugs seized from the motel room and vacant apartment.
On January 15, 2016, defendant entered into a consolidated
plea agreement on Indictment Nos. 08-12-1156-I, 09-04-0317-I, 09-
04-0318-I, 09-10-0926-I, 10-08-0870-I, and 11-02-0159-I.
Defendant pled guilty to (1) count two of Indictment No. 08-12-
1156-I, third-degree possession of cocaine; (2) count one, third-
degree possession of cocaine, and count two, third-degree unlawful
possession of an assault firearm, under Indictment No. 09-04-0317-
1
The record reflects the court granted defendant's motion to
suppress evidence in Indictment No. 09-07-0600-I, presumably
resulting in the dismissal of that indictment.
3 A-3892-15T1
I; (3) count two of Indictment No. 09-10-0926-I, second-degree
resisting arrest; and (4) count one of Superseding Indictment No.
11-02-0159, first-degree attempted murder. Defendant reserved the
right to appeal the denial of his suppression motions. In return,
the State agreed to (1) dismiss the remaining counts of those four
indictments; (2) dismiss Indictment Nos. 09-04-0318 and 10-08-
0870-I in their entirety; and (3) recommend an aggregate twelve-
year prison sentence with an eighty-five percent parole
ineligibility period pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. On March 11, 2016, the trial court sentenced
defendant to an aggregate ten-year prison term, with an eighty-
five percent period of parole ineligibility under NERA.
II.
As noted, in this appeal, defendant challenges only the
December 4, 2008 warrantless searches of his motel room and an
unoccupied apartment, which formed the basis of Indictment Nos.
09-04-0317-I and 09-04-0318-I. We recount the facts developed in
connection with defendant's motion to suppress the evidence seized
in those searches.
The State presented the testimony of Detective James Malone,
Jr. at the suppression hearing. Malone estimated he had made over
1000 narcotics-related arrests and "probably a couple hundred"
4 A-3892-15T1
gun-related arrests during his twenty-five-year career with the
Elizabeth Police Department.
Malone testified that on December 4, 2008, he received an in-
person tip from a confidential informant (CI) that defendant
possessed a weapon in Room 204 of the Knights Inn. The CI referred
to the weapon as an AK47, but he described it to Malone as a
smaller automatic weapon. The CI advised Malone that defendant
told the CI he was preparing to move the AK47 to room 210 "because
too many people knew he had it and sooner or later the police were
going to find out and come looking for it."
According to Malone, the CI had provided credible information
that led to arrests in the past. Malone was already familiar with
defendant "as someone who was violent and selling drugs in the
Elizabeth area." Malone was also aware that the Knights Inn was
a high-crime area, known for narcotics and prostitution, and he
had previously made some ten to fifteen arrests there.
After receiving the tip, Malone, accompanied by Sergeant Todd
Kelly, Detective Lawrence Smith, Detective Thomas Mekros, and
Detective Jim D'Oreo, immediately drove to the Knights Inn to
investigate, arriving there at approximately 9:49 p.m. As the
officers pulled into the Knights Inn parking lot in their unmarked
car, they observed defendant walk across the second-floor walkway
and enter Room 204 with a key card.
5 A-3892-15T1
Malone testified there was no "vantage point where [the
police] could sit and watch that particular apartment without
sooner or later being detected as police officers." He further
explained that, even if he had a vantage point where he could
watch the hotel room, he would not be able to tell if someone left
the room with the gun because "[i]t could have been placed down
their pants [or] under a jacket." He also deemed it "way too
dangerous to place someone up on the second floor waiting for
someone to come out with . . . a weapon[,]" and stated the police
officers' "vests would be useless with an AK47."
Malone cited his inability to safely approach Room 204 to
make further observations, the danger involved with the assault
weapon, and the lateness of the hour, as reasons he decided to
attempt to gain defendant's consent to search the motel room rather
than seek a search warrant. He conceded, however, that the
officers have "pager numbers" and "[j]udges that [they] can call
to get warrants no matter what the hour."
