Opinion
DOCKET NO. A-5819-10T4
05-10-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH STEVENS, Defendant-Appellant.
Antonio J. Toto, attorney for appellant. Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Mantineo.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-10-00581.
Antonio J. Toto, attorney for appellant.
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following the denial of his motion to suppress, defendant Keith Stevens pled guilty pursuant to a negotiated plea agreement to first-degree maintaining or operating a controlled dangerous substance production facility, N.J.S.A. 2C:35-4, as charged in Somerset County Indictment Number 10-10-00581. In return, the State agreed to recommend a term of five years imprisonment together with a fine and other mandatory penalties. Defendant was subsequently sentenced in accordance with the terms of the plea bargain. Defendant reserved the right to appeal the denial of his motion to suppress.
As part of defendant's plea, the State also agreed to dismiss Complaint No S-2010-000240-1811 which charged defendant with possession of narcotics paraphernalia, N.J.S.A. 2C:36-1.
Defendant now appeals, arguing in a single point:
THE STATE DID NOT OBTAIN A WARRANT TO ENTER THE APARTMENT OF DEFENDANT THEREFORE, ALL EVIDENCE MUST BE SUPPRESSED.
Having considered defendant's argument in light of the record, we discern no reason to disturb the trial court's denial of his motion to suppress. We affirm.
I.
Three witnesses testified at the hearing on defendant's motion to suppress: Detective Lieutenant John Crater of the Manville Police Department; Officer David Sheffrin of the Manville Police Department; and defendant.
Crater testified that on July 5, 2010, he became involved in an investigation regarding marijuana plants found in the attic of the second floor apartment in the 1600 block of Roosevelt Avenue, Manville. On that day, the owner of the two-family home, Chester Wleklik, arrived at police headquarters and reported he had discovered a large number of marijuana plants in the attic of a second floor apartment he rented to defendant and co-defendant, Christine Scea.
Co-defendant Scea is not involved in this appeal.
Wleklik stated he had filed an eviction action against the defendants for non-payment of rent, and the pair voluntarily vacated the premises. Wleklik then went to the apartment to determine what repairs needed to be made in order to re-rent the apartment. When he entered, he observed all of the defendants' personal property had been removed. As Wleklik made his way through the unit he noticed the pull down steps in one of the bedrooms leading to the attic were damaged. He pulled the steps down to inspect their condition and climbed into the attic, where he discovered a large quantity of what he suspected were marijuana plants.
Sheffrin accompanied Wleklik to inspect the apartment. When they arrived, Wleklik led Sheffrin, along with two other officers, into the second floor apartment. Once inside, Sheffrin observed that the apartment was empty with no personal belongings, furniture, clothes or other items signifying that anyone was living in the unit.
The officers proceeded to the attic and Sheffrin observed between forty to fifty marijuana plants, fertilizer, storage bins, high intensity lights and pipe used for irrigation. He also observed hooks hanging from the ceiling, which he recognized from his training, as a common method used to dry marijuana plants.
A short time later, Crater arrived at the apartment, where he was briefed by the officers and spoke with Wleklik. Crater then began to canvass the neighbors. The tenants on the first floor were not home so Crater spoke to the tenant in the house next door. She informed him that she had seen defendants move out of the apartment approximately three weeks earlier.
After receiving this information, Crater asked Wleklik to sign a "Consent to Search" form permitting the officers to search the second floor apartment. Wleklik agreed and signed the form. Crater then entered the apartment and immediately observed there was no electricity in the unit. Wleklik advised the officers that the power had been shut off the prior week. Crater also noted "there was no furniture in the surrounding rooms," "no furniture in the entire apartment," "no food in the kitchen," "nothing in the medicine cabinet," and "no clothing in the closets . . . [or] left in the drawers."
Crater ordered Sheffrin to video-record the interior of the apartment including the attic. The video, which was played at the suppression hearing, displayed the marijuana plants and paraphernalia discovered. It also revealed there was little personal property of defendants' left in the unit. The officers then seized the marijuana plants and paraphernalia. Crater field tested a number of the plants and received positive results for marijuana.
