New Jersey’s high court is exploring whether a notice of eviction served at an apartment ends a resident’s reasonable expectation of privacy and thus permits a warrantless search for drugs.
A trial judge denied a motion to suppress in the case of Gene Hinton, who was arrested after the court official serving the notice at a public housing unit saw heroin in plain view and called the police. But the Appellate Division reversed and the state appealed, leading to oral arguments on Tuesday.
Deputy Attorney General Emily Anderson told the court that the eviction changed the rules with respect to a need for a warrant. "The apartment had reverted back to the Newark Housing Authority," she said. "It’s not only possible that others would enter into the apartment, it’s probable that the government would enter."
Justice Jaynee LaVecchia asked whether Special Civil Part Officer Ricardo Pratt, who served the eviction notice on April 13, 2009, or the police who arrested Hinton knew he was in court that day trying to resolve the proceedings, which began after his mother, the apartment’s lessee, died that year.
Anderson said she wasn’t sure but added that it didn’t matter. "Whatever remedies defendant may have had civilly had no bearing on whether the police were lawfully there," she said.
Justice Anne Patterson asked what was the "key moment" when Hinton lost his privacy rights.
Anderson said that occurred when Pratt served the notice of eviction, conducted an authorized walk-through to determine that there were no people, pets or fire hazards in the apartment and changed the front-door locks.
Hinton’s attorney, Deputy Public Defender Matthew Astore, said the Appellate Division was correct in determining that Hinton had a reasonable expectation of privacy.
Hinton had 10 days to challenge the eviction notice. Even though he wasn’t on the lease, he regarded himself as a co-tenant because he had lived in the apartment for about six years with the super’s knowledge, Astore said.
Serving an eviction notice, Astore continued, does not automatically take away a tenant’s protections against unlawful searches and seizures or put the landlord in a position to authorize police to conduct a warrantless search.
"That would turn every eviction notice into police authority to search a premises," he said.
Astore conceded that Pratt’s walk-through, during which he spotted the heroin, did not violate Hinton’s privacy rights, but the police did so by entering the apartment without first obtaining a search warrant, he said.
Chief Justice Stuart Rabner asked when Hinton’s privacy rights would have ended.
"When he was finished with his right to contest the eviction," Astore replied. "There was a 10-day period."
Justice Helen Hoens noted that there was "no way" Hinton would have been allowed to remain in the apartment, since it was age-restricted.
"He does have some equitable relief," Astore said. "He could have asked for more time."
Justice Barry Albin said there has to be a point at which the tenant no longer has a privacy interest in an apartment.
"Until 10 days after the lockout, defendant still has remedies," Astore said.
Alexander Shalom, appearing for the American Civil Liberties Union of New Jersey, also argued that the police should have obtained a warrant before entering the apartment.
There was a possibility, no matter how remote, during the 10-day period following the lockout, that Hinton and the housing authority could have come to some accommodation, Shalom said, adding, "He was the functional equivalent of a co-tenant."