The police proceeded to Room 204, with Detective D'Oreo
leading the way. D'Oreo walked by Room 204's window and observed
defendant in the room. He also saw a woman, subsequently
identified as M.P.,2 lying on the bed.
2
M.P. subsequently testified at the suppression hearing. We use
initials to protect the privacy interests of the witnesses.
6 A-3892-15T1
D'Oreo knocked and defendant opened the motel room door.
Malone asked defendant if the officers could enter and defendant
consented. Defendant was aware they were police officers, and
Malone informed defendant they "had a report that he was in
possession of a . . . firearm, or . . . [they] suspected that he
was in possession of a firearm." Malone then "asked [defendant]
if he had a weapon, he said he did and I said where is it, he
pointed towards the bathroom. And I asked [defendant] if I could
go retrieve it and he said yes."
Malone went to the bathroom and discovered a semi-automatic
Tec 9 assault weapon and a plastic bag containing a vial of
cocaine. The assault weapon was loaded with an attached large-
capacity magazine containing eighteen rounds of ammunition. The
police also recovered marijuana and drug paraphernalia, which they
observed in plain view on the nightstand next to the bed.
According to Malone, defendant was cooperative, was not
handcuffed, and there were no guns drawn on him throughout this
interaction. On cross-examination, Malone conceded the police had
no consent forms with them and did not inform defendant he had the
right to refuse consent to search the room.
7 A-3892-15T1
After Malone stated he found the weapon, Detective Mekros
advised defendant of his Miranda3 rights and asked him if he had
any other weapons. Defendant replied "there was another shotgun
located at XXX Westminster Ave."4 Malone testified that "[a]s far
as the apartment number[,] [defendant] didn’t know. He said if
you walked in . . . through the front door it was the first
apartment to the right and it would be in there." Defendant was
then arrested and transported to police headquarters.
Malone and the other officers then drove to XXX Westminster
Avenue, which was also in an area known to be "[h]igh in crime"
and "high in narcotics and prostitution." Upon arriving, Malone
rang the superintendent's doorbell and the superintendent's
brother, J.H., answered. In his statement to police, the
superintendent, A.B., explained that J.H. "is sort of like [his]
helper and he lives with [him]."
Believing that J.H. was the superintendent, Malone asked him
if anyone lived in the apartment that defendant had described to
the police. J.H. responded "no it was vacant" but "they were
getting ready to rent it." When asked if anything was in the
3
Miranda v. Arizona,
384 U.S. 436 (1966).
4
We use a fictitious street address to protect the privacy of the
owners and occupants of the multi-family dwelling.
8 A-3892-15T1
apartment, J.H. replied "no, there shouldn’t be." Malone asked
J.H. if he could enter the apartment to look, and J.H. consented.
Malone and the other officers entered the apartment and, in
the kitchen, Detective Larry Smith found a sawed-off shotgun on
top of the cabinets. Smith also found a bag containing numerous
letters addressed to defendant. Malone testified that the
apartment was "clearly vacant" and there was "[n]o furniture, no
clothes, [and] some paint cans." He elaborated that the apartment
"smelt of freshly painted walls or ceilings for that matter."
The superintendent's statement to police was admitted in
evidence without objection at the suppression hearing. In his
statement, A.B. confirmed that the apartment had been vacant for
approximately three months. Consequently, defendant may have had
access to the apartment "because it was unlocked." A.B. stated
he had seen defendant around XXX Westminster Avenue "[a] lot of
times" because he "sells drugs."
M.P. testified on behalf of defendant at the suppression
hearing and gave a different version of events. M.P. described
herself as defendant's girlfriend and confirmed she was present
in the motel on the night of the police entry. According to M.P.,
the police did not announce their presence but instead "they kicked
the door in and [ran] in with guns, and stuff, and they put us in
handcuffs." The police then began searching the room while asking
9 A-3892-15T1
"Where's the gun at? Where's the gun at?" After searching for
approximately twenty minutes, one of the officers announced he
found a gun in the bathroom. On cross-examination, M.P. denied
any knowledge of the gun or the marijuana on the nightstand.
