STATE V. SAEZ

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

STATE OF NEW JERSEY V. EDDIE SAEZ (A-76-94)
 
STATE OF NEW JERSEY V. ORLANDO NAVARRO (A-77-94)
 
STATE OF NEW JERSEY V. LUIS SAEZ (A-78-94)
 

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's reversal of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge D'Annunzio's dissenting opinion below.)

Argued January 3, 1995 -- Decided February 23, 1995

Eddie Saez, Luis Saez, and Orlando Navarro (defendants) were indicted on charges of: maintaining or operating a controlled dangerous substance facility (count one); possession of cocaine (count two); possession of cocaine within 1,000 feet of school property (count three); possession of cocaine in quantity of one-half ounce or more with intent to distribute (count four); possession of cocaine with intent to distribute within 1,000 feet of school property (count five); possession of heroin (count six); possession of heroin within 1,000 feet of school property (count seven); possession of heroin with intent to distribute (count eight); and possession of heroin with intent to distribute within 1,000 feet of school property (count nine).

Defendants' motion to suppress the evidence obtained during the police surveillance of Eddie Saez's premises was denied. At the conclusion of trial, the jury convicted Eddie Saez and Orlando Navarro of counts one through five; Luis Saez was convicted of all nine counts of the indictment.

Defendants' convictions were based on observations of illegal drug activity made by investigators of the Monmouth County Narcotics Strike Force. A previously-reliable citizen-informant told Investigator Cassidy of the Strike Force that she had observed narcotics activity in the basement of the adjoining residence to hers. The basement of the informant's building is divided by a wooden wall that was somewhat poorly constructed. The informant told Cassidy that she was able to observe the activity through holes or gaps in the wood partition. She identified the occupant of the adjacent premises as Eddie Saez. The informant invited investigators to observe the narcotics activity from her basement.

From the informant's basement, Cassidy was able to observe Eddie and Luis Saez "rerocking" cocaine. Cassidy testified at the suppression hearing that he was able to make observations through little holes and horizontal cracks in the partition and that he also used a piece of broken mirror to see the activity in the Saez basement. Cassidy was not able to observe anything through the windows of the Saez residence because the windows had been painted over and covered with cloth. Navarro later appeared and was also observed participating in narcotics activity.

Defendants appealed their convictions, which were upheld by a majority of the Appellate Division. In their appeal, defendants argued, among other things, that the trial court erred in failing to suppress the evidence found in the basement as fruits of a warrantless search. On that issue, the majority found that, contrary to the trial court's conclusion, defendants did have a reasonable expectation of privacy in their premises. That reasonableness was evidenced by Saez's effort to protect that privacy interest by covering and painting the windows exposed to the public. Nonetheless, the majority concluded that the warrantless search was overcome by the "third-party intervention" exception. The majority found that because the initial invasion of defendants' privacy was occasioned by the private action of a citizen-informant and because the observations of the police went no further than that of the informant's in frustrating or infringing on

defendants' privacy, the police conduct, under these circumstances, was not an unreasonable search in violation of either the State or federal constitutions.

Judge D'Annunzio dissented, finding the third-party intervention exception inapplicable to the facts of this case. According to the dissent, where the government expands the private search, the exception no longer applies to the fruits of that expanded search. Here, the police were not invited to view specific, immutable objects that the informant had reduced to possession. Rather, the police were invited by the informant to view the basement and any activity occurring there. Because no one could predict with certainty what the police would see, each moment of surveillance was a new invasion of privacy.

Judge D'Annunzio, noting that Eddie Saez went to great lengths to protect the privacy of his activities, concluded that the police surveillance was an egregious breach of the privacy and security afforded by the home to its occupants and a violation of societal expectations in respect of appropriate conduct for either the police or a private citizen. The dissent opined that defendants' expectation of privacy in the basement was reasonable, despite the neighbor-informant's ability to surreptitiously survey the inside of that room. Therefore, the search required a warrant and the fruits of that warrantless search should have been suppressed.

HELD: Judgment of the Appellate Division is reversed substantially for the reasons expressed by Judge D'Annunzio in his written dissent below. The police surveillance of Eddie Saez's basement through cracks in the wood partition wall of the adjoining basement violated a legitimate and reasonable expectation of privacy and, therefore, was a search requiring a warrant. Thus, the fruits of that warrantless search should have been suppressed.

1. The Court does not imply that the third-party intervention exception applies only when the informant previously has reduced to possession the objects viewed by law-enforcement officials. However, the Court agrees with Judge D'Annunzio's analysis that described the extended and continuous police surveillance as a significant expansion of the informant's prior observation of the activities conducted in the adjoining basement. (pp. 2)

2. Because the majority and dissent in the Appellate Division agreed that defendants retained a reasonable expectation of privacy in respect of their activities in the basement and that, under the circumstances, the extended surveillance conducted in the adjoining basement was not a reasonable search otherwise justified by the plain-view exception to the search warrant requirement, that issue is not before the Court and is not addressed.

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for retrial.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
A-76/77/ 78 September Term 1994

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. A-76

EDDIE SAEZ,

Defendant-Appellant.
--------------------------------
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. A-77

ORLANDO NAVARRO,

Defendant-Appellant.
--------------------------------
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. A-78

LUIS SAEZ,

Defendant-Appellant.

Argued January 3, 1995 -- Decided February 23, 1995

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 268 N.J. Super. 250 (1993).

Lorraine J. Betancourt argued the cause for appellant Eddie Saez (A. Kenneth Weiner, attorney).

Ruth Bove, Assistant Deputy Public Defender, argued the cause for appellants Luis Saez and Orlando Navarro (Susan L. Reisner, Public Defender, attorney).

Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent (John Kaye, Monmouth County Prosecutor, attorney; John M. Caruso, Assistant Prosecutor, on the briefs).

Lisa Sarnoff Gochman, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

PER CURIAM

Defendants appeal as of right on the basis of the dissent in the Appellate Division. R. 2:2-1(a). We reverse the judgment of the Appellate Division substantially for the reasons set forth in Judge D'Annunzio's dissenting opinion. 268 N.J. Super. 250, 270-79 (1993). Although we do not imply that the third-party intervention exception applies only when the informant previously has reduced to possession the objects viewed by law-enforcement officials, we are generally in accord with the dissenting opinion's analysis that described the extended and continuous police surveillance as a significant expansion of the informant's prior observation of the activities conducted in the adjacent basement. Id. at 272-73.

Because the majority and the dissenting member of the Appellate Division panel agreed that defendants retained a reasonable expectation of privacy in respect of their activities in the basement apartment, and that under the circumstances the

extended surveillance of the activities conducted in the adjacent basement was not a reasonable search otherwise justified by the plain-view exception to the requirement for a search warrant, that issue is not before us and we do not address it.

Judgment reversed. The matter is remanded to the Law Division for retrial.

CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-76/77/78

SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. A-76
EDDIE SAEZ,
Defendant-Appellant.
--------------------------------
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. A-77
ORLANDO NAVARRO,
Defendant-Appellant.
--------------------------------
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. A-78
LUIS SAEZ,
Defendant-Appellant.

DECIDED February 23, 1995 Chief Justice Wilentz

PRESIDING
OPINION BY Per Curiam CONCURRING OPINION BY DISSENTING OPINION BY CHECKLIST
REVERSE & REMAND CHIEF JUSTICE WILENTZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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