NJ: The building was “decrepit,” but the state didn’t prove it was abandoned; warrantless entry unlawful

The state failed to establish that the defendants were operating their drug business from an abandoned building. The police entered without a warrant. State v. Brown, 216 N.J. 508, 83 A.3d 45 (2014), Syllabus:

The State did not establish by a preponderance of the evidence that 820 Line Street in the City of Camden, although in decrepit condition, was abandoned or that defendants were trespassers, thus failing to justify the warrantless search of the property.

1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee “[t]he right of the people to be secure in their … houses … against unreasonable searches and seizures.” There is a clear preference for police officers to secure a warrant before entering and searching a home; warrantless searches are presumptively invalid. However, under both Article I, Paragraph 7 and the Fourth Amendment, a defendant has no standing to challenge the warrantless search of abandoned property, and to that extent, abandoned property falls within an exception to the warrant requirement.

2. Defendants do not have standing to object to the warrantless search of the property if the building was abandoned or, alternatively, if they were trespassers; they would not have the requisite possessory or proprietary interest in the property to object to the search. However, the State bears the burden of proving by a preponderance of the evidence that the building is abandoned or defendants are trespassers. The proper test for abandonment remains, for Fourth Amendment purposes, whether a defendant “retains a reasonable expectation of privacy in the property alleged to be abandoned,” United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.), and, for Article I, Paragraph 7 purposes, whether a defendant “retain[s] a proprietary, possessory, or participatory interest” in the property, State v. Johnson, 193 N.J. 528 (2008). The test must be one of objective reasonableness; the subjective belief of the officer is not a relevant consideration. In short, “[t]here simply is no ‘trashy house exception’ to the warrant requirement,” and therefore “[i]t is unreasonable to assume that a poorly maintained home is an abandoned home.” United States v. Harrison, 689 F.3d 301, 311 (3d Cir. 2012). This case was decided under the New Jersey Constitution.

3. Under Article I, Paragraph 7 of the New Jersey Constitution, there are a number of factors to be considered in determining whether, in light of the totality of the circumstances, a police officer has an objectively reasonable basis to believe a building is abandoned, thus justifying a warrantless entry and search. No one factor is necessarily dispositive, and the weight to be given to any factor will depend on the particular circumstances confronting the officer. If obtaining a warrant is impracticable, and exigent circumstances demand swift action because of the threatened destruction of drugs inside a residence, then a warrantless entry may be justifiable.

4. Just as a defendant will have no standing to challenge a search of abandoned property, he will have no standing to challenge a search if an officer had an objectively reasonable basis to believe he was a trespasser. A trespasser does not have a possessory or proprietary interest in property where he does not belong. The State bears the burden of showing that the police officer had an objectively reasonable basis to believe a person was a trespasser, justifying a warrantless search of a home. Ultimately, the focus must be whether, in light of the totality of the circumstances, a police officer had an objectively reasonable basis to conclude that a building was abandoned or a defendant was a trespasser before the officer entered or searched the home.

5. It can hardly be disputed that Trooper Kennedy had probable cause to believe that drug dealing was occurring at 820 Line Street. The issue, however, is whether the troopers had a reason to bypass the warrant requirement. The troopers did not know whether the defendants resided there in the evenings, whether they had an ownership interest in the property, or whether they had permission of the owner to use the property. There is no suggestion in the record that evidence inside the building was in danger of destruction or that obtaining a warrant was impracticable due to some other exigency. The question to be answered is not whether the police have a subjective, good-faith belief that a building is abandoned, but whether they have an objectively reasonable basis to believe so. The Court has no reason to substitute its judgment for the judgment properly and fairly exercised by the trial court. The State did not establish that the property, although in decrepit condition, was abandoned or that defendants were trespassers.