Dilapidated Does Not Mean Abandoned In Warrantless Search

The NJ Supreme Court recently decided State v. Brown, a case in which a warrantless search undertaken by police uncovered a gun, drugs and drug paraphernalia within a residence. After receiving information from two confidential witnesses and a concerned citizen, police conducted surveillance on two non-consecutive days at a run-down residence with the electric meter removed, broken windows, a padlock on the front door, the rear door off the hinges but propped close from the inside and the inside littered with trash. Trooper Kurt Kennedy received information that one of the defendants had a sawed-off shotgun in the residence, was stashing controlled dangerous substances (CDS) inside for distribution and possessed a key he utilized to enter. Kennedy observed, on four separate occasions during one day, individuals approach one of the defendants and provide him with cash and then watched him walk up to the residence, unlock the door, enter and quickly exit the residence and provide the purchasers with suspected CDS. On a second day, Trooper Kennedy observed 14 such transactions. NJ State Troopers arrested four defendants after observing what they considered to be drug activity within an abandoned house within which the defendants were trespassing. Kennedy and the other Troopers made conclusions based on the area being known for crime and general knowledge obtained from being assigned to the area. There were no exigent circumstances apparent, the troopers did not take the time to review the property's deed, tax records, utility records and the like. However, Kennedy did look up Strong, the defendant with the key, and found him listed as residing nearby. Strong also had prior drug convictions. The Troopers also observed similar activity at another residence nearby but did not undertake a warrantless entry of that home as they recognized it to be occupied. Upon obtaining evidence from the warrantless search of the first residence, the police used the "fruit of the poisonous tree" to secure a warrant for the residence they recognized as inhabited. The NJ Supreme Court, in State v. Brown, set forth the presumptiveness against warrantless searches as the backdrop for their review. State v. Johnson, 193 N.J. 528 (2008), State v. Elders, 192 N.J. 224 (2007). The state bears the burden of proving a warrantless search falls within one of several well delineated exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13 (2004). If the property was truly abandoned, the defendant could not have a possessory interest and therefore no expectation of privacy in the property. The fact that police obtained a key, from one of the defendants, to the padlock on the front door prior to conducting the warrantless search should have indicated that the defendants were exercising control over the property to some degree and alerted them that a warrant was required prior to entry. Under State v. Linton, 356 N.J. Super. 255 (App. Div. 2002) the state would have to show a reasonable belief the house was abandoned and no expectation of privacy could have existed in order to justify the warrantless entry. Before holding the that the state failed to meet its burden of proof due to the NJ State Police failure to determine the property was abandoned or the defendants were trespassers, the court also stated the contrary premise that the police do not need a warrant when observing a stranger inside a structure with a broken front door lock and a door wide open. Clearly the warrant requirement is subject to broad interpretation as it would be difficult to know who is a stranger or an owner in every house in every community and, from the court's example, there is a distinction between doors off hinges and doors wide open with broken locks. The difference between having a search upheld or suppressing evidence obtained from a search rests on small legal distinctions. If the police obtained evidence against you in what you believed to be an illegal search, it is critical that you obtain experienced criminal defense counsel to defend you against the prosecution. For more information about warrantless search, search and seizure, drugs, weapons or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of counsel.