Crater returned to the apartment on July 6, 2010, and spoke with a tenant of the first-floor apartment. This individual stated she had observed the defendants moving out of the apartment approximately three weeks earlier. Crater went to the residence again on August 30, 2010, and spoke to another tenant of the first-floor apartment who indicated that the defendants moved out a week or two prior to the weekend of July 4. He also stated defendants had not returned to the apartment since they moved.
Arrest warrants were issued for defendants and defendant was arrested on September 15, 2010. Defendant waived his Miranda rights and gave a video-taped statement. He listed his address as his parents' home on Southwood Drive, Old Bridge. He admitted he had grown and maintained marijuana plants in the attic of his former residence, the apartment on Roosevelt Avenue. He told Crater that Scea and he moved out of the apartment in June, 2010, because they could no longer afford the rent.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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On September 17, 2010, co-defendant Scea surrendered to the Manville Police on her outstanding warrant. She was advised of her Miranda rights, waived them and provided a statement. She gave her address on Durham Place, Bensalem, Pennsylvania, her parents' home. Scea advised that the defendant and she moved out of their apartment in the beginning of June, 2010. She further stated they voluntarily left the unit because they were unable to pay the rent and had received an eviction notice from the landlord. Scea denied knowledge of any marijuana plants and stated that had she known defendant was growing marijuana plants in the attic of their home, she would have immediately moved herself and their child out of the apartment.
Defendant testified at the suppression hearing. He stated he attempted to return to his apartment on Roosevelt Avenue on July 5, 2010, to retrieve the remainder of his belongings. When he arrived on the block, he noticed a police car parked in front of the house so he continued on his way without stopping. Defendant further stated while he had removed most of his property from the apartment in June, he had left certain items behind because he believed he had until July 14, 2010, to vacate the apartment, based on the landlord's May 14, 2010 letter, stating he had sixty days to vacate. He testified that when he moved out, he left three air conditioners, a washer, dryer, refrigerator as well as other personal belongings behind, which he intended to retrieve.
After listening to the testimony and arguments of counsel, the court issued a written opinion denying defendant's motion to suppress. The court concluded defendant did not have standing to challenge the search as he had abandoned the property, which the police had seized. This appeal followed.
II.
Our standard of review requires us to defer to the factual findings made by the motion judge. See State v. Elders, 192 N.J. 224, 243 (2007) (stating "an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record."). This is so because "those findings of the trial judge . . . are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, "a reviewing court owes no deference to the trial court in deciding matters of law." State v. Mann, 203 N.J. 328, 337 (2010) (citing State v. Gandhi, 201 N.J. 161, 176 (2010)). Applying these standards, we are satisfied defendant's motion to suppress was properly denied.
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 unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). Under both the federal and state constitutions, "judicially-authorized search warrants are strongly preferred before law enforcement officers conduct a search, particularly of a home." State v. Johnson, 193 N.J. 528, 552 (2008) (citing Welsh v. Wisconsin, 466 U.S. 740, 748-49, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732, 742 (1984); Elders, supra, 192 N.J. at 246). Indeed, "[b]ecause our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are 'presumptively unreasonable.'" Ibid. (quoting Elders, supra, 192 N.J. at 246).
"[A] defendant has automatic standing to move to suppress evidence from a claimed unreasonable search or seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Carvajal, 202 N.J. 214, 222 (citation omitted). Generally, "[u]nder our standing jurisprudence . . . a defendant charged with a possessory offense, such as possession of a controlled dangerous substance with intent to distribute, has standing to challenge the seizure of the evidence that constitutes the possession element of the offense." Id. at 222-23. However, "a defendant has no constitutionally protected interest in property that has been abandoned[,]" and lacks standing to object to the search or seizure of that property. Id. at 223. "For standing purposes, 'property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.'" Ibid. (quoting Johnson, supra, 193 N.J. at 549). "The State bears the burden of proving 'by a preponderance of the evidence that the defendant abandoned the property and therefore had no standing to object to the search.'" Id. at 223-24 (quoting Johnson, supra, 193 N.J. 548). "The issue of whether property has been abandoned is factual in nature." State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd, 89 N.J. 378 (1982) (citation omitted).
