NJ: The state has a difficult burden in showing justification for entry into a building it believes is abandoned

The state has a difficult burden in showing justification for entry into a building it believes is abandoned. Here, the place had only a couch and debris on the floor and defendant was dealing drugs from there, but there was a letter there showing that was his address. The trial court found that enough. Normally the defendant has to show standing, but the state has to show abandonment. State v. Randolph, 2015 N.J. Super. LEXIS 126 (August 7, 2015):

“Establishing an abandonment of real property is ‘a difficult standard to meet.'” Brown, supra, 216 N.J. at 530, 83 A.3d 45 (quoting United States v. Harrison, 689 F.3d 301, 309 (3d Cir. 2012)). “‘Before the government may cross the threshold of a home without a warrant, there must be clear, unequivocal and unmistakable evidence that the property has been abandoned.'” Id. at 530-31, 83 A.3d 45 (internal citations omitted). The test is one of objective reasonableness, State v. Edmonds, 211 N.J. 117, 132, 47 A.3d 737 (2012), and turns on whether, given the totality of the circumstances, an objectively reasonable police officer would believe the property is abandoned. Harrison, supra, 689 F.3d at 308. Because the officer’s subjective beliefs are irrelevant to this inquiry, a police officer’s sincere, good-faith but unreasonable belief that real property is abandoned will not justify a warrantless search when a defendant has an apparent possessory interest in that property. Brown, supra, 216 N.J. at 531, 83 A.3d 45.

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We conclude that, in the circumstances of this case, the fact that the apartment appeared to contain only one couch and “debris” was seen on the floor is an insufficient basis on which to reasonably conclude that the apartment was vacant, unrented or abandoned. The fact that the door to the apartment was left open does not warrant a contrary conclusion. The law is clear that “[t]he Fourth Amendment does not … protect only hermetically sealed residences” and the rule prohibiting the police from entering a residence to conduct a warrantless search applies even if the door to the residence is left open. State v. Penalber, 386 N.J. Super. 1, 11-12, 898 A.2d 538 (App. Div. 2006) (quoting United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000)).

In the circumstances of this case, the State cannot argue credibly that defendant had no expectation of privacy in an apartment where he was allegedly conducting an illegal drug distribution operation. In fact, at one point, the judge determined that the presence of a letter addressed to defendant found inside the apartment was “sufficient evidence” that he “occupied the area.” Trowbridge testified that he assumed the apartment was “not rented out” but conceded no effort had been made to ascertain from the landlord or building superintendent whether that was so.