STATE OF NEW JERSEY VS. EDWARD O'DAYÂ (14-09-2469, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1725-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD O'DAY,1
Defendant-Appellant.
_________________________________
Submitted April 4, 2017 – Decided September 7, 2017
Before Judges Reisner and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 14-
09-2469.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Yvette Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Frank Muroski, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
1
We use the spelling of defendant's name as used in the indictment
and the trial court's order in dispute. However, his name is
spelled "Oday" in the Notice of Appeal and the parties' briefs.
Following the denial of his motion to suppress, defendant
Edward O'Day pled guilty to two counts of third-degree burglary,
N.J.S.A. 2C:18-2, and third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a)(1). In accordance with
the plea agreement, defendant was sentenced to five years of
special Drug Court probation. Defendant appeals from the order
denying his motion to suppress. For the reasons that follow, we
affirm.
I.
The issue at the suppression hearing was whether the Berkeley
Township (township) police had the right to conduct a warrantless
search and seizure at a boarded up property (the house) located
on Route 9. The State presented three witnesses to support its
position that the search and seizure was valid.
James Sperber, the township's supervisor of the parks
department, testified he was familiar with the house due to his
responsibility in monitoring all of the township's parks and
structures that have code enforcement problems. After receiving
reports from his employees of a home burglary near one of his
offices and a suspicious looking man in the vicinity, Sperber
stated that during next three days he observed a man matching his
employees' description in the same area. The first two days, he
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telephoned the Ocean County Prosecutor's Office about the man. On
the third day, he spoke to William Cullen, a township police
detective, about the man, and advised that a board had been removed
from a boarded-up window. According to Sperber, the house was
uninhabited, vacant and boarded up for a long time.
Cullen testified he investigated the initial burglary report
and township employees told him they saw a man near the burglarized
home. Cullen was also familiar with the house and attested that
it was dilapidated and had wood covering up its windows.
Following Sperber's telephone call, Cullen and fellow
detective Joseph Santoro met at the house to investigate. No one
responded to their knocks at the door and calls asking if anyone
was inside. At the back of the house, they saw a "For Sale" sign,
and unsuccessfully tried to contact someone at the telephone number
written on the sign. After they were unable to obtain an emergency
telephone number for the house from the police dispatcher, they
reached out to the prosecutor's office and were advised that a
search warrant was not needed to enter the house. They gained
entry through the open window, where the plywood cover had been
removed and a cement block had been placed below the windowsill
that allowed them to climb into the window. Santoro stated that
he and Cullen entered the house to ensure that nobody was inside
before the township would re-secure the boarded-up window. Cullen
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similarly stated they entered the house to make sure that it was
safe from children who lived next door.
In a second floor bedroom, the detectives found a makeshift
bed, two cell phones, a cell phone charger, and a medical document
with defendant's name. Cullen immediately believed the phones and
charger matched the description of items stolen in the home
burglary that he investigated three days earlier. He confirmed
his suspicion when the burglary victims later identified them as
items stolen from their home.
After the police located defendant and advised him of his
Miranda2 rights, he gave a statement admitting to burglarizing a
township home and putting the stolen items in the house, which he
entered without permission.
Defendant did not present any witnesses. Following argument,
the motion judge entered an order and rendered an oral decision
denying defendant's suppression motion. She found the State's
witnesses provided credible testimony, which established that the
boarded-up house was uninhabited, abandoned and entered by a
trespasser. She reasoned:
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4 A-1725-15T2
Both [detectives] testified that they entered
the home after seeing that it was boarded up
and had seen it boarded up like that for more
than 10 years, never seeing anyone on the
property. They did so only after having done
a perimeter search, phone calls to a number
on a sign, to dispatch and the prosecutor's
office, after knocking and announcing police,
and with a reasonable belief that they did not
need a warrant, having safety concerns that
they needed to clear the house by determining
that there was no children or other
individuals hiding or injured inside the
house. Which was in a deplorable condition.
Citing State v. Brown, 216 N.J. 508 (2014) and United States v.
Harrison, 689 F.3d 301 (3d Cir. 2012), cert. denied, 568 U.S.
1242, 133 S. Ct. 1616, 185 L. Ed. 2d 602 (2013), the judge found
that defendant he had no right to be in the house and no expectation
of privacy in the house, and that the detectives acted reasonably
in entering the house.
