State v. Skidmore

• Decision Date: 17 January 1992
• Citation: 253 N.J.Super. 227,601 A.2d 729
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Dan Alfred SKIDMORE and William Thomas Skidmore, Defendants-Respondents. STATE of New Jersey, Plaintiff-Appellant, v. Samuel Oscar POFF, IV, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 227

253 N.J.Super. 227

601 A.2d 729

STATE of New Jersey, Plaintiff-Appellant, v. Dan Alfred SKIDMORE and William Thomas Skidmore,

Defendants-Respondents.

STATE of New Jersey, Plaintiff-Appellant, v. Samuel Oscar POFF, IV, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 6, 1991.

Decided Jan. 17, 1992.

W. Michael Murphy, Jr., Morris County Prosecutor, for plaintiff-appellant (Joseph Connor, Jr., Asst. Prosecutor, on the letter brief).

Wilfredo Caraballo, Public Defender, for defendants-respondents Dan Alfred Skidmore and Samuel Oscar Poff, IV (David L. Kervick, Asst. Deputy Public Defender, on the brief).

Wilfredo Caraballo, Public Defender, for defendant-respondent William Thomas Skidmore (Alfred V. Gellene, Asst. Deputy Public Defender, on the brief).

Before Judges O'BRIEN, HAVEY and CONLEY.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Since the issue in both of these cases is the same, they are consolidated for the purpose of this opinion. In each case the State appeals from the dismissal of an indictment charging defendants with possession of a controlled dangerous substance (CDS). ¹ We reverse.

In each case the police officers obtained a search warrant based in part upon the fruits of a search and seizure of defendants' garbage or trash bags placed outside their homes for collection.

In the Skidmore case, during the week of December 3, 1989, a citizen advised a prosecutor's office investigator of his suspicion that Dan Skidmore was distributing drugs from his residence in Dover. The suspicions were based on personal observations, i.e., the citizen observed frequent traffic to the home during the period from the summer of 1989 through December 1989. Cars would pull up in front of the home, blow their horns, Dan Skidmore would run out, make an exchange with the occupants and then return to his home. On one occasion the citizen observed Skidmore holding a large amount of cash, although at the time the citizen believed Dan Skidmore was unemployed.

Based on this information, the investigator conducted "trash pulls" at Skidmore's residence on three occasions, December 6, December 20, and December 27, 1989. On each day the trash had been placed at curbside for pickup. Each of the three trash pulls produced evidence of drugs such as rolling papers, two marijuana seeds, a one-inch marijuana stalk, four marijuana cigarette roaches, and various other possible drug paraphernalia.

On January 3, 1990, a warrant was issued to search the residence. The judge found that the citizen's tip together with the results of the trash pulls provided probable cause to believe that drugs and/or related items were to be found inside the residence. Upon execution of the search warrant, the CDS sought to be suppressed was seized. Dan Skidmore and William Skidmore, who also lived at that address, were indicted for possession of a small amount of cocaine.

In the Poff case, on October 4, 1989, the county prosecutor's office received information from neighbors of Poff's residence in Dover that heavy traffic had been seen going in and out at all hours of the day and night. The neighbors believed this traffic resulted from marijuana sales at that address. On October 13, 1989, information was obtained from an unknown person, who claimed to have firsthand knowledge, that the residents of the first-floor apartment at the residence were generally in possession of large amounts of marijuana and were resupplied every few days. Investigation revealed that utilities for the first-floor apartment were billed to defendant Poff.

On November 15, 18 and 29, 1989, trash pulls were conducted on the regular trash pickup day. Each trash pull produced evidence of CDS such as a zip-lock baggy containing two partially burnt marijuana cigarettes, seeds and marijuana stems, two empty packages of E-Z Wider rolling papers, and two marijuana cigarette clips. Surveillance on November 16 and November 22, 1989, appeared to support and be consistent with a conclusion that CDS was being distributed at the address. Based upon the initial information received, the results of the trash pulls, and the results of the surveillance, a search warrant based on probable cause was issued. The warrant was executed on December 1, 1989. Defendant was indicted for possession of more than fifty grams of marijuana and possession of more than one ounce of marijuana with intent to distribute, which had been seized when the warrant was executed.

