                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3984-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUAN D. OSBORNE,

     Defendant-Appellant.
_________________________________

              Submitted May 8, 2017 – Decided May 24, 2017

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              13-05-0740.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel V. Gautieri, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Sarah E. Ross, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM

        After losing a suppression motion, defendant Juan D. Osborne

pleaded      guilty    to   third-degree      possession      of   a   controlled
dangerous substance (CDS), heroin, and a judge sentenced him to

probation for one year.        On appeal, defendant raises a single

argument:


            ONCE THE POLICE, WHO WERE EXECUTING A WARRANT
            TO SEARCH A PARTICULAR APARTMENT, REALIZED OR
            SHOULD HAVE REALIZED THAT THEY WERE IN A
            BASEMENT THAT WAS SHARED WITH OTHER TENANTS,
            THEY ACTED UNREASONABLY IN SEARCHING THERE
            BECAUSE THEY LACKED PROBABLE CAUSE TO BELIEVE
            THAT ANY ITEM THEY DISCOVERED WAS THE
            DEFENDANT'S.

For the reasons that follow, we affirm.

     In May 2013, a Monmouth County grand jury charged defendant

in an indictment with five CDS offenses, including third-degree

possession of heroin, N.J.S.A. 2C:35-10(a)(1).               Following the

indictment, defendant moved to suppress thirty bags of heroin

police seized from the basement of the apartment house where he

lived.   The trial court denied the motion.           Thereafter, defendant

agreed to plead guilty to third-degree possession of heroin in

exchange for the State recommending a non-custodial sentence and

dismissing the indictment's remaining counts.           The court sentenced

defendant accordingly and imposed appropriate fines and penalties.

Defendant appealed from the denial of his suppression motion.

     Police conducted the search of defendant's apartment and the

basement    of   the   apartment   building   after    obtaining   a    search

warrant.     Defendant does not dispute the warrant was lawfully

                                      2                                A-3984-14T1
issued, nor does he challenge the search of his apartment. Rather,

he challenges the search and seizure of CDS from the apartment

building's basement.

     Defendant lived in "Apartment #1" of an Asbury Park multi-

family   dwelling.      The    warrant   described    the   building    and

defendant's residence as:

          A three story, multiple family dwelling with
          yellow siding, white trim around the windows
          and doors, and a charcoal gray shingled roof.
          To the right of the center of the front of the
          house is a gray staircase with a gray railing
          leading to a porch. To the right of the stairs
          is a white column supporting the porch roof.
          On the white column are the numbers "512"
          written in black.      There are two doors
          accessed from the porch, one directly in front
          of the stairs and the other on the left end
          of the porch. To the left of the main door
          are two mailboxes black in color. To the left
          of the building is a concrete driveway that
          warps around to a parking area. In the middle
          of the back of the building is a white door
          which accesses apartment #1[.]

The warrant authorized the search of "the residence hereinabove-

named including the curtilage and the shed."

     During   the    hearing   on   defendant's      suppression   motion,

Monmouth County Prosecutor's Detective Keith Finkelstein testified

that on January 23, 2013, he and other law enforcement officers

arrived at defendant's residence to execute the warrant. Detective

Finkelstein described the residence as a "three-story house with



                                    3                              A-3984-14T1
yellow siding" and noted the door to Apartment #1 was in the rear

of the home.

     Detective Finkelstein went to the rear of the house and

knocked on defendant's apartment door, but received no answer.

The detective checked the knob, noticed the door was unlocked, and

entered    the    home.         Upon   entering    the   residence,    Detective

Finkelstein noticed a series of hallways providing access to a

small bedroom, bathroom, living room and kitchen.                     Inside the

kitchen was an unlocked door providing access to the basement.

Detective Finkelstein opened the basement door and observed a

"tiny   landing    in     the   stairs   leading    to   the   basement."     The

detective believed the basement was part of Apartment #1 because

it was accessible from that apartment.             The detective searched the

basement and seized thirty bags of suspected heroin inside a red

utility lamp.

     According to Detective Finkelstein, the basement had two

doors: the one providing access to the basement from defendant's

apartment, and another leading to the exterior driveway.                The door

leading to the exterior driveway was secured by an exterior

padlock.

