                                                    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                    State v. Amir Randolph (A-70-15) (076506)

Argued January 3, 2017 -- Decided May 3, 2017

Albin, J., writing for a unanimous Court.

         In this appeal, the Court considers whether a person charged with a possessory drug offense has automatic
standing to challenge a search or seizure.

          Defendant Amir Randolph was charged with various drug offenses and moved to suppress evidence.
Officers testified at the suppression hearing that, in September 2011, they conducted surveillance of a three-story
apartment building. During the surveillance, Markees King stood in the second-floor apartment, and later exited the
building, where he was approached by Edward Wright. Wright threw 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. Detective Goodman believed that he had observed two drug transactions.
Officers stopped and arrested Wright and, shortly thereafter, King was arrested as he exited the building.

         Sergeant Trowbridge then attempted to enter building. The tenant of the first-floor apartment opened the
door, admitting Sergeant Trowbridge into the vestibule. Once inside, Sergeant Trowbridge heard what sounded like
someone running from the second floor up to the third floor. He also found a handgun in the vestibule. Sergeant
Trowbridge then 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 and debris. 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 several items including a television, video gaming
system, two couches, boots, sneakers, clothes, a backpack, and a soda bottle, among other things. He also
discovered baggies of marijuana, some currency, a box, a cigarette box, and a letter from an insurance company
addressed to Amir Randolph (defendant) at a different address. Inside the boxes he found suspected heroin and
marijuana. In all, the police recovered thirty-five baggies of marijuana and forty glassine envelopes of heroin.

         At the suppression hearing, 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 evidence found there.

          At trial, the State’s presentation largely mirrored the testimony at the suppression hearing. Defense counsel
requested an instruction on “mere presence” and “flight.” The trial judge agreed to charge on flight but explained
that a charge on “mere presence” was not necessary. The jury asked questions, generally concerning the relationship
between defendant, King, and the tenant, and defendant’s location when arrested. The trial judge simply reminded
the jurors to use their “own good common sense, consider the evidence . . . and give it a reasonable and fair
construction in light of your knowledge of how people behave.” The jury returned guilty verdicts on all counts.

         The Appellate Division reversed, concluding that the trial court erred in upholding the search based on the
flawed finding that the second-floor apartment was vacant or abandoned. 441 N.J. Super. 533, 552-53 (App. Div.
2015). The panel remanded 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 failure to give a “mere
presence” charge. According to the panel, the jury should have been instructed that, without more, defendant’s
“mere presence” at the place where contraband was seized is insufficient to establish a finding of constructive
possession. Finally, the panel raised concerns about the propriety of the flight charge without resolving the issue.

         The Court granted the State’s petition for certification. 224 N.J. 529 (2016).

                                                          1
HELD: 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. Failing to issue the “mere presence” charge was harmless error.

1. This appeal concerns defendant’s standing to challenge the search of the apartment. The New Jersey
Constitution’s prohibition against unreasonable searches and seizures affords greater protection than the federal
Constitution. In New Jersey, the State bears the burden of showing that defendant has no proprietary, possessory, or
participatory interest in either the place searched or the property seized. Although the Court does not engage in a
reasonable expectation of privacy analysis when a defendant has automatic standing to challenge a search, it does so
in determining whether a defendant has a protectible right of privacy in a novel class of objects or category of
places. Here, the Court is applying traditional principles of automatic standing to a place that historically has
enjoyed a heightened expectation of privacy—the home. No unique circumstances call for the Court to engage in an
additional reasonable expectation of privacy analysis as a supplement to its standing rule. (pp. 16-20)

2. The automatic standing rule, however, is subject to reasonable exceptions, and, in this appeal, the Court
recognizes three exceptions in cases concerning real property: An accused will not have standing to challenge a
search of abandoned property, property on which he was trespassing, or property from which he was lawfully
evicted. The State has the burden of establishing that one of those exceptions applies to strip a defendant of
automatic standing to challenge a search. (pp. 21-25)

3. In the present case, defendant had automatic standing to challenge the search of the second-floor apartment
because he was charged with possessory drug offenses, and because the State failed to establish that Sergeant
Trowbridge had an objectively reasonable basis to believe that the apartment was abandoned or that defendant was a
trespasser. Regardless of the disarray in the apartment and the fact that it was not fully furnished, there were clear
signs that someone occupied it. (pp. 25-27)

4. Importantly, at the suppression hearing, the prosecutor contended that the police conducted a lawful search
pursuant to the exigent-circumstances and protective-sweep exceptions to the warrant requirement. The trial court
never addressed those substantive grounds. The trial court, moreover, did not apply the well-established principles
governing standing. Rather, the court turned to the reasonable expectation of privacy test, typically used in federal
courts, and concluded—without any evidence—that the apartment was vacant. The Court, therefore, concludes that
the trial court erred in its analysis and that a new suppression hearing must be conducted. (pp. 27-29)

5. The Court next considers whether the trial court erred in not instructing the jury on “mere presence” and, if so,
whether the failure to give the charge denied defendant a fair trial. Defendant requested that the trial court read to
the jury the Model Charge that instructs that a defendant’s “mere presence” at the scene, standing alone, is
insufficient to prove guilt. The court denied that request. The trial court was clearly mistaken in its belief that the
“mere presence” charge is given only in conspiracy cases. No constraint barred the trial court from giving the “mere
presence” charge, and the better course would have been to give the charge to disabuse the jury of any possible
notion that a conviction could be based solely on defendant’s presence in the building. However, unlike the
appellate panel, the Court concludes that the failure to give the “mere presence” charge did not deprive defendant of
a fair trial. The charge, as a whole, sufficiently informed the jury—without using the words “mere presence”—that
defendant’s presence in the building, standing alone, would be insufficient to establish guilt. The Court, therefore,
reverse the judgment of the Appellate Division granting defendant a new trial. (pp. 29-32)

6. Finally, the Court agrees with the Appellate Division that, if there is a retrial, the trial court “must carefully
consider whether it is appropriate to charge flight, and, if so, must tailor the charge to the facts of the case.” 441
N.J. Super. at 563-64. In doing so, the court must determine whether the probative value of evidence of flight is
“substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury,” N.J.R.E.
403(a), and whether a carefully crafted limiting instruction could ameliorate any potential prejudice. (pp. 33-36)

          The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for proceedings consistent with this opinion.

     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE ALBIN’s opinion.

                                                           2
                                      SUPREME COURT OF NEW JERSEY
                                        A-70 September Term 2015
                                                 076506

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

AMIR RANDOLPH,

    Defendant-Respondent.


         Argued January 3, 2017 – Decided May 3, 2017

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 441 N.J. Super. 533 (App. Div.
         2015).

         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. Shalom argued the cause for
         amicus curiae American 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


                                1
participatory interest in either the place searched or the

property seized.”   State v. Alston, 88 N.J. 211, 228 (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 (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

                                 2
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

                                 3
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


1 Defendant was also charged with conspiracy to distribute drugs.
The State dismissed that charge at trial before its submission
to the jury. Markees King and Edward Wright were charged as
codefendants in this indictment. Because they are not parties
to this appeal, there is no need to specify the charges that
applied to them.
                                  4
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

                                 5
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

                                   6
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




2 Defendant intended to call Detective Stambuli to testify that
the cell phone carried by Andrew Bentley was inoperable. The
testimony evidently was offered to rebut Detective Goodman’s
testimony that Bentley spoke into the cell phone with the
message, “they’re coming in.” The prosecutor objected to the
testimony, and the trial court ruled that the testimony was
“irrelevant to what the police officers did at the time.”
                                 7
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?

          . . . .

                                 8
            Where in the third floor apartment was
            [defendant] arrested from and where was he
            hiding?

In response, the trial judge simply reminded the jurors to use

their “own good common sense, consider the evidence . . . and

give it a reasonable and fair construction in light of your

knowledge of how people behave.”

    The jury returned guilty verdicts on all counts.       The court

sentenced defendant to a seven-year state-prison term subject to

a three-year parole-ineligibility period on the charge of

second-degree possession with intent to distribute heroin within

500 feet of a public housing facility.   The court also imposed a

concurrent five-year term subject to a three-year parole-

ineligibility period on the charge of third-degree possession

with intent to distribute marijuana within 1000 feet of school

property.   The court merged the other counts into those

convictions.   All requisite fines and penalties were imposed.

                                C.

    A panel of the Appellate Division concluded that the trial

court erroneously upheld the search based on its flawed finding

that the second-floor apartment was vacant or abandoned.     State

v. Randolph, 441 N.J. Super. 533, 552-53 (App. Div. 2015).     The

panel noted that defendant had automatic standing to challenge

the search, unless the State established that the apartment was


                                   9
abandoned or that he was a trespasser.     Id. at 548-49.   The

panel found that the presence of a couch, a television and a

gaming console, sneakers and boots, clothes, and other items did

not give the police an objectively reasonable basis to believe

that the apartment was abandoned.     Id. at 545, 553.   The panel

also faulted the trial court for imposing on defendant the

burden of proving that he had a reasonable expectation of

privacy in the apartment in contravention of the automatic

standing rule.   Id. at 553.   The panel therefore remanded for a

new suppression hearing to determine whether the search was

justified based on the exigent-circumstances or protective-sweep

exception to the warrant requirement.     Ibid.

      The panel, moreover, held that the trial court’s failure to

give a “mere presence” charge at defendant’s request constituted

reversible error and therefore ordered a new trial.      Id. at 561-

62.   According to the panel, the jury should have been

instructed that, without more, defendant’s “mere presence” at

the place where contraband was seized, i.e., the building at 77

Grant Avenue, is insufficient to establish a finding of

constructive possession.   Id. at 558-60.    The panel stated that

the jury’s questions, which “sought guidance from the court

respecting the relationship of defendant to the apartment,”

confirmed the need for a “mere presence” charge.     Id. at 559-60.

      Last, the panel raised concerns about the propriety of the

                                 10
flight charge without resolving the issue.      Id. at 562-64.   The

panel pointed out that Sergeant Trowbridge could not identify

defendant as the person running upstairs; that defendant did not

have a cell phone when arrested; that defendant may have been

eluding the U.S. Marshals, who had a warrant for his arrest; and

that Bentley may have been notifying the U.S. Marshals -- as

opposed to defendant -- about Sergeant Trowbridge’s entry into

the building.   Id. at 556-57.   The panel also noted that the

jury never learned that the Marshals were pursuing defendant on

a homicide warrant.   Id. at 557.     The panel reasoned that, to

support a flight charge, the “evidence [of flight] must

unequivocally support a reasonable inference that the actor’s

conduct following the commission of a crime may be relied upon

as evidence of the actor’s guilt” regarding the crime charged.

Id. at 563.   The panel instructed the remand court to “carefully

consider whether it is appropriate to charge flight, and, if so,

[to] tailor the charge to the facts of the case to prevent juror

confusion.”   Id. at 563-64.

    We granted the State’s petition for certification.       State

v. Randolph, 224 N.J. 529 (2016).      We also granted the motion of

the American Civil Liberties Union of New Jersey (ACLU-NJ) to

participate as amicus curiae.

                                 II.

                                 A.

                                 11
    The State claims that this case is not about standing,

conceding that defendant had automatic standing to challenge the

search because he faced possessory drug charges.     Instead, the

State argues that the real issue is that defendant failed to

prove that he had “a reasonable expectation of privacy in the

apartment to prevail on his claim that his rights were

violated.”   Despite defendant’s automatic standing, the State

insists that defendant had the burden of showing that the police

violated his legitimate expectation of privacy in searching the

second-floor apartment and that, barring such a showing, he has

no right to the suppression of evidence seized from the

premises.    To advance this argument, the State relies primarily

on State v. Hinton, 216 N.J. 211 (2013), a case in which this

Court found that a defendant evicted from an apartment no longer

had an expectation of privacy in the premises or a right to

object to a search of it.    Secondarily, the State contends that

because the apartment was “apparently vacant” and used for drug

activity, the police had an objectively reasonable basis to

enter and search the premises.

    The State further asserts that, contrary to the Appellate

Division’s ruling, the trial court’s refusal to supplement the

instruction on constructive possession with a “mere presence”

charge was entitled to deference.     According to the State, the

constructive-possession instruction “adequately explained to the

                                 12
jury that mere presence was an insufficient basis to find

defendant guilty and that he could not be found guilty based

solely on his proximity to the drugs.”

    The State also urges that we vacate the Appellate

Division’s remand order and instruct that the jury may consider

evidence of flight, even if that evidence is less than

“unequivocal.”

                                B.

    Defendant counters that, based on the possessory drug

charges filed against him, the Appellate Division correctly

found that he had automatic standing to challenge the

warrantless search of the apartment.     Defendant acknowledges

that there are exceptions to the standing rule.    Had the State

proven that the apartment was abandoned or that defendant was a

trespasser, defendant concedes he would not have had standing to

object to the search.   Defendant, however, submits that, in

contravention of our standing jurisprudence, the State has

“invented” an additional and unnecessary inquiry that shifts the

burden to defendant to prove that he had an expectation of

privacy in the place searched -- here, the apartment.     Defendant

explains that a reasonable expectation of privacy analysis is

undertaken only when a court must determine whether a new class

of objects or places is protected by the Constitution and that

such an analysis is inappropriate for a home, which is a well-

                                13
established constitutionally protected sphere.

    Defendant also argues that the Appellate Division correctly

reversed his convictions because the trial court erred in

failing to charge the jury on “mere presence” and compounded

that error by omitting the charge when the jury asked for

clarification concerning defendant’s relationship to the

apartment.   Additionally, defendant asks that we affirm the

Appellate Division’s remand order cautioning against a flight

charge unless the evidence unequivocally supports an inference

of flight.

                                 C.

    Amicus ACLU-NJ argues that the State’s proposed approach

undermines the automatic standing rule because it relieves the

State of its burden of establishing an exception to the rule,

e.g., abandonment or trespass, and shifts the burden to

defendant to prove that he possessed a reasonable expectation of

privacy in the apartment.    That, the ACLU-NJ states, will

“overturn longstanding precedent on ‘automatic standing.’”     The

ACLU-NJ places particular emphasis on “[t]he bizarre fact

pattern of Hinton” -- not present here -- that implicated a

complex statutory backdrop involving an eviction action in which

a court officer, executing a warrant of removal, reported the

presence of drugs and allowed the police entry onto the

premises.    According to the ACLU-NJ, under the novel

                                 14
circumstances in Hinton, the Court made inquiry into the

reasonable expectation of privacy of the evicted tenant, who

essentially was a trespasser.   The ACLU-NJ urges this Court to

confine Hinton to its unique setting and not to accept the

State’s invitation to expand Hinton and strike down the

automatic standing rule.

                                III.

    We first conclude that the trial court erred in denying

defendant’s motion to suppress on the ground that he failed to

show that he possessed a reasonable expectation of privacy in

the apartment searched.    In light of the charged possessory drug

offenses, defendant had automatic standing to challenge the

search of the apartment, unless the State established an

exception to that rule.    The State bore the burden of proving

that the apartment was abandoned or that defendant was a

trespasser but failed to advance the argument at the suppression

hearing.

    Before addressing the issue of standing, we turn first to

some basic search and seizure principles.

                                 A.

    In virtually identical language, the Fourth Amendment of

the United States Constitution and Article I, Paragraph 7 of the

New Jersey Constitution guarantee “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

                                 15
unreasonable searches and seizures . . . and no Warrants shall

issue, but upon probable cause.”      U.S. Const. amend. IV; see

also N.J. Const. art. I, ¶ 7.    Any constitutional challenge to

the search of a place or seizure of an item must begin with

certain fundamental inquiries.     Does the defendant have standing

to challenge the search or seizure?     If the defendant has

standing, did the police secure a warrant to search or seize by

constitutional means, and if no warrant issued, was the search

or seizure justified by an exception to the warrant requirement?

    The only issue here concerns whether defendant had standing

to challenge the search of the second-floor apartment at 77

Grant Avenue.

                                 B.

    In a series of cases, beginning with State v. Alston, we

have repeatedly reaffirmed that, under Article I, Paragraph 7 of

the New Jersey Constitution, “a criminal defendant is entitled

to bring a motion to suppress evidence obtained in an unlawful

search and seizure if he has a proprietary, possessory or

participatory interest in either the place searched or the

property seized.”   88 N.J. 211, 228 (1981); see State v. Lamb,

218 N.J. 300, 313 (2014) (“New Jersey has retained the automatic

standing rule . . . .”).   Our standing rule deviates from the

federal approach, which requires that “a person alleging a

Fourth Amendment violation . . . establish that law enforcement

                                 16
officials violated ‘an expectation of privacy’ that he possessed

in the place searched or item seized.”      State v. Johnson, 193

N.J. 528, 542 (2008) (quoting United States v. Salvucci, 448

U.S. 83, 93, 100 S. Ct. 2547, 2553, 65 L. Ed. 2d 619, 629

(1980)).

    We explained in Alston, supra, that the more amorphous

federal standing rule does not provide New Jersey’s citizens

sufficient protection from unlawful searches and seizures and

that our standing rule is “more consonant with our own

interpretation of the plain meaning of Article 1, Paragraph 7 of

our State Constitution.”    88 N.J. at 225-27.   Accordingly, the

New Jersey Constitution’s prohibition against unreasonable

searches and seizures affords New Jersey citizens greater

protection than that provided by the United States Constitution.

Lamb, supra, 218 N.J. at 313-14.

    The points of departure between federal and state concepts

of standing are clear.    Under New Jersey law, the State bears

the burden of showing that defendant has no proprietary,

possessory, or participatory interest in either the place

searched or the property seized.      State v. Brown, 216 N.J. 508,

528 (2014).   Under federal law, the defendant has the burden of

showing that he had a reasonable expectation of privacy that was

violated by the police.    See United States v. Jones, 565 U.S.

400, 406, 132 S. Ct. 945, 950, 181 L. Ed. 2d 911, 919 (2012).

                                 17
    Although the proprietary, possessory, or participatory

interest standard “incorporates the notion of a reasonable

expectation of privacy, [it] also advances other important state

interests.”   Johnson, supra, 193 N.J. at 543.    Those interests

are evident in the three principles undergirding New Jersey’s

standing rule.

    The first principle is that “a person should not be

compelled to incriminate himself by having to admit ownership of

an item that he is criminally charged with possessing in order

to challenge the lawfulness of a search or seizure.”      Ibid.

(citing Alston, supra, 88 N.J. at 222 n.6).      The second is that

the State should not take seemingly conflicting positions at a

suppression motion and trial.    Ibid. (citing Alston, supra, 88

N.J. at 223).    Thus, our standing rule restricts the State from

arguing, on one hand, that the defendant did not possess a

privacy interest in the place searched or property seized for

standing purposes while, on the other, arguing that the

defendant is inextricably tied to the place searched and

possessed the item seized to prove his guilt.     Ibid.   The last

principle is that “by allowing a defendant broader standing to

challenge evidence derived from unreasonable searches and

seizures under our State Constitution, we increase the privacy

rights of all New Jersey’s citizens and encourage law

enforcement officials to honor fundamental constitutional

                                 18
principles.”   Ibid. (citing Alston, supra, 88 N.J. at 226 n.8).

Thus, a defendant challenging a search under New Jersey’s

standing rule may be vindicating the rights of others as well.

       The State argues that automatic standing does not relieve

defendant of his obligation to show that he had a reasonable

expectation of privacy in the apartment searched.    We dismissed

a similar argument in Johnson, stating, “the State’s proposed

approach merely places another layer of standing -- the federal

standard -- on top of our automatic standing rule.”    See id. at

546.   We have “roundly rejected hinging a defendant’s right to

challenge a search based on ‘a reasonable expectation of

privacy’ analysis.”    Ibid. (citing Alston, supra, 88 N.J. at

226-27).

                                 C.

       Although we do not engage in a reasonable expectation of

privacy analysis when a defendant has automatic standing to

challenge a search, we do so in determining whether a defendant

has a protectible Fourth Amendment and Article I, Paragraph 7

right of privacy in a novel class of objects or category of

places.

       For example, in State v. Earls, we determined for the first

time that “individuals have a reasonable expectation of privacy

in the location of their cell phones under the State

Constitution” and therefore the State must obtain a warrant to

                                 19
secure location information from a cell phone provider.     214

N.J. 564, 568-69 (2013).   Having made that finding, a similar

expectation of privacy analysis is not required again.    After

Earls, individuals whose cell phones are used as tracking

devices have standing to challenge information secured from a

cell phone provider without a warrant or without justification

under an exception to the warrant requirement.

     We also engaged in the same expectation of privacy analysis

in determining, for the first time, that the State must serve a

grand jury subpoena to secure an individual’s “subscriber

information” from an Internet service provider, State v. Reid,

194 N.J. 386, 389 (2008), electric utility records, State v.

Domicz, 188 N.J. 285, 299 (2006), or bank records, State v.

McAllister, 184 N.J. 17, 32-33 (2005).   Having decided in those

then-novel cases that individuals have a protectible Article I,

Paragraph 7 possessory or proprietary interest, future grievants

in criminal cases have automatic standing to challenge a search

or seizure of those records not secured by constitutional means.

     Here, we are applying traditional principles of automatic

standing to a place that historically has enjoyed a heightened

expectation of privacy -- the home.   No unique circumstances

call for this Court to engage in an additional reasonable

expectation of privacy analysis as a supplement to our standing

rule.

                                20
       The automatic standing rule, however, is subject to

reasonable exceptions.

                                 D.

       Today, we recognize three exceptions to the automatic

standing rule in cases concerning real property.   An accused

will not have standing to challenge a search of abandoned

property, Brown, supra, 216 N.J. at 529, property on which he

was trespassing, ibid., or property from which he was lawfully

evicted, see generally Hinton, supra, 216 N.J. 211.      The State

has the burden of establishing that one of those exceptions

applies to strip a defendant of automatic standing to challenge

a search.    Brown, supra, 216 N.J. at 527-28.

       In Brown, we rejected the State’s argument that the

defendant did not have standing to challenge the warrantless

entry and search of a home for drugs because the structure was

abandoned.   Id. at 541.   We upheld the trial court’s finding

that the State had not established that the targeted row house

was “abandoned,” even though the premises were in deplorable

condition, with a propped up door, a broken window, a missing

electric meter, a living room in disarray, and a floor littered

with trash bags filled with old clothes and other items.       Id. at

540.    We acknowledged the sad fact that “[t]here are

impoverished citizens who live in squalor and dilapidated

housing, with interiors in disarray and in deplorable condition,

                                 21
and yet these residences are their homes.”    Id. at 534.   We

noted that the warrant requirement does not have a “trashy house

exception,” ibid. (quoting United States v. Harrison, 689 F.3d

301, 311 (3d Cir. 2012), cert. denied, ___ U.S. ___, 133 S. Ct.

1616, 185 L. Ed. 2d 602 (2013)), and that “[a] home is not

deemed ‘abandoned’ merely because a person is dealing drugs from

it,” ibid.

     We also made the simple observation “that a house or

building, even if seemingly unoccupied, typically will have an

owner.”   Id. at 533.   That notion extends to an apartment as

well.   Thus, one reasonable step a police officer might take to

determine whether a building is abandoned is to attempt to

identify the owner by inspecting deeds, tax-assessment records,

or utility records.3    Ibid.

     Practical steps can also be taken to determine whether a

person is a trespasser.    A trespasser does not have standing to

challenge a search because “a trespasser, by definition, does

not have a possessory or proprietary interest in property where

he does not belong -- where he does not have permission or

consent to be.”   Id. at 535.   A landlord of a building or his




3 Sergeant Trowbridge used the terms “vacant” and “abandoned” in
describing the second-floor apartment. That property is vacant
does not mean that it is abandoned. Indeed, property may be
vacant because it has yet to be leased or for any of a number of
other reasons.
                                 22
agent -- if identifiable and available -- presumably would know

whether an apartment is leased and to whom.      Indeed, contacting

the person who knows the rental status of the apartment is one

way the police can identify a trespasser.

       We did not suggest in Brown that a records check is the

only means for determining whether a building is abandoned or a

defendant is a trespasser.    Id. at 533.   The condition of a

building and its interior and the surrounding environs, as well

as a police officer’s personal knowledge of the neighborhood and

its residents, are other critical factors -- but not necessarily

all -- that may come into play.    Id. at 534.   One example is

that a police officer may know that the owner of certain

property is on vacation and that a vagrant on the property is

not privileged to be there.

       Last, a person lawfully evicted from property -- and

retaining no further proprietary interest in the property --

will stand in the shoes of a trespasser and not have the right

to challenge a search.    See generally Hinton, supra, 216 N.J.

211.    There, in accordance with the Anti-Eviction Act, the

Tenant Hardship Act, and the Fair Eviction Notice Act, a

landlord obtained from a Superior Court judge a warrant of

removal, which instructed “a Special Civil Part Officer to

‘dispossess the tenant and place the landlord in full possession

of the premises.’”    Id. at 216, 224.   The warrant, placed under

                                  23
the door of the tenant’s apartment, directed the tenant to

remove all possessions within three days of the issuance of the

warrant.   Id. at 217.   After the expiration of the three days,

during which the tenant took no action to vacate the premises, a

Special Civil Part Officer entered the apartment to change the

locks and inspect the premises.    Id. at 218.   During the

inspection, the Special Civil Part Officer observed illicit

drugs and called the police, who entered and searched the

apartment.   Id. at 218-19.

    In that “novel case aris[ing] in unusual circumstances,” we

engaged in a reasonable expectation of privacy analysis and

concluded that the defendant -- who claimed the status of a

tenant -- did not have a right to object to the search.       Id. at

235-36.    The novelty of that case required that we examine the

reach of the defendant’s privacy interests.      Having determined

that the evicted tenant had no protectible privacy right to

object to an entry of the police onto the premises in such

circumstances, if a similar case arises, the simple answer will

be that the former tenant’s status is equivalent to that of a

trespasser and he will not have standing to challenge the

search.    We reject the State’s reading of Hinton because it

conflates New Jersey’s standing precedents with the federal

standard and would upend our long-established jurisprudence in

this area.

                                  24
    The standard for proving that a building is abandoned or

that a defendant is a trespasser is straightforward.   If the

State can establish that, “in light of the totality of the

circumstances, a police officer ha[d] an objectively reasonable

basis to believe a building [was] abandoned,” Brown, supra, 216

N.J. at 532, or “an objectively reasonable basis to believe [the

defendant] was a trespasser,” id. at 535, a defendant will not

have standing to challenge a search.

    We must not forget that the issue here is merely whether

defendant had standing to challenge the search.   The police can

always search a building or an apartment armed with a lawfully

issued warrant or pursuant to an exception to the warrant

requirement, such as when exigent circumstances require

immediate action to preserve evidence or ensure the safety of an

individual or the public.   See, e.g., State v. Edmonds, 211 N.J.

117, 129-30 (2012).   When in doubt, the safest course for law

enforcement -- and one consonant with the liberty interests of

our citizens -- is to secure a warrant when doing so is

practicable.

                                E.

    We now apply the standing principles discussed above to the

facts before us.   We conclude that defendant had automatic

standing to challenge the search of the second-floor apartment

at 77 Grant Avenue because he was charged with possessory drug

                                25
offenses, see Alston, supra, 88 N.J. at 228, and because the

State failed to establish that Sergeant Trowbridge had an

objectively reasonable basis to believe that the apartment was

abandoned or that defendant was a trespasser, see Brown, supra,

216 N.J. at 532.

    For sure, the police had a reasonable basis to believe that

the second-floor apartment was being used in a drug-distribution

scheme.   Markees King was observed in that apartment immediately

before he engaged in what appeared to be two hand-to-hand drug

transactions outside the building.    Absent evidence to the

contrary, King’s presence in the apartment was an indication

that he was a resident of or had been invited onto the premises.

As noted earlier, “[a] home is not deemed ‘abandoned’ merely

because a person is dealing drugs from it.”    Brown, supra, 216

N.J. at 534.

    Also of importance is the fact that the outside door to the

building was locked and that Sergeant Trowbridge gained access

by having the first-floor tenant open the door.     The locked

outside door was evidence that the building’s residents intended

to keep the public from entering even the common areas without

invitation.    Additionally, when Sergeant Trowbridge arrived on

the second-floor landing, the door to the apartment was ajar.

Before entering, he could see a couch and debris.    After

entering the apartment, he observed another couch, Timberland

                                 26
boots, a pair of Nike sneakers, a backpack, a television and

video gaming system, and clothes draped on a couch and strewn on

the floor along with a cigarette pack, a soda bottle, and mail.

    Regardless of the disarray in the apartment and the fact

that it was not fully furnished, there were clear signs that

someone occupied it.   The police did not contact the landlord to

determine whether the second-floor apartment had been leased,

and nothing in the record indicates that the first-floor

resident was asked about the status or possible occupants of the

upstairs apartment.    Nothing in the record suggests that

defendant was not an invitee in the apartment, and indeed the

State argued at trial that the mail addressed to defendant found

inside the apartment was evidence of his presence in the

apartment.

    We hold that, in light of the totality of the

circumstances, the police did not have an objectively reasonable

basis to believe that the second-floor apartment was abandoned.

    Importantly, at the suppression hearing, the prosecutor did

not argue that defendant lacked standing to challenge the search

on the basis that the apartment was abandoned.    Instead, the

prosecutor contended that the police conducted a lawful search

pursuant to the exigent-circumstances and protective-sweep

exceptions to the warrant requirement.   The trial court never

addressed the substantive grounds on which the prosecutor

                                 27
attempted to justify the search.     The trial court, moreover, did

not apply our well-established principles governing standing.

Rather, the court turned to the reasonable expectation of

privacy test, typically used in federal courts, and then came to

a conclusion -- not supported by the evidence -- that the

apartment was vacant.

     Like the Appellate Division, we conclude that the trial

court erred in its analysis and therefore a new suppression

hearing must be conducted.   See Randolph, supra, 441 N.J. Super.

at 556.   We also agree with the Appellate Division that at the

new hearing both the State and defendant should be afforded the

opportunity to present evidence concerning the prosecutor’s

claimed justification for the warrantless entry and search.4    Id.

at 555-56.   A full record should be developed to determine

whether the exigent-circumstances or protective-sweep doctrine,

or both, justified the entry and search and, if so, the scope of




4 The panel’s decision to remand for a new suppression hearing
was prompted, in part, by its conclusion that the trial court
had erred in barring the defense from calling Detective Stambuli
to testify about Bentley’s allegedly inoperable cell phone.
Randolph, supra, 441 N.J. Super. at 554. We agree with the
panel that Detective Stambuli should not have been kept off the
stand. Defendant had the right to challenge Detective Goodman’s
credibility. Detective Stambuli’s proffered testimony,
seemingly, would have contradicted Detective Goodman’s account
that he overheard Bentley speaking into the cell phone, saying,
“they’re coming in, they’re at the door now.” The State
hypothesized that the call was intended to alert defendant, who
remained in the building.
                                28
the search.   On this new record, the trial court will make the

appropriate credibility and factual findings.     We express no

view on the merits of the issues to be decided on remand.