After hearing the testimony of both witnesses, the motion
judge found Malone "was a credible and believable witness."
Specifically, the judge found Malone was "calm, persuasive,
prepared, and responsive to the questions[,]" and there was
"nothing in [Malone's] demeanor that caused me any problems in
accepting the truthfulness of his testimony."
In contrast, the judge found M.P. "not to be a credible or
believable witness." The judge cited M.P.'s "prior conviction for
prostitution, her hesitancy in responding [to] questions, and her
admitted relationship with . . . defendant" as factors bearing on
his credibility determination.
The judge found that, while probable cause may not have
initially existed to search the motel room based on the CI's tip
alone, "when Detective Malone saw [defendant] use a key card to
enter [room 204], then at that point probable cause had clearly
ripened." The judge concluded that "exigent circumstances . . .
existed and they justified not applying for [a search] warrant."
The judge elaborated:
10 A-3892-15T1
[W]e have a firearm by a violent offender in
a fly-by-night hotel where . . . there is
occupancy that is in and out, we know that a
defendant is . . . aware that too many people
know [about] the gun and are about to move it,
we have a surveillance point where the
officers could easily be detected if they
waited [too] long. I'm satisfied that it was
objectively reasonable under the
circumstances for the police officers upon
seeing [defendant] go into that room for those
officers to go to that room and to ask and to
inquire regarding it.
I am further satisfied that upon
[corroborating] the tip, by observing
[defendant] enter Room [204] it was reasonable
for the officers to enter without a warrant
and to search and seize any weapons found.
The judge also found that defendant's consent to the search
of the motel room formed an independent basis to validate the
search. The judge reasoned:
[A]lternately, I'm also satisfied that there
was consent to search here. After knocking
at the door and allowing the . . . officers[']
entry into the apartment, once he was
confronted with the information they had it,
[defendant] gave no indication . . . of
anything other than cooperation, he never said
anything, he nodded in the direction of the
. . . bathroom where the weapon was ultimately
recovered.
I'm satisfied that given [defendant's]
previous experience, he testified under
another indictment that he understands the
system as well as anyone, and . . . under all
of the circumstances he knew that he had a
right to refuse [the] search, he had a right
to refuse the . . . occupancy of that motel
room by the officers. There was certainly no
11 A-3892-15T1
break in by the officers. They confronted him
with the information they had and he gave it
up willingly. So I'm satisfied that there is
probable cause plus exigency but alternately
I'm satisfied that the defendant consented to
this search.
With respect to the ensuing search at XXX Winchester Avenue,
the judge found it "clear" that defendant "has standing to contest
seizure in that vacant room." Nonetheless, the judge determined
that
merely because [defendant] has automatic
standing to contest the seizure does not mean
that he has an expectation of privacy in a
room in which he has no tenancy.
Merely because he was an apparent
trespasser or . . . a former tenant does not
mean that he has the right to assert that the
superintendent of the building cannot consent
to a search of that vacant apartment and I'm
satisfied that the recovery of the firearms
at [XXX] . . . [Westminster] Avenue was
reasonable under the circumstances. That
search is good without the necessity of a
warrant . . . .
And I'm also satisfied that under [Wong
Sun v. United States,
371 U.S. 471 (1963),]
even if there was any illegal arrest . . . in
the initial intrusion, that the providing of
[defendant] with his Miranda [r]ights and the
consent of the . . . superintendent that the
recovery of the firearm[] would have been
admissible even had there been any original
violation but I don't find there was any
Fourth Amendment violation to begin with.
Consequently, the judge denied defendant's motion to suppress
the evidence seized from the motel room and vacant apartment. This
12 A-3892-15T1
appeal followed, in which defendant presents the following
arguments:
THE TRIAL COURT'S FAILURE TO SUPPRESS THE
EVIDENCE SEIZED IN THE ILLEGAL SEARCHES OF THE
MOTEL ROOM AND THE APARTMENT VIOLATED
DEFENDANT'S CONSTITUTIONAL RIGHTS.