Defendant Skidmore moved on November 19 and defendant Poff on December 24, 1990, to dismiss their indictments relying upon the decision of the New Jersey Supreme Court in State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990). After a hearing on January 25, 1991, the trial judge granted the motions to dismiss, concluding that the decision in Hempele should be applied retroactively to all cases awaiting trial. ²

The Supreme Court concluded in State v. Hempele and State v. Pasanen, 120 N.J. 164, 576 A.2d 784 (1990), that the garbage or trash searches in both cases were valid under the Fourth Amendment to the United States Constitution based upon California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). However, essentially embracing the reasoning of the dissenting opinion in Greenwood and in disagreement with the reasoning of the majority opinion, and admittedly in conflict with the holdings of virtually every other court that has considered the issue, ³ the New Jersey Supreme Court decided that the warrantless searches without probable cause violated Article I, paragraph 7 of the New Jersey Constitution.

The State concedes the power of the New Jersey Supreme Court to afford our citizens greater protection against unreasonable searches and seizures than does the Fourth Amendment to the United States Constitution. See State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987) (rejecting the concept of a good faith exception to the exclusionary rule); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (protecting privacy interest in telephone toll billing records). However, the State contends that, when these warrantless garbage searches were conducted, the law in New Jersey, as stated in our opinions in Pasanen and Hempele, was,

[p]olice may search without a warrant through abandoned household refuse where they have information which, though less than probable cause for the issuance of a search warrant, may reasonably induce conscientious and experienced police officers to believe that their exploration will uncover evidence of crime. [State v. Pasanen and State v. Hempele, 229 N.J.Super. 553, 556, 552 A.2d 212 (App.Div.1989), decided July 17, 1990.]

The same judge who decided these cases also decided State v. Pasanen in the Law Division on October 26, 1987. In reaching his decision in Pasanen, the judge concluded that, although placing a container of garbage out for collection does not necessarily intimate that the owner relinquishes all privacy interest in its contents, and thus it could not be searched arbitrarily, expectations of privacy were not justified as to searches made in furtherance of a police investigation grounded "in some plausible suspicion" of criminal wrongdoing, even though that plausible suspicion did not rise to the level of probable cause but was nevertheless sufficient to "alert them to the fact that there [was a] reasonable professional basis for investigation." Id. 229 N.J.Super. at 555, 552 A.2d 212. The judge denied the motion to suppress, which we affirmed. Id. at 553-554, 552 A.2d 212.

In the companion case of State v. Hempele, a different judge had suppressed the evidence seized because the State had failed to demonstrate that the plastic pail from which the refuse was taken was located on public property at the time of the search. Although we affirmed the suppression order, we found the judge had erred in the reasons which he gave for suppressing the evidence. We found the searches unreasonable because the facts on which the warrantless garbage searches were made were stale. In affirming our decision in Hempele, 120 N.J. 182, 576 A.2d 793 the New Jersey Supreme Court found that the garbage searches violated Article I, paragraph 7 of the New Jersey Constitution, although not for the reasons given by the trial judge or by us.

Thus, the relevant timetable in the instant appeal starts with the trial judge's decision in State v. Pasanen in 1987, followed by the decision of the United States Supreme Court in California v. Greenwood on May 16, 1988, and our decision in State v. Pasanen and State v. Hempele on January 12, 1989, in which we specifically addressed the question of whether such warrantless garbage searches violated Article I, paragraph 7 of the New Jersey Constitution.

In that state of the announced law by the United States Supreme Court concerning the Fourth Amendment and our decision concerning Article I, paragraph 7 of the New Jersey Constitution, these warrantless garbage searches were conducted in November and December 1989. Thus, as found by the trial judge,

But I'll take it for present purposes that they [the police] did comply with the Pasanen decision at the sub-Supreme Court level as it was in force when the garbage pulls in our present case were actually made.

And that means, therefore, that in terms of police lawlessness or police, inappropriate police aggression or inappropriate insensitivity to the rights of people, there was nothing wrong with the police, with what the police did in this case from that point of view.

They were acting in a restrained professional way and they were complying with the law as it then existed.

And so we do not have any motivation to exclude this evidence based on the need to control that kind of police misconduct.

Yet, the trial judge concluded that

The exclusionary rule in its simplest aspect is not really something designed to protect against police misconduct. It is...