     In addition to Detective Finkelstein, the State presented the

testimony of the building's landlord.             The landlord explained that

the building was a "modified single family home" with three

                                          4                              A-3984-14T1
separate apartments, all of which were occupied on the date of the

search.     He further explained that the basement, which spanned the

entire building, is accessible only by two doors — one from the

kitchen of Apartment #1 and the other from an exterior door to the

backyard, padlocked from the outside.               The building's tenants had

keys to the exterior padlocked door so they could check their fuse

boxes.      The landlord also testified that he and the other tenants

stored some of their belongings in the basement.                  According to the

landlord, the basement was a shared space; no tenant could place

something in the basement that "would be protected from access

from the other tenants."

      The    trial     court    found   the   testimony      of   both   witnesses

"straightforward and credible" and denied the motion.                    In an oral

opinion delivered from the bench, the court found the tenants had

a diminished expectation of privacy in the basement "based on the

fact that [they all] had access to" the items stored therein.                    The

court found the search of the basement was within the warrant's

scope.

      On appeal, defendant argues police unlawfully searched the

basement "[b]ecause the police could not tell whose items were

whose"    and   thus    "lacked    probable     cause   to    believe     that   any

particular items belonged to [defendant]."              Defendant contends it

was   not    objectively       reasonable     for   Detective     Finkelstein      to

                                         5                                  A-3984-14T1
believe     that    only   defendant      had   access   to     the   basement,

particularly in view of the landlord's testimony that the basement

spanned the entire building.         For these reasons, defendant argues

the police should have contacted a judge by telephone to obtain a

warrant for the basement or contacted the other tenants in the

building to have them identify their belongings.

     We review a decision on a motion to suppress evidence by

"accord[ing]       deference   to   the   factual    findings   of    the     trial

court[.]"     State v. Scriven, 226 N.J. 20, 32 (2016) (citation

omitted).     Our review of a trial court's legal conclusions is

plenary.     State v. Rockford, 213 N.J. 424, 440 (2013) (citations

omitted).

     The Fourth Amendment to the Federal Constitution and Article

I, Paragraph 7 of the New Jersey Constitution require that a search

warrant "particularly" describe the area to be searched.                        U.S.

Const. amend. IV; N.J. Const. art. I, ¶ 7.               Although "pin-point

precision" is not required, a warrant must describe the premises

to be searched with reasonable accuracy.            State v. Wright, 61 N.J.

146, 149 (1972) (citations omitted).                Stated another way, the

description of the premises requires no more than "practical

accuracy."    State v. Daniels, 46 N.J. 428, 437 (1966).

     "[O]fficers searching a person's home . . . under authority

of a search warrant are authorized to use only those investigatory

                                          6                                 A-3984-14T1
methods, and to search only those places, appropriate in light of

the scope of the warrant."       State v. Reldan, 100 N.J. 187, 195

(1985) (citing Harris v. United States, 331 U.S. 145, 152, 67 S.

Ct. 1098, 1102, 91 L. Ed. 1399, 1407 (1947)).            For these reasons,

"[a]n analysis of the reasonableness of the methods used in a

search, as well as the areas searched, should focus upon whether

the search in its totality was consistent with the object of the

search."    Ibid.

     In    this   regard,   "certain       'structures   have   been    deemed

appurtenant to the premises specified in the search warrant, though

not physically . . . under the purview of the warrant.'"                 Wayne

R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment,

§ 4.10(a) at 940 (5th ed. 2012) (quoting United States v. Fagan,

577 F.3d 10, 13 (1st Cir. 2009), cert. denied, Fagan v. United

States, 559 U.S. 958, 130 S. Ct. 1556, 176 L. Ed. 2d 144 (2010)).

"Structures that have been found to be appurtenant to described

residential premises include storage closets, cabinets, storage

rooms and bins, lockers, mailboxes, and birdhouses."             Id. at 941.