In State v. Burgos, 185 N.J. Super. 424, 426-27 (App. Div. 1982), this Court held that a defendant had no protected Fourth Amendment right in the narcotics stash maintained remotely from his person, holding that stashing drugs in a tin container underneath a parked vehicle was another variation of the "recognized theme of abandonment of personal property for purposes of constitutionally protected privacy." In reaching this determination this court adopted the analysis of the Supreme Court of Minnesota, stating:
"The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question . . . is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest. In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein."
[Id. at 426-27 (quoting City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365 (1975) (citations omitted))].
The police entry into the attic of the Roosevelt Avenue apartment to investigate Wleklik's complaint did not constitute a "search" under the Fourth Amendment. A search only "occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." State v. Linton, 356 N.J. Super. 255, 258 (2001) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85, 94 (1984)). Here, the evidence amply supports the conclusion that defendant did not, and could not, possess a reasonable expectation of privacy in the apartment or the contraband left behind as he had abandoned the apartment weeks prior. See Linton, supra, 356 N.J. Super. at 259 (holding "a defendant who hides drugs in someone else's vacant property has no constitutionally-reasonable expectation of privacy.").
However, even if the police conduct is deemed a search subject to Fourth Amendment protections, it was consensual, and the police seizure of the marijuana and paraphernalia passes constitutional muster.
We begin by noting that at the time the landlord entered the apartment on July 5, 2010, defendants' had removed all of their personal property from the unit, with the exception of some appliances and a few items in the attic. In addition to removing their personal belongings, the defendants had set up residence at another location, thus demonstrating they relinquished their possessory interest in the apartment on Roosevelt Avenue.
When the officers entered the apartment on July 5, they also found nothing to indicate defendants continued to reside in the unit. Quite the reverse was true. In addition to observing the absence of furniture, clothes, food or toiletries, they discovered the electricity for the unit had been shut off for at least one week. Taken together, these facts support the motion judge's finding that defendants' had abandoned the apartment, making the items left behind subject to seizure without a warrant.
Further, "[t]he facts and circumstances pertinent to the court's abandonment inquiry are not limited to those which were known to the officers at the time of the search or seizure. Rather, subsequently discovered events may support an inference that [defendants] had already chosen, and manifested their decision, not to return to the property." State v. List, 270 N.J. Super. 252, 260 (Law Div. 1990), aff'd, 270 N.J. Super. 169 (App. Div.), certif. denied, 134 N.J. 486 (1993) (quoting United States v. Levasseur, 620 F.2d 37, 44 (2nd Cir. 1987)). "This is so because the issue here is not the subjective state of mind of [the police officer] as he conducted the search. Rather, the issue is whether [defendant] had manifested an intent to abandon. . . ." Ibid. (quoting United States v. Moskowitz, 883 F.2d 1142, 1148 (2nd Cir. 1989)).
Members of the Manville police department obtained statements from both the defendants and the first floor tenants confirming defendant and Scea had abandoned the apartment weeks earlier and had not returned. Additionally, defendants' themselves confirmed they surrendered their interest in the apartment prior to the date of the seizure of the marijuana plants. Defendant admitted the pair voluntarily moved from the apartment in June. Scea also acknowledged the pair left in early June. She stated she was surprised to learn that some of her personal items were left behind in the attic, as she believed defendant had removed all of their property from the apartment. She detailed how defendant and she put all their belongings into the moving truck, dropped some things off at defendant's parents' home and placed the rest in storage.
We also find significant defendant's failure to mention in his statement to police his intention to retrieve the items left in the apartment. When asked, "who moved everything out of the house?" defendant did not respond by stating he had left things behind that he intended to retrieve. Rather, the answer he provided was "me, my father . . . and . . . one of my buddies. And . . . Christine got her stuff too." Notably, defendant did not suggest the couple had not completed their move and intended to continue to exercise a possessory interest in the property remaining in the apartment. These actions demonstrate the two had given up their interest in the apartment when they moved in June. The effect of the move terminated defendant's interest in the apartment and transferred it to the landlord. The landlord was then permitted to treat the property as his own and to invite the police into the unit to seize the contraband discovered.
We agree with the trial court's legal conclusion that defendant abandoned any constitutionally sheltered privacy expectation in the apartment and any contents left behind. Given defendant had no expectation of privacy in the property seized, we find no merit to his assertion of constitutional violations resulting from the search or seizure.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION