New Jersey has no “trashy house exception” to the warrant requirement for the search of a home—even one with broken front windows, a padlocked front door, no electricity, a garbage-filled interior and a rear door off its hinges.
The state Supreme Court held Wednesday in State v. Brown that police should have done more to ascertain if a dilapidated Camden property was abandoned and thus no warrant was needed.
“The constitutional protections afforded to the home make no distinction between a manor estate in an affluent town and a ramshackle hovel in an impoverished city,” the 4-2 court held.
The property, 820 Line Street, was under surveillance for two days in May 2010 based on a tip that it was being used as a “stash house.” Police observed what appeared to be multiple drug deals in which money was handed to individuals who unlocked the padlock, went inside and emerged with a small item that was handed over.
When defendants Derrick Brown, Kareem Strong and Leroy Carstarphen were arrested, none had drugs on them but Strong had a key to the padlock on 820, which police used to open the door. Inside, they found a sawed-off shotgun, crack cocaine and drug paraphernalia—baggies and a grinder, strainer and toothbrush. The defendants were charged with a variety of second- and third-degree drug and weapons offenses.
Superior Court Judge Richard Wells granted a motion to suppress, saying although the house was in “deplorable condition,” there was insufficient proof of abandonment as opposed to “horrid living conditions.” Appellate Division Judges Philip Carchman and Linda Baxter affirmed.
Justice Barry Albin’s majority opinion Wednesday, upholding the lower courts, was based on the state constitution, which requires a proprietary, possessory or participatory interest in either the place searched or the property seized to challenge a search. It puts the burden on the prosecutor to show the defendant lacks such an interest.
In contrast, the Fourth Amendment standard is a legitimate expectation of privacy in the area searched, and the defendant bears the burden.
Acknowledging that it can be difficult to prove abandonment of real property because it will always have an owner of record, Albin suggested police could look at property, tax or utility records. He pointed out the Asbury Park Press has a free online database showing owners and assessments.
The condition of a building and whether it is locked are relevant but not dispositive, said Albin, pointing out that many buildings badly damaged by Hurricane Sandy were boarded up but not abandoned. Police observations over months rather than two days can be a factor, too, he said.
The focus is whether, under the totality of the circumstances, the officer “had an objectively reasonable basis to conclude that a building was abandoned or a defendant was a trespasser before the officer entered or searched the home.”
Albin was joined by Justice Jaynee LaVecchia and Judges Ariel Rodriguez and Mary Catherine Cuff.
Dissenting Justice Anne Patterson, joined by Chief Justice Stuart Rabner, thought the police had “compelling evidence” of abandonment, allowing them to search without a warrant.
“Contrary to the suggestion of the majority, the police officers who conducted this investigation did not ride roughshod over the constitutional rights of the residents of a poor neighborhood,” wrote Patterson.
Strong’s lawyer, Theodore Baker of Afonso & Baker in Cinnaminson, said Camden, Newark and other cities have plenty of houses that look like 820 Line but have people living in them.
Brown’s lawyer, Kenneth Aita of Haddon Heights, said police jumped to the conclusion the house was abandoned, which they would not have done if it was in the suburbs.
Camden County Prosecutor Warren Faulk said the ruling “ignores the urban landscapes in New Jersey in which many police operate” and that residents often abandon homes because drug dealers have taken over the block. He called it “indeed ironic that the court would recognize a drug dealer’s constitutionally protected right to use that abandoned property to continue their illegal activity.”
The amicus Attorney General’s Office commented through spokesman Peter Aseltine: “Although we are disappointed in the outcome, the opinion does make clear that if a property is abandoned, or a defendant is trespassing on someone else’s property, the defendant cannot object to a search of that property by police.”¢