     Fagan involved a motion to suppress evidence seized from a

storage closet by officers executing a search warrant for the

neighboring apartment.      Supra, 577 F.3d at 12.         The court noted

"[t]he Warrant Clause of the Fourth Amendment has been interpreted

to permit searches not only of the premises specified in a warrant

                                       7                               A-3984-14T1
but also of structures 'appurtenant' to those premises."          Id. at

11.   Explaining that "case law . . . provides very little guidance

as to how courts should determine whether or not a given structure

is appurtenant to described premises[,]" the court determined

           the standard to be applied is one of objective
           reasonableness.    So long as the officers
           executing the warrant have an objectively
           reasonable basis, in light of the known
           characteristics of the location and the
           evidence at hand, for concluding that a
           structure is appurtenant to the premises
           specified   in   the  search   warrant,   that
           structure may validly be searched under the
           purview of the warrant.

           [Id. at 13 (citation omitted).]

      The court noted case law provided "guideposts" for courts

determining   "[w]hether   a   searching   officer   reasonably     could

conclude that a specific structure is appurtenant to the premises

specified in a particular search warrant."      Id. at 14.

           These include the proximity of the structure
           to the described premises, see [United States
           v. Ware, 890 F.2d 1008, 1011 (8th Cir. 1989)]
           (holding that a storage room next to an
           apartment was "near enough to alert the
           searching officers that it was an appurtenance
           of the apartment"); the location's layout and
           the context-specific relationship between the
           structure and the premises specified in the
           warrant, see [United States v. Principe, 499
           F.2d 1135, 1137 (1st Cir. 1974)]; and
           extrinsic    evidence,   including    evidence
           discovered during admittedly valid portions of
           the search, suggesting that the structure is
           appurtenant to the premises specified in the
           warrant, see Ware, [supra,] 890 F.2d at 1011

                                   8                              A-3984-14T1
          (observing that the defendant's key ring
          included keys to a storage room deemed
          appurtenant to the premises specified in the
          warrant).

          [Ibid.]

     Here, the officers who searched defendant's apartment could

reasonably conclude the basement was appurtenant to the apartment.

Defendant had immediate and unfettered access to the basement

through an unlocked door in his apartment, which opened directly

into the basement stairway.      The only other means of ingress and

egress to the basement was an exterior padlocked door.       Thus, it

appeared defendant had primary, if not exclusive, access to the

basement connected to his apartment.        Neither of the other two

units in the building had a door leading to the basement.         Under

these circumstances, the trial court did not err by concluding the

search of the basement did not exceed the scope of the warrant.

     The trial court also concluded defendant had a diminished

expectation of privacy in the basement because, as the landlord

testified, the landlord and the other tenants had access to the

basement to check fuse boxes and for storage.       Defendant argues

the trial court erred by finding the search was lawful in view of

defendant's diminished expectation of privacy.

     We   have   held   in   a   somewhat   different   context   —   a

superintendent of a multi-story, multi-unit apartment complex


                                   9                          A-3984-14T1
giving consent to law enforcement officers to search a locked room

in the building's basement used to store recycling material, to

which the superintendent, the defendant, and one other person had

keys — "a worker sharing locked work space cannot reasonably have

an expectation of privacy where other workmen have access to the

same work space."        State v. Brown, 282 N.J. Super. 538, 547 (App.

Div.), certif. denied, 143 N.J. 322 (1995).               We further noted "a

tenant does not have a reasonable expectation of privacy in the

common areas of a building merely because doors to the common

areas are normally kept locked and require a key for access."                   Id.

at 547 (citing United States v. Concepcion, 942 F.2d 1170, 1171-

72 (7th Cir. 1991)).       Cf., State v. Saez, 268 N.J. Super. 250, 261

(App.   Div.    1993)    (holding     the    defendants    had    a    reasonable

expectation of privacy in their part of the basement partitioned

off from the adjoining resident's part of the basement by a poorly

constructed wooden wall that had holes or gaps through which law

enforcement officers could observe drug activity), rev'd on other

grounds, 139 N.J. 279, 280 (1995).

     Here,     whether    defendant    had   a   reasonable      expectation      of

privacy in the basement is irrelevant, because the search of the

basement was within the scope of the search warrant.                  No principle

of New Jersey Constitutional law is inconsistent with the Fourth

Amendment jurisprudential principle that appurtenances may be

                                       10                                  A-3984-14T1
searched under the authority of a warrant issued for a particular

residence.

     We have considered defendant's remaining arguments and found

them to be without sufficient merit to warrant further discussion.

R. 2:11-3(e)(2).

     Affirmed.




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