State v. Randolph

• Decision Date: 03 May 2017
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Amir RANDOLPH, Defendant–Respondent.
• Court: New Jersey Supreme Court

228 N.J. 566

159 A.3d 394

STATE of New Jersey, Plaintiff–Appellant,

v.Amir RANDOLPH, Defendant–Respondent.

Supreme Court of New Jersey.

Argued January 3, 2017

Decided May 3, 2017

Frank Muroski and Jenny M. Hsu, Deputy Attorneys General, argued the cause for appellant (Christopher S. Porrino, Attorney General of New Jersey, attorney).

Margaret R. McLane, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

Alexander R. Shalomargued the cause for amicus curiaeAmerican Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Mr. Shalom, Mr. Barocas, and Jeanne M. LoCicero, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

Under our well-established state constitutional jurisprudence, an accused generally has standing to challenge a search or seizure whenever "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, 440 A. 2d 1311 (1981). When the accused is charged with committing a possessory drug offense—as in this case—standing is automatic, unless the State can show that the property was abandoned or the accused was a trespasser. See State v. Brown , 216 N.J. 508, 529, 83 A. 3d 45 (2014).

The primary issue in this appeal involves the warrantless search of an apartment, where the police found drugs and evidence allegedly linking defendant to the apartment. Evidence seized from the apartment was the basis for multiple drug charges filed against defendant. At a suppression motion, the State argued that exigent circumstances and the need for a protective sweep justified the entry into the apartment and the seizure of evidence. The trial court upheld the search, apparently on standing grounds, finding that defendant did not have a reasonable expectation of privacy in the apartment.

A panel of the Appellate Division reversed and held that because defendant had automatic standing to challenge the search based on the possessory drug charges, defendant had no burden to establish that he had a reasonable expectation of privacy in the apartment. The panel also rejected the State's assertion, raised for the first time on appeal, that the apartment was abandoned. The panel remanded to the trial court to determine whether the search was justified based on the protective-sweep or exigent-circumstances doctrine. The panel also reversed defendant's conviction based on the trial court's failure to give a "mere presence" charge.

We affirm the panel's determination that defendant had automatic standing to challenge the search of the apartment because he was charged with possessory drug offenses and because the State failed to show that the apartment was abandoned or that defendant was a trespasser. Our automatic standing jurisprudence eliminates any inquiry into defendant's reasonable expectation of privacy in circumstances such as here. We therefore remand to determine whether the search of the apartment was justified by an exception to the warrant requirement.

Additionally, although we find that the better course would have been to give the jury an instruction on "mere presence," the failure to do so was harmless error. We therefore vacate the panel's judgment requiring a new trial on that issue.

I.

A.

Defendant Amir Randolph was charged in a multi-count indictment with third-degree possession of heroin, N.J.S.A. 2C:35–10(a)(1) ; third-degree possession with intent to distribute heroin in a quantity less than one-half ounce, N.J.S.A. 2C:35–5(a)(1), (b)(3) ; third-degree possession with intent to distribute heroin within 1000 feet of school property, N.J.S.A. 2C:35–7 ; second-degree possession with intent to distribute heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35–7.1 ; fourth-degree possession with intent to distribute marijuana in a quantity less than one ounce, N.J.S.A. 2C:35–5(a)(1), (b)(12) ; third-degree possession with intent to distribute marijuana within 1000 feet of school property, N.J.S.A . 2C:35–7 ; and third-degree possession with intent to distribute marijuana within 500 feet of a public housing facility, N.J.S.A. 2C:35–7.1.¹

Defendant moved to suppress evidence that he claimed was procured by an unconstitutional search. During a three-day suppression hearing, the State called as witnesses Sergeant Stephen Trowbridge and Detective Anthony Goodman of the Jersey City Police Department. At that hearing, the officers testified to the following events.

On the morning of September 19, 2011, Jersey City police officers conducted surveillance of a three-story apartment building, apparently consisting of three units, at 77 Grant Avenue in Jersey City. During the surveillance, Markees King stood in the second-floor apartment, peering out the window. As King exited the building, Edward Wright approached him. Wright threw three or four bills on the building's porch, and King handed him a white object and retrieved the money. A second individual came up to King and handed him money and, in return, received a small white object. King counted the money and then reentered the building as the two purchasers left the area.