The judge also found that the search was valid under the
community caretaking doctrine. She determined that the police had
the right to enter the abandoned house, which had been entered by
a trespasser and left open for entry by a board removed from a
boarded-up window, in order to protect the public from serious
injury. This appeal ensued.
II.
Before us, defendant raises the following argument:
THE ARTICLES REMOVED FROM THE HOUSE AT 562
ROUTE 9 AND FROM MR. ODAY'S PERSON SHOULD HAVE
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BEEN SUPPRESSED BECAUSE THE STATE DID NOT
PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT
THE WARRANTLESS SEARCH OF [THE HOUSE] WAS
JUSTIFIED BY THE ABANDONED PROPERTY EXCEPTION
OR BY THE COMMUNITY CARETAKING EXCEPTION TO
THE WARRANT REQUIREMENT.
A. THE PROSECUTION DID NOT SHOW THAT THE HOUSE
WAS ABANDONED.
B. THE PROSECUTION FAILED TO SHOW THAT THE
DETECTIVES WERE ENGAGED IN COMMUNITY
CARETAKING WHEN THEY ENTERED THE HOUSE.
C. SUMMARY
In our consideration of a trial court's ruling on a motion
to suppress evidence, "[w]e conduct [our] review with substantial
deference to the trial court's factual findings, which we 'must
uphold . . . so long as those findings are supported by sufficient
credible evidence in the record.'" State v. Hinton, 216 N.J. 211,
228 (2013) (quoting State v. Handy, 206 N.J. 39, 44 (2011)). "When
. . . we consider a ruling that applies legal principles to the
factual findings of the trial court, we defer to those findings
but review de novo the application of those principles to the
factual findings." Ibid. (citing State v. Harris, 181 N.J. 391,
416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L.
Ed. 2d 898 (2005)). However, despite our deferential standard,
"if the trial court's findings are so clearly mistaken 'that the
interests of justice demand intervention and correction,' then the
appellate court should review 'the record as if it were deciding
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the matter at inception and make its own findings and
conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting
State v. Johnson, 42 N.J. 146, 162 (1964)).
Both the United States and New Jersey Constitutions protect
individuals against unreasonable searches and seizures "in their
persons, houses, papers, and effects [.]" U.S. Const. amend. IV;
N.J. Const. art. I, ¶ 7. Under the exclusionary rule, evidence
obtained in violation of an individual's constitutional rights
will be excluded as "fruit of the poisonous tree." State v.
Faucette, 439 N.J. Super. 241, 266 (App. Div.), certif. denied,
221 N.J. 492 (2015). Because the search at issue was executed
without a warrant, it is presumed to be facially invalid; to
overcome this presumption, the State must show that the search
falls within one of the well-recognized exceptions to the warrant
requirement and there exists probable cause. State v. Moore, 181
N.J. 40, 44 (2004); State v. Valencia, 93 N.J. 126, 133 (1983).
We first turn our attention to the trial judge's determination
that defendant had no standing to challenge the search and seizure
because it occurred in an abandoned house where he had no
expectation of privacy. It is well-established that "a person can
have a legally sufficient interest in a place other than his own
home[, such] that the Fourth Amendment protects him from government
intrusion into that place." State v. Stott, 171 N.J. 343, 357
7 A-1725-15T2
(2002) (quoting Rakas v. Illinois, 439 U.S. 128, 142, 99 S. Ct.
421, 430, 58 L. Ed. 2d 387, 401 (1978)); see also State v. Rose,
357 N.J. Super. 100, 103 (App. Div.), certif. denied, 176 N.J. 429
(2003); State v. Alvarez, 238 N.J. Super. 560, 571 (App. Div.
1990).
Our Supreme Court has recognized:
In New Jersey, "a criminal defendant [has
standing] 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.
Alston, 88 N.J. 211, 228 (1981)]; accord
[Brown, supra, 216 N.J. at 548-49].
"[S]tanding to seek suppression of evidence"
is a "separate issue" from "the existence of
a reasonable expectation of privacy," which
pertains to the merits of the police action.