                                IV.

    We now consider whether the trial court erred in not

instructing the jury on “mere presence” and, if so, whether the

failure to give the charge denied defendant a fair trial.

    In summation, the prosecutor argued that the jury should

conclude that defendant was guilty of possession with intent to

distribute drugs based on (1) the discovery of drugs in the

second-floor apartment along with mail addressed to defendant,

albeit to a different address, (2) Sergeant Trowbridge’s hearing

the sound of someone running from the second to the third floor,

and (3) the ultimate arrest of defendant “hiding” in the third-

floor apartment.

    Defendant requested that the trial court read to the jury

the Model Charge that instructs that a defendant’s “mere

presence” at the scene, standing alone, is insufficient to prove

guilt.   The court denied that request.    The Model Charge on

accomplice liability indicates that the “mere presence” charge

should be given when appropriate.     The Model Charge on “mere

presence,” in part, provides:

          Mere presence at or near the scene does not
          make one a participant in the crime, nor does
          the failure of a spectator to interfere make

                                29
         him/her a participant in the crime.    It is,
         however, a circumstance to be considered with
         the other evidence in determining whether
         he/she was present as an accomplice. Presence
         is not in itself conclusive evidence of that
         fact.   Whether presence has any probative
         value depends upon the total circumstances.
         To constitute guilt there must exist a
         community of purpose and actual participation
         in the crime committed.

         [Model Jury Charge (Criminal), “Liability for
         Another’s Conduct” (N.J.S.A. 2C:2-6) (May
         1995).]

    The court did not instruct the jury on accomplice liability

but did give the Model Charge on constructive and joint

possession concerning the drugs found in the second-floor

apartment.   The court stated:

         Constructive possession means possession in
         which the possessor does not physically have
         the item on his or her person, but is aware
         that the item is present and is able to
         exercise intentional control or dominion over
         it.

         So, someone who has knowledge of the character
         of an item and knowingly has both the power
         and the intention at a given time to exercise
         control over it, either directly or through
         another person or persons, is then in
         constructive possession of that item.

         [Cf.    Model   Jury    Charge    (Criminal),
         “Possession” (N.J.S.A. 2C:2-1) (June 2014).]

    The Appellate Division “recognize[d] that the model jury

charge on constructive possession does not include a charge on

mere presence,” Randolph, supra, 441 N.J. Super. at 561, yet

nevertheless concluded that the trial court erred in not giving

                                 30
the “mere presence” charge in the circumstances of this case,

particularly given the jury’s inquiry into “the relationship

between [defendant] and tenant, [defendant] and [King], [King]

and tenant,” id. at 558.   To support that conclusion, the panel

cited a number of cases indicating that, in certain

circumstances, the “mere presence” charge may further elucidate

principles related to constructive possession.   Id. at 558-62;

see State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992)

(“[C]onstructive possession cannot be based on mere presence at

the place where contraband is located.   There must be other

circumstances or statements of defendant permitting the

inference of defendant’s control of the contraband.”), aff’d,

133 N.J. 481 (1993); see also State v. Palacio, 111 N.J. 543,

549-54 (1988); State v. Shipp, 216 N.J. Super. 662, 664-65 (App.

Div. 1987).

    The trial court was clearly mistaken in its belief that the

“mere presence” charge is given only in conspiracy cases.   No

constraint barred the trial court from giving the “mere

presence” charge, and the better course would have been to give

the charge to disabuse the jury of any possible notion that a

conviction could be based solely on defendant’s presence in the

building.

    The appellate panel expressed “serious doubt about whether

the jurors’ verdicts [were] based on a misunderstanding of the

                                31
law” and therefore vacated defendant’s convictions and remanded

for a new trial.   Randolph, supra, 441 N.J. Super. at 561-62.

Unlike the panel, we do not believe that the failure to give the

“mere presence” charge was “clearly capable of producing an

unjust result,” see R. 2:10-2, even if giving that additional

charge would have been advisable.    We come to that conclusion

because the jurors were instructed that defendant could not be

found guilty unless the State proved (1) defendant knew that the

drugs were in the second-floor apartment and (2) defendant had

the power and intention to exercise control over the drugs.       The

charge, as a whole, sufficiently informed the jury -- without

using the words “mere presence” -- that defendant’s presence in

the building, standing alone, would be insufficient to establish

guilt.   See State v. Montesano, 298 N.J. Super. 597, 612-15

(App. Div.), certif. denied, 150 N.J. 27 (1997) (holding that

possession and constructive-possession charges, read in their

entirety, “left no room to doubt that ‘mere presence’ was

insufficient to bring about a finding of the necessary elements

of possession”).

    Accordingly, we reverse the judgment of the Appellate

Division granting defendant a new trial.    We remind our trial

courts, however, that every precaution should be taken to fully

inform the jury on all applicable legal principles that will

assist it in fairly deciding the issues.    See State v. Brown,

                                32
138 N.J. 481, 522 (1994) (“Our decisions have consistently

emphasized that clear and correct jury instructions are

essential for a fair trial.”).   Although the absence of the

“mere presence” charge did not deny defendant a fair trial,

giving the charge would have done no harm and possibly would

have been of some benefit.   In the event defendant is granted a

new trial based on the outcome of the new suppression hearing,

the “mere presence” charge should be included in the

instructions read to the jury.

                                 V.

    Last, we agree with the Appellate Division that, if there

is a retrial, the trial court “must carefully consider whether

it is appropriate to charge flight, and, if so, must tailor the

charge to the facts of the case to prevent juror confusion.”

Randolph, supra, 441 N.J. Super. at 563-64.

    At trial, defendant requested the flight charge for reasons

not articulated or evident on the record.   That clearly opened

the door for the prosecutor to argue flight in summation, which

the prosecutor did to good effect.    In his closing statement,

the prosecutor told the jury:

         You can consider . . . the fact that
         [defendant] ran from [the] second floor to
         [the] third floor as consciousness of guilt.
         . . .    [I]n so running[, he] was putting
         distance between himself and the drugs.     He
         was putting distance between himself and those
         police officers, who he knew, based upon Mr.

                                 33
            Bentley’s phone call, were on their way into
            [the building].

Defendant did not object to this argument.

    No one actually observed defendant fleeing from the police

-- that inference had to be drawn from Sergeant Trowbridge’s

testimony that he heard someone running from the second to the

third floor after he gained entry into the vestibule of the

building.   Although that fact might not have warranted the

withholding of a flight charge, another fact should have given

the trial court pause.   At the very same time that the Jersey

City police was conducting its investigation and surveillance of

77 Grant Avenue for drug activity, United States Marshals had

the building under watch for the purpose of executing a warrant

to arrest defendant on a homicide charge.     Indeed, as Sergeant

Trowbridge was exiting the second-floor apartment, the Marshals

were rushing to the third floor to arrest defendant.

    That raises the inevitable question.      If defendant, in

fact, was fleeing up the stairs, was his flight prompted by an

attempt to escape detection for drug dealing or for a homicide?

The jury never learned that the United States Marshals were on

defendant’s trail and arrested him in the building at the time

of the Jersey City police investigation.     Of course, such a

disclosure would have been highly prejudicial given that

defendant was on trial for drug offenses and not for committing


                                 34
a homicide.   Because of what it did not know, the jury could not

give weight to evidence that any flight might have been

motivated for reasons other than the drug investigation.

    In accordance with the Model Charge on flight, the court

instructed the jury:

         If you find that the defendant, fearing that
         an accusation or arrest would be made against
         him on the charges involved in the indictment,
         took refuge in flight for the purpose of
         evading the accusation or arrest on that
         charge, then you may consider such flight, in
         connection with all the other evidence in the
         case,   as   an   indication   or   proof   of
         consciousness of guilt.

         [(emphasis added).    See Model Jury Charge
         (Criminal), “Flight” (May 2010).]

    Flight from the scene of a crime, depending on the

circumstances, may be evidential of consciousness of guilt,

provided the flight pertains to the crime charged.   State v.

Mann, 132 N.J. 410, 418-19 (1993); see also State v. Wilson, 57

N.J. 39, 49 (1970) (“A jury may infer that a defendant fled from

the scene of a crime by finding that he departed with an intent

to avoid apprehension for that crime.” (emphasis added)).     The

Model Jury Charge, our jurisprudence, and common sense all

suggest that flight from the scene for reasons unrelated to the

crime charged would not be probative of guilt on that charge.

    The difficult task for a jury, of course, is determining a

defendant’s motivation.   Flight will have “legal significance”


                                35
if the circumstances “reasonably justify an inference that it

was done with a consciousness of guilt” to avoid apprehension on

the charged offense.    State v. Ingram, 196 N.J. 23, 46 (2008)

(quoting Mann, supra, 132 N.J. at 418-19).     A jury must be able

to draw reasonable inferences from the evidence; it may not be

left to speculate.     We agree with the Appellate Division that

evidence of flight must be “intrinsically indicative of a

consciousness of guilt.”    Randolph, supra, 441 N.J. Super. at

562 (quoting State v. Pindale, 249 N.J. Super. 266, 283 (App.

Div. 1991)).   We disagree, however, with its assertion that

evidence of flight “must unequivocally support a reasonable

inference” of the defendant’s guilt.     Id. at 563 (emphasis

added).   There is no support in our jurisprudence for so high a

bar to the admission of such evidence.

    In conclusion, should the case be retried, the trial court

must cautiously consider whether, given the peculiar facts in

this case, a flight charge is appropriate.     In doing so, the

court must determine whether the probative value of evidence of

flight is “substantially outweighed by the risk of . . . undue

prejudice, confusion of issues, or misleading the jury,”

N.J.R.E. 403(a), and whether a carefully crafted limiting

instruction could ameliorate any potential prejudice.

                                 VI.

    For the reasons expressed, we affirm the Appellate

                                  36
Division’s judgment reversing the trial court’s denial of

defendant’s suppression motion but reverse its judgment granting

a new trial based on the trial court’s failure to charge the

jury on “mere presence.”   We remand to the trial court for

proceedings consistent with this opinion.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN’s
opinion.




                                37