A. NEITHER THE INFORMER'S TIP
ALONE NOR THE CORROBORATION OF
THE ASPECT OF THE TIP THAT
PLACED [DEFENDANT] AT THE
MOTEL PROVIDED PROBABLE CAUSE
TO SEARCH THE MOTEL ROOM.
B. THE TRIAL JUDGE'S FINDINGS OF
FACT WITH RESPECT TO THE SEARCH
OF THE MOTEL ROOM ARE NOT BASED
ON CREDIBLE EVIDENCE IN THE
RECORD.
C. [DEFENDANT] DID NOT GIVE VALID
CONSENT TO SEARCH BECAUSE THE
POLICE DID NOT TELL HIM THAT HE
HAD THE RIGHT TO REFUSE
CONSENT.
D. NO EXIGENCY JUSTIFIED THE
WARRANTLESS SEARCH.
E. THE EVIDENCE SEIZED FROM THE
APARTMENT WAS EXCLUDABLE AS
THE FRUIT OF THE POISONOUS TREE
BECAUSE IT WAS THE PRODUCT OF
THE UNLAWFUL SEARCH OF THE
MOTEL ROOM.
II.
Our Supreme Court has recently reaffirmed the principles by
which our review is governed:
13 A-3892-15T1
An appellate court reviewing a motion to
suppress evidence in a criminal case must
uphold the factual findings underlying the
trial court's decision, provided that those
findings are "supported by sufficient credible
evidence in the record." State v. Scriven,
226 N.J. 20, 40 (2016). The suppression
motion judge's findings should be overturned
"only if they are so clearly mistaken 'that
the interests of justice demand intervention
and correction.'" State v. Elders,
192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42
N.J. 146, 162 (1964)). However, we owe no
deference to conclusions of law made by lower
courts in suppression decisions, which we
instead review de novo. State v. Watts, 223
N.J. 503, 516 (2015).
[State v. Boone, ___ N.J. ___, ___ (2017)
(slip op. at 9).]
An appellate court remains mindful not to "disturb the trial
court's findings merely because 'it might have reached a different
conclusion were it the trial tribunal' or because 'the trial court
decided all evidence or inference conflicts in favor of one side'
in a close case." Elders,
192 N.J. at 244 (quoting Johnson,
42 N.J. at 162). Rather, we reverse only when the court's findings
"are so clearly mistaken 'that the interests of justice demand
intervention and correction.'" Ibid. (quoting Johnson,
42 N.J.
at 162).
Under the Fourth Amendment of the United States Constitution
and Article 1, Paragraph 7 of the New Jersey Constitution, a
warrantless search is presumed invalid, and places the burden on
14 A-3892-15T1
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)).
A.
With these principles in mind, we first address defendant's
arguments with respect to the search of the motel room. It is
true, as defendant contends, that "[p]olice are generally required
to secure a warrant before conducting a search of . . . a hotel
room." State v. Hathaway,
222 N.J. 453, 468 (2015) (citing Stoner
v. California,
376 U.S. 483, 486 (1964)). Defendant contends the
trial court erred in upholding the validity of the search of the
motel room based on the exigent circumstances and consent
exceptions to the warrant requirement.
(i) Exigent Circumstances
"New Jersey law establishes that one exception to the warrant
requirement of Article I, Paragraph 7 is a search justified by
probable cause and exigent circumstances." Brown v. State,
230 N.J. 84, 101 (2017).
Although "exigent circumstances" cannot be
precisely defined or reduced to a neat
formula, see State v. Nishina,
175 N.J. 502,
516 (2003), some factors to be considered in
determining whether law enforcement officials
faced such circumstances are the urgency of
the situation, the time it will take to secure
15 A-3892-15T1
a warrant, the seriousness of the crime under
investigation, and the threat that evidence
will be destroyed or lost or that the physical
well-being of people will be endangered unless
immediate action is taken. . . .
At the very least, exigent circumstances will
be present when inaction due to the time
needed to obtain a warrant will create a
substantial likelihood that the police or
members of the public will be exposed to
physical danger or that evidence will be
destroyed or removed from the scene.
