State v. Ricky Wright (073137)

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
interest of brevity, portions of any opinion may not have been summarized.)
State v. Ricky Wright (A-64-13) (073137)
Argued January 5, 2015 -- Decided May 19, 2015
RABNER, C.J., writing for a unanimous Court.
The issue in this appeal is whether the “third-party intervention” or “private search” doctrine applies to a
warrantless search of a home. The doctrine originally addressed situations like the following: Private actors search
an item, discover contraband, and notify law enforcement officers or present the item to them. The police, in turn,
replicate the search without first getting a warrant. Because the original search is carried out by private actors, it
does not implicate the Fourth Amendment. And if the officers’ search of the item does not exceed the scope of the
private search, the police have not invaded a defendant’s protected privacy interest and do not need a warrant. The
State now seeks to expand the doctrine to a very different setting: the search of a private home.
In this case, co-defendant Evangeline James and her young children lived in an apartment on the first floor
of a two-family home in Asbury Park. Defendant Ricky Wright, James’ boyfriend, stayed at the apartment about
three to four nights per week. On Sunday evening, March 29, 2009, James called her landlord, Alfred Santillo, and
reported a “major water leak” in the kitchen ceiling. Santillo told James to shut off the main water valve and said
that he would stop by with a plumber the next morning. Santillo and the plumber, Nicholas Alexo, arrived at the
apartment before noon on Monday. Because no one was home, Santillo called James, who did not answer her
phone. After waiting about a half hour, Santillo let himself into the apartment, as he had done on prior occasions.
Santillo and Alexo saw water and sewage leaking from the kitchen ceiling. Because the water pipes in the
kitchen led to the back of the apartment, Alexo went to the rear bedroom to check for other leaks. Alexo saw a
small bag of marijuana on top of a nightstand. Inside an open drawer of the nightstand, he also saw a small box that
he believed contained powder or crack cocaine. Alexo called Santillo into the bedroom and showed him the items.
They then called the police. Officer Carl Christie responded. He walked into the apartment and looked around the
kitchen and bedroom area. He, too, noticed the drugs and found a scale as well. Neither Santillo nor Alexo had told
him about the scale. Christie called for back-up. A number of officers responded, including Officer Lorenzo
Pettway of the narcotics unit. The police conducted a full search moments later, with the resident’s consent, and
found other contraband, including drug paraphernalia and a handgun loaded with hollow-point bullets. After the
search, the police arrested James. Defendant Wright arrived as they were leaving the apartment, and the police
arrested him as well.
A Monmouth County grand jury indicted Wright and James on various drug offenses, second-degree
possession of a firearm in the course of committing a drug offense, second-degree possession of a firearm for an
unlawful purpose, and fourth-degree possession of a prohibited weapon, namely, body armor piercing bullets.
Wright moved to suppress the evidence. During the hearing, Pettway conceded that “it wasn’t particularly urgent . .
. to search right away.” He acknowledged that the police had time to secure the house and apply for a search
warrant. The trial court denied Wright’s motion to suppress, concluding that the search of the apartment did not
violate the Fourth Amendment. The judge relied on the third-party intervention doctrine and explained that
Christie’s inspection did not exceed the scope of the search initially done by private citizens. As a result, the court
concluded that Christie’s conduct did not violate the Federal or State Constitutions. The court also found that James
voluntarily and knowingly consented to the full search conducted by Pettway and others.
Wright appealed and the Appellate Division affirmed. State v. Wright, 431 N.J. Super. 558 (App. Div.
2013). The panel agreed that the evidence seized could be admitted under the third-party intervention doctrine
because (1) Santillo’s initial entry “was lawful and did not trample upon [James’s] property rights or reasonable
privacy expectations,” and (2) Officer Christie’s entry was limited to verifying Santillo’s observations.
1
The Court granted Wright’s petition for certification limited to the following issue: “whether the third
party intervention doctrine is applicable to permit police to search residential property without a warrant.” 217 N.J.
283 (2014).
HELD: The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of
defendant’s home from the warrant requirement. Absent exigency or some other exception to the warrant
requirement, the police must get a warrant to enter a private home and conduct a search, even if a private actor has
already searched the area and notified law enforcement.