[Hinton, supra, 216 N.J. at 235]. Defendant's
automatic standing to contest the
constitutional validity of the seizure "does
not equate to a finding that he . . . has a
substantive right of privacy in the place
searched that mandates the grant of that
motion." Ibid. "[A]lthough we do not use a
reasonable expectation of privacy analysis for
standing purposes in criminal cases, we do
apply that analysis to determine whether a
person has a substantive right of privacy in
a place searched or an item seized." [Id. at
234] (quoting [State v. Johnson, 193 N.J. 528,
547 (2008)]). "[T]he objective reasonableness
of the defendant's expectation of privacy in
that property, for purposes of Article I,
Paragraph 7, turns in large part on his or her
legal right to occupy the property at issue."
[Id. at 236].
8 A-1725-15T2
[State v. Randolph, 441 N.J. Super. 533, 548-
49 (App. Div. 2015) (first, fourth, sixth, and
ninth alterations in original), certif.
granted, 224 N.J. 529 (2016).]
However, a defendant does not have standing to challenge a search
and seizure where "the State can show that the property was
abandoned or the accused was a trespasser." State v. Randolph,
228 N.J. 566, 571-72 (2017). The State has the burden of proof
to establish a reasonable expectation of privacy. Brown, supra,
216 N.J. at 527-28.
In Brown, based upon a totality of circumstances standard,
the Court rejected the State's contention that a row house
subjected to a warrantless search and seizure was abandoned. Id.
at 542. State troopers conducted several hours of surveillance
of the house over the course of two non-consecutive days where
they observed the defendants, who used a key to unlock the house's
padlocked front door in order to enter and retrieve stashed drugs.
Id. at 538. Although the house was in a deplorable condition -
padlocked front and back doors to keep intruders out, broken
windows, trash-littered, and a missing electric meter - there was
no reliable or first-hand testimony regarding the long-term
condition of the house, nor any reasonable attempt by law
enforcement to contact the owner. Id. 540-42.
9 A-1725-15T2
Guided by these standards, we discern no reason to disturb
the denial of defendant's suppression motion. There was credible
evidence to support the trial judge's finding that based on the
totality of the circumstances the house was abandoned. Unlike in
Brown, here, the detectives did not conduct a surveillance of the
house and did not see anyone enter the house by using a key to
open a locked door. They were responding to reports that a
suspicious looking man was around the house, which they knew had
been boarded up. After making an unsuccessful effort to contact
someone responsible for the house, the detectives noticed that
someone had apparently trespassed into the house by removing a
board from the boarded-up front window and stepping on a concrete
block to enter through the window. Since the house was abandoned,
defendant did not have standing to challenge the warrantless search
and seizure, which uncovered the burglary victim's property.
Furthermore, without permission to be in the house, defendant had
no expectation of privacy regarding his entry under our federal
and state constitutions.
Considering we affirm the denial of defendant's suppression
motion due to his lack of standing to challenge the State's
warrantless search and seizure, we need not address the judge's
ruling that there was a valid search and seizure under the
community caretaking doctrine. However, for sake of completeness,
10 A-1725-15T2
we find it necessary to briefly express our disagreement with the
determination that the doctrine applies here.
The community caretaking doctrine is an exception to the
warrant requirement. State v. Harris, 211 N.J. 566, 581 (2012).
Our Supreme Court has recognized that "police officers acting in
a community-caretaking capacity 'provide "a wide range of social
services" outside of their traditional law enforcement and
criminal investigatory roles.'" State v. Vargas, 213 N.J. 301,
323 (2013) (quoting State v. Edmonds, 211 N.J. 117, 141 (2012)).
In the context of home searches, our Supreme Court has developed
and applied "a two-prong test" that considers "the totality of the
circumstances" in determining if the emergency-aid doctrine
justifies a warrantless search of a home. State v. Hathaway, 222
N.J. 453, 470, 474 (2015). The State has the burden to show that
(1) the officer had an objectively reasonable
basis to believe that an emergency require[d]
that he provide immediate assistance to
protect or preserve life, or to prevent
serious injury, and (2) there was a reasonable
nexus between the emergency and the area or
places to be searched.
[Id. at 470 (quoting Edmonds, supra, 211 N.J.
at 132)].
Based upon these standards, we conclude that the community
caretaking doctrine does not apply. The police were unaware of
anyone, including children who lived next door, going into the
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house that warranted a reasonable belief that someone was inside
and may need assistance. There was also no response when the
police knocked on the door and called out to see if someone was
inside the house. Hence, there was no emergency to justify entry
into the house to conduct a search to provide aid to anyone.
Affirmed.
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