[State v. Johnson,
193 N.J. 528, 552-53
(2008).]
"Police officers oftentimes must rely on information provided
by others in assessing whether there is probable cause to believe a
crime has been committed or whether there is an objectively
reasonable basis to believe an ongoing emergency threatens public
safety." Hathaway,
222 N.J. at 470-71. Hearsay may constitute
probative evidence of probable cause "so long as a substantial
basis for crediting the hearsay is presented." State v. Smith,
155 N.J. 83, 92 (1998) (quoting State v. Novembrino,
105 N.J. 95,
111 (1987)).
An informant's "veracity" and "basis of knowledge" are two
highly relevant factors under the totality of the circumstances.
Ibid. A deficiency in one of those factors "may be compensated
for, in determining the overall reliability of a tip, by a strong
showing as to the other, or by some other indicia of reliability."
16 A-3892-15T1
Illinois v. Gates,
462 U.S. 213, 233 (1983). An informant's
veracity may be established in a variety of ways. For example,
"the informant's past reliability will contribute to the
informant's veracity." State v. Zutic,
155 N.J. 103, 110-11 (1998)
(citations omitted).
In this case, there is sufficient credible evidence in the
record supporting the motion judge's ruling that exigent
circumstances existed at the time of the officers' search of
defendant's motel room and that the police had probable cause to
search the room.
As required under Johnson, Detective Malone and his fellow
officers had probable cause to believe the public would be exposed
to physical danger and defendant would remove a dangerous assault
weapon from the scene if they did not search his motel room. The
tip that created this probable cause was not offered anonymously.
Rather, it came from a known informant, who explained to Malone
that defendant was preparing to move an assault weapon out of his
motel room "because too many people knew he had it and sooner or
later the police were going to find out and come looking for it."
The veracity of the CI's information was buttressed by his
past credibility. The CI had provided information to the police
in the past, which led to arrests. Furthermore, the CI's source
of knowledge came from his direct conversation with defendant,
17 A-3892-15T1
during which defendant himself spoke about the gun and expressed
to the CI his intention to move it. Additionally, Malone already
knew defendant "as someone who was violent and selling drugs in
the Elizabeth area."
Malone testified that he and the other officers did not have
a vantage point where they could watch defendant's motel room
"without sooner or later being detected as police officers." He
further indicated that, even if the police had a vantage point
from which they could watch the room, they would not be able to
tell if someone left the room with the weapon because it "could
have been placed down their pants [or] under a jacket." Malone
testified, however, that he and the other officers were able to
observe defendant walking across the second-floor walkway of the
hotel and into Room 204, using a key card to get in, thus
corroborating the CI's information.
We must "examine the conduct of [the police] in light of what
was reasonable under the fast-breaking and potentially life-
threatening circumstances that were faced at the time." Hathaway,
222 N.J. at 469 (citing State v. Frankel,
179 N.J. 586, 599
(2004)). "When viewing the circumstances of each case, a court
must avoid 'the distorted prism of hindsight' and recognize 'that
those who must act in the heat of the moment do so without the
18 A-3892-15T1
luxury of time for calm reflection or sustained deliberation.'"
Ibid. (citing Frankel,
179 N.J. at 599)).
Here, the police were confronted with rapidly developing
circumstances. The C.I. reported that defendant had a dangerous
assault weapon in the motel room and planned to move it. The
officers recognized defendant as a violent person who had
previously engaged in illegal drug transactions. The police thus
faced a situation where a substantial likelihood existed that
they, along with any occupants of the motel, would be exposed to
physical danger, and defendant could have concealed the weapon and
removed it from the scene, during the period of time required to
obtain a search warrant. We conclude that credible evidence in
the record supports the judge's determination that the officers
had probable cause to search defendant's motel room under the
exigent circumstances exception to the warrant requirement.
(ii) Consent
Consent is a well-recognized exception to the Fourth
Amendment's search warrant requirement. Schneckloth v.