Detective Goodman believed that he had observed two drug transactions. Officers stopped and arrested Wright and recovered a glassine bag of heroin from his pants pocket. The second drug purchaser somehow eluded the police. Shortly thereafter, King was arrested as he exited the building.

At this point, Sergeant Trowbridge attempted to gain entry into the building. He knocked on the window of the first-floor apartment, and the tenant opened the door, admitting Sergeant Trowbridge into the vestibule. Moments before Sergeant Trowbridge gained entry, Andrew Bentley walked out of the building and was overheard by Detective Goodman speaking into a cell phone, saying, "they're coming in, they're at the door now."

Once in the building's vestibule, Sergeant Trowbridge heard what sounded like someone running from the second floor up to the third floor. As he waited for backup officers, Sergeant Trowbridge opened the lid of a grill located at the bottom of the stairs and found a handgun. When a police officer arrived, Sergeant Trowbridge instructed him to secure the weapon, and then Sergeant Trowbridge proceeded alone to the second floor.

The door to the second-floor apartment, where King had been sighted, was ajar. From the hallway, Sergeant Trowbridge could see a couch inside as well as "debris thrown about." He described the apartment as appearing to be vacant or abandoned and entered to search for "any additional actors there." As he walked through the apartment, Sergeant Trowbridge observed, among other things, a television and video gaming system, two couches with clothing draped on one, Timberland boots, a pair of Nike sneakers, a backpack, a kitchen without a refrigerator, and clothes strewn on the floor along with a cigarette pack and a soda bottle. He also discovered on the floor Ziploc baggies of marijuana, some currency, a silver box, a Newport cigarette box, and a letter from Zurich American Insurance Company addressed to Amir Randolph (defendant) at 213 Mallory Avenue, Number 1, Jersey City. He looked inside the silver and Newport boxes and found glassine bags of suspected heroin and an additional marijuana stash. In all, the police recovered thirty-five Ziploc baggies of marijuana and forty glassine envelopes of heroin.

The couches accounted for the only furniture in the apartment. The police, however, did not speak with the landlord to determine whether the apartment was rented and, if so, to whom.

As Sergeant Trowbridge exited the apartment into the hallway, he encountered members of the United States Marshals Fugitive Task Force, who were proceeding to the third floor with a warrant to arrest defendant for a homicide unrelated to the drug investigation. The Marshals apparently were conducting a separate surveillance and investigation, unbeknownst to the Jersey City police. The Marshals found defendant, along with a woman and a child, in the third-floor apartment. Defendant was taken into custody.

At the conclusion of the State's presentation, the trial court denied defendant's request to call Detective Matthew Stambuli as a witness.² The defense then rested.

The prosecutor argued that the warrantless search of the second-floor apartment was valid based on the exigent-circumstances and protective-sweep exceptions to the warrant requirement. Instead of addressing that argument, the trial court upheld the search because defendant did not provide any evidence that he had a reasonable expectation of privacy in the vacant second-floor apartment or in the narcotics, paraphernalia, and paperwork found there.

B.

At trial, the State's presentation largely mirrored the testimony at the suppression hearing. The jury, however, learned additional details. When King was arrested, the police seized from him a Ziploc bag containing marijuana and $132 in cash. Furthermore, defendant was arrested in a bedroom in the third-floor apartment, and the police recovered from him $429 in small denominations, totaling 81 bills in all. The State's drug expert testified that possession of currency in small denominations is consistent with street-level drug dealing.

At the charge conference, defense counsel requested that the court instruct the jury on "mere presence" and "flight." The trial judge agreed to charge on flight but explained that a charge on "mere presence" was not necessary because the State intended to dismiss the conspiracy count.

During its deliberations, the jury asked the court the following questions:

What happens if we are not unanimous about the decision of one of the Defendants? Was there statements provided about the relationship between [defendant] and tenant, [defendant] and [King], [King] and tenant?

....

Where in the third floor apartment was [defendant] arrested from and where was he hiding?

In response, the trial judge...