1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey
Constitution guard against warrantless searches. The first clause of each guarantees that “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” The United States Supreme Court recently reaffirmed the heightened status of the home under the
Constitution. The Court observed that “when it comes to the Fourth Amendment, the home is first among equals”
and stands “at the Amendment’s very core.” Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). A warrantless
search of a private dwelling is “presumptively invalid,” State v. Lamb, 218 N.J. 300, 315 (2014), and calls for
“particularly careful scrutiny,” State v. Bolte, 115 N.J. 579, 583 (1989). To overcome that presumption, the State
must show that a warrantless search falls within a recognized exception to the warrant requirement. (pp. 12-15)
2. The third-party intervention doctrine has its roots in Burdeau v. McDowell, in which the Supreme Court held that
the Fourth Amendment’s warrant requirement applies only to government agents, not private actors. 256 U.S. 465
(1921). The Supreme Court reaffirmed that principle in Walter v. United States, 447 U.S. 649 (1980). Neither the
United States Supreme Court nor this Court has applied the third-party intervention or private search doctrine to the
search of a private home. That would represent a significant expansion of the doctrine. Police would no longer
simply be asked to view a discrete set of items turned over to them. Instead, they would walk through a private
residence and observe far more. Courts around the country have wrestled with this question. Some have expressly
declined to expand the doctrine to private dwellings. Other courts have permitted warrantless searches of a private
home that did not exceed the scope of an earlier private search. (pp. 15-26)
3. The United States Supreme Court has never applied the private search doctrine to the home, and this Court does
not glean from recent decisions that it would allow such an extension. Relying on the protections in the State
Constitution, the Court concludes that the private search doctrine cannot apply to private dwellings. Absent
exigency or some other exception to the warrant requirement, the police must get a warrant to enter a private home
and conduct a search, even if a private actor has already searched the area and notified law enforcement. A landlord,
like any other guest, may tell the police about contraband he or she has observed. And the police, in turn, can use
that information to apply for a search warrant. But that course of events does not create an exception to the warrant
requirement. To hold otherwise would result in a sizeable exception to the requirement and expand the private
search doctrine beyond the minimal intrusion it originally sanctioned. An invitation to a plumber, a dinner guest, or
a landlord does not open the door to one’s home to a warrantless search by a police officer. In addition, in this case,
the State cannot rely on the plain view doctrine to justify the seizure of the scale because the officer was not
“lawfully in the viewing area.” (pp. 26-30)
4. The third-party intervention or private search doctrine does not exempt law enforcement’s initial search of
defendant’s home from the warrant requirement. Nothing in this opinion, however, is intended to cast doubt on the
private search or third-party intervention doctrine in its original form. When the police reexamine property that has
been searched by a private actor and presented to law enforcement in a non-residential context, neither the Fourth
Amendment nor the State Constitution requires a warrant. (pp. 30-32)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for further proceedings consistent with the Court’s opinion.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in
CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF (temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-64 September Term 2013
073137
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKY WRIGHT,
Defendant-Appellant.
Argued January 5, 2015 – Decided May 19, 2015
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 431 N.J. Super. 558 (App. Div.
2013).
Rochelle M.A. Watson, Assistant Deputy
Public Defender, argued the cause for
appellant (Joseph E. Krakora, Public
Defender, attorney; Sylvia M. Orenstein,
Assistant Deputy Public Defender, of counsel
and on the briefs).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Joseph A. Pace argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Gibbons, attorneys; Mr. Pace and
Lawrence S. Lustberg, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
In this case, we consider whether the “third-party
1
intervention” or “private search” doctrine applies to a
warrantless search of a home.
The doctrine originally addressed situations like the
following: Private actors search an item, discover contraband,
and notify law enforcement officers or present the item to them.
The police, in turn, replicate the search without first getting
a warrant. See, e.g., United States v. Jacobsen, 466 U.S. 109,
104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Because the original
search is carried out by private actors, it does not implicate
the Fourth Amendment. And if the officers’ search of the item
does not exceed the scope of the private search, the police have
not invaded a defendant’s protected privacy interest and do not
need a warrant.
The State now seeks to expand the doctrine to a very
different setting: the search of a private home. In this case,
a resident reported a leak in her apartment to her landlord, who
showed up the following day with a plumber. The landlord and
plumber entered the apartment while no one was home, spotted the
leak in the kitchen, and checked elsewhere for additional leaks.
In the rear bedroom, the plumber saw drugs on top of a
nightstand and inside an open drawer. He and the landlord
notified the police.
Instead of using that information to apply for a search
warrant, an officer walked into the apartment and looked around
2
the kitchen and bedroom area. He, too, noticed the drugs and
found a scale as well. The police conducted a full search
moments later, with the resident’s consent, and found other
contraband.
The Federal and State Constitutions both recognize the
sanctity and privacy of a person’s home. The United States
Supreme Court and this Court have repeatedly emphasized that a
person’s home is entitled to the highest form of protection
against warrantless searches. The police, therefore, must get a
warrant before they may search a home, unless an exception to
the warrant requirement applies.
We do not find that the third-party intervention doctrine
qualifies as an exception here. The United States Supreme Court
has not applied the private search doctrine to private
dwellings, and we decline to extend the doctrine in that way
under the State Constitution. Homes are filled with intimate,
private details about peoples’ lives that are ordinarily free
from government scrutiny. An officer’s entry into a home is a
far greater intrusion than a search of a package presented to
the police. Also, inviting a plumber or dinner guest into a
private home does not carry with it an invitation to the police.
Residents of course run the risk that any private actor
they invite into their home may tell the police what they have
seen. And the police, in turn, can use that information to
3
apply for a search warrant. In this case, because the police
did not obtain a warrant before first entering defendant’s
apartment, the officer’s original search did not comply with the
State Constitution. The State does not rely on exigent
circumstances here. When those circumstances are present, a
warrant is not required. State v. Earls, 214 N.J. 564, 569
(2013).
We therefore reverse the judgment of the Appellate
Division, which affirmed the trial court and upheld the search.
We also remand the matter to the trial court to determine
whether the initial unlawful search tainted the later consent
search.
I.
The following facts are taken from testimony presented at a
pretrial suppression hearing. Three police officers and co-
defendant Evangeline James testified; the trial court credited
the officers’ testimony and found that James was not credible.
James and her three young children lived in an apartment on
the first floor of a two-family home in Asbury Park. Defendant
Ricky Wright, James’s boyfriend and the father of her youngest
child, stayed at the apartment about three to four nights per
week.
On Sunday evening, March 29, 2009, James called her
landlord, Alfred Santillo, and reported a “major water leak” in
4
the kitchen ceiling. Santillo told James to shut off the main
water valve and said that he would stop by with a plumber the
next morning to fix the leak.
Santillo and the plumber, Nicholas Alexo, arrived at the
apartment before noon on Monday. Because no one was home,
Santillo called James, who did not answer her phone. After
waiting about a half hour, Santillo let himself into the
apartment, as he had done on prior occasions.