Bustamonte,
412 U.S. 218, 227-28 (1973). Furthermore, "consent
searches are considered a 'legitimate aspect of effective police
activity.'" State v. Domicz,
188 N.J. 285, 305 (2006) (quoting
Schneckloth,
412 U.S. at 228).
19 A-3892-15T1
"Consent may be obtained from the person whose property is
to be searched, from a third party who possesses common authority
over the property, or from a third party whom the police reasonably
believe has authority to consent." State v. Maristany,
133 N.J.
299, 305 (1993) (citations omitted). To be valid, a consent to
search must be voluntary and knowing in nature. Schneckloth,
412 U.S. at 222. In New Jersey, the person giving consent must first
be advised of his or her right to refuse. State v. Johnson,
68 N.J. 349, 353-54 (1975).
Preliminarily, defendant concedes the State was not required
to show he knew he could refuse to let the police enter the motel
room. See State v. Padilla,
321 N.J. Super. 96, 102-03 (App. Div.
1999) (distinguishing between consent to allow police to enter
motel room, which does not require notice of right to refuse, and
consent to let police search the room, which requires that
defendant be advised of right to refuse).
Notwithstanding, we part company with the motion judge's
conclusion that defendant validly consented to the subsequent
search of the room. It is undisputed the police did not inform
defendant of his right to refuse consent. Nor can we infer from
the fact that defendant was previously involved in "the system"
that he knew he had the right to refuse consent or otherwise had
a choice in the matter. Accordingly, on this record, we are
20 A-3892-15T1
constrained to find defendant's consent to search the room was not
voluntary.
B.
Finally, we address defendant's challenge to the subsequent
search of the XXX Westminster Avenue apartment. Defendant argues
the sawed-off shotgun seized there should be suppressed as the
fruit of the illegal search of the motel room. He contends that,
"[h]ad the police not conducted the unconstitutional search of the
motel room and found a gun, they would not have arrested
[defendant] and obtained his confession concerning the second gun
at the apartment." We disagree.
"The exclusionary rule has traditionally barred from trial
physical, tangible materials obtained either during or as a direct
result of an unlawful invasion." Wong Sun,
371 U.S. at 485.
"[V]erbal evidence which derives so immediately from an unlawful
entry and an unauthorized arrest . . . is no less the 'fruit' of
official illegality than the more common tangible fruits of the
unwarranted intrusion." Ibid.
Here, the "fruit of the poisonous tree" doctrine does not
apply because the search of the motel room was valid under the
exigent circumstances exception to the warrant requirement.
Moreover, defendant told the officers about the gun in the
21 A-3892-15T1
Westminster Avenue apartment after he was administered Miranda
warnings, the validity of which he does not otherwise challenge.
We note further that "under Article I, Paragraph 7 of the New
Jersey Constitution, 'a criminal defendant is entitled to bring a
motion to suppress evidence obtained in an unlawful search
and seizure if he has a proprietary, possessory or participatory
interest in either the place searched or the property seized.'"
State v. Randolph,
228 N.J. 566, 581-82 (2017) (quoting State v.
Alston,
88 N.J. 211, 228 (1981)). However, "[a]n accused will not
have standing to challenge a search of abandoned property, property
on which he was trespassing, or property from which he was lawfully
evicted." Id. at 585 (citations omitted). "The State has the
burden of establishing that one of those exceptions applies to
strip a defendant of automatic standing to challenge a search."
Ibid. (citing State v. Brown,
216 N.J. 508, 527-28 (2014)).
"A landlord of a building or his agent — if identifiable and
available — presumably would know whether an apartment is leased
and to whom." Id. at 586. "[C]ontacting the person who knows the
rental status of the apartment is one way the police can identify
a trespasser." Ibid.
Here, the police contacted the building superintendent and
were informed by his helper, J.H., that the apartment defendant
described was vacant and unoccupied. Accordingly, defendant
22 A-3892-15T1
lacked any possessory or proprietary interest in the Westminster
Avenue apartment and at best was a trespasser there, as the motion
judge aptly concluded. Further, the police reasonably believed
J.H. was the superintendent and was thus vested with the authority
to consent to the search of the vacant apartment.
Affirmed.
23 A-3892-15T1
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