Santillo and Alexo saw water and sewage leaking from the
kitchen ceiling. Because the water pipes in the kitchen led to
the back of the apartment, Alexo went to the rear bedroom to
check for other leaks. Alexo saw a small bag of marijuana on
top of a nightstand. Inside an open drawer of the nightstand,
he also saw a small box that he believed contained powder or
crack cocaine. Alexo called Santillo into the bedroom and
showed him the items. They then called the police.
Officer Carl Christie responded shortly before 1 p.m. He
spoke with Santillo and Alexo, who explained what happened and
what they had seen. Christie entered the apartment without a
search warrant. Along with Santillo and Alexo, he saw the leak
in the kitchen and then went to the rear bedroom. Christie
noticed a small nightstand with marijuana on it and, in an open
drawer of the nightstand, he saw an open cardboard box with bags
of cocaine inside. Christie also spotted a small scale in the
5
same drawer. Neither Santillo nor Alexo had told him about the
scale.
Christie then called for back-up while Alexo and Santillo
tried to repair the leak. A number of officers responded,
including Officer Lorenzo Pettway of the narcotics unit. At
this point, six officers were on the scene.
Christie briefed Pettway and told him about the drugs in
the bedroom. Santillo and Alexo also told Pettway what had
taken place. Pettway got James’s phone number from Santillo and
called her. He relayed that James’s landlord had found “some
items” in her apartment and asked her to return so that he could
retrieve them. James arrived about fifteen to twenty minutes
later.
Pettway and James then spoke outside the apartment.
Pettway explained that drugs had been found inside and asked for
consent to remove them and search the apartment for additional
narcotics. Pettway testified that James agreed and signed a
consent to search form.
During the search that followed, the officers found the
following items in addition to the drugs and scale that Christie
had observed: a handgun loaded with hollow-point bullets --
inside a partially opened red and black book bag; a little less
than one hundred bullets of different caliber sizes -- inside a
black camera bag; a box of baking soda and sandwich bags,
6
commonly used to cut and package cocaine; and a Pyrex plate and
measuring cup, both of which had some powder residue that
appeared to be cocaine.
After the search, the police arrested James. Defendant
Wright arrived as they were leaving the apartment, and the
police arrested him as well. Wright had returned to the
apartment in response to an earlier call from James and the
police.
A Monmouth County grand jury indicted Wright and James in
November 2009. The eight-count indictment charged them with
third-degree possession of cocaine, a controlled dangerous
substance, N.J.S.A. 2C:35-10(a)(1); second-degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2);
third-degree possession of cocaine with intent to distribute
within 1000 feet of school property, N.J.S.A. 2C:35-7; second-
degree possession of a firearm in the course of committing a
drug offense, N.J.S.A. 2C:39-4.1(a); second-degree possession of
a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and,
fourth-degree possession of a prohibited weapon, namely, body
armor piercing bullets, N.J.S.A. 2C:39-3(f) (mistakenly cited as
N.J.S.A. 2C:39-3(e)). Wright alone was also charged with third-
degree making of terroristic threats, N.J.S.A. 2C:12-3, and
second-degree witness tampering, N.J.S.A. 2C:28-5(a).
7
Wright moved to suppress the evidence. During a three-day
hearing, the trial court heard testimony from Christie, Pettway,
and another officer; their testimony is partly summarized above.
James also testified and offered a different account. She
claimed that when she first called Santillo on Sunday, March 29,
he said he would arrive at 4:00 p.m. the next day; that no
dresser drawers were open when she left the apartment on Monday
morning; that when Santillo called her at about 11:00 a.m. on
Monday, she said she would return in forty-five minutes and did
not give him permission to enter the apartment; that when she
arrived, the police told her they had found drugs and a weapon
in the apartment; and, among other things, that she consented to
a search while handcuffed, after the police said they would not
“call DYFS” if she cooperated.
During the hearing, Pettway also conceded that “it wasn’t
particularly urgent . . . to search right away.” He
acknowledged that the police had time to secure the house and
apply for a search warrant.
The trial court denied Wright’s motion to suppress. In a
written opinion, the court accepted and relied heavily on the
officers’ testimony. The judge found that James was
“unreliable, untrustworthy, incredible and in all likelihood
false in her attempt to exculpate her co-defendant who fathered
8
their child and who controls her in a domineering, abusive
relationship.”
The trial court concluded that the search of the apartment
did not violate the Fourth Amendment. The judge relied on the
third-party intervention doctrine, an exception to the warrant
requirement. The court explained that Christie’s inspection did
not exceed the scope of the search initially done by private
citizens. As a result, the court concluded that his conduct did
not violate the Federal or State Constitutions. The court also
found that James voluntarily and knowingly consented to the full
search conducted by Pettway and others.
Wright pled guilty to the entire indictment but did not
waive his right to appeal the suppression ruling. See R. 3:5-
7(d). The trial court sentenced him to an aggregate term of
fifteen years’ imprisonment, with a six-year period of parole
ineligibility. Afterward, the State dismissed all charges
against James.
Wright appealed. In a thorough and thoughtful opinion, the
Appellate Division affirmed. See State v. Wright, 431 N.J.
Super. 558, 564 (App. Div. 2013). The decision reviewed
relevant federal and state case law on the third-party
intervention doctrine and its application to searches of private
dwellings. Id. at 575-87. The opinion underscored how
important it is that “the police’s entry . . . be no greater
9
than the scope of the landlord’s [prior] private observations.”
Id. at 582. In light of the heightened protection the law
provides to private residences, the Appellate Division also
restricted the doctrine’s application in that setting. Id. at
587-88. The panel held that, under the Federal and State
Constitutions,
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. As an additional
limitation, even if the private entry is not
illegal or unauthorized, the third-party
intervention doctrine should not apply if the
intrusion by the private actor and law
enforcement officials, taken as a whole, is
objectively unreasonable.
[Ibid.]
Applying those principles, the panel agreed that the
evidence seized could be admitted because (1) Santillo’s initial
entry “was lawful and did not trample upon [James’s] property
rights or reasonable privacy expectations,” and (2) Officer
Christie’s entry was limited to verifying Santillo’s
observations. Id. at 588. The panel also concluded that there
10
was a sound basis for the trial judge to find that James validly
consented to Pettway’s search. Id. at 595.
We granted Wright’s petition for certification limited to
the following issue: “whether the third party intervention
doctrine is applicable to permit police to search residential
property without a warrant.” 217 N.J. 283 (2014). We also
granted the motion of the American Civil Liberties Union of New
Jersey (ACLU) to appear as amicus curiae.
II.
Wright argues that the third-party intervention doctrine
should not apply to searches of private homes. Because of the
unique status of the home under the Fourth Amendment and the
State Constitution, Wright contends that police must get a
warrant before they can search a private residence, absent
exigent circumstances. As a result, he maintains that the
judgment of the Appellate Division should be reversed.
The State, represented by the Attorney General, counters
that the police lawfully entered James’s residence under the
third-party intervention doctrine to confirm what private actors
had already seen. The State contends that because the police
confined their actions to the scope of the initial private
search, this appeal presents a classic example of why the
doctrine should be upheld in the context of a private residence.
11
The State thus agrees with the judgment of the Appellate
Division but urges that its test be reconsidered. The State
believes that the Appellate Division’s test places too much
emphasis on the private actor’s behavior and should instead
focus on whether the police conduct was reasonable.
The ACLU maintains that the State Constitution “does not
countenance a private search exception to the warrant
requirement.” Amicus argues that, under New Jersey case law,
“limited disclosure” to a third party “does not extinguish an
individual’s reasonable expectation of privacy vis-à-vis the
police.” In addition, the ACLU submits that applying the
doctrine to a search of a private residence violates both the
Fourth Amendment and the State Constitution and does not reflect
how people “protect their privacy in the real world: granting a
plumber entry to fix the pipes does not result in an ‘open
house.’”
The State rejects the ACLU’s reliance on case law that
addresses an individual’s expectation of privacy in information
given to a third party. The private search doctrine, the State
submits, “is more akin to third-party consent law.”
III.
We begin with familiar principles. Both the Fourth
Amendment and Article I, Paragraph 7 of the New Jersey
Constitution guard against warrantless searches. The first
12
clause of each guarantees that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Before police
officers may conduct a search, therefore, they must obtain a
warrant or show that a recognized exception to the warrant
requirement applies. Earls, supra, 214 N.J. at 588.
A.
This case involves the search of a home, which raises
special concerns. As the Court has repeatedly observed, the
“physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.” State v. Lamb,
218 N.J. 300, 314 (2014) (quoting State v. Vargas, 213 N.J. 301,
313 (2013) (quoting United States v. U.S. Dist. Court, 407 U.S.
297, 313, 92 S. Ct. 2125, 2135, 32 L. Ed. 2d 752, 764 (1972)));
State v. Walker, 213 N.J. 281, 289 (2013); State v. Harris, 211
N.J. 566, 595 (2012); State v. Davila, 203 N.J. 97, 112 (2010).
The unique status of the home has been recognized for
centuries. Miller v. United States, 357 U.S. 301, 307, 78 S.
Ct. 1190, 1195, 2 L. Ed. 2d 1332, 1337 (1958) (noting debate in
Parliament in 1763 about search of cottage by King’s forces).
And throughout our nation’s history, one of our “most protected
rights . . . has been the sanctity and privacy of a person’s
home.” State v. Bruzzese, 94 N.J. 210, 217 (1983) (citation
13
omitted), cert. denied, 465 U.S. 103, 104 S. Ct. 1295, 79 L. Ed.
2d 695 (1984). Those interests “are entitled to the highest
degree of respect and protection in the framework of our
constitutional system.” State v. Evers, 175 N.J. 355, 384
(2003); see also United States v. Martinez-Fuerte, 428 U.S. 543,
561, 96 S. Ct. 3074, 3084, 49 L. Ed. 2d 1116, 1130 (1976)
(“[T]he sanctity of private dwellings [is] ordinarily afforded
the most stringent Fourth Amendment protection.”); State v.
Johnson, 168 N.J. 608, 625 (2001) (“‘An individual’s privacy
interests are nowhere more clearly defined or rigorously
protected by the courts than in the home.’” (quoting Kornegay v.
Cottingam, 120 F.3d 392, 399-400 (3d Cir. 1997))).
The United States Supreme Court recently reaffirmed the
heightened status of the home under the Constitution. The Court
observed that “when it comes to the Fourth Amendment, the home
is first among equals” and stands “at the Amendment’s very
core.” Florida v. Jardines, ___ U.S. ___, ___, 133 S. Ct. 1409,
1414, 185 L. Ed. 2d 495, 501 (2013) (internal quotation marks
omitted).
This Court also recently emphasized the preeminent position
of a private residence when it held that the community-
caretaking doctrine, standing alone, could not justify a
warrantless search of a home. Vargas, supra, 213 N.J. at 325.
14
The law, thus, “expresses a clear preference for police
officers to secure a warrant before entering and searching a
home.” State v. Brown, 216 N.J. 508, 527 (2014). A warrantless
search of a private dwelling is “presumptively invalid,” Lamb,
supra, 218 N.J. at 315 (citations omitted), and calls for
“particularly careful scrutiny,” State v. Bolte, 115 N.J. 579,
583, cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d
320 (1989). To overcome that presumption, the State must show
that a warrantless search falls within a recognized exception to
the warrant requirement. Lamb, supra, 218 N.J. at 315; see also
Riley v. California, ___ U.S. ___, ___, 134 S. Ct. 2473, 2482,
189 L. Ed. 2d 430, 439 (2014).
B.
The State relies on the third-party intervention doctrine,
also known as the private search doctrine, to justify the
warrantless search in this case. The doctrine has its roots in
Burdeau v. McDowell, in which the Supreme Court held that the
Fourth Amendment’s warrant requirement applies only to
government agents, not private actors. 256 U.S. 465, 41 S. Ct.
574, 65 L. Ed. 1048 (1921). In Burdeau, a private detective
seized incriminating items from the defendant’s office, and the
items were ultimately turned over to the Department of Justice.
Id. at 473-74, 41 S. Ct. at 575, 65 L. Ed. at 1050. Because no
government official had “anything to do with the wrongful
15
seizure,” the Court found no Fourth Amendment violation. Id. at
475, 41 S. Ct. at 576, 65 L. Ed. at 1051.
The Supreme Court reaffirmed that principle in Walter v.
United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410
(1980). In that case, sealed packages of films were mistakenly
delivered to a third party, who unwrapped and examined them and
then called the Federal Bureau of Investigation. Id. at 651-52,
100 S. Ct. at 2399, 65 L. Ed. 2d at 414-15. An agent picked up
the packages, which contained hundreds of boxes of films and
“explicit descriptions of the contents.” Ibid.
The government ultimately pursued obscenity-related
charges, and the defendants moved to suppress. Id. at 652, 100
S. Ct. at 2399, 65 L. Ed. 2d at 415. The Court held that the
government could search the films “to the extent that they had
already been examined by third parties”; but the agents needed a
warrant to screen the films, which went beyond the scope of the
private search. Id. at 656, 658-59, 100 S. Ct. at 2401-03, 65
L. Ed. 2d at 417-19.
In Jacobsen, supra, the Court applied those principles in a
related context. Employees of a private carrier examined a
package that had been damaged in transit by a forklift. 466
U.S. at 111, 104 S. Ct. at 1655, 80 L. Ed. 2d at 92. Pursuant
to company policy, they opened the package to inspect its
contents in case of an insurance claim. Ibid. The package, an
16
ordinary cardboard box with crumpled newspaper packed on top,
contained a silver tube that the employees cut open; inside it,
they found four plastic bags, one within the next. Id. at 111,
104 S. Ct. at 1655, 80 L. Ed. 2d at 93. In the innermost bag,
the employees found white powder. Ibid. They notified the Drug
Enforcement Administration, placed the bags back in the tube,
and put the tube and newspapers back into the box. Ibid.
An agent arrived and removed the plastic bags from the
tube. Ibid. He opened each one, field tested the contents, and
confirmed that the powder was cocaine. Id. at 111-12, 104 S.
Ct. at 1655, 80 L. Ed. 2d at 93. The defendants later
challenged the search.
The Court noted that the initial search by company
employees did not violate the Fourth Amendment because of its
“private character.” Id. at 115, 104 S. Ct. at 1657, 80 L. Ed.
2d at 95. The Court next examined the government agent’s
actions to decide whether “they exceeded the scope of the
private search.” Ibid. The Court concluded that the agent’s
removal of the bags and visual inspection of their contents did
not infringe any legitimate privacy rights because the acts
“enabled the agent to learn nothing that had not previously been
learned during the private search.” Id. at 120, 104 S. Ct. at
1660, 80 L. Ed. 2d at 98. The Court also found that the field
test “merely disclose[d]” whether the powder was cocaine and
17
thus did not “compromise any legitimate interest in privacy.”
Id. at 123, 104 S. Ct. at 1661, 80 L. Ed. 2d at 100. “In sum,”
the Jacobsen Court held, “the federal agents did not infringe
any constitutionally protected privacy interest that had not
already been frustrated as the result of private conduct.” Id.
at 126, 104 S. Ct. at 1663, 80 L. Ed. 2d at 102.
C.
The Appellate Division and this Court considered the third-
party intervention doctrine in State v. Saez, 268 N.J. Super.
250 (App. Div. 1993), rev’d on dissent, 139 N.J. 279 (1995).
In Saez, an informant told police that she saw “narcotic
activity” in the basement of a neighboring apartment. Saez,
supra, 268 N.J. Super. at 256. She was able to see through gaps
in a wood partition that separated the two basements. Id. at
256-57. The informant allowed an officer to set up surveillance
from her basement, and he surveilled the apartment for an
extended period. Id. at 257. The officer looked through the
holes in the wooden wall and held a mirror over his head to see
through a gap in the wall above a furnace. Id. at 257-58.
Almost at once, he saw three males make crack cocaine; over
time, he observed additional activity that led to the
defendants’ arrests. Id. at 258-59.
Both the majority and dissent relied on Jacobsen. The
majority did not find the officer’s conduct amounted to an
18
unreasonable search because “[h]is observations went no further
than . . . the informant’s.” Id. at 264. Judge D’Annunzio, in
dissent, disagreed. He explained that when “the government
expands the private search, the third-party intervention
exception no longer applies to the fruits of the expanded
search.” Id. at 271 (D’Annunzio, J.A.D., dissenting). The
dissent also stressed that “the police were not invited to view
specific, immutable objects” in the possession of the informant.
Id. at 272 (D’Annunzio, J.A.D., dissenting). Instead,
“[b]ecause no one could predict with certainty what the police
would see, unlike the Jacobsen line of cases, each moment of
surveillance was a new invasion of privacy.” Id. at 273
(D’Annunzio, J.A.D., dissenting).
In a brief per curiam decision, the Court reversed
substantially for the reasons in Judge D’Annunzio’s dissent.
Saez, supra, 139 N.J. at 280. As the Court explained, “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 281.
The Court did not address whether the third-party intervention
doctrine was limited to cases in which an informant gave law
enforcement an item to inspect. Id. at 280.
19
Consistent with Jacobsen, the Appellate Division in State
v. Premone, 348 N.J. Super. 505, 513-14 (App. Div. 2002), found
that the third-party intervention doctrine did not apply because
the police exceeded the scope of a private search. In that
case, the owner of a motel gave the police a patron’s zippered
bag; the police opened it and examined its contents without
first getting a warrant. Id. at 509.
D.
Neither the United States Supreme Court nor this Court has
applied the third-party intervention or private search doctrine
to the search of a private home. To be sure, that would
represent a significant expansion of the doctrine. Police would
no longer simply be asked to view a discrete set of items turned
over to them. Instead, they would walk through a private
residence and observe far more.
Courts around the country have wrestled with this question.
Some have expressly declined to expand the doctrine to private
dwellings. The Sixth Circuit, for example, has refused to
extend the private search doctrine “to cases involving private
searches of residences.” United States v. Allen, 106 F.3d 695,
699 (6th Cir.), cert. denied, 520 U.S. 1281, 117 S. Ct. 2467,
138 L. Ed. 2d 223 (1997).
In Allen, a motel manager entered a customer’s room, saw
marijuana inside, and called the police who initially entered
20
the room without a warrant. Id. at 697. The government relied
on Jacobsen, in part, to justify the warrantless search. In
response, the court noted that the defendant “had a legitimate
and significant privacy interest in the contents of his motel
room, and this privacy interest was not breached in its entirety
merely because the motel manager viewed some of those contents.”
Id. at 699. The court distinguished Jacobsen, “which measured
the scope of a private search of a mail package, the entire
contents of which were obvious.” Ibid. In plain language, the
court explained that it was “unwilling to extend the holding in
Jacobsen” to a search of a private dwelling. Ibid.
The Sixth Circuit reaffirmed that holding in United States
v. Williams, 354 F.3d 497, 510 (6th Cir. 2003). Williams
involved facts similar to the case on appeal: a landlord
concerned about a water leak entered a rental unit and “became
suspicious of criminal activity.” Id. at 499. Her niece called
the authorities, who walked through the property with the women
and found marijuana. Id. at 499-501. Once again, the Sixth
Circuit noted the “real distinction between a federal express
package and a home, which is entitled to significantly more
protection,” and declined to extend Jacobsen to the warrantless
search of a private home. Id. at 510.
The Ninth Circuit expressly agreed with the reasoning in
Allen in United States v. Young, 573 F.3d 711, 721 (9th Cir.
21
2009). In Young, hotel staff searched a guest’s room, found a
firearm, and called the police. Id. at 713. Without first
getting a warrant, an officer entered the room with a staff
member who showed him the gun. Ibid. The government again
relied on Jacobsen. Id. at 720. The Ninth Circuit, in turn,
observed that the language in Jacobsen “suggests a very
restricted application of the holding” in the case. Ibid. The
court added that “there are no facts presented here that
persuade us to expand Jacobsen’s decision to warrantless
searches of private residences.” Ibid.
A number of state courts have likewise refused to extend
the private search doctrine to a home. The Supreme Court of
Colorado, in People v. Brewer, 690 P.2d 860 (Colo. 1984),
concluded that police could not enter a rented home without a
warrant, at a landlord’s invitation, to see marijuana that the
landlord had already found. The court noted that Jacobsen could
not support such a warrantless search: “[t]he decision . . .
was based in part on the minimal intrusion involved in the
governmental search of an unwrapped package, and has never been
used to justify an invasion of privacy as substantial as entry
into a house.” Id. at 863 n.3.
The Idaho Supreme Court reached the same conclusion in
State v. Johnson, 716 P.2d 1288 (Idaho 1986). The Court held
that Jacobsen did not support an officer’s warrantless entry
22
into a rented apartment, at the landlord’s invitation, to
observe “suspicious plants.” Id. at 1290, 1292 & n.2. As the
court explained,
[i]f the state were to have its way on this
point, it would apparently argue that the
following scenario is outside constitutional
protection: A private citizen ransacks a
home, claiming to be in search of contraband.
Upon discovering the alleged contraband, the
citizen calls in the police who conduct a
second ransacking of the home, looking and
searching everywhere and inspecting
everything as did the citizen. According to
the state, because the officer is only
“viewing” the citizen’s efforts -- “merely”
retracing the citizen’s footsteps -- such
government activity is outside the purview of
federal and state constitutional protections.
Such an aberrational view is not harmonious
with what the framers of our federal and state
constitutions intended when they put these
protections into our constitutions, and we so
hold.
[Id. at 1293.]
See also State v. Barkmeyer, 949 A.2d 984, 996 (R.I.) (noting
that officer’s warrantless entry into home and seizure of
evidence, at invitation of private actor who had already found
evidence, “requires analysis beyond the law of private search”),
cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729
(2008); State v. Miggler, 419 N.W.2d 81, 84 (Minn. Ct. App.
1988) (distinguishing Jacobsen because search had been conducted
in defendant’s home and had exceeded scope of private search,
among other reasons). The Supreme Court of Washington has also
23
found that the private search doctrine is contrary to the
Washington Constitution. State v. Eisfeldt, 185 P.3d 580, 584-
86 (Wash. 2008).
Other courts have permitted warrantless searches of a
private home that did not exceed the scope of an earlier private
search. The Fifth Circuit considered events similar to this
case in United States v. Bomengo, 580 F.2d 173 (5th Cir. 1978),
cert. denied, 439 U.S. 1117, 99 S. Ct. 1022, 59 L. Ed. 2d 75
(1979), a case that preceded Jacobsen. In Bomengo, an engineer
of an apartment complex noticed water leaking from outside the
defendant’s apartment. Id. at 174-75. Someone tried to find
the apartment’s occupants but did not succeed. Id. at 175. The
engineer and a security officer for the complex then entered the
apartment to fix the leak and assess the damage. Id. at 175.
While inside, they saw two handguns with attached silencers and
called the police. Ibid. A police officer entered the
apartment, saw the silencers, and left to obtain a search
warrant. Ibid. The court upheld the officer’s actions because
they were “confined strictly to the scope of the initial
discovery.” Id. at 176.
The Fifth Circuit refined its analysis after Jacobsen. It
declined to extend the private search doctrine in wholesale
fashion to searches of private dwellings. See United States v.
Paige, 136 F.3d 1012, 1020 n.11 (5th Cir. 1998). Instead, the
24
Circuit inquired whether the private party’s intrusion into a
residence “was reasonably foreseeable,” in light of the
“activities of the home’s occupants or the circumstances within
the home at the time of the private search.” Id. at 1020. If
the private intrusion was reasonably foreseeable, the court
explained, “the occupant will no longer possess a reasonable
expectation of privacy in the area or thing searched, and the
subsequent police search will not trigger the Fourth Amendment.”
Ibid.; see also United States v. Oliver, 630 F.3d 397, 406-07
(5th Cir.), cert. denied, ___ U.S. ___, 132 S. Ct. 758, 181 L.
Ed. 2d 490 (2011) (same).
The Fifth Circuit found no Fourth Amendment violation when
it applied the test to the facts before it in Paige, supra. 136
F.3d at 1021. The defendant had hired roofers to repair his
roof and had advised them that they could go into the garage if
they needed tools or supplies. Ibid. When the workers
accidentally damaged the side of the home, it was thus
“reasonably foreseeable” for them to look in the garage for
replacement materials. Ibid. Once inside, they saw marijuana.
Ibid. Under the circumstances, the circuit court concluded that
a follow-up examination by an officer called to the scene did
not run afoul of the Fourth Amendment. Ibid.
The Eighth Circuit considered Paige’s reasonable
foreseeability test and “neither adopt[ed] nor reject[ed]” it.
25
See United States v. Miller, 152 F.3d 813, 816 (8th Cir. 1998).
The Miller court found that a police search of a patient’s room
in a treatment facility, which followed a private search, passed
muster under both Jacobsen and Paige. Ibid. The court noted
that the police search did not exceed the scope of the private
search and that the private party’s intrusion was reasonably
foreseeable. Ibid.1
E.
We add briefly that apartment dwellers do not cede their
rights under the Fourth Amendment or the State Constitution to
their landlord. A landlord typically has the right to access a
tenant’s apartment under certain circumstances -- for example,
to make repairs and conduct inspections -- provided the landlord
gives reasonable notice. See, e.g., N.J.A.C. 5:10-5.1(c).
Immediate access “shall be given” “in case of safety or
structural emergencies.” Ibid. In general, though, a landlord
does not have the authority to consent to a search of a tenant’s
private living space. Chapman v. United States, 365 U.S. 610,
1 We do not consider certain other cases the parties discuss, in
which a private actor handed items over to the police after a
private search, see, e.g., State v. Moffett, 885 F. Supp. 237,
239 (N.D. Ala. 1995), aff’d, 89 F.3d 855 (11th Cir. 1996), or
the police obtained a warrant before searching, see, e.g., State
v. Krajeski, 16 P.3d 69, 71 (Wash. Ct. App.), pet. for review
denied, 29 P.3d 718 (Wash. 2001).
26
81 S. Ct. 776, 5 L. Ed. 2d 828 (1961); State v. Coyle, 119 N.J.
194, 215-16 (1990).
IV.
We have serious reservations about extending the private
search doctrine to the home. The United States Supreme Court
has never applied the doctrine in that setting, and we do not
glean from recent decisions that it would allow such an
extension. See, e.g., Jardines, supra, ___ U.S. ___, 133 S. Ct.
1409, 185 L. Ed. 2d 495 (emphasizing heightened protection
accorded to private home and immediate area surrounding it); see
also 1 Wayne LaFave, Search and Seizure, § 1.8(b), at 387 (5th
ed. 2012) (“[I]t is to be doubted that if a private person
searched the premises of another and then reported to police
what he had found (instead of removing the evidence and handing
it over to the police), that the police could then make a
warrantless entry of those premises and seize the named evidence
. . . .”).
Relying on the protections in the State Constitution, we
conclude that the private search doctrine cannot apply to
private dwellings. Absent exigency or some other exception to
the warrant requirement, the police must get a warrant to enter
a private home and conduct a search, even if a private actor has
already searched the area and notified law enforcement.
27
To be sure, whenever residents invite someone into their
home, they run the risk that the third party will reveal what
they have seen to others. See Jacobsen, supra, 466 U.S. at 117,
S. Ct. at 1658, 80 L. Ed. 2d at 96. A landlord, like any other
guest, may tell the police about contraband he or she has
observed. And the police, in turn, can use that information to
apply for a search warrant. Ibid. But that course of events
does not create an exception to the warrant requirement.
To hold otherwise would result in a sizeable exception to
the warrant requirement and expand the private search doctrine
beyond the minimal intrusion it originally sanctioned. It would
also ignore the special status of the home under federal and
state constitutional law and allow a more substantial invasion
of privacy. In short, a private home is not like a package in
transit.
We recognize that residents have a reduced expectation of
privacy in their home whenever a landlord or guest enters the
premises. But residents do not thereby forfeit an expectation
of privacy as to the police. In other words, an invitation to a
plumber, a dinner guest, or a landlord does not open the door to
one’s home to a warrantless search by a police officer.2
2 In a different context, the Court has found that people retain
a reasonable expectation of privacy in certain information they
reveal to third-party providers. See Earls, supra, 214 N.J. at
28
The State, though, argues that in a case like this, the
police are merely conducting a “confirmatory” search when they
repeat the same search a private party has already conducted.
But police officers can see and learn far more when they walk
through a private home than when they inspect a discrete item
delivered by a private party. Here, the police saw details of
the interior of a person’s residence -- an area normally free
from the government’s view. See Kyllo v. United States, 533
U.S. 27, 37, 121 S. Ct. 2038, 2045, 150 L. Ed. 2d 94, 104 (2001)
(“In the home, our cases show, all details are intimate details,
because the entire area is held safe from prying government
eyes.”). The police also spotted a scale that the landlord had
not told them about. Cf. Jacobsen, supra, 466 U.S. at 120, 104
S. Ct. at 1660, 80 L. Ed. 2d at 98 (“[T]he agent . . . learn[ed]
nothing that had not previously been learned during the private
search.”). The search, thus, went beyond simply confirming what
the landlord had seen.
The State cannot rely on the plain view doctrine to justify
the seizure of the scale. Under that doctrine, the State would
have to show that the officer was “lawfully in the viewing
588 (cell phone location information); State v. Reid, 194 N.J.
386, 389 (2008) (Internet subscriber information); State v.
McAllister, 184 N.J. 17, 19 (2005) (bank records); State v.
Mollica, 114 N.J. 329, 344-45 (1989) (hotel-room telephone toll
billing records); State v. Hunt, 91 N.J. 338, 345 (1982)
(telephone toll billing records).
29
area.” Bruzzese, supra, 94 N.J. at 236. That depends on
whether the officer’s initial entry into the home was
permissible. Kentucky v. King, ___ U.S. ___, ___, 131 S. Ct.
1849, 1858, 179 L. Ed. 2d 865, 876 (2011) (citing Horton v.
California, 496 U.S. 128, 136-40, 110 S. Ct. 2301, 2308-10, 110
L. Ed. 2d 112, 123-25 (1990)). Without a warrant, the State
cannot make that showing or rely on plain view.
The proper course under the State and Federal Constitutions
is the simplest and most direct one. If private parties tell
the police about unlawful activities inside a person’s home, the
police can use that information to establish probable cause and
seek a search warrant. In the time it takes to get the warrant,
police officers can secure the apartment or home from the
outside, for a reasonable period of time, if reasonably
necessary to avoid any tampering with or destruction of
evidence. Illinois v. McArthur, 531 U.S. 326, 334, 121 S. Ct.
946, 951-52, 148 L. Ed. 2d 838, 849 (2001). But law enforcement
cannot accept a landlord’s invitation to enter a home without a
warrant unless an exception to the warrant requirement applies.
V.
For the reasons discussed above, the third-party
intervention or private search doctrine does not exempt law
enforcement’s initial search of defendant’s home from the
warrant requirement. To offer guidance for the future, we
30
repeat that if a landlord relays that he has seen drugs or
contraband in an apartment, as happened here, the police can use
that information to obtain a search warrant and then conduct a
search. If there are exigent circumstances, a warrant is not
required. Earls, supra, 214 N.J. at 569.
The State has not argued exigent circumstances here. No
one was in the apartment, and the officer on the scene conceded
that it was not urgent to search right away. He admitted that
there was time to secure the house and seek a warrant.
The trial court found that, after Officer Christie’s
warrantless entry into the dwelling, co-defendant James validly
consented to a full search of the apartment. The later, second
search led to the discovery of a loaded handgun, ammunition,
materials used to cut and package cocaine, and other items.
We limited the grant of certification in this case to
whether the third-party intervention doctrine applies to a
warrantless search of a home. 217 N.J. 283. We therefore
remand this case to the trial court to evaluate whether the
initial unlawful search tainted the later consensual search.
See Wong Sun v. United States, 371 U.S. 471, 485, 84 S. Ct. 407,
416, 9 L. Ed. 2d 441, 454 (1963).
Nothing in this opinion is intended to cast doubt on the
private search or third-party intervention doctrine in its
original form. When the police reexamine property that has been
31
searched by a private actor and presented to law enforcement in
a non-residential context, neither the Fourth Amendment nor the
State Constitution requires a warrant. See Jacobsen, supra, 466
U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85; Burdeau, supra, 256
U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048.
VI.
For the reasons stated above, the judgment of the Appellate
Division is reversed. The matter is remanded to the trial court
for further proceedings consistent with this opinion.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON join in CHIEF JUSTICE RABNER’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.
32
SUPREME COURT OF NEW JERSEY
NO. A-64 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKY WRIGHT,
Defendant-Appellant.
DECIDED May 19, 2015
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
